Citation Nr: 21012044 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 17-10 682A DATE: March 3, 2021 ORDER The appeal for the issue of entitlement to an initial evaluation in excess of 20 percent for right shoulder strain is dismissed. The appeal for the issue of entitlement to service connection for bilateral hearing loss is dismissed. The appeal for the issue of entitlement to service connection for bilateral shin splints is dismissed. The appeal for the issue of entitlement to service connection for bilateral plantar fasciitis is dismissed. REMANDED Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for a bilateral knee disorder is remanded. Entitlement to service connection for a bilateral ankle disorder is remanded. FINDING OF FACT During the July 2020 hearing, prior to promulgation of a decision in the appeal, the Veteran withdrew the appeal for the issues of entitlement to an initial evaluation in excess of 20 percent for right shoulder strain and entitlement to service connection for bilateral hearing loss, bilateral plantar fasciitis, and bilateral shin splints. CONCLUSION OF LAW The criteria for withdrawal of an appeal are met for the issues of entitlement to increased ratings for asthma and right shoulder strain and of entitlement to service connection for bilateral hearing loss, bilateral plantar fasciitis, and bilateral shin splints. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from September 2003 to September 2007. He had additional service in the United States Marine Corps Reserve from September 2007 to September 2008 and in the Army National Guard from October 2008 to September 2009. His awards and decorations include the Combat Action Ribbon. These matters come before the Board of Veterans’ Appeals (Board) from January 2015, December 2015, and October 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2020, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. The undersigned Veterans Law Judge held the record open for a 30-day period following the hearing to allow for the submission of additional evidence. Thereafter, in July 2020, the Veteran’s representative submitted additional evidence with a waiver of initial Agency of Original Jurisdiction (AOJ) consideration. Law and Analysis The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55(a). Withdrawal may be made by the appellant or an authorized representative. Id. Withdrawal of an appeal will be deemed a withdrawal of the Notice of Disagreement and, if filed, the Substantive Appeal, as to all issues to which the withdrawal applies. 38 C.F.R. § 19.55(c). Withdrawal does not preclude filing a new Notice of Disagreement and, after a Statement of the Case is issued, a new Substantive Appeal, as to any issue withdrawn, provided such filings would be timely under these rules if the appeal withdrawn had never been filed. Id. During the July 2020 hearing, the Veteran withdrew the appeal for the issues of entitlement to an increased rating for right shoulder strain and entitlement to service connection for bilateral hearing loss, bilateral plantar fasciitis, and bilateral shin splints. Thus, there remain no allegations of errors of fact or law for appellate consideration concerning these issues. Accordingly, the Board does not have jurisdiction to review these issues and they are dismissed. REASONS FOR REMAND The Veteran was afforded VA spine, knee, and ankle examinations in December 2014. During the VA spine examination, the Veteran reported that his low back pain started in 2006 to 2007, but that he injured himself in 2005. The VA examiner opined that the Veteran’s lumbosacral strain was less likely than not incurred in or caused by service. The examiner noted that the Veteran had muscle strain in service, but it resolved, and his current condition was not related to service. During the VA knee examination, the Veteran stated that his knees hurt after jumping and that squatting resulted in discomfort. The VA examiner diagnosed the Veteran with mild degenerative joint disease in both knees; however, the examiner only provided an opinion related to the left knee. Specifically, the examiner opined that the Veteran’s left knee disorder was less likely than not incurred in or caused by service. The examiner noted that the Veteran was treated for left hamstring pain following a squat workout in the gym and that he was diagnosed with lateral collateral ligament strain of the left knee in February 2007. The examiner related that it was an isolated event and that it resolved without any sequalae. During the VA ankle examination, the Veteran reported that his right ankle popped and clicked since 2005. The VA examiner found no clinical evidence of an ankle disorder. The examiner opined that the Veteran’s claimed ankle disorder was less likely than not incurred in or caused by service. The examiner noted that the Veteran was treated for a mild right ankle sprain during service in June 2005. The examiner reported that the disorder resolved without sequalae and that the Veteran had no evidence of a current ankle disorder. The Board finds that each of these VA opinions are inadequate as they do not address the Veteran’s contentions throughout the appeal, as outlined in the remand directives below. Therefore, a remand is necessary for additional VA examinations to address the nature and etiology of the Veteran’s low back, bilateral knee, and bilateral ankle disorders. During the July 2020 hearing, the Veteran reported that he was evaluated following an improvised explosive device (IED) blast in Fallujah in 2004. He stated that he was evaluated at Bravo Surgical at Camp Fallujah. See Bd. Hrg. Tr., pp. 5-6. Records pertaining to an evaluation following the blast are not included in the Veteran’s service treatment records currently associated with the record. On remand, the AOJ should obtain any outstanding service treatment records. In addition, the VA treatment records include multiple references to private treatment for the Veteran’s low back disorder and a worker’s compensation claim related to a July 2016 back injury during his employment at a federal correctional facility and subsequent medical retirement due to his back disorder. However, these records have not been obtained. See, e.g., November 2016, January 2017, April 2017, August 2017, November 2017 VA treatment notes. Finally, during the July 2020 hearing, the Veteran indicated that he filed a Social Security Administration (SSA) disability claim related to his back. Consequently, as such records may be relevant to the instant claim, a remand is necessary in order to obtain any determination pertinent to the appellant’s claim for SSA benefits, as well as any medical records relied upon concerning that claim. Murincsak v. Derwinski, 2 Vet. App. 363 (1992) (where VA has actual notice of the existence of records held by SSA which appear relevant to a pending claim, VA has a duty to assist by requesting those records from SSA). Likewise, the Veteran was medically retired from federal employment and likely underwent Office of Personnel Management (OPM) evaluations related to his back injury. See Bd. Hrg. Tr., p. 9. On remand, the AOJ should obtain these records. The matters are REMANDED for the following action: 1. Obtain any outstanding service treatment records. A specific request should be made for any records pertaining to treatment and/or evaluation following a 2004 IED blast in Fallujah at Bravo Surgical, Camp Fallujah. 2. After obtaining any necessary authorization from the Veteran, all outstanding workers’ compensation records relevant to a July 2016 back injury during his employment at a federal correctional facility should be obtained. All obtained records should be associated with the claims file. If such records are not available, the AOJ must make a formal finding of unavailability, advise the appellant of the status of such records, and give the appellant the opportunity to obtain and submit the records on his own. 3. Undertake any appropriate development, including making as many requests as are necessary, to obtain the Veteran’s OPM records regarding his disability retirement from any relevant records repository. All obtained records should be associated with the claims file. If such records are not available, the AOJ must make a formal finding of unavailability, advise the appellant of the status of such records, and give the appellant the opportunity to obtain and submit the records on his own. 4. Obtain the Veteran’s complete SSA records, including any administrative decision(s) and underlying medical records. All reasonable attempts should be made to obtain such records. All obtained records should be associated with the claims file. If such records are not available, the AOJ must make a formal finding of unavailability, advise the appellant of the status of such records, and give the appellant the opportunity to obtain and submit the records on his own. 5. Obtain any outstanding VA treatment records and associate them with the claims file. 6. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any current low back disorder. The record, to include a copy of this Remand, must be made available to the examiner, and all indicated tests should be conducted. The examiner should offer an opinion on whether it is at least as likely as not (50 percent probability or greater) that any current low back disorder is related to the Veteran’s service? In rendering this opinion, the VA examiner should address the following evidence of record: a) February 2004 service treatment records, in which the Veteran was treated for low back strain, including a reference to a four-wheeling injury that occurred several years prior; b) A June 2008 VA treatment note, in which the Veteran stated that his low back pain began during service in Iraq; c) A January 2009 VA treatment note, in which the Veteran complained of severe back pain from injuries sustained in combat; d) A December 2010 VA treatment note, in which the Veteran reported that he sustained a compression fracture of a vertebrae in Iraq; e) A November 2014 VA treatment note, in which the Veteran denied a back injury, but related that he felt that his low back pain was related to repetitive jumping from a 7-ton truck in full gear; f) The December 2014 VA spine examination, in which the Veteran reported that he injured himself in Iraq in 2005 and his low back pain started in 2006 to 2007; g) A February 2016 VA treatment note, in which the Veteran reported that his low back pain began in 2005 or 2006 with an injury during service and that he had a history of repetitive jumping; h) An August 2016 VA treatment note, in which the Veteran indicated that he sustained a back injury in 2003 during basic training; i) A November 2016 VA treatment note, in which the Veteran reported that he sustained a back injury at work in July 2016; j) A February 2017 private independent medical examination opinion; k) A September 2017 VA treatment note, in which the Veteran attributed his low back pain to an injury in 2005 or 2006 while doing squats; and l) The July 2020 hearing transcript, in which the Veteran testified that he injured his back doing squats at the gym. The rationale for any opinion offered should be provided. 7. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any current bilateral knee disorder. The record, to include a copy of this Remand, must be made available to the examiner, and all indicated tests should be conducted. The examiner should offer an opinion on whether it is at least as likely as not (50 percent probability or greater) that any current bilateral knee disorder is related to the Veteran’s service? In rendering this opinion, the VA examiner should address the following evidence of record: a) February 2007 service treatment records, in which the Veteran was treated for a lateral collateral ligament strain following an injury performing heavy squats in the gym; b) A June 2008 VA treatment note, in which the Veteran reported a right knee injury in 2004; c) The December 2014 VA examination report; d) A September 2017 VA treatment note, in which the Veteran stated that he was unaware of any knee injury, but felt that his pain was from “overuse”; and e) The July 2020 hearing transcript, in which the Veteran testified that he injured his knees during a 2004 IED blast in Fallujah. The rationale for any opinion offered should be provided. 8. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any current bilateral ankle disorder. The record, to include a copy of this Remand, must be made available to the examiner, and all indicated tests should be conducted. The examiner should offer an opinion on whether it is at least as likely as not (50 percent probability or greater) that any current bilateral ankle disorder is related to the Veteran’s service? In rendering this opinion, the VA examiner should address the following evidence of record: a) A June 2005 service treatment record, in which the Veteran was treated for a mild right ankle sprain after doing calf raises at the gym; b) The December 2014 VA examination report; c) A September 2017 VA treatment note, in which the Veteran stated that he was unaware of any ankle injury, but felt that his pain was from “overuse”; and d) The July 2020 hearing transcript, in which the Veteran testified that he injured his ankles during a 2004 IED blast in Fallujah. The rationale for any opinion offered should be provided. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Osegueda, 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.