Citation Nr: 21024061 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 17-20 367 DATE: April 22, 2021 ORDER The appeal for entitlement to service connection for cardiomyopathy is dismissed. The appeal for entitlement to service connection for congestive heart failure is dismissed. The appeal for entitlement to service connection for chronic atrial fibrillation is dismissed. Entitlement to service connection for right hip arthritis is granted. Entitlement to service connection for left hip arthritis is granted. FINDINGS OF FACT 1. During the October 2019 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew the appeal for entitlement to service connection for cardiomyopathy. 2. During the October 2019 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew the appeal for entitlement to service connection for congestive heart failure. 3. During the October 2019 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew the appeal for entitlement to service connection for chronic atrial fibrillation. 4. The probative evidence of record is at least in relative equipoise as to whether the Veteran’s right hip arthritis was caused by an in-service event, injury, or illness. 5. The probative evidence of record is at least in relative equipoise as to whether the Veteran’s left hip arthritis was caused by an in-service event, injury, or illness. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for entitlement to service connection for cardiomyopathy have been met. 38 U.S.C. § 7105 ; 38 C.F.R. §§ 20.202, 20.204. 2. The criteria for withdrawal of the appeal for entitlement to service connection for congestive heart failure have been met. 38 U.S.C. § 7105 ; 38 C.F.R. §§ 20.202, 20.204. 3. The criteria for withdrawal of the appeal for entitlement to service connection for chronic atrial fibrillation have been met. 38 U.S.C. § 7105 ; 38 C.F.R. §§ 20.202, 20.204. 4. The criteria for service connection for right hip arthritis have been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 5. The criteria for service connection for left hip arthritis have been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from February 1973 to April 1976. These matters come before the Board of Veterans’ Appeals (Board) on appeal of an October 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. The Veteran submitted additional evidence after the Agency or Original Jurisdiction (AOJ) issued the statement of the case in this appeal. He did not request initial AOJ consideration of that evidence. The evidence is therefore accepted for inclusion in the record on appeal. See 38 U.S.C. § 7105 (e). The AOJ was unsuccessful in its attempts to obtain the Veteran’s full service treatment records. The AOJ informed the Veteran in a letter dated in March 2017 that his service treatment records are unavailable. The March 2017 letter detailed the steps taken in the attempts to obtain the records, and requested that the Veteran submit any service treatment records that he may have in his possession. See 38 C.F.R. § 3.159 (e). Because the service treatment records are unavailable, there is a heightened obligation to explain findings and to consider the benefit-of-the-doubt rule. O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). This does not mean that there is a heightened benefit-of-the-doubt rule or that the legal standard for proving the claim has been lowered. Rather, it means that the Board has a heightened duty to consider the applicability of the benefit-of-the-doubt rule set forth in 38 C.F.R. § 3.102, to assist the claimant in developing a claim, and to explain its decision when the Veteran’s medical records are not available. See Ussery v. Brown, 8 Vet. App. 64 (1995). The Board also has a heightened obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). Withdrawal 1. The appeal for entitlement to service connection for cardiomyopathy is dismissed. 2. The appeal for entitlement to service connection for congestive heart failure is dismissed. 3. The appeal for entitlement to service connection for chronic atrial fibrillation is dismissed. The Veteran has perfected an appeal as to the issues of entitlement to service connection for cardiomyopathy, congestive heart failure, and chronic atrial fibrillation. The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. 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 claimant or the claimant’s authorized representative. 38 C.F.R. § 20.204 (a). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204 (b) (1). In this case, following certification of the appeal to the Board and prior to promulgation of a decision in this case, during the October 2019 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew the appeals for entitlement to service connection for cardiomyopathy, congestive heart failure, and chronic atrial fibrillation. The undersigned Veterans Law Judge clearly identified the issues, and the Veteran was encouraged to and did discuss his options with his representative. After the undersigned Veterans Law Judge explained the effect of withdrawal of the appeals, the Veteran affirmed that he was requesting a withdrawal as to the appeals, and that he understood the consequences. As a result, there remains no allegation of error of fact or law for appellate consideration as to the claims of entitlement to service connection for cardiomyopathy, congestive heart failure, and chronic atrial fibrillation. As the Board does not have jurisdiction to review the appeals for entitlement to service connection for cardiomyopathy, congestive heart failure, and chronic atrial fibrillation, the appeals are dismissed. Service Connection 4. Entitlement to service connection for a right hip disability. 5. Entitlement to service connection for a left hip disability. The Veteran contends that he has a bilateral hip disability that is directly related to his active service. Specifically, the Veteran reported that his bilateral hip disability is related to parachute jumps during service. See January 2020 private treatment record. To establish service connection for a disability on a direct-incurrent basis, the Veteran must show: (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, 1167 (Fed. Cir. 2004). See also 38 C.F.R. § 3.303. The evidence of record shows that the Veteran has a current diagnosis of bilateral hip arthritis. See January 2020 private treatment record. Therefore, there is evidence of a current disability. As to an in-service event, injury or disease, as noted above, the Veteran’s full service treatment records are not available. The Veteran has reported that he injured his bilateral hips during parachute jumps. The Board notes that parachute jumps are generally consistent with the Veteran’s service, as reflected in his DD Form 214, which reflects, in part, a military operations specialty of airborne. In addition, the Veteran is competent to report symptoms, such as pain, that he experienced while in service. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). As such, the Board finds there is evidence of an in-service injury of bilateral hip pain. Therefore, the question remaining for consideration is whether there is a causal relationship between the in-service bilateral hip pain and the Veteran’s current bilateral hip disabilities. In January 2020, the Veteran submitted a letter from his private physician, Dr. P. G. Dr. P. G. reported that the Veteran has been under his care since the 1990s and that he had undergone complex total hip arthoplasty associated with an injury as a paratrooper. Dr. P. G. opined that the Veteran’s bilateral hip arthritis is more likely than not related to the injuries he sustained during his years in the military as a paratrooper. As rationale, Dr. P. G. explained that the Veteran’s arthritis deterioration was more likely than not related to the injuries he sustained as a paratrooper during his military service. In summary, the record shows that the Veteran has been diagnosed with bilateral hip arthritis. The Veteran reported that he injured his bilateral hips during his active service due to parachute jumps and his DD Form 214 reflects he was part of the airborne. Furthermore, the Veteran’s private physician for more than 30 years opined that it is more likely than not that the Veteran’s current bilateral hip arthritis is related to parachute jumps during service. Accordingly, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran’s bilateral hip arthritis is related to his active service. The benefit of the doubt is resolved in the Veteran’s favor, and entitlement to service connection for bilateral hip arthritis must be granted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. G. LeMoine, 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.