Citation Nr: 21013478 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 18-28 628 DATE: March 9, 2021 ORDER The appeal for an effective date earlier than March 7, 2016, for the award of service connection for bilateral hearing loss is dismissed. The appeal for service connection for a gastrointestinal disability is dismissed. Service connection for a right shoulder disability is granted. REMANDED Entitlement to an initial compensable rating for the service-connected bilateral hearing loss is remanded. Entitlement to service connection for a prostate disability is remanded. Entitlement to service connection for carcinoma of the vocal cord is remanded. FINDINGS OF FACT 1. At the October 2020 hearing, and before the promulgation of a decision in the appeal, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, notified the Board that he wished to withdraw his appeal for an effective date earlier than March 7, 2016, for the award of service connection for bilateral hearing loss as well as his appeal for service connection for a gastrointestinal disability. 2. The Veteran began experiencing symptoms of his right shoulder disability while in service, and he has continued to experience such symptomatology since separation from service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for an effective date earlier than March 7, 2016, for the award of service connection for bilateral hearing loss and the appeal for service connection for a gastrointestinal disability are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for service connection for a right shoulder disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1954 to November 1957 and from January 1991 to May 1991. In October 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). Dismissal Entitlement to an effective date earlier than March 7, 2016, for the award of service connection for bilateral hearing loss Entitlement to service connection for a gastrointestinal disability 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by her authorized representative. 38 C.F.R. § 20.204. Here, at the hearing conducted before the undersigned Veterans Law Judge in October 2020, the Veteran explicitly and unambiguously, and with a full understanding of the consequences, withdrew his appeal for an effective date earlier than March 7, 2016, for the award of service connection for bilateral hearing loss and his appeal for service connection for a gastrointestinal disability. The undersigned clearly identified the withdrawn issues, and the Veteran affirmed that he was requesting a withdrawal as to these appeals. As the Veteran has withdrawn these appeals, there remain no allegations of errors of fact or law for appellate consideration with regard to these issues. Thus, the Board does not have jurisdiction to review these appeals, and they are dismissed. Service Connection for a Right Shoulder Disability Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Additionally, service connection can also be established through application of a statutory presumption for chronic diseases, like arthritis, when manifested to a compensable degree within a year of separation from service. 38 C.F.R. §§ 3.307, 3.309. If a chronic disease is not manifested to a compensable degree within a year of separation of service, then, generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). Furthermore, a layperson is competent to report on the onset and continuity of his or her current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Veteran underwent a December 2016 VA shoulder and arm conditions examination. The examiner diagnosed osteoarthritis of the right shoulder. As such, the current disability prong of this claim for service connection has been met. Further, the Veteran reported both to the 2016 VA examiner and before the Board in October 2020 that his right shoulder pain began in January 1991 during his active duty. He was lifting heavy deployment bags when his right shoulder began hurting. His service treatment records (STRs) confirm that he sought treatment for his right shoulder pain, and he was diagnosed with tendonitis at the time. The Veteran further testified that the pain in his right shoulder has persisted since that time. The Board recognizes that the December 2016 VA shoulder and arm conditions examiner opined against service connection for the Veteran’s right shoulder arthritis. However, while the Board cannot ignore or disregard the VA examiner’s medical conclusions [Willis v. Derwinski, 1 Vet. App. 66 (1991)], the Board is free to assess medical evidence and is not compelled to accept a medical opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). Here, the 2016 VA examiner’s rationale focused on the lack of medical records documenting right shoulder pain regularly post-service. As such, the examiner ignored the Veteran’s competent lay statements regarding the history of his right shoulder symptoms and their onset. Of further significance here is the fact that the Veteran has an extensive medical background. Thus, as the examiner did not consider the Veteran’s probative factual assertions, the Board affords very little probative weight to this opinion. In this case, the Veteran has sufficiently asserted experiencing symptoms of his right shoulder arthritis (right shoulder pain) since active service. Further, the Board has no reason to question the credibility of the Veteran’s statements—particularly in light of his extensive medical backgroun. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). As such, his statements are probative, competent evidence regarding the onset of his condition, and the evidence supporting service connection is at least in equipoise. Affording him the benefit of the doubt, service connection is warranted for his right shoulder disability, as it is a chronic condition for which he has been experiencing symptoms since active service. REASONS FOR REMAND Service connection for a prostate disability The Veteran also seeks service connection for an enlarged prostate. His representative asserted at the October 2020 Board hearing that he had symptoms of enlarged prostate before separating from service in 1991; and he testified that he was on medication for his prostate during this period of service. However, the medical record that the representative asserted shows evidence of in-service prostate symptoms which he submitted with the Veteran’s May 2018 formal appeal to the Board does not appear to be from a period of active service. This undated excerpt from a medical examination does, in fact, note “mild symptoms of BPH,” but the same page also states that the Veteran was last examined in October 1991. Thus, this record was created after October 1991, after the Veteran separated from active service in May 1991. To the contrary, the Veteran’s National Guard medical records contain an October 1991 periodic medical examination which states that the Veteran’s prostate was “normal to digital exam.” Regardless, given the Veteran’s competent testimony of being on prostate medication during active service, the Board finds additional development is needed before it can decide this claim. The claims file does not contain medical records of the prostate medication the Veteran testified he was taking in active service. Thus, there may be additional private treatment records related to this condition which have not been obtained. Attempts should be made to obtain treatment records from the provider who prescribed the Veteran with prostate medication during active service. Service connection for carcinoma of the vocal cord The Veteran also seeks service connection for vocal cord carcinoma. The Veteran testified before the Board in October 2020 that he first had surgery for this condition a month after separating from his 1991 period of active service, in June 1991. At that time, he was diagnosed with carcinoma of the vocal cord. He testified that he treated privately for this condition with multiple providers, including Vanderbilt University, where his surgery was performed. These records are not associated with the claims file and must be sought as they could contain information which could help substantiate the claim. The Veteran further testified that, during his 1991 period of active service, he experienced symptoms of vocal cord carcinoma, such as hoarseness and coughing. He also testified that he probably did have a cough prior to this period of active service. In addition, his private treatment records from Premier ENT show that he was treated for symptoms of hoarseness and a cough in March 1999 His STRs do not contain an entry medical examination for this period of service. As such, the record does not show that the condition was noted upon entry. The Veteran has not been afforded a VA examination to determine the etiology of his vocal cord carcinoma, but the Board finds that one is needed before it can decide this claim, as the timeline of his diagnosis suggests a possibility that the condition is related to active service. Medical opinions are needed to determine what current residuals, if any, exist from this condition or surgery therefor; whether the condition pre-existed active service and progressed beyond its natural progression therein; and, alternatively, whether the condition onset during active service. Entitlement to an initial compensable rating for the service-connected bilateral hearing loss The Veteran seeks a compensable rating for his bilateral hearing loss. He underwent a VA audiological examination in December 2016. He testified before the Board in October 2020 that his hearing had worsened since that time. As such, he should be afforded a new VA examination to ascertain the current severity of his bilateral hearing loss before the Board can decide this claim. In addition, he also testified that he underwent a hearing examination with a VA treatment provider in 2017 or 2018, at which time he obtained his hearing aids. His VA treatment records, however, show that he was assessed for hearing aids in February 2017, but do not mention audiological testing being performed at this time. Regardless, attempts should be made to determine whether such VA audiological testing results exist, and, if so, the records should be uploaded to the Veteran’s claims file. Accordingly, these matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for all private providers who have treated him for his enlarged prostate and cancer of the vocal cord, to include specifically the provider who prescribed the Veteran prostate medication during his 1991 period of active service and the provider at Vanderbilt University who the Veteran disclosed as having performed surgery for vocal cord carcinoma in the early 1990s. Make two requests for all authorized records from each provider, unless it is clear after the first request that a second request is futile. 2. Locate and associate with the Veteran’s file his complete February 2017 audiology treatment records from the Golden, Colorado VA Medical Center, to include audiometric results (pure tone testing, audiograms, speech reception thresholds, word recognition and discrimination scores, and all other audiometric data), should they exist. 3. After obtaining any outstanding records related to the Veteran’s claims (pursuant to paragraphs 1 and 2 above), schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral hearing loss. The Veteran’s claims file should be made available to the examiner in conjunction with this examination, and the examiner’s review of the folder should be annotated in the examination report. The examiner should provide a full description of the disability and report all signs and symptoms associated with the disorder. To the extent possible, the examiner should identify any symptoms and functional impairment due to his service-connected bilateral hearing loss alone and discuss the effect of the condition on any occupational functioning and activities of daily living. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. Also, after obtaining any outstanding records related to the Veteran’s claims (pursuant to paragraphs 1 and 2 above), schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his vocal cord carcinoma, which he has reported was diagnosed in June 1991. The examiner is asked to diagnose all residuals of vocal cord carcinoma or of surgery therefor that the Veteran has or has had at any time during the period on appeal (from March 2016 to the present) and respond to the following questions: (a.) Is it at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s vocal cord carcinoma had its onset during his January 1991 to May 1991 period of active service or was otherwise related to his active service? (b.) If the Veteran’s vocal cord carcinoma clearly and unmistakably preexisted his active service period beginning in January 1991, was such condition clearly and unmistakably permanently worsened beyond the natural progression of the disability during the January 1991 to May 1991 period of active service? The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and (CONTINUED ON NEXT PAGE) argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Davidoski, Associate 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.