Citation Nr: 21029130 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 17-63 917 DATE: May 12, 2021 ORDER As the claim has been withdrawn, the claim for entitlement to service connection for carpal tunnel syndrome, right upper extremity, is dismissed. As the claim has been withdrawn, the claim for entitlement to service connection for carpal tunnel syndrome, left upper extremity, is dismissed. As the claim has been withdrawn, the claim for entitlement to service connection for dental disorder is dismissed. REMANDED Entitlement to service connection for a gastroesophageal disorder, to include Barrett's disease and acid reflux, is remanded. Entitlement to service connection for a back disorder is remanded. Entitlement to service connection for a bilateral foot disorder, to include Morton's neuroma, metatarsalgia, and hallux rigidus, is remanded. Entitlement to service connection for a right shoulder disorder is remanded. FINDING OF FACT During his February 24, 2021 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran informed the Board that he sought to withdraw his appeal of the claims for entitlement to service connection for bilateral carpal tunnel syndrome and dental disorder. CONCLUSION OF LAW The criteria for withdrawal of the claims for entitlement to service connection for bilateral carpal tunnel syndrome and dental disorder by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55 (legacy). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1979 to November 1982 and he had additional service in the Army National Guard from August 1983 to August 1986. 1. Entitlement to service connection for carpal tunnel syndrome, right upper extremity. 2. Entitlement to service connection for carpal tunnel syndrome, left upper extremity. 3. Entitlement to service connection for dental disorder. 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55.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. 38 C.F.R. § 19.55. 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. 38 C.F.R. § 19.55. In the present case, the Veteran informed the undersigned VLJ at his February 24, 2021, hearing on appeal that he sought to withdraw his appeal for the claims of entitlement to service connection for bilateral carpal tunnel syndrome and dental disorder. This request was clear, unambiguous and made with full understanding of the consequences and in consultation with his representative. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see also Acree v O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Hence, there remain no allegations of errors of fact or law for appellate consideration as to these claims. Accordingly, the Board does not have jurisdiction to review these issues and they are dismissed. REASONS FOR REMAND In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. 1. Entitlement to service connection for a gastroesophageal disorder, to include Barrett's disease and acid reflux, is remanded. 2. Entitlement to service connection for a back disorder is remanded. 3. Entitlement to service connection for a bilateral foot disorder, to include Morton's neuroma, metatarsalgia, and hallux rigidus, is remanded. 4. Entitlement to service connection for a right shoulder disorder is remanded. With respect to the all claims for service connection for gastroesophageal disability, back disorder, bilateral foot disorder, and right shoulder disorder, the record does not contain the Veteran's service personnel records (SPRs) or a complete set of his service treatment records (STRs). Unsuccessful attempts were made to obtain the Veteran's SPRs and a complete set of his STRs, and the Veteran was notified of unavailability of his SPRs and a complete set of his STRs in July 2016 notification letter. See Correspondence (July 2016). In March 2018, the record reflects that additional steps to retrieve the missing STRs which were unsuccessful. See STR (September 2018). However, the record does not contain a formal finding as to the unavailability of the Veteran's STRs following that additional development. Therefore, to ensure that VA has fulfilled its duty to assist, and due process of law, the Board finds that a remand is necessary for the issuance of a formal finding of unavailability of additional STRs and notification to the Veteran. See 38 C.F.R. § 3.159 (c)(2), and (e). In an appeal such as this, when service records are lost or missing, VA has a heightened duty to assist, as well as an obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005), citing Russo v. Brown, 9 Vet. App. 46, 51 (1996); see also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Gastroesophageal Disorder As to the claim of entitlement to service connection for a gastroesophageal disorder, to include Barrett's disease and acid reflux, the Veteran asserts that he first experienced acid reflux symptoms during service, which progressively worsened since service and has resulted in his current Barrett's disease and hiatal hernia. He reports that he requested to seek treatment for acid reflux symptoms during service, but he was denied by his supervisor, and instead, he took over-the-counter medication. The Veteran further asserts that an in-service sick call report for acute respiratory disease actually reflects manifestations of his acid reflux symptoms, because when stomach acid rises up, he starts choking and wheezing. The Veteran reports that his acid reflux symptoms trigger respiratory problems. See Form 9 (November 2017), Correspondence (June 2018), Hearing Transcript (February 2021). The Veteran has submitted a lay statement from his former spouse, who was married to him during his Army service and Army National Guard service. She reports that the Veteran wrote letters to her from his boot camp training in November 1979. In the letters, she states that the Veteran described symptoms of acid reflux three to four times a week, which caused choking, burning sensation in his chest, and shortness of breath. She states that she observed the Veteran experience such acid reflux symptoms as well as associated choking and shortness of breath throughout remainder of his military service and the remainder of their marriage. See Buddy/Lay Statement (Sworn Declaration of T.R.) (November 2018). In addition, the Veteran's current spouse reports that she has observed the Veteran's acid reflux symptoms and associated choking and shortness of breath since they've first met in 1988. See Buddy/Lay Statement (Sworn Declaration of D.L.) (November 2018). Given the competent lay statements concerning the onset of the Veteran's gastroesophageal-related symptoms, see Layno v. Brown, 6 Vet. App. 465, 470 (1994), as well as the fact that his service treatment records are largely unavailable through no fault of his own, the lay statements of record are sufficient to trigger VA's duty to assist by affording him a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (recognizing that 38 C.F.R. § 3.159 (c)(4) presents a low threshold for the requirement that evidence indicates a claim disability may be associated with military service for the purposes of a VA examination). To date, the Veteran has not been afforded a VA examination to determine whether he has a current gastroesophageal disorder that had its onset during, or it otherwise related to, his military service. On remand, the Veteran should be provided with a VA examination to determine the nature of his claimed gastroesophageal disorder and whether it had an onset during his period of service or is otherwise related to his military service. Bilateral Foot Disorder As to the claim of entitlement to service connection for a bilateral foot disorder, the Veteran asserts that his current bilateral foot disorder is a result of his period of service. He reports that he first experienced bilateral foot problems during his military service when he was required to wear military boots and uniform dress shoes, which were too tight and constricted his feet. The Veteran reports that he would experience burning sensation in his third and fourth toes on both of his feet during service. He further reports that he sought medical treatment during service, and the doctor advised him to massage bottom of feet to alleviate symptoms, which he continued to do so for years. He states that overtime, he developed a lump under the front of right foot that felt like a rock in the shoe and very painful while wearing military boots and dress shoes. See Correspondence (February 2018), Hearing Transcript (February 2021). The Veteran reports that the bilateral foot symptoms that he first experienced in service are similar to current foot symptoms, just worse. The Veteran contends that his current bilateral foot disorders, to include Morton's neuroma, metatarsalgia, and hallux rigidus, are a result of bilateral foot injury from wearing military boots during physical training, marches, and runs. See Hearing Transcript (February 2021). In a lay statement from his former spouse, she noted that during his military service, the Veteran complained that his military boots were very tight, and his feet felt constricted in the boots, and his third and fourth toes would burn. See Buddy/Lay Statement (Sworn Declaration of T.R.) (November 2018). In addition, the Veteran's current spouse states she has observed the Veteran complain about his feet since they've first meet in 1988. See Buddy/Lay Statement (Sworn Declaration of D.L.) (November 2018). To date, the Veteran has not been afforded a VA examination to determine whether he has a current foot disorder that had its onset during, or it otherwise related to wearing military boots during his service. The competent lay statements concerning in-service injury from wearing military boots as well as onset of bilateral foot symptoms, in absence of the availability of service treatment records through no fault of his own, is sufficient to trigger VA's duty to assist by affording him a VA examination. See Layno, supra, and McLendon, supra. On remand, the Veteran should be provided with a VA examination to determine the nature of his claimed bilateral foot disorder and whether it had an onset during his period of service or is otherwise related to his wearing military boots and uniform dress shoes during service. Back and Right Shoulder Disorders As to the claims of entitlement to service connection for a back and right shoulder disorder, the Veteran asserts that his current back and right shoulder disorders are a result of injuries he sustained during a Survival, Evasion, Resistance, and Escape (SERE) training exercise during his military service, and he has continued to experience back and right shoulder problems since then. The Veteran reports that during the SERE training exercise, he was placed inside a steel locker box, another soldier jumped on top of the locker box, and it collapsed on the Veteran and pinched down on his right shoulder and back. He reports that immediately following the injury, he was taken to the base hospital and treated. He further reports that he was place on off-duty for 10 days for pinched nerve in his back and impingement of right shoulder. Following service, he first sought treatment for back problems in 1988, when he underwent back surgery. See Form-9 (November 2017), Hearing Transcript (February 2021). The Veteran has submitted a lay statement from his former spouse, who was married to the Veteran during his military service, including while living with him when he was stationed at Ft. Lewis. She recalled that the Veteran injured his back and right shoulder when a steel enclosure collapsed on top of him and he was taken to the base hospital for treatment. See Buddy/Lay Statement (March 2017). In addition, the Veteran's current spouse states she has observed the Veteran complain about his back and right shoulder since they've first meet in 1988. See Buddy/Lay Statement (Sworn Declaration of D.L.) (November 2018). To date, the Veteran has not been afforded a VA examination to determine whether he has a current back and right shoulder disorders that had their onset during service or are related to injury sustained during SERE training when steel locker collapsed on him. The competent lay statements concerning in-service injury as well as onset of back and right shoulder symptoms, in absence of the availability of service treatment records through no fault of his own, is sufficient to trigger VA's duty to assist by affording him VA examinations for these claimed disorders. See Layno, supra, and McLendon, supra. On remand, the Veteran should be provided with a VA examination to determine the nature of his claimed back and right shoulder disorders and whether they had an onset during his period of service or is related to injury sustained during SERE training when a steel locker collapsed on him and pinched down on his back and right shoulder. Accordingly, the matters are REMANDED for the following action: 1. If the Veteran's SPRs and additional STRs from his Army service and Army National Guard service are unable to be located, then issue a formal finding of unavailability of his SPRs and a complete set of the STRs and notify the Veteran pursuant to 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for a VA examination for his claimed gastroesophageal disorder. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record and interview of the Veteran, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptoms consistent with any gastroesophageal disability. Address the following: (a.) Identify the nature of the Veteran's claimed gastroesophageal disorder. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. (b.) Is it at least as likely as not that the Veteran's current gastroesophageal disorder had an onset during his period of service, or is otherwise related to his period of service? In providing the requested opinion, consider the Veteran's and his ex-wife's description of his in-service symptoms as well as the Veteran's and his current wife's description of his post-service symptoms. See Correspondence (June 2018), Buddy/Lay Statements (November 2018); and Hearing Transcript (February 2021). If there is any medical reason to accept or reject the proposition that the Veteran's reported 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? 3. Schedule the Veteran for a VA examination for his claimed bilateral foot disorder. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record and interview of the Veteran, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptoms consistent with any foot disability. Address the following: (a.) Identify the nature of the Veteran's claimed foot disorder. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. (b.) Is it at least as likely as not that the Veteran's current foot disorder had an onset during his period of service, or is otherwise related to his wearing military boots and uniform dress shoes during service? (c.) If there is a current diagnosis of arthritis involving the foot, is it at least as likely as not that the arthritis (1) began during active service, (2) manifested within a year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? In providing the requested opinion, consider the Veteran's and his ex-wife's description of his in-service symptoms as well as the Veteran's and his current wife's description of his post-service symptoms. See Correspondence (February 2018), Buddy/Lay Statements (November 2018); and Hearing Transcript (February 2021). If there is any medical reason to accept or reject the proposition that the Veteran's reported 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? 4. Schedule the Veteran for a VA examination for his claimed back disorder. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record and interview of the Veteran, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptoms consistent with any back disability. Address the following: (a.) Identify the nature of the Veteran's claimed back disorder. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. (b.) Is it at least as likely as not that the Veteran's current back disorder had an onset during his period of service, or is related to his reported injury when a steel locker collapsed on him and pinched down on his back? (c.) If there is a current diagnosis of arthritis of the spine, is it at least as likely as not that the arthritis (1) began during active service, (2) manifested within a year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? In providing the requested opinion, consider the Veteran's and his ex-wife's description of his in-service symptoms as well as the Veteran's and his current wife's description of his post-service symptoms. See Buddy/Lay Statements (November 2018); and Hearing Transcript (February 2021). If there is any medical reason to accept or reject the proposition that the Veteran's reported 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? 5. Schedule the Veteran for a VA examination for his claimed right shoulder disorder. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record and interview of the Veteran, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptoms consistent with any right shoulder disability. Address the following: (a.) Identify the nature of the Veteran's claimed right shoulder disorder. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. (b.) Is it at least as likely as not that the Veteran's current right shoulder disorder had an onset during his period of service, or is related to his reported injury when a steel locker collapsed on him and pinched down on his shoulder? (c.) If there is a current diagnosis of arthritis involving the right shoulder, is it at least as likely as not that the arthritis (1) began during active service, (2) manifested within a year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? In providing the requested opinion, consider the Veteran's and his ex-wife's description of his in-service symptoms as well as the Veteran's and his current wife's description of his post-service symptoms. See Buddy/Lay Statements (November 2018); and Hearing Transcript (February 2021). If there is any medical reason to accept or reject the proposition that the Veteran's reported 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? C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Murray 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.