Citation Nr: 21005514 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 08-20 428 DATE: February 1, 2021 ORDER Entitlement to a compensable rating prior to November 26, 2019, and a rating in excess of 10 percent from November 26, 2019, for a right-tibial stress fracture involving the right ankle (right ankle disability) is dismissed. REMANDED Entitlement to service connection for a left shoulder disability is remanded. FINDING OF FACT At the December 2020 personal hearing, prior to the promulgation of a Board of Veterans’ Appeal (Board) decision, the Veteran notified the Veterans' Administration (VA) that he wanted to withdraw his appeal as to his claim for increased ratings for his right ankle disability. CONCLUSION OF LAW The criteria for withdrawal of the claim for increased ratings for a right ankle disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service with the United States Army from April 1989 to February 1998 with additional service with the Army National Guard with periods of active duty for training and inactive duty training from February 1998 until April 2007. In July 2016, the Veteran testified at a videoconference hearing before Veterans’ Law Judge (VLJ) Michael D. Lyon and a transcript of that hearing is of record. In December 2018, VLJ Lyon issued a decision that denied the claim of service connection for a left shoulder disability and remanded the claim for an increased rating for the right ankle disability. As to the claim of service connection for a left shoulder disability, the Veteran appealed the December 2018 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2019 order, that incorporated the parties Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the Board’s December 2018 decision to the extent that it denied service connection for a left shoulder disability. As to the claim of service connection for a left shoulder disability, in April 2020 the Board remanded this issue to undertake the development required by the JMPR. As to the claim for an increased rating for a right ankle disability, a subsequent July 2020 rating decision granted the Veteran a 10 percent rating effective from November 26, 2019. Therefore, the Board has characterized this issue as it appears above. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In December 2020, the Veteran testified at a second hearing, a virtual hearing, before VLJ John J. Crowley and a transcript of that hearing is also of record. As to the two personal hearings held in connection with this appeal by two different VLJs, the Board finds that a single VLJ adjudication of the appeal by VLJ Crowley is appropriate and does not deny the Veteran due process despite 38 U.S.C. § 7102(a) and the Court’s holding in Arneson v. Shinseki, 24 Vet. App. 379 (2011). The Board has reached this conclusion because as documented in the transcript from the December 2020 hearing VLJ Crowley only held the second hearing because VLJ Lyon is retiring shortly and the Veteran expressly agreed to have his appeal decided by a single VLJ (i.e., VLJ Crowley). The Withdrawal As to the claim for increased ratings for a right ankle disability, under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. Here, at the December 2020 personal hearing, prior to the promulgation of a Board decision, the Veteran notified the VA that he wanted to withdraw his appeal as to his claim for increased ratings for his right ankle disability. VA received this withdrawal before the Board issued a decision. Moreover, the withdrawal is memorialized in the personal hearing transcript. See, e.g., Tomlin v. Brown, 5 Vet. App. 355 (1993) (the transcript of a personal hearing may act as a substantive appeal). The Board also finds that the withdrawal is (1) explicit; (2) unambiguous; and (3) done with a full understanding of the consequences of such action on the part of the Veteran. See Acree v. O’Rourke, 17-1749; DeLisio v. Shinseki, 25 Vet. App. 45 (2011); also see Tomlin v. Brown, 5 Vet. App. 355 (1993) (the transcript of a personal hearing may act as a substantive appeal). Therefore, there remains no allegation of error of fact or law for appellate consideration with respect to this issue. Accordingly, the Board does not have jurisdiction to review it and the appeal as this issue is dismissed. REASONS FOR REMAND Entitlement to service connection for a left shoulder disability is remanded. As to the claim of service connection for a left shoulder disability, as noted above, the Board remanded this issue in April 2020 to obtain an adequate etiology opinion as to whether the Veteran’s disability was due to his military service and/or secondary to his service-connected neck and/or back disabilities to include whether they aggravated his left shoulder disability. However, while the post-Remand record shows that the RO obtained a VA etiology opinion in August 2020, the Board does not find that opinion adequate. The Board has reached this conclusion because, while the examiner opined that the Veteran’s left shoulder disability was not “proximately due” his neck and/or back disabilities and there was “no causative relation” between his left shoulder disability and his service-connected neck and/or back disabilities, neither opinion directly addresses whether the appellant’s left shoulder disability was “aggravated” by his service-connected neck and/or back disabilities. Therefore, the Board finds that a Remand is again required to obtain an adequate etiology opinion. See 38 U.S.C. § 5103A(d); El–Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that, when multiple theories of entitlement are at issue, the Board must ensure that the medical opinions of record directly address all theories reasonably raised by the record); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Forcier v. Nicholson,19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court’s order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled). In this regard, the post-Remand VA examiner when providing the requested opinion and the RO when again adjudicating the claim should be mindful of the fact that since the Board last remanded this claim the Court redefined its’ definition of aggravation. Specifically, in Ward v. Wilkie, 31 Vet. App. 233 (2019) the Court redefined the definition of aggravation to know include a temporary worsening of a disability. Next, the Board finds that a Remand is required to obtain and associate with the record any of the Veteran’s outstanding private and VA treatment records to include his records from the Social Security Administration (SSA) which were requested by the RO in October 2020 and which have not as yet been associated with the claims file. See 38 U.S.C. § 5103A(b); Martin v. Brown, 4 Vet. App. 136, 140 (1993) (in deciding a claim for an increased rating, the SSA’s decision is ‘pertinent’ to a determination of a veteran’s ability to engage in substantially gainful employment, quoting Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992)). Lastly, the Board finds that a Remand is required for the RO to issue a supplemental statement of the case (SSOC) that considers the Veteran’s claim taking into account all the evidence added to the record since it issued the August 2020 SSOC. See 38 C.F.R. § 19.31 (a SSOC will be furnished to the veteran when additional pertinent evidence is received after a statement of the case has been issued). This issue is REMANDED for the following actions: 1. Associate with the record any all medical records and decisions on file with the SSA related to the Veteran’s award of disability benefits. If possible, the Veteran’s representative should submit any new pertinent evidence that the Board does not have. This would greatly help the Board and help expedite the case. Because these are Federal records, efforts to obtain them should be ended only if it is concluded that the records sought do not exist or that further efforts to obtain them would be futile. If the records cannot be located or no such records exist, a Memorandum of Unavailability documenting all of VA’s actions to obtain the records should be prepared and associated with the claims file and the Veteran and his representative should be notified in writing that the records cannot be found. 2. Associate with the record any outstanding VA treatment records. 3. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran’s representative should submit any new pertinent evidence that the Board does not have. This would greatly help the Board and help expedite the case. 4. In order to comply with the JMPR, schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the etiology of his left shoulder disability. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical) and all evidence obtained during the examination, the examiner is asked to address the following: a. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that a left shoulder disability was caused by the Veteran’s military service. b. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any left shoulder disability arthritis manifested in the first post-service year. c. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s left shoulder disability was caused by his service-connected neck and back disabilities. d. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s left shoulder disability was aggravated by his service-connected neck and back disabilities. In order to comply with the JMPR, in providing answers to the above question the examiner should consider and discuss the service treatment records to include the December 9, 2006, service treatment record that diagnosed “TENDONITIS SUPRASPINATUS.” In order to comply with the JMPR, in providing answers to the above question the examiner should consider and discuss the Veteran’s competent lay claims regarding observable symptomatology to include, as noted in the JMPR, the appellant’s contention that he first injured his shoulder during a Bradley tank crash. In providing answers to the above questions, the examiner is also advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In order to comply with the JMPR and last remand, in providing the requested etiology opinions the examiner should use words like “caused” and “aggravated” and NOT “proximately due” and “no causative relation.” In providing the etiology opinion, the examiner should also be aware of the facts that the Court held in Ward, supra, that a “permanent worsening” of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). The examiner must include in the medical report the rationale for any opinion expressed. However, if the examiner cannot respond to an inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 5. The RO shoulder thereafter issue a SSOC that considers the Veteran’s claim taking into account all the evidence added to the record since it issued the August 2020 SSOC. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.