Citation Nr: 21070147 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 17-50 246 DATE: November 23, 2021 ORDER Entitlement to service connection for bilateral hearing loss is dismissed. REMANDED Entitlement to service connection for a low back condition is remanded. FINDING OF FACT During the July 2021 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran expressed his desire to withdraw his appeal as to the claim of entitlement to service connection for bilateral hearing loss. CONCLUSION OF LAW The criteria for withdrawal of a substantive appeal as to the issue of entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. § 7105 (b)(2) (West 2012); 38 C.F.R. §§ 20.202, 20.204. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1992 to April 2012. In July 2021, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. The Board notes that based on the evidence of record, the Board has re-characterized the Veteran's claim of entitlement to service connection for degenerative disc disease of the lumbar spine, more broadly as a claim of entitlement to service connection for a low back condition. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Withdrawal Bilateral Hearing Loss A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b). Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204 (c); see DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing and meet certain requirements set forth by regulation. They must include the name of the appellant, the applicable file number, and a statement that the appeal is being withdrawn. 38 C.F.R. § 20.204 (b) (1). At his Board hearing in July 2021, prior to the issuance of a final decision, the Veteran expressed his desire to withdraw his appeal with respect to the issue of entitlement to service connection for bilateral hearing loss. The Veteran clearly expressed unambiguous intent to withdraw the appeal for this issue based on his own volition. During the Board hearing, the VLJ explained the consequences of withdrawing the appeal as to the claim of entitlement to service connection for bilateral hearing loss on the record. Additionally, the Veteran understood the consequences of his withdrawal. The undersigned VLJ confirmed that request on the record. See July 2021 Board Hearing Transcript, pp. 2-3. Because the Veteran has withdrawn the previously mentioned issue on appeal, there is effectively no longer any remaining allegation of error of fact or law. See 38 U.S.C. § 7105 (d)(5). Accordingly, the Board will dismiss the appeal of the issue of entitlement to service connection for bilateral hearing loss. REASONS FOR REMAND Low Back Condition With respect to the Veteran's claim for a low back condition, the Board finds that further development is warranted. Here, the Veteran contends that he first developed back pain in 1994, during his service when he was loading conex boxes onto the ship. He felt a sharp twinge in his back, and it radiated down his left leg. See July 2021 Board Hearing Testimony, pp 5. The Veteran also testified that he continued to suffer from back pain throughout service and subsequent to his separation from service, with limitations in his daily activities. In a June 2015 VA examination report for back conditions, the VA examiner diagnosed the Veteran with lumbar degenerative disc disease and scoliosis. The VA examiner opined that the Veteran's low back condition was less likely than not related to his service. The VA examiner stated that the "rationale is that the active-duty records show one time complaint of low back pain in 2010, he was given tramadol and never required further evaluation or treatment." Unfortunately, the Board finds that the July 2015 VA examiner's opinion is inadequate. At the onset, the Board notes that additional service treatment records were associated with the Veteran's claims file that were not considered by the July 2015 VA examiner. In June 2016, service treatments records were associated with record, which reflect an x-ray report taken in June 1994 after the Veteran complained of back pain. Also, in October 2017 service treatment records were associated with the claims file, which reflect a May 2011 note, in which the examiner noted "chronic low back pain." Thus, as these records were associated with the record after the July 2015 examiner rendered an opinion, the examiner did not have an opportunity to review these records in formulating the July 2015 VA medical opinion. Significantly, the Board notes that while the July 2015 VA examiner concluded that there was only a one-time back complaint in the Veteran's service treatment records, the service treatment records that were available to the July 2015 VA examiner also noted chronic low back pain. See May 2011 service treatment record. These records also reflect complaints of low back pain in June 2010. Furthermore, these records reflect the Veteran reported a "remote history of back problems" at his December 14, 2010 medical appointment. See December 14, 2010 service treatment record. As such, even considering the records available to the examiner at the time of the July 2015 VA medical opinion, the records reflect more than one complaint of back pain, which were not considered in the July 2015 VA medical opinion. Lastly, the Board notes that the Veteran's lay statements also reflect that he suffered from back pain during service and has continued to do so post-separation from service. During the July 2021 Board hearing, the Veteran testified that his back pain began in 1994 and has continued since. While the July 2015 VA examiner noted that the Veteran reported the onset of his back pain began in 1993, the VA examiner did not discuss the Veteran's statements in the rationale provided. Therefore, for the above reasons, the Board finds that the July 2015 VA examiner's medical opinion is inadequate, as it was not based on a complete review of relevant service treatment records, is not consistent with the evidence of records (here the record reflects more than one complaint of back pain), and the examiner did not consider and discuss the Veteran's lay statements. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Additionally, the Board notes that the July 2015 VA examiner noted a diagnosis of scoliosis. However, the VA examiner did not discuss whether the Veteran's diagnosis of scoliosis is a congenital defect or disease. The Board acknowledges that congenital or developmental defects are not considered "diseases or injuries" within the meaning of applicable legislation and, hence, do not constitute disabilities for VA compensation purposes. See 38 C.F.R. §§ 3.303 (c), 4.9. However, service connection may be granted for disability due to aggravation of a congenital abnormality by superimposed disease or injury in service. See Carpenter v. Brown, 8 Vet. App. 240, 245 (1995). A congenital defect can be subject to superimposed disease or injury, and if superimposed disease or injury occurs during military service, service-connection may be warranted for the resultant disability. VAOPGCPREC 82-90; 38 C.F.R. § 3.303 (c). Thus, an addendum opinion is required that discusses whether the Veteran's scoliosis is a congenital defect, and if so, whether there was aggravation during service or a superimposed disease or injury. The matters are REMANDED for the following action: 1. With any necessary assistance from the Veteran, obtain any outstanding records relevant to the Veteran's claim for a low back condition. All attempts to obtain these records must be documented in the claims file. The RO should follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159 (c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). 2. Upon completion of the above to the extent possible, request an addendum opinion from a qualified medical professional to determine the nature and etiology of the Veteran's current low back condition. After review of the evidence, to include all the service treatment records, as well as medical records, lay statements, and any other relevant evidence, the examiner is asked to provide an opinion to the following: a) Whether the Veteran's low back disability, to include lumbar degenerative disc disease, is at least as likely as not caused by or related to the Veteran's service, to include the Veteran's in-service back complaints. In addressing this opinion, the VA examiner must discuss the Veteran's in-service treatment records, to include, but not limited to: a) 1994 x-ray of lumbar spine b) A June 2010 reports of low back pain c) December 2010 report of a "remote history of back pain" d) May 2011 report of "chronic low back pain" The examiner should also discuss the Veteran's lay statements regarding the history and chronicity of symptomatology, to include: the Veteran's statements of an in-service injury in 1994 to his back when carrying boxes onto the ship; and the Veteran's ongoing reports of a back problems. Specifically addressing: a. Are the Veteran's assertions consistent with medical knowledge or implausible? b. Are the Veteran's reports about symptoms or an in-service injury align with how the disease or disability is known to develop? S/he should outline that history in the report. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, a reason for doing so must be provided. b) With respect to the Veteran's diagnosis of scoliosis, the examiner is first asked to indicate whether diagnosis of scoliosis is a congenital defect OR congenital disease. If a defect, the examiner is asked whether there is a superimposed injury or disease that as likely as not (50 percent or greater probability) aggravates (that is, caused an increase in severity beyond the normal progress of the disease) the defect or the symptoms caused by the defect. If a disease, which was not noted upon entrance into service, did it clearly and unmistakably (obviously or manifestly) exist prior to the Veteran's entry into active duty service? If the disease, did it clearly and unmistakably existed prior to service, was it clearly and unmistakably (obviously or manifestly) not aggravated by military service, to include in-service back complaints? In this context, "aggravation" has occurred where there is an increase in disability beyond the natural progress of the disease. If the disease did NOT clearly and unmistakably exist prior to service and/or was not clearly and unmistakably not aggravated by service, then assume for the purposes of answering the following question that the claimed condition did not exist prior to service: Is it at least as likely as not (at least a 50 percent probability) that the Veteran's scoliosis were incurred in or are otherwise etiologically related to active military service, to include in-service back complaints? Any opinion expressed by the VA examiner must "contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Abdelbary, 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.