Citation Nr: 18131284
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 14-11 176A
DATE:	August 31, 2018
ORDER
Entitlement to service connection for degenerative arthritis of the lumbar spine (back condition) is granted.
The appeal seeking entitlement to service connection for bilateral hearing loss is dismissed.
REMANDED
Entitlement to service connection for respiratory problems due to environmental hazards in the Gulf War is remanded.
FINDINGS OF FACT
1. Resolving reasonable doubt in the Veteran’s favor, his back condition is at least as likely as not related to an in-service injury.
2. In a June 2018 statement and on the record at his June 2018 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew the appeal of service connection for bilateral hearing loss.
CONCLUSIONS OF LAW
1. The criteria for service connection for a back condition are met.  38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a).
2. The criteria for withdrawal of the appeal of entitlement to service connection for bilateral hearing loss are met.  38 U.S.C. § 7105; 38 C.F.R. § 20.204.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty with the United States Marines Corps from February 2001 to July 2001 and with the United States Army from February 2008 to December 2008, and January 2009 to February 2010.  He also had a period of active duty for training (ACDUTRA) from April 2006 to June 2006.
These matters are before the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).
In December 2017, the Veteran submitted a request to advance his case on the Board’s docket due to financial hardship and submitted evidence in support of the motion.  The Board grants the motion, and the case has been advanced on the docket.  38 C.F.R. § 20.900.
The Veteran testified before the Board at a hearing in June 2018.  A transcript of the hearing is of record.  At the hearing, the Veteran was granted a 60-day abeyance period for the submission of additional evidence to support his claims.  The Veteran submitted additional evidence in July 2018 without a waiver pertinent to his claim for service connection for a back condition.  For all substantive appeals received on or after February 2, 2013, any evidence submitted to the Board shall be subject to initial review by the Board unless the Veteran or the Veteran’s representative requests in writing that the Agency of Original Jurisdiction (AOJ) initially review such evidence.  38 U.S.C. § 7105(e).  As the Veteran filed his VA Form 9, Substantive Appeal, in these matters in April 2014, a waiver is unnecessary.  Moreover, the Board has granted service connection for the Veteran’s back condition, so review may proceed without prejudice to the Veteran. 
1. Entitlement to service connection for bilateral hearing loss
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 authorized representative.  Except for appeals withdrawn on the record at hearings, the withdrawal must be in writing.  38 C.F.R. § 20.204. 
In a July 2018 written statement and on the record at his July 2018 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran provided sworn testimony that he wanted to withdraw the appeal seeking service connection for bilateral hearing loss.  As the Veteran has withdrawn the appeal of the issue in accordance with 38 C.F.R. § 20.204, there remains no allegation of error of fact or law for the Board to address.  Accordingly, the Board does not have jurisdiction to review the appeal and it must be dismissed.
2. Entitlement to service connection for a back condition 
The Veteran contends that his back condition stems from an in-service fall.  
The Board concludes that the Veteran has current diagnoses of degenerative arthritis of the lumbar spine and spondylolisthesis that are related to an in-service fall from a fuel tanker while stationed in Iraq.  38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). 
The August 2016 lumbar spine VA examination shows the Veteran has a current diagnosis of degenerative arthritis of the lumbar spine and private treatment records illustrate the Veteran has a diagnosis of spondylolisthesis.  The Veteran’s chiropractor, N.B., opined in June 2018 that the Veteran’s back condition was likely caused by his fall off a military tanker in service.  The rationale was that traumatic events such as the Veteran’s fall where he landed on his feet with the heavy gear he was wearing could lead to the separation of bone in the lower lumbar vertebrae called spondylolisthesis.  Further, N.B. stated that spondylolisthesis can cause instability in the spine leading to low back pain, muscle spasm, and radicular pain.  
The Board notes that following the August 2016 VA examination, the examiner opined that the Veteran’s back condition is less likely than not related to service.  In support of the opinion the examiner stated that there is no documentation of any injury in service and that the Veteran’s trigger points stem from his service-connected fibromyalgia.  
However, the Board places more probative weight on the opinion of N.B. as there is competent and credible evidence that the Veteran suffered a fall in service even though the service treatment records are silent as to an in-service back injury.  In May 2010, three months after the Veteran’s last period of active duty, the Veteran reported to a VA chiropractor that he had low back pain present for one year.  The chiropractor noted some low back pain with the Patrick-Fabre’s test bilaterally.  The Veteran stated at his June 2018 Board hearing that the reason he did not seek treatment after the November 2009 fall off the fuel tanker was that “you can’t just call time out.”  Given the Veteran’s military occupational specialty in petroleum supply while stationed in Iraq, the consistent reports of a fall, and physical examination three months after the Veteran’s discharge from active duty which shows back pain, the Board finds there is credible evidence that a fall in service occurred.  Therefore, although no service treatment record documents an in-service injury, the totality of the record supports that such injury occurred.  Thus, the Board places more probative weight on the opinion of N.B.
Based on the foregoing, and resolving doubt in favor of the Veteran, the Board finds that the Veteran’s current back disability is related to his service, and therefore, service connection is warranted.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

REASONS FOR REMAND
Entitlement to service connection for respiratory problems due to environmental hazards in the Gulf War is remanded.
The Veteran underwent a VA examination for a respiratory condition in August 2016 where the VA examiner opined the Veteran’s respiratory condition, including the diagnosis of obstructive sleep apnea, is less likely than not related to his service.  The only rationale the VA examiner provided in support of the opinion was that there is no documented evidence in the medical literature to link obstructive sleep apnea to Gulf War Syndrome.  The Board finds that this rationale is inadequate as the examiner did not address the Veteran’s reported exposure to smoke from oil fires, diesel and other petroleum chemicals, and paints and solvents while stationed in Iraq as is detailed in a May 2010 VA treatment note.  Following the August 2016 opinion, the Veteran stated at his June 2018 Board hearing that his respiratory condition stems from exposure to burn pits, oil fuels, and dust.  Additionally, he submitted literature from the National Sleep Foundation indicating that chronic obstructive pulmonary disease and other breathing difficulties are linked with exposure to “other environmental pollutants.”  In light of the foregoing, an additional VA examination should be obtained to address the etiology of any diagnosed respiratory condition, to include obstructive sleep apnea.
The matter is REMANDED for the following actions:
1. Obtain and associate with the Veteran’s electronic record VA treatment records from September 2016 to the present.
Contact the Veteran and afford him the opportunity to identify or submit any pertinent evidence in support of his claims, to include records of any private treatment.  Based on his response, attempt to procure copies of all records which have not been obtained from identified treatment sources.
If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e).
2. After completing the development requested in item (1), provide the Veteran an appropriate VA examination to determine the nature, extent, and etiology of any diagnosed respiratory condition, to include obstructive sleep apnea.  His electronic claims file, including a copy of this decision and remand, must be made available to the examiner for review in connection with the examination.  All indicated tests should be conducted, and the reports of any such studies incorporated into the examination reports to be associated with the claims file.  
After completing all indicated tests and studies, the examiner is to provide a response to the following:
A) Provide a diagnosis of any respiratory condition that has existed during the pendency of the claim (since July 2010). 
B) Please identify the likely etiology of each diagnosed respiratory condition, to include obstructive sleep apnea.  Specifically, respond to the following questions for each diagnosed disability:
Is it at least as likely as not (50 percent or greater probability), that any diagnosed respiratory condition, to include obstructive sleep apnea, is related or attributable to his military service, to include exposure to burn pits, oil fuels, and dust during his service in Iraq?
A complete rationale for any opinion provided is requested.  The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions.  If the examiner rejects the Veteran’s reports of symptomatology, a reason for doing so must be provided.
If the examiner is unable to provide an opinion without resorting to speculation, an explanation as to why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered should be provided.

 
M. SORISIO
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	N. Breitbach, Associate Counsel 

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