Citation Nr: 21068958 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 15-17 511 DATE: November 17, 2021 ORDER Entitlement to a compensable rating for a right rib fracture has been withdrawn. Entitlement to service connection for hearing loss has been withdrawn. Entitlement to service connection for fibromyalgia has been withdrawn. Entitlement to service connection for chronic fatigue syndrome has been withdrawn. Entitlement to service connection for a right hip disability has been withdrawn. Entitlement to service connection for a left hip disability has been withdrawn. REMANDED Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. FINDINGS OF FACT During a January 2021 hearing, the Veteran withdrew the issues of entitlement to a compensable rating for a right rib fracture, and entitlement to service connection for hearing loss, fibromyalgia, chronic fatigue syndrome, a right hip disability, and left hip disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of entitlement to a compensable rating for a right rib fracture are met. 38 C.F.R. § 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for withdrawal of the issue of entitlement to service connection for hearing loss are met. 38 C.F.R. § 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 3. The criteria for withdrawal of the issue of entitlement to service connection for fibromyalgia are met. 38 C.F.R. § 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 4. The criteria for withdrawal of the issue of entitlement to service connection for chronic fatigue syndrome are met. 38 C.F.R. § 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 5. The criteria for withdrawal of the issue of entitlement to service connection for a right hip disability are met. 38 C.F.R. § 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 6. The criteria for withdrawal of the issue of entitlement to service connection for a left hip disability are met. 38 C.F.R. § 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active service in the United States Army from April 1998 to July 1998, and from June 2002 to December 2004. The Veteran presented testimony at a Board hearing before the undersigned Veterans Law Judge (VLJ) in January 2021. 1. Entitlement to a compensable rating for a right rib fracture 2. Entitlement to service connection for hearing loss 3. Entitlement to service connection for fibromyalgia 4. Entitlement to service connection for chronic fatigue syndrome 5. Entitlement to service connection for a right hip disability 6. Entitlement to service connection for a left hip disability The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. A substantive appeal may be withdrawn on record at a hearing or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. During his January 2021 Board hearing, the Veteran's representative stated the Veteran's wishes to withdraw his claims of entitlement to a compensable rating for a right rib fracture, and entitlements to service connection for hearing loss, fibromyalgia, chronic fatigue syndrome, a right hip disability, and left hip disability. The Veteran confirmed that his intentions in this regard, after being fully informed of the consequences of withdrawing his claims. As such, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these issues on appeal, and they are dismissed. REASONS FOR REMAND 1. Entitlement to service connection for a neck disability is remanded. 2. Entitlement to service connection for a right ankle disability is remanded. 3. Entitlement to service connection for a right knee disability is remanded. 4. Entitlement to service connection for a left knee disability is remanded. In July 2014, the Veteran was provided with VA examinations for his claims relating to his neck, right ankle, and bilateral knee disabilities. The Board, however, find that such examination reports are inadequate and further development is required by the VA. Specifically, a close review of the opinions provided by the VA examiner reveal the same, verbatim, rationale simply noting no objective evidence of any ongoing disabilities were found in the Veteran's service treatment records (STRs). The examiner's opinions fail to address or show consideration of any lay evidence of record, to include the Veteran's explicit assertion of ongoing pain and functional loss since service. The Board notes that the VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). When the medical evidence is inadequate, as it is here, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). The Board finds that the July 2014 VA examinations to be inadequate, or incomplete, and requires further development, to specifically include consideration of all lay evidence with regards to his claimed conditions. Here, not only has the Veteran explicitly and continuously noted his ongoing pain related to his injury/ incurrence during service, but he has also submitted several lay statements from his family whom all noted physical and functional limitations upon his return from active service. Additionally, during the Veteran's hearing, before the undersigned, the Veteran again noted that his claimed conditions related to his neck, knees, and right ankle, had progressed since his various injury and incurrence during service. Specifically, with regards to his neck disability, the Veteran noted that the same motor vehicle accident in 2003 (during active service) in which he fractured his ribs (for which he was awarded service connection) also causes injuries his neck, and that he has experienced pain in his neck since that time. The Board notes a letter noting an "in line of duty" determination with regards to his neck disability is of record. The Veteran, during his hearing, reiterated his contentions that his neck condition has never fully recovered since the injury, and that he had been self-medicating with over-the-counter ibuprofen and pain medication since service. Likewise, with regards to his right ankle and his bilateral knees, these conditions have all been noted to have arose during active service due to injury/incurrence and were never resolved. To this end, the Veteran noted that he experiences continuous pain from his knees and right ankle since his active service, and that he had treated such pain with over-the-counter drugs until the present. While the Board acknowledges that such lay assertions and evidence may not be sufficient and/or competent to be dispositive of the claims, the Veteran is, however, competent to speak to experiencing ongoing pain, and any VA examiner must demonstrate consideration of such lay assertions in developing an opinion. Here, as the July 2014 VA opinions are silent on any consideration of the Veteran's lay contentions of ongoing disability since service, the Board must remand these claims for the VA to fulfill its duty to the Veteran. 5. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Likewise, the Board finds that the June 2013 VA examination afforded to the Veteran to evaluate his claimed GERD is also considered inadequate, as it fails to provide any nexus opinion regarding the development of the diagnosed GERD in the report. To this end, the Board notes that reflux had been noted in the Veteran's STRs during active service, and the Veteran has also, alternatively, claimed that such condition is secondary to the medications he had taken for his physiological disabilities. As an opinion regarding the etiology of the Veteran's GERD has not been provided, the Board finds that remand is required to acquire an adequate nexus opinion. The matters are REMANDED for the following action: 1. Obtain all VA medical records of treatment to include any hospitalizations. 2. Schedule the VA examination with a medical doctor. The examiner must provide an opinion with regard to the etiology of any diagnosed neck disability, as it relates to any aspect of active service. The examiner must review the claims file and should note that review in the report. The examiner is asked to provide an opinion and rationale for the following: (a) an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that any diagnosed neck disability, diagnosed at any point during the claims period (i) had its onset during active service, or is related to any in-service disease, event, or injury; (ii) is due to or the result of a service-connected disability, or is aggravated (permanently increased in severity beyond the natural progress of the disorder) by a service-connected disability. In providing the requested opinions, the examiner must consider and discuss any relevant injuries or symptomatology noted in the STRs and the lay statements of record regarding the onset and progression of the claimed disorder. 3. Schedule the VA examination with a medical doctor. The examiner must provide an opinion with regard to the etiology of any diagnosed right ankle disability, as it relates to any aspect of active service. The examiner must review the claims file and should note that review in the report. The examiner is asked to provide an opinion and rationale for the following: (a) an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that any diagnosed right ankle disability, diagnosed at any point during the claims period, (i) had its onset during active service, or is related to any in-service disease, event, or injury; (ii) is due to or the result of a service-connected disability, or is aggravated (permanently increased in severity beyond the natural progress of the disorder) by a service-connected disability. In providing the requested opinions, the examiner must consider and discuss any relevant injuries or symptomatology noted in the STRs and the lay statements of record regarding the onset and progression of the claimed disorder. 4. Schedule the VA examination with a medical doctor. The examiner must provide an opinion with regard to the etiology of any diagnosed bilateral knee disability, as it relates to any aspect of active service. The examiner must review the claims file and should note that review in the report. The examiner is asked to provide an opinion and rationale for the following: (a) an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that any diagnosed bilateral knee disability, diagnosed at any point during the claims period, (i) had its onset during active service, or is related to any in-service disease, event, or injury; (ii) is due to or the result of a service-connected disability, or is aggravated (permanently increased in severity beyond the natural progress of the disorder) by a service-connected disability. In providing the requested opinions, the examiner must consider and discuss any relevant injuries or symptomatology noted in the STRs and the lay statements of record regarding the onset and progression of the claimed disorder. 5. Schedule the VA examination with a medical doctor. The examiner must provide an opinion with regard to the etiology of his diagnosed GERD, as it relates to any aspect of active service. The examiner must review the claims file and should note that review in the report. The examiner is asked to provide an opinion and rationale for the following: (a) an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed GERD, diagnosed at any point during the claims period, (i) had its onset during active service, or is related to any in-service disease, event, or injury; (ii) is due to or the result of a service-connected disability, or is aggravated (permanently increased in severity beyond the natural progress of the disorder) by a service-connected disability, or medication taken for such service-connected disabilities. In providing the requested opinions, the examiner must consider and discuss any relevant injuries or symptomatology noted in the STRs and the lay statements of record regarding the onset and progression of the claimed disorder. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ziheng Zhu, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.