Citation Nr: 22015731 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 19-18 878 DATE: March 18, 2022 ORDER Entitlement to service connection for a tooth condition is dismissed. Entitlement to service connection for a gynecological condition is dismissed. REMANDED Entitlement to service connection for a temporomandibular joint (TMJ) disorder is remanded. Entitlement to service connection for low blood circulation in the hands and feet is remanded. Entitlement to service connection for a respiratory disorder, to include shortness of breath, is remanded. Entitlement to service connection for a cervical spine disorder is remanded. Entitlement to service connection for a neurological disorder of the left upper extremity, to include nerve pain and tinging, is remanded. Entitlement to service connection for a right elbow disorder is remanded. Entitlement to service connection for a gallbladder disorder is remanded. Entitlement to service connection for lower abdominal pain/gastrointestinal problems is remanded. FINDING OF FACT During her November 2020 hearing before the undersigned Veterans Law Judge, and with assistance from her representative, the Veteran withdrew from her appeal the issues of entitlement to service connection for a tooth condition and a gynecological condition. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for service connection for a tooth condition are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the appeal for service connection for a gynecological condition are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from June 2006 to July 2015. Withdrawal 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55.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, during her November 2020 hearing before the undersigned Veterans Law Judge, and with assistance from her representative, the Veteran withdrew from her appeal the issues of entitlement to service connection for a tooth condition and a gynecological condition. The Board notes that the withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the Veteran. Hence, there remain no allegations of errors of fact or law for appellate consideration as to those issues. Accordingly, the Board does not have jurisdiction to review the appeal as to the issues of entitlement to service connection for a tooth condition and a gynecological condition, and they are dismissed. REASONS FOR REMAND At the outset, the Board notes that there appear to be outstanding private treatment records that may be pertinent to the issues on appeal. First, during her November 2020 hearing, the Veteran indicated that she received private dental treatment, as well as physical therapy for her cervical spine. See November 2020 Hearing Transcript, pp. 5, 10. Furthermore, although the Veteran submitted private treatment records in January 2021, the Board notes that those records appear to be incomplete. For example, although a May 2016 private treatment record noted suspected cholelithiasis, the second page of the findings are not associated with the claims file. Because any outstanding private treatment records may be pertinent to her claims on appeal, on remand, the AOJ must take appropriate efforts to obtain them. If necessary, the AOJ should request that the Veteran submit the necessary authorization to allow VA to obtain the outstanding records. See 38 C.F.R. § 3.159 (2021). Low Blood Circulation in the Hands and Feet With regard to the Veteran's claim for service connection for low blood circulation in the hands and feet, she underwent a VA examination in June 2017, and the examiner concluded that she had never been diagnosed with a vascular disease. Subsequently, however, a May 2018 private treatment record noted a diagnostic impression of Reynaud's phenomenon. Given this new diagnosis and the Veteran's report of ongoing symptoms since her military service, see November 2020 Hearing Transcript, pp. 33-34, she should be afforded a new VA examination that addresses whether she has a current disability manifested by low blood circulation in the hands and feet that had its onset during, or is otherwise related to, her military service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Shortness of Breath With regard to the Veteran's claim for service connection for shortness of breath, she underwent a VA examination in June 2017, and the examiner concluded that she did not have a respiratory condition. Subsequently, however, an April 2020 private treatment record noted her report of shortness of breath, and she ultimately was diagnosed with restrictive lung disease. Given this new diagnosis and the Veteran's report of ongoing symptoms since her military service, see November 2020 Hearing Transcript, p. 23, she should be afforded a new VA examination that addresses whether she has a current respiratory disability that had its onset during, or is otherwise related to, her military service. See McLendon, supra. Cervical Spine, Left Upper Extremity, and Right Elbow The Veteran claims entitlement to service connection for a cervical spine disorder, a left upper extremity disorder, and a right elbow disorder as a result of her military service. During her November 2020 hearing before the undersigned Veterans Law Judge, she testified that she started to experience neck pain in service. Although she denied a specific injury, she noted that her military occupational specialty (MOS) as a surgical technologist required her to look down frequently which, in turn, caused achiness, stiffness, and difficulty with range of motion. The Veteran noted that her symptoms included pain shooting up her neck. With regard to her left upper extremity disorder, the Veteran reported problems with a pinching feeling and pain running down her arms. See November 2020 Hearing Transcript, p. 14. With regard to her right elbow disability, the Veteran denied a specific in-service injury to her right elbow, but she reported in-service problems with pain. See November 2020 Hearing Transcript, p. 16. She also reported current functional problems, noting that she was limited in some activities as a result of her right elbow disability. See id. at pp. 20-21. To date, the Veteran has not been afforded a VA examination to determine whether she experiences a cervical spine disability and/or left upper extremity disability that are related to her military service. Given her competent lay statements concerning her in-service symptoms, see Layno v. Brown, 6 Vet. App. 465, 470 (1994), as well as her service treatment records showing a complaint of neck pain in August 2014, the Board finds that she should be afforded a VA examination to address whether she experiences a cervical spine disability and/or left upper extremity disability that are related to her military service. See McLendon, supra. With regard to the Veteran's claim for service connection for a right elbow disability, she underwent a VA examination in June 2017, and she was diagnosed with a right elbow strain; however, no opinion was offered as to whether such was related to her military service. She underwent another examination in March 2018, and she was diagnosed with right elbow medial epicondylitis. Although the examiner opined that her condition was less likely than not related to her military service; it appears that the examiner relied on another veteran's service treatment record to form the basis of the opinion. Specifically, the examiner referenced a February 2010 service treatment record documenting treatment for a right elbow abcess; however, the servicemember described in that record was a male, and the reported age of the patient does not correspond to the Veteran's age in February 2010. Thus, the opinion appears to be based on inaccurate information. To ensure an accurate record upon which to decide the Veteran's claim, the Board finds that she should be afforded a new VA examination to address whether her right elbow disability is related to her military service. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Gallbladder Disorder and Lower Abdominal Pain/Gastrointestinal Problems The Veteran claims entitlement to service connection for a gallbladder disorder as a result of her military service. Furthermore, she claims lower abdominal and gastrointestinal problems that are secondary to her gallbladder problems. An August 2007 service treatment record noted the Veteran's report of abdominal pain in the right upper quadrant. A December 2010 service treatment record lists crampy/colicky abdominal pain as a chronic problem. A June 2014 service treatment record noted that the Veteran's medical history was consistent with cholelithiasis. A July 2014 service treatment record noted that a biliary scan revealed findings consistent with biliary dyskinesia. A March 2015 service treatment record noted the Veteran's report of epigastric pain. A May 2016 private treatment record noted the Veteran report of severe right upper quadrant pain. Cholelithiasis was suspected, however, the complete findings are note associated with the claims file. A June 2017 VA examination report noted diagnosis of chronic cholelithiasis; however, a medical opinion was not provided. The Veteran underwent another examination in March 2018; however, she was not diagnosed with a current disability. Instead, the examiner stated that there was no current pathology to render a diagnosis. Furthermore, the examiner opined that any current gallbladder-related problems were less likely than not related to her military service. The examiner noted that service treatment records were normal with no documented gallstones. An opinion was obtained in January 2019 to address whether the Veteran's current disability was related to her in-service treatment for biliary dyskinesia; however, the examiner merely noted that the diagnosis of biliary dyskinesia was quiescent due to the most recent imaging results. In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of the existence of a current disability is satisfied when a veteran has a disability at the time she files her claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. Given the diagnosis of chronic cholelithiasis during the May 2017 VA examination, as well as the suspicion of cholelithiasis noted in the May 2016 private treatment record, the Board finds that a new medical opinion is necessary. See Barr, supra. The matters are REMANDED for the following action: 1. Give the Veteran another opportunity to identify any outstanding pertinent evidence that has not already been associated with the claims file, to include the dental treatment and physical therapy for her cervical spine reported during the November 2020 hearing, as well as the private treatment records submitted in January 2021. The AOJ should then attempt to obtain those records if the Veteran provides the appropriate authorization. 2. The Veteran should be afforded an examination to determine whether any current disability manifested by low blood circulation in the hands and feet had its onset during, or is otherwise related to, her military service. The record must be made available to the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should take a history from the Veteran as to the progression of her claimed disability. Following a review of the entire record, the examiner should address the following: a) Please identify any current disability manifested by low blood circulation in the hands and feet. Please note a May 2018 private treatment record noted a diagnostic impression of Reynaud's phenomenon. If the Veteran's current diagnosis differs from the prior diagnosis, please reconcile the findings. b) For each disability identified, including Reynaud's phenomenon, is it at least as likely as not (i.e., approximately 50 percent or greater probability) that such had its onset during, or is otherwise related to, her active duty service? In offering any opinion, the examiner must consider the full record, to include the Veteran's service treatment records, as well as her lay statements concerning the onset and progression of symptoms. Significantly, the Veteran had reported problems with low blood circulation dating back to July 2015 when she was discharged and filed her initial claim for disability benefits. A clearly-stated rationale for any opinion should be provided. 3. The Veteran should be afforded an examination to determine whether any current disability manifested by shortness of breath had its onset during, or is otherwise related to, her military service. The record must be made available to the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should take a history from the Veteran as to the progression of her claimed disability. Following a review of the entire record, the examiner should address the following: a) Please identify any current disability manifested by shortness of breath. Please note an April 2020 private treatment record noted her report of shortness of breath, and she ultimately was diagnosed with restrictive lung disease. If the Veteran's current diagnosis differs from the prior diagnosis, please reconcile the findings. b) For each disability identified, including restrictive lung disease, is it at least as likely as not (i.e., approximately 50 percent or greater probability) that such had its onset during, or is otherwise related to, her active duty service? In offering any opinion, the examiner must consider the full record, to include the Veteran's service treatment records, as well as her lay statements concerning the onset and progression of symptoms. Significantly, the Veteran has reported shortness of breath dating back to July 2015 when she was discharged and filed her initial claim for disability benefits. A clearly-stated rationale for any opinion should be provided. 4. The Veteran should be afforded an examination to determine whether any cervical spine disorder, left upper extremity disorder, and/or right elbow disorder had its onset during, or is otherwise related to, her military service. The record must be made available to the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should take a history from the Veteran as to the progression of her claimed disabilities. Following a review of the entire record, the examiner should address the following: a) Please identify any current disability associated with the cervical spine, the left upper extremity, and the right elbow, to specifically include any orthopedic disability and/or any neurologic disability. The examiner should note that symptoms manifesting in functional impairment of earning capacity constitutes a disability for VA purposes, even if such cannot be attributed to a formal diagnosis. b) For each disability identified, is it at least as likely as not (i.e., approximately 50 percent or greater probability) that such had its onset during, or is otherwise related to, her active duty service? c) For any disability of the left upper extremity identified, is it at least as likely as not (i.e., approximately 50 percent or greater probability) that such was caused by or aggravated by her cervical spine disability? Please note that causation and aggravation are two separate inquiries, and both must be answered. In offering any opinion, the examiner must consider the full record, to include the Veteran's service treatment records, as well as her lay statements concerning the onset and progression of symptoms. A clearly-stated rationale for any opinion should be provided. 5. The Veteran should be afforded an examination to determine whether any current gallbladder disability and/or lower abdominal and gastrointestinal problems had their onset during, or are otherwise related to, her military service. The record must be made available to the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should take a history from the Veteran as to the progression of her claimed disabilities. Following a review of the entire record, the examiner should address the following: a) Please identify any current disability associated with the Veteran's gallbladder and/or manifested by lower abdominal and gastrointestinal problems. Please note the May 2017 VA examination diagnosed the Veteran with chronic cholelithiasis. If the Veteran's current diagnosis differs from the prior diagnosis, please reconcile the findings. Furthermore, the requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time she files her claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. b) For each disability identified, including chronic cholelithiasis, is it at least as likely as not (i.e., approximately 50 percent or greater probability) that such had its onset during, or is otherwise related to, her active duty service? An opinion should still be provided even if the condition resolved during the appeal period. In offering any opinion, the examiner must consider the full record, to include the Veteran's service treatment records showing treatment for cholelithiasis and biliary dyskinesia, as well as her lay statements concerning the onset and progression of symptoms. Significantly, an August 2007 service treatment record noted the Veteran's report of abdominal pain in the right upper quadrant; a December 2010 service treatment record lists crampy/colicky abdominal pain as a chronic problem; a June 2014 service treatment record noted that the Veteran's medical history was consistent with cholelithiasis; a July 2014 service treatment record noted that a biliary scan revealed findings consistent with biliary dyskinesia; and a March 2015 service treatment record noted the Veteran's report of epigastric pain. Furthermore, the Veteran has reported gallbladder and abdominal/gastrointestinal problems dating back to at least July 2015 when she was discharged and filed her initial claim for disability benefits. c) For any disability manifested by lower abdominal and gastrointestinal problems identified, is it at least as likely as not (i.e., approximately 50 percent or greater probability) that such was caused by or aggravated by her gallbladder disability? Please note that causation and aggravation are two separate inquiries, and both must be answered. A clearly-stated rationale for any opinion should be provided. 6. Thereafter, and after any further development deemed necessary, the issues on appeal should be readjudicated. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Springer, 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.