Citation Nr: 21014432 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 19-34 856 DATE: March 12, 2021 ORDER Entitlement to service connection for diverticulitis is dismissed. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for an eye disability is remanded. Entitlement to service connection for a thoracolumbar spine disability is remanded. FINDING OF FACT At the February 2021 Board hearing, the Veteran withdrew the pending appeal as to the claim of entitlement to service connection for diverticulitis. CONCLUSION OF LAW The criteria for withdrawal of the appeal with respect to the claim of entitlement to service connection for diverticulitis are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1958 to September 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for diverticulitis, bilateral hearing loss, tinnitus, hypertension, an eye disability, and a thoracolumbar spine disability. The Veteran filed a notice of disagreement (NOD) in September 2018. A statement of the case (SOC) was issued in November 2019. He perfected a timely appeal in November 2019. In February 2021, the Veteran presented sworn testimony during a virtual hearing, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran’s VA claims file. At the February 2021 Board hearing, the Veteran’s representative suggested that the matter of entitlement to service connection for diabetes is on appeal. However, a review of the claims file, shows that the matter of entitlement to service connection for diabetes was denied in the August 2018 rating decision, but was not identified in the September 2018 NOD. Moreover, the issue of entitlement to service connection for diabetes was not addressed in the November 2019 SOC. As such, this matter is not currently on appeal and will be discussed no further herein. At the February 2021 hearing, the Board advanced on the Veteran’s appeal on the docket due to age. 38 U.S.C. § 7107(a); 38 C.F.R. § 20.900(c). 1. Entitlement to service connection for diverticulitis. 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. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Veteran, through his authorized representative, has withdrawn this appeal. Specifically, at the February 2021 Board hearing, the Veteran expressed his desire to withdraw the pending appeal of the claim of entitlement to service connection for diverticulitis. The withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of such action. At the hearing, the undersigned explained the consequences of withdrawing the appeal and the Veteran indicated that he understood, had discussed the withdrawal with his representative, and wished to withdraw the issue from appeal. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018). Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. The Veteran asserts entitlement to service connection for hypertension, which he contends was incurred during his active duty service. The Board initially notes that, at the February 2021 Board hearing, the Veteran testified he receives private medical treatment for his hypertension from Drs. C. and H. See the Board hearing transcript, pg. 7. However, these treatment records have not been associated with the Veteran’s claims file. As these records are potentially pertinent to the pending claim, the Board therefore finds that this matter must be remanded in order to obtain these outstanding treatment records. Moreover, with respect to current diagnosis, the Veteran’s VA treatment provider noted that the Veteran has a “long term” hypertension. See the VA treatment records dated August 2001. As to in-service incurrence, the Veteran’s service treatment records (STRs) do not document a diagnosis of hypertension. However, in his February 1980 separation examination, the Veteran indicated that he did not know whether he suffered from high or low blood pressure. The Veteran has not been afforded a VA medical opinion with respect to claim of entitlement to service connection for hypertension. As such, the Board finds that this matter must be remanded in order to afford the Veteran a VA medical opinion as to the etiology of the claimed hypertension disability. See Charles v. Principi, 16 Vet. App. 270 (2002); see also 38 C.F.R. § 3.159(c)(4) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). 2. Entitlement to service connection for bilateral hearing loss is remanded. 3. Entitlement to service connection for tinnitus is remanded. The Veteran contends that he developed bilateral hearing loss and tinnitus, which were incurred during his active duty service. He has not offered a contention as to a particular in-service injury; rather, he seems to be asserting that these disabilities developed during his twenty-two years of active duty service. See, e.g., the Board hearing transcript dated February 2021. The Veteran was afforded a VA audiology examination in August 2018. Unfortunately, the August 2018 VA examiner indicated that he was unable to perform the evaluation due to impacted cerumen in the left ear. The audiology examination was not subsequently rescheduled. In addition, with respect to the claimed tinnitus, the August 2018 VA examiner indicated that the Veteran denied experiencing tinnitus and therefore did not render an opinion as to the question of nexus. However, the Veteran has subsequently asserted that he does experience ringing in his ears, which he contends began during his active duty service. See the February 2021 Board hearing transcript, pgs. 4-5. Accordingly, the Board finds that the evidence of record is inadequate to resolve the claims of entitlement to service connection for bilateral hearing loss and tinnitus. These claims must therefore be remanded in order to obtain a new VA audiology examination to address outstanding questions of diagnosis and nexus. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made). 4. Entitlement to service connection for a bilateral eye disability is remanded. The Veteran has asserted entitlement to service connection for diabetic cataracts, which he contends are due to his active duty service. See, e.g., the February 2021 Board hearing transcript. The Veteran was afforded a VA examination in August 2018 at which time the examiner diagnosed the Veteran with vitreomacular traction of the left eye and diabetic cataracts of the bilateral eyes. In a separate August 2018 VA medical opinion, the examiner stated, “[t]he claimed condition was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness.” The examiner explained, “diabetes causes a lot of challenges for patients with their vision. His cataracts – worse in the left eye – and his VMT are responsible for his worse vision in his left eye.” Notably, although the August 2018 VA examiner rendered a positive nexus opinion, the rationale provided did not support the conclusion rendered. As such, the Board finds that the examiner's opinion is of little probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Thus, the evidence currently of record is inadequate to resolve the claim of service connection. Remand of this matter for a new VA opinion is therefore warranted in order to address the outstanding question of nexus. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made). 5. Entitlement to service connection for a thoracolumbar spine disability is remanded. The Veteran asserts entitlement to service connection for thoracolumbar disability, which he contends was incurred during his active military service. Specifically, he indicated that he hurt his back as a result of heavy lifting while performing his military duties. See the February 2021 Board hearing transcript, pg. 11. The Veteran asserts that he regularly suffers from upper and lower back pain. See the February 2021 Board hearing transcript, pg. 11. As to in-service injury, the Veteran’s STRs do not document any complaints of or treatment for back pain. However, he is competent to report describe his injury and report observable symptoms such as musculoskeletal pain. See Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007). At the February 2021 Board hearing, the Veteran offered testimony concerning back pain symptomatology dating from his active duty service. The Veteran has not been afforded a VA examination with respect to claim of entitlement to service connection for a thoracolumbar disability. As such, the Board finds that this matter must be remanded in order to afford the Veteran a VA examination as to the etiology of the claimed disability. See Charles v. Principi, 16 Vet. App. 270 (2002); see also 38 C.F.R. § 3.159(c)(4) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). The matters are REMANDED for the following action: 1. After obtaining any additional information and authorization necessary, undertake appropriate efforts to procure any records of outstanding private treatment (including the treatment records of Drs. C. and H. referenced above) and VA treatment dating from August 2001. All such available documents should be associated with the claims file. 2. The AOJ shall refer the VA claims file to a clinician with appropriate expertise to provide an opinion as to the claimed hypertension disability. The clinician is requested to review the claims file in its entirety including all service treatment records, VA, and private treatment records. If the clinician determines that an examination is necessary, one should be scheduled. Then, the clinician should respond to the following: With respect to any diagnosed hypertension disability, the examiner should render an opinion, with supporting rationale, addressing whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset in service or is otherwise medically related to in-service injury or disease. All examination findings/testing results (if any), along with complete, clearly-stated rationale for the conclusions reached, must be provided. 3. Arrange for the Veteran to undergo a VA audiology examination to address his claims of service connection for bilateral hearing loss and tinnitus. Access to the electronic claims file must be made available to the examiner for review in connection with the examination. With respect to the diagnosed bilateral hearing loss sufficient for VA compensation purposes and the claimed tinnitus, the examiner should render an opinion as to: Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disabilities: (a) had their onset during service, (b) were manifested to a compensable degree within the first post-service year; or (c) are otherwise related to in-service injury or disease, to particularly include the conceded in-service noise exposure. In addressing the above, the examiner must consider and discuss all pertinent in- and post-service evidence, including the Veteran’s lay assertions that he suffered from bilateral hearing loss and tinnitus during his active duty service that has continued to the present day. In this regard, the examiner should note that the absence of evidence of treatment for claimed disabilities in the Veteran's service treatment records should not serve as the sole basis for a negative opinion. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. If the examiner is unable to provide an opinion without resorting to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 4. The AOJ shall refer the VA claims file to a clinician with appropriate expertise to provide an opinion as to the claimed bilateral eye disability. The clinician is requested to review the claims file in its entirety including all service treatment records, VA, and private treatment records. If the clinician determines that an examination is necessary, one should be scheduled. Then, the clinician should respond to the following: With respect to any diagnosed eye disability, the examiner should render an opinion, with supporting rationale, addressing whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset in service or is otherwise medically related to in-service injury or disease. In this regard, the clinician should note that the absence of evidence of treatment for the claimed disability in the Veteran's service treatment records should not serve as the sole basis for a negative opinion. All examination findings/testing results (if any), along with complete, clearly-stated rationale for the conclusions reached, must be provided. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed thoracolumbar disability. All indicated tests and studies should be conducted. The contents of the electronic claims file must be made available to the examiner for review in connection with the examination. (a). With respect to any diagnosed thoracolumbar disability, the examiner should render an opinion, with supporting rationale, addressing whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset in service or is otherwise medically related to in-service injury or disease. (b). In providing the opinion and rationale, the examiner should consider the relevant evidence of record, particularly (1) the Veteran’s service treatment records; (2) the Veteran’s February 2021 hearing testimony that he injured his back during active duty as a result of heavy lifting; and (3) the Veteran’s February 2021 hearing testimony regarding his symptoms. (c). If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? (Continued on the next page)   In this regard, the examiner should note that the absence of evidence of treatment for a claimed disability in the Veteran's service treatment records should not serve as the sole basis for a negative opinion. All examination findings/testing results (if any), along with complete, clearly-stated rationale for the conclusions reached, must be provided. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. K. Buckley, 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.