Citation Nr: 21027284 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 15-44 450 DATE: May 5, 2021 ORDER Entitlement to service connection for left hand pain and stiffness is dismissed. Entitlement to service connection for complex fracture, left long (middle) finger is dismissed. Entitlement to a compensable disability rating for sinusitis is dismissed. Entitlement to an increased disability rating for gastroesophageal reflux disease (GERD) is dismissed. Entitlement to a compensable disability rating for status post fracture little right finger is dismissed. Entitlement to a compensable disability for status post fracture right ring finger is dismissed. REMANDED Entitlement to service connection for hypertension (HTN) is remanded. Entitlement to a compensable disability rating prior to June 24, 2015 for residuals of a right long finger fracture is remanded. Entitlement to a disability rating in excess of 20 percent prior to September 22, 2015 for lumbar spine disorder is remanded. Entitlement to a disability rating in excess of 10 percent prior to September 22, 2015 for cervical spine disorder is remanded. FINDING OF FACT At the November 10, 2020 Board hearing, prior to the promulgation of a decision on the issues, the Veteran withdrew his claims for service connection for left hand pain and stiffness; service connection for complex fracture, left long (middle) finger; a compensable disability rating for sinusitis; an increased disability rating for GERD: a compensable disability rating for status post fracture little right finger; and a compensable disability for status post fracture right ring finger. CONCLUSION OF LAW The criteria for withdrawal of the substantive appeals of the six issues, as noted above, have been met. The Board does not have jurisdiction to review these 6-identified claims. 38 U.S.C. §§ 7105(a), 7108 (2012); 38 C.F.R. §§ 20.200, 20.202, 20.204 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Army from October 1989 to October 2009 with service in Bosnia and Southwest Asia. These matters come before the Board of Veterans' Appeals (Board) from a January 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The Veteran's claims file contains a transcript of that proceeding. Dismissal of Claims 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 his or her authorized representative. 38 C.F.R. § 20.204. At the November 10, 2020 Board hearing, prior to the promulgation of a decision on the 6 issues, the Veteran withdrew his claims for service connection for left hand pain and stiffness; service connection for complex fracture, left long (middle) finger; a compensable disability rating for sinusitis; an increased disability rating for GERD: a compensable disability rating for status post fracture little right finger; and a compensable disability for status post fracture right ring finger. The Board observes that withdrawal of these 6 issues was explicit, unambiguous, and made with full understanding of the consequences of such action. See Acree v. O'Rourke, 891 F. 3d 1009 (Fed. Cir. 2018). Specifically, the undersigned VLJ explained that the consequences of withdrawing these specific claims prevent the Board from considering these claims any longer. Should the Veteran want to reopen the claim, he would need to petition the Agency of Original Jurisdiction (AOJ) and start the process anew. Accordingly, the Board does not have jurisdiction to review these 6 identified appeals, and the appeals of these matters are dismissed. REASONS FOR REMAND The Veteran contends that his elevated blood pressure readings in service amount to nascent or pre-HTN. As such, HTN was incurred in, aggravated by, or otherwise attributable to, active duty service. The Veteran also asserts that the disability ratings, as noted above, did not adequately contemplate the severity of residuals of a right long finger fracture prior to June 24, 2015; lumbar spine disorder prior to September 22, 2015; and cervical spine disorder prior to September 22, 2015, HTN At the Board hearing, the Veteran testified that military clinicians informed him that he had "pre-high blood pressure" or pre-HTN in service. The Veteran also reported that clinicians have told him that he will need to take medication to control his blood pressure in the near future. See November 10, 2020 Hearing Transcript, pp. 4-5. The Veteran is competent to report what medical clinicians articulated to him directly. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Upon review of the Veteran's available service treatment records (STRs), clinicians provided highly discrepant blood pressure readings, ranging from 104/74 mmHg to 186/69 mmHg. While the Board is prohibited from interpreting these medical findings, the Board can determine whether these discrepant readings require professional medical development. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Upon a June 2015 VA HTN examination, a clinician indicated that the Veteran did not have current HTN; however, this clinician also indicated that she only reviewed the Veteran's civilian medical records as the Veteran's STRs were not available for review. During this examination, the Veteran indicated that he had lost weight since active duty service and his blood pressure has gone down. The Veteran also reported that while he resided in Naples, he received frequent "checks" for high blood pressure. Even though the clinician did not provide a current diagnosis of HTN and civilian records fail to disclose treatment for HTN, this clinician did not opine that the Veteran had never had HTN. Moreover, it remains unclear whether the agency of original jurisdiction has obtained all of the Veteran's STRs and private treatment records, to include those of the Veteran's entire deployments in Western Europe as well as those pertinent to the period of the Veteran's civilian employment in Naples, Italy. The Veteran reported in an October 2015 statement that he was a Department of Defense civilian employee in Naples in 2012 when VA ordered a series of examinations performed in March 2012 at the consulate. At the Board hearing, the Veteran testified that he received treatment from private clinicians both while deployed in Western Europe and during post-service civilian life. See, e.g., November 10, 2020 Hearing Transcript. A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but: (1) contains competent evidence of a current diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that an event, injury, or disease occurred in service or certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) indicates that the disability or symptoms may be associated with the established event, injury or disease in service or with another service-connected disability. McClendon v. Nicholson, 20 Vet. App. 79 (2006). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. Id. The Veteran's competent hearing testimony and the lack of STRs review at the June 2015 VA HTN examination indicates that elevated blood pressure, pre-HTN, or HTN may be associated with events in service. As such, the need for a VA examination focalizing on blood pressure, pre-HTN, or HTN has been triggered. Residuals of a right long finger fracture Lumbar spine disorder Cervical spine disorder At the Board hearing, the Veteran testified that after his September 15, 2009 VA pre-discharge examination (performed at the Landstuhl Regional Medical Center in Germany) and prior to a June 2015 VA examination for residuals of a right long finger fracture and September 2015 VA examinations for lumbar spine disorder and cervical spine disorder, he had received VA-directed examinations in Italy in 2012, where he worked in a Department of Defense civilian position. See November 10, 2020 Hearing Transcript, pp. 8-12. The Veteran's treatment records comprise hundreds of pages. While there are extensive orthopedic treatment records from clinicians in Germany and the Netherlands, there are no such records from Italy dated in 2012. Upon a telephonic contact with VA in April 2015, the Veteran reported that the United States Embassy lost these Italian treatment records and they may not be recoverable. See April 17, 2015 VA 21-0820. In a subsequent lay statement, the Veteran reported that the United States Consulate in Naples, Italy scheduled VA examinations for March 3, 2012 (at the behest of the VA Regional Office (RO) in Winston-Salem, North Carolina). The Veteran further articulated that he reported for the examination and copies of the examination reports were mailed to VA on April 3, 2012. See October 30, 2015 and March 16, 2018 VA 21-4138. At the Board hearing, the Veteran indicated that he maintained "some records" after he retired in Italy. A review of the record fails to show that the Veteran has submitted these records. While the duty to assist is not a one-way street (see Wood v. Derwinski, 1 Vet. App. 190, 193 (1991)), the Veteran has provided information identifying the United States Consulate in Naples, Italy, and the date of the claimed 2012 VA examinations. The AOJ has obtained various STRs, military personnel records, and private Dutch and German treatment records; however, the record fails to disclose that the AOJ has sought records from the United States State Department or from any private clinicians in Italy. Because the Veteran was also a civilian employee of the Department of Defense (DoD), a request to that Department is also warranted as the records may have been placed in a medical record associated with an overseas civilian DoD employee. In light of the above, the Board finds that development is necessary. The matters are REMANDED for the following action: 1. The AOJ shall make all efforts to obtain Federal department or agency records, to include the totality of the Veteran's STRs from his two decades of service; VA treatment records and communications from the VA RO in Winston-Salem, North Carolina; and any pertinent records from the United States State Department and Department of Defense pertinent to the Veteran's residency status and medical treatment in Naples, Italy from 2009 to 2015. All efforts should be undertaken until said records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain these identified medical records would be futile. See 38 U.S.C. § 5103A(c)(1)(C). Regardless of the outcome, the RO must make a formal finding as to the efforts undertaken to obtain said medical records, with specificity. 2. Should the undertakings above identify that the Veteran received any private medical care in Italy, the AOJ must obtain signed releases to obtain the records from the Veteran. The AOJ must make two attempts to obtain these relevant private records unless the first attempt demonstrates the further attempts would be futile. Should the AOJ determine that more than one attempt to obtain these relevant records would be futile, the AOJ must make a formal finding delineating the steps that have been taken and explaining, with specificity, why any further attempts to obtain these relevant records would be futile. Should these records not be obtained, the AOJ must (1) inform the Veteran of the records that were not obtained (2) tell the Veteran what steps were taken to obtain them, and (3) tell the Veteran that the claim will be adjudicated without the records. See 38 U.S.C. § 5103A(b)(2)(B). 3. Upon completion of the above, the AOJ should arrange for a VA HTN examination with an appropriate clinician. The clinician should review the claims file and indicate that such review has taken place within the body of the examination report. The clinician must address the discrepant blood pressure readings in the Veteran's STRs, ranging from 104/74 to 186/69, and any other clinical findings concerning blood pressure in records obtained from the AOJ as directed above. Upon rendering a diagnosis, if any, during any period of service or period post-service (to include, if so obtained, during the Veteran's residency in Naples, Italy), the clinician should respond to the following inquiry: Whether it is at least as likely as not (50 percent or more) that the Veteran's HTN (at any time in service through the time of examination) was incurred in, aggravated by, or otherwise attributable to, active duty? The Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology and functional limitations, must be acknowledged and considered in formulating any opinion. Should the clinician reject the Veteran's reports, she/he must provide an explanation for such rejection. (continued next page) Complete, clearly-stated rationales for the conclusions reached must be provided. Explanations are required that consider the record and pertinent medical principles and the clinician's rationale should include citation to pertinent evidence and/or medical principles relied upon to form all opinions. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. J. Komins, 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.