Citation Nr: 22041323 Decision Date: 07/19/22 Archive Date: 07/19/22 DOCKET NO. 17-28 319 DATE: July 19, 2022 ISSUES 1. Entitlement to service connection for a disability characterized by snoring. 2. Entitlement to service connection for a disability characterized by chest pains. 3. Entitlement to service connection for a disability characterized by left arm numbness to include as due to service-connected cervical spine disability. 4. Entitlement to service connection for a left ear surgical scar. ORDER Entitlement to service connection for a disability characterized by snoring is dismissed. Entitlement to service connection for a disability characterized by chest pains is dismissed. Entitlement to service connection for a disability characterized by left arm numbness to include as due to service-connected cervical spine disability is dismissed. REMANDED Entitlement to service connection for a left ear surgical scar is remanded. FINDINGS OF FACT In a June 2022 statement in support of his claim, prior to the promulgation of a decision in the appeals, the Veteran requested to withdraw the issues of entitlement to service connection for a disability characterized by snoring, a disability characterized by chest pains, and a disability characterized by left arm numbness, to include as due to service-connected cervical spine disability. CONCLUSIONS OF LAW The criteria for withdrawal by the Veteran of the issues on appeal of entitlement to service connection for a disability characterized by snoring, service connection for a disability characterized by chest pains, and service connection for a disability characterized by left arm numbness, to include as due to a service-connected cervical spine disability have been met. 38 U.S.C. § 7105(B)(2), (d)(5); 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from September 2012 to December 2013. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision, issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. By way of background, the Veteran was denied entitlement to service connection for history of chest pains, snoring, insomnia, chronic otitis media, scar left ear from surgery, skin neoplasm ceruminal gland, neck skin nevus, and left arm numbness in June 2014. The Veteran filed a timely Notice of Disagreement (NOD) in May 2015 for each of those issues. In March 2017 the Veteran was issued a statement of the case (SOC). In May 2017, the Veteran filed a timely VA Form 9, as to the issues of entitlement to service connection for history of chest pains, snoring, left arm numbness and left ear scar from surgery only. Thus, the remaining service connection issues that were denied in June 2014 are no longer before the Board, and the only remaining issues are those listed on the title page. Those issues have also been recharacterized, as noted above. See, Clemons v. Shinseki, 23 Vet. App. 1 (2009). In his VA Form 9, the Veteran requested a hearing before a Veterans Law Judge. His claims were certified to the Board in October 2019. The Veteran appeared before the undersigned Veterans Law Judge in a Travel Board hearing in March 2022 to present testimony on the issues on appeal. A transcript of the hearing has been associated with the Veteran's claims file. Entitlement to service connection for a disability characterized by snoring; a disability characterized by chest pains; and a disability characterized by left arm numbness to include as due to a service-connected cervical spine disability. 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 appellant or by his authorized representative. 38 C.F.R. § 20.204. In a June 2022 statement in support of his claim, the Veteran wrote that he was granted time after the hearing to submit medical evidence of my disabilities: (1) chest pain, no diagnosis to prove disability, please drop this contention; (2) sleep disorder, no diagnosis to prove disability, please drop this contention; (3) left arm numbness secondary to cervical spine, no diagnosis to prove disability, please drop this contention. As such, the Veteran has requested to "drop this contention," as it relates to each of these three issues. The Board interprets this as a request to withdraw the pending appeals. Thus, the issues of entitlement to service connection for a disability characterized by snoring, a disability characterized by chest pains, and a disability characterized by left arm numbness to include as due to a service-connected cervical spine disability have each been withdrawn by the Appellant. Accordingly, the Board can no longer review these appeals, and these matters are dismissed. REASONS FOR REMAND The Board finds that additional evidentiary development is required before the claims on appeal are adjudicated. Entitlement to service connection for a left ear surgical scar is remanded. The Veteran has claimed that he has a painful scar, resulting from a surgery to his left ear, which occurred during his active-duty service. As an initial matter, the Board notes that the Veteran is currently service connected for status post excision, benign neoplasm of the left ceruminal gland, as well as perforated left tympanic membrane (claimed as left ear tympanic membrane rupture). Despite those two service-connected disabilities related to the left ear, it is currently unclear whether or not the Veteran has a scar of the left ear due to surgery. A VAMC treatment report from June 2009 stated that the Veteran had a "TM [tympanic membrane] [which] was obscured by edematous canal but appeared nonerythematous with perhaps some scarring ... no pain with manipulation of external canal on either side." The Veteran was given a VA examination in April 2014. He was seen in person, and his claims file was reviewed. The examiner confirmed that the Veteran had a perforated left tympanic membrane, which was diagnosed during active duty. He also had a surgery, which was noted to be left tympanostomy tube and removal cyst of the left external auditory canal. The examiner noted that there were residuals as a result of the surgery and described those residuals as perforated left tympanic membrane. Upon physical exam, the examiner noted "perforated left tympanic membrane, posterior and marginal. No active infection. Left posterior tympanic membrane is scarred and monomeric." Later in the exam, when prompted whether or not the Veteran had any scars (surgical or otherwise) related to the current diagnosis, the examiner wrote "no." The June 2014 rating decision noted that the Veteran had a scar from left posterior tympanic membrane surgery, but "the scar has to be visible in order to evaluate." It is unclear how the RO discerned that the Veteran's scar was not visible. The March 2017 SOC then noted that the Veteran was also service connected for status post excision, benign neoplasm of the left ceruminal gland, but that "the surgical incision to remove the cyst cannot be separately evaluated as a 'scar' for VA purposes." In the Veteran's May 2017 VA Form 9, he wrote that "the scar addressed in the [SOC] report may be the wrong one. I am referring to a scar or it could be called a tear that the doctor at the Dallas VA center told me about that would require additional surgery in order to repair." The Veteran was then given a hearing in March 2022 before the undersigned Veterans Law Judge. During the hearing, the Veteran testified that he underwent an operation in November 2013, and that following up from that surgery, he saw "a VA doctor in Dallas VA ... he looked in my ear and he said you need another operation." He later testified that he was not going to have that operation, because the same doctor advised against it at his age. He twice testified that it was associated with the perforated tympanic membrane issue. He later testified that he has a residual scar from the excision of the benign neoplasm of the left ceruminal gland, and that it was painful, and impacted his ability to hear. The Veteran is competent to report the symptoms he experiences, such as those associated with a painful scar to the left ear. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). In consideration of the above, the Board finds that it is unclear whether or not the Veteran has a current scar, and if so, what surgery and/or service-connected disability that scar is associated with. Furthermore, it unclear whether or not the claimed scar, which the Veteran has testified as to being painful, is visible. The Veteran wrote in his VA Form 9 that there may be multiple scars from his various left ear disabilities, and that the RO has considered "the wrong one." Medical evidence has both confirmed and denied the existence of the scar of the left ear. Because the Veteran's entire history is reviewed when making disability evaluations, the record must be complete for such service connection determinations to be made. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Therefore, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim for an entitlement to service connection so that he is afforded every possible consideration. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. The Veteran must be afforded a VA examination so that any scar of the left ear can be confirmed. The examiner is asked to consider the lay statements and testimony of the Veteran, and to also confirm whether or not any identified scar(s) are due to the Veteran's left ear surgery. Any identified scar(s) must also be adequately detailed. The matters are REMANDED for the following action: 1. Obtain any relevant and outstanding VA and/or private treatment records. Should they exist, associate them with the electronic claims file. 2. Following the completion of Step 1, schedule the Veteran for a VA examination to determine the nature and etiology of his asserted surgical scar(s) of the left ear. Make the claims file available to the examiner for review of the case. The examiner should review all records associated with the claims file and should note that this case review took place. Following an in-person examination and review of the claims file, the examiner is asked to opine as to the following: (a.) The VA examiner is to determine the nature and etiology the Veteran's claimed surgical scar(s) of the left ear. For each such scar found, the examiner must opine whether it is approximately at least as likely as not that any identified scar(s) may be due to an in-service injury, event, or disease. The examiner is reminded that the Veteran has undergone an excision of the benign neoplasm of the left ceruminal gland, and that he previously perforated his left tympanic membrane. The examiner is also reminded that the Veteran wrote in his VA Form 9 that there may be a different scar which he was told "would require additional surgery in order to repair." He also testified that his claimed scar of the left ear is painful. The examiner is also 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. If the examiner is unable to offer the requested opinion, it is essential the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. Thereafter, readjudicate the issue on appeal as noted above. If the determination remains unfavorable to the Veteran, he and his Representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his Representative should be afforded the applicable time period to respond. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Mulrain, 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.