Citation Nr: 22019986 Decision Date: 04/03/22 Archive Date: 04/03/22 DOCKET NO. 17-28 741A DATE: April 3, 2022 ORDER Entitlement to service connection for a traumatic brain injury (TBI) is dismissed. Entitlement to service connection for peripheral neuropathy of the right upper extremity is dismissed. Entitlement to service connection for peripheral neuropathy of the left upper extremity is dismissed. Entitlement to service connection for a right shoulder disability is granted. REMAND Entitlement to service connection for a cervical spine disability is remanded. FINDINGS OF FACT 1. At his November 2021 hearing, prior to the promulgation of a decision on the appeal, the Veteran withdrew his appeal of the issue of entitlement to service connection for a TBI. The withdrawal was explicit, unambiguous, and completed with a full understanding of the consequences of his actions. 2. At his November 2021 hearing, prior to the promulgation of a decision on the appeal, the Veteran withdrew his appeal of the issue of entitlement to service connection for peripheral neuropathy of the right upper extremity. The withdrawal was explicit, unambiguous, and completed with a full understanding of the consequences of his actions. 3. At his November 2021 hearing, prior to the promulgation of a decision on the appeal, the Veteran withdrew his appeal of the issue of entitlement to service connection for peripheral neuropathy of the left upper extremity. The withdrawal was explicit, unambiguous, and completed with a full understanding of the consequences of his actions. 4. The evidence of record supports finding that the Veteran's right shoulder disability occurred in, or is the result of, his period of active duty service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for entitlement to service connection for a TBI are met. Acree v. O'Rourke, 891 F.3d 1009, 1012 (Fed. Cir. 2018); 38 C.F.R. § 19.55(c). 2. The criteria for withdrawal of the appeal for entitlement to service connection for peripheral neuropathy of the right upper extremity are met. Acree, 891 F.3d at 1012; 38 C.F.R. § 19.55(c). 3. The criteria for withdrawal of the appeal for entitlement to service connection for peripheral neuropathy of the left upper extremity are met. Acree, 891 F.3d at 1012; 38 C.F.R. § 19.55(c). 4. The criteria for entitlement to service connection for a right shoulder disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2001 to May 2001, October 2003 to March 2005, and September 2008 to December 2009 with other periods of Army National Guard Service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO) Chicago, Illinois. A Board hearing was conducted at the RO in Chicago, Illinois. A transcript of this hearing is contained within the electronic claims file. Voluntary Dismissal Oral withdrawal may be made by a veteran or by an authorized representative and must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action by the appellant. Acree v. O'Rourke, 891 F.3d 1009, 1012 (Fed. Cir. 2018); DeLisio v. Shinseki, 25 Vet. App. 45, 5758 (2011). Withdrawal of an appeal will be deemed a withdrawal of the Notice of Disagreement (NOD) and, if filed, the Substantive Appeal (VA Form 9), as to all issues to which the withdrawal applies. Withdrawal does not preclude filing a new NOD and, after a Statement of the Case is issued, a new VA Form 9, as to any issue withdrawn, provided such filings would be timely under these rules if the appeal withdrawn had never been filed. 38 C.F.R. § 19.55(c). At the hearing, the following exchange took place between the Veteran and the undersigned Veterans Law Judge (VLJ): [VLJ]: The issues for entitlement to service connection for head or traumatic brain injury and peripheral neuropathy of the right arm and peripheral neuropathy of the left arm have been withdrawn. Did I characterize the issues correctly? Veteran: Yes, sir. [VLJ]: And do you understand, do you understand with regard to the issues that are being withdrawnthat you're withdrawing today, if you try to refile later, you're going to lose your effective date? Do you understand that? Veteran: Yes. Nov. 3, 2021, Hr'g Tr. (Tr.) at 2. The Board finds that the Veteran successfully has withdrawn the noted claims. The Veteran clearly articulated that he no longer wished to pursue the noted claims and confirmed that he understood that he would lose his effective date by doing so. Thus, it is a proper oral withdrawal. See Acree, 891 F.3d at 1012. As a proper oral withdrawal, the Veteran has withdrawn both his NOD and VA Form 9 with respect to these issues. Without such documents in place, the Board lacks appellate jurisdiction over these claims, and they hereby are dismissed. See 38 C.F.R. § 19.55(c). Service Connection For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. § 1110. To establish service connection, there must exist medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); 38 C.F.R. § 3.303(a). In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331, 133537 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1380 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). For his shoulder disability, the Veteran claims that, while positioned as a gunner during an operation, the driver of the Veteran's vehicle hit a large pothole causing the Veteran to fall, striking his shoulder. Aug. 28, 2009, DA Form 2823; see also Tr. at 3; Sept. 2, 2009, DA Form 2823 of S.T. and K.C. (fellow servicemembers of the Veteran, describing the same event). A June 2009 DA Form 20173 (Statement of Medical Examination and Duty Status) diagnosed the Veteran with bursitis of the right shoulder. September 2013 VA medical center (VAMC) images reveal questionable tiny bone fragment adjacent to the glenoid on Grashey view. The osseous structures are otherwise intact. No evidence of subluxation or dislocation. The AC joint is within normal limits. Probable calcified granuloma at the right lung base. There was a history of dislocation. An April 2014 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran's complaints and medical history. The Veteran was diagnosed with right shoulder bursitis since January 2009. The Veteran reported to the examiner the very same incident recounted above. In opining that the Veteran's in-service incident is not related to his current disability, she stated the following: Veteran's right shoulder condition is less than likely as not (<50% probability) incurred in, caused by, related to (Veteran's lower back pain which progressed up his back) that occurred (while in a 5 ton truck after hitting a pothole during his military service and fell down in the truck on his right shoulder on 1/25/2009.) For her rationale, the examiner cited the article: Anderson RJ and Todd DJ. Bursitis: An overview of clinical manifestations, diagnosis, and management. UpToDate. Review current through March 2014. Last reviewed March 14, 2014. Current date 4/16/2014. The examiner then went to on to describe the difference between acute and chronic bursitis. A February 2017 VAMC MRI shows prominent glenoid labral tear and degenerative changes and supraspinatus tendinosis and a small partial tear. A January 2022 letter from the Veteran's private doctorR.P.also contains a medical opinion. Dr. R.P. states that he has cared for the Veteran since October 2019; he reviewed the Veteran's medical history, including x-rays, MRIs, and his 2009 military injury. According to Dr. R.P., the Veteran was not treated for bursitis until 2017. Because he has no other risk factors that could have precipitated that condition, Dr. R.P. believes that the Veteran's bursitis is a direct result of his in-service 2009 injury, which unfortunately properly was not diagnosed until 2017. The Veteran clearly has been diagnosed with right shoulder bursitis and injured his shoulder during active duty service. Thus, the first two elements of service connection have been established. See Romanowsky, 26 Vet. App. 293; 38 C.F.R. § 3.303(a). Regarding the third element of service connection, there are two opinions of record: the April 2014 VA examiner and Dr. R.P. The Board finds the former inadequate and will rely on the latter. The VA examiner fails to give any supporting rationale. She merely states that it is less likely than not the Veteran's condition is related to service and cites an article. There is, however, no discussion on that article. The examiner does not mention what that article discusses and why she relies on it to provide the opinion she does. The examiner also fails to provide any discussion on the distinction between acute versus chronic bursitis. Does the examiner believe the Veteran has acute bursitis rather than chronic? She does not say, and the Board cannot presume either way. Thus, the Board finds that this medical opinion is inadequate for adjudication purposes. On the other hand, Dr. R.P.'s opinion is adequate and supported by a clear rationale. He notes that he has been treating the Veteran since 2019; he has reviewed the Veteran's medical history, including his military records, and has clearly opined that the Veteran's bursitis is related to his in-service injury. He also noted that the Veteran properly was not treated or diagnosed prior to 2017 and that the Veteran had no other precipitating factors that could have caused the bursitis. Thus, the Board affords more probative value to Dr. R.P.'s opinion, finding that the third element of service connection has been established. See Romanowsky, 26 Vet. App. 293; 38 C.F.R. § 3.303(a). Because the evidence of record supports the Veteran's claim for entitlement to service connection for a right shoulder disability, his appeal on this issue is granted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53; 38 C.F.R. §§ 3.102, 3.303(a). REASONS FOR REMAND The Veteran does not cite any specific injury to his cervical spine. STRs, however, contain multiple instances of complaints for pain "along [his] spine" with neurological pain down his upper extremities. An April 2007 VAMC entry notes that x-rays of the Veteran's neck, bilateral wrists, left ankle and lower back were taken; however, the results of those x-rays do not appear to be contained in the claims file. The April 2014 VA examiner for the Veteran's right shoulder also evaluated the Veteran's cervical spine; she diagnosed the Veteran with a cervical neck strain since September 2008. Under the Diagnostic Testing Section, the examiner noted that imaging of the Veteran's cervical spine was present and confirmed degenerative joint disease. She cites April 2014 imaging results, which show loss of normal lordosis and prominent posterior endplate osteophytes with mild disc space narrowing at C34. In opining that the Veteran's cervical spine condition is not related to the complaints of spinal pain during service, the examiner stated the following: Veteran's neck pain is less than likely as not (<50% probability) incurred in, caused by, related to (Veteran's lower back pains which progressed up his back) that occurred (while in a 5 ton truck during second perio[d] of military service September 29, 2008 to December 30, 2009). RATIONALE: Per the Claims file, there are no medical documents stating Veteran complaints of neck pain while in the military. Mr. [REDACTED] has no complaints of upper Thoracic pain previously or currently. Remand is required for two reasons. First, the Board is without the April 2007 x-ray findings. As VA records, their relevance automatically is assumed, and they must be obtained. See Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016); 38 C.F.R. § 3.159(c)(3). Second, because those x-rays could document the Veteran's degenerative condition of his cervical spine much earlier than the record currently shows, it renders the VA examiner's opinion speculative at best and possibly based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Thus, remand is required to obtain the missing records and to obtain an addendum opinion. See 38 C.F.R. § 20.904(a). The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records, including x-ray results of the Veteran's cervical spine from or around April 2007. Should they exist, associate them with the claims file. 2. If, after reasonable attempts have been made, any identified records cannot be obtained, then notify the Veteran as such in accordance with 38 C.F.R. § 3.159(e). 3. Obtain an addendum to the April 2014 VA examination. The addendum shall answer the following: Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's cervical spine disability occurred in, or is the result of, his period of active duty service? Note: The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. A detailed rationale supporting the examiner's opinions must be provided. The lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 3. Conduct any other development deemed necessary and then readjudicate the Veteran's claim. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or United States Court of Appeals for Veterans Claims must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, Associate 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.