Citation Nr: 18154157
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 15-03 902A
DATE:	November 29, 2018
ORDER
The appeal for entitlement to service connection for soft tissue sarcoma is dismissed.
Entitlement to service connection for lumbar disc herniation is granted.
REMANDED
The issue of entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, type II, is remanded.
The issue of entitlement to service connection for a liver condition, to include as secondary to service-connected diabetes mellitus, type II, is remanded.
The issue of entitlement to a compensable initial rating for bilateral hearing loss is remanded.
FINDINGS OF FACT
1.  In a December 2017 statement, the Veteran’s representative requested that the appeal for entitlement to service connection for soft tissue sarcoma be withdrawn.
2. The probative evidence of record is at least in relative equipoise as to whether the Veteran’s lumbar disc herniation is etiologically related to an in-service injury, event, or disease.
CONCLUSIONS OF LAW
1.  The criteria for withdrawal of the appeal for entitlement to service connection for soft tissue sarcoma have been met.  38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.202, 20.204 (2017).
2. The criteria for entitlement to service connection for lumbar disc herniation have been met.  38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017).  
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from April 1967 to January 1971.
These matters come before the Board of Veterans’ Appeals (Board) on appeal of October 2011 (sarcoidosis, hypertension and liver disorder), January 2012 (hearing loss, and low back) and March 2012 (hypertension) rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.
In his substantive appeal, the Veteran requested a hearing before a Veteran’s Law Judge of the Board.  See VA Form 9, Appeal to Board of Veterans’ Appeals, received February 2015.  However, in December 2017, the Veteran’s representative submitted a statement indicating that he wished to withdraw his hearing request.  Under 38 C.F.R. § 20.704 (e), a request for hearing may be withdrawn by an appellant at any time before the hearing.  Therefore, the Board finds that the hearing request has been withdrawn, and will proceed with appellate review. 
The Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009).  In Rice, the Court held that a claim for a total rating based on individual unemployability (TDIU) due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating.  In this case, the Veteran has not argued, and the record does not otherwise reflect, that the hearing loss disability at issue renders him unemployable.  Accordingly, the Board concludes that a claim for TDIU has not been raised.
Withdrawal
The Veteran has perfected an appeal as to the issue of entitlement to service connection for soft tissue sarcoma.  
The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C. § 7105.  A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision.  38 C.F.R. § 20.202, 20.204 (b).  Withdrawal may be made by the claimant or the claimant’s authorized representative.  38 C.F.R. § 20.204 (a).  Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing.  38 C.F.R. § 20.204 (b) (1).
Following certification of the appeal to the Board and prior to promulgation of a decision in this case, the Veteran’s representative requested the withdrawal of the appeal for entitlement to service connection for soft tissue sarcoma.  See December 2017, Statement in Support of Claim.  As such, there remains no allegation of error of fact or law for appellate consideration as to that issue.  As the Board does not have jurisdiction to review the appeal for entitlement to service connection for soft tissue sarcoma, the issue is dismissed. 


Service Connection
1. Entitlement to Service Connection for Lumbar Disc Herniation
The Veteran contends that he has a low back disability that is directly related to his active service.  Specifically, the Veteran stated that while serving in the Republic of Vietnam, in 1969, he suffered a non-penetrating gunshot wound to his posterior mid-thoracic.  The Veteran further stated that the bullet penetrated his pack but not the plate protecting his back; however, the bullet knocked him off his feet and caused severe pain.  See Correspondence, received December 2015. 
To establish service connection for a disability on a direct-incurrent basis, the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004).  See also 38 C.F.R. § 3.303. 
The evidence of record shows that the Veteran has a current diagnosis of lumbar disc herniation.  See Private Treatment Record, dated December 2015.  Therefore, there is evidence of a current disability.
As to an in-service event, injury or disease the Veteran’s service treatment records do not reflect complaints of a low back injury.  However, the Veteran has consistently stated, to include in an October 2010, Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder, that during Vietnam he was wounded during a mission.  Additionally, in December 2015, the Veteran submitted a statement from a fellow service member who stated that, just like the Veteran, he was an electronics specialist and as part of their military occupational specialty (MOS), they were required to travel in small groups to locate radio transmissions.  The fellow service member further stated that the Veteran revealed his gunshot injury the day after it occurred.  The Board notes that the Veteran’s MOS was instrument repairman and that the he was trained on survival escape and evasion.  As such, traveling in small groups to locate radio transmissions is generally consistent with the circumstances of the Veteran’s service, as reflected in his DD Form 214 and the service records.  See 38 U.S.C. § 1154 (a) (1).  As such, the Board finds there is evidence of an in-service injury of receiving a non-penetrating gunshot wound to the back.  Therefore, the question remaining for consideration is whether there is a causal relationship between the in-service event and the Veteran’s current lumbar disc herniation.
With respect to a nexus between the current lumbar disc herniation and in-service event, the Board notes that the record contains conflicting medical opinions.  The United States Court of Appeals for Veterans Claims has stated that the probative value of medical opinion is based on the expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches.  Further, the credibility and weight to be attached to these opinions are within the province of the adjudicator.  See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).  As such, the Board may appropriately favor the opinion of one competent medical authority over another.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  
Against a finding of a nexus is a November 2011 VA examination report.  The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination.  The Veteran stated that his low back pain began in 1969 after being shot wearing his armored vest.  The Veteran further stated that he had low back pain since the 1969 event.  The VA examiner opined that the Veteran’s current low back disability is less likely than not incurred in or caused by the claimed in-service injury, event, or illness.  As rationale, the VA examiner stated that there is a lapse of time between the in-service event and onset of the Veteran’s present condition.  However, the VA examiner did not address the Veteran’s competent contention that he has suffered from low back pain since the in-service event.  As such, the Board affords relatively little probative weight to the November 2011 VA examiner’s opinion.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).
In favor of a finding of a nexus is a December 2015 private examination report.  The private examiner examined the Veteran and reviewed his treatment records since separation and opined that the Veteran’s current lumbar disc herniation is most likely caused by or a result of the non-penetrating gunshot wound in Vietnam.  As rationale, the private examiner stated that the Veteran’s current disability is consistent with high energy impact into armor without penetration.  The private examiner further stated that the contact point at the Veteran’s mid-thoracic resulted in his twelve-disc bulge/herniation.  Although there is no indication that the December 2015 private examiner reviewed the Veteran’s service treatment records, the private examiner did conduct an in-person examination and reviewed the Veteran’s medical records since his separation from active service.  In addition, the December 2015 private examiner’s opinion contains sufficient rationale.  For these reasons the Board affords greater probative weight to the December 2015 opinion stating that the Veteran’s current lumbar disc herniation is related to his active service.  See Nieves-Rodriguez, 22 Vet. App. at 295.  In short, the Board finds the December 2015 opinion to be probative in showing that the Veteran’s current lumbar disc herniation is related to his active military service.  Furthermore, the Board finds no reason to afford greater probative weight to the November 2011 VA examiner’s opinion that the Veteran’s current low back disability is not related to his active service.
In view of the foregoing, the Board finds that the probative evidence of record is at least in relative equipoise as to whether the Veteran’s lumbar dis herniation is etiologically related to his active service.  Therefore, any remaining doubt must be resolved in the Veteran’s favor, and the Board concludes that entitlement to service connection for lumbar disc herniation is warranted.  38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 
VA’s Duty to Notify and Assist
With respect to the Veteran’s claims herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156 (a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).
REASONS FOR REMAND
1. Entitlement to Service Connection for Hypertension
The Veteran contends that he currently has hypertension that is secondary to his service-connected diabetes mellitus, type II.  See Correspondence, received December 2015.  
The Veteran was provided a VA examination related to his claim for entitlement to service connection for hypertension in January 2012.  VA has a duty to ensure that any medical examination or opinion it provides is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board’s evaluation will be fully informed.  Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007).
Here, the Board finds that the January 2012 VA examination relating to the Veteran’s hypertension is inadequate for decision-making purposes.  The VA examiner noted the Veteran’s diagnosis of hypertension and opined that the Veteran’s hypertension is not a complication of his diabetes mellitus since the onset of his hypertension coincided with his diabetes mellitus onset date.  In that regard, the Board observes that in Frost v. Shulkin, 29 Vet. App. 131 (2017), the United States Court of Appeals for Veterans Claims (Court) held that “for a veteran to be service connected on a secondary basis under a causation theory, the primary disability need not be service connected, or even diagnosed, at the time the secondary condition is incurred.”  Further, the VA examiner did not provide an opinion as to whether the Veteran’s hypertension is aggravated by his service-connected diabetes mellitus.  In that regard, the Board notes that an opinion to the effect that one disability “is not caused by or a result of” another disability does not answer the question of aggravation.  See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013).  Because the January 2012 VA examination is inadequate for decision-making purposes, the issue must be remanded for a further VA opinion.  Barr, 21 Vet. App. 312.  The Board notes that the Court recently held that causation and aggravation are independent concepts and should have separate findings and rationales.  See Atencio v. O’Rourke, 30 Vet. App. 74 (2018).  As such, on remand, the VA examiner must provide separate findings and rationales relating to causation and aggravation.
2. Entitlement to Service Connection for a Liver Condition
The Veteran contends that he has a current liver disability that is secondary to his service-connected diabetes mellitus, type II.  Specifically, the Veteran contends that he has elevated triglycerides and postprandial swings that are a direct result of his diabetes mellitus, type II.  See Correspondence, received December 2015.  
The Veteran was provided a VA examination in November 2010.  The Veteran stated that his private physician claimed that his oral diabetes medications were adversely affecting his liver.  The VA examiner diagnosed the Veteran with elevated liver function tests of unknown etiology.  The VA examiner did not provide an opinion as to whether the Veteran’s elevated liver functions constitute disability that result in functional and impairment, and if so, whether such liver disability is caused by, or aggravated by, his service-connected diabetes mellitus, type II.  Because the November 2010 VA examination is inadequate for decision-making purposes, the issue must be remanded for a further VA opinion.  Barr, 21 Vet. App. 312
3. Entitlement to Service Connection for Bilateral Hearing Loss
The Board finds that further development is necessary before a decision on the merits may be made regarding the issue of entitlement to a compensable initial disability rating for bilateral hearing loss.  The Veteran was last provided a VA examination relating to his bilateral hearing loss in November 2011, nearly seven years ago.  In the December 2015 correspondence, the Veteran stated that his condition has increased in severity.  In light of the Veteran’s assertions, a new VA examination is required so that the current nature and severity of the Veteran’s service-connected disability may be determined.  See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159; see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination); Weggenmann v. Brown, 5 Vet. App. 281 (1993) (VA has a duty to provide an examination when there is evidence that the disability has worsened since the previous examination). 
The matters are REMANDED for the following action:
1. Forward the record and a copy of this remand to the examiner who conducted the January 2012 VA examination, or if the examiner is unavailable, to another suitably qualified examiner, for completion of an addendum opinion.  If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled.  Following review of the record, the examiner should express an opinion as to:
(a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension had its onset during his active service or is otherwise etiologically related to the Veteran’s service, specifically to include his presumed in-service exposure to herbicide agents.  Rationale must be provided for the opinion proffered.
The examiner must note that applicable VA law establishes that the legal provision for presumptive service connection does not otherwise preclude a veteran from establishing service connection with proof of actual direct causation on a nonpresumptive direct incurrence basis.
(b.) If not, whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension is proximately due to or the result of his service-connected disabilities, specifically to include his service-connected diabetes mellitus, type II.  
(c.) If not, whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension was aggravated by his service-connected disabilities, specifically to include his service-connected diabetes mellitus, type II.
“Aggravation” is defined as a worsening beyond the natural progression of the disease. 
Additionally, pursuant to Atencio, the VA examiner must provide separate findings and rationales as to whether the Veteran’s hypertension is caused by, or aggravated by, his service-connected disability(ies).
2. Forward the record and a copy of this remand to the examiner who conducted the November 2010 VA examination, or if the examiner is unavailable, to another suitably qualified examiner, for completion of an addendum opinion.  If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled.  Following review of the record, the examiner should express an opinion as to:
(a.) Provide a diagnosis for any liver disability demonstrated since service, found on current examination or in the record.  
(b.) For each liver disability identified, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such liver disability had its onset during his active service or is otherwise etiologically related to the Veteran’s service, specifically to include his presumed in-service exposure to herbicide agents.  Rationale must be provided for the opinion proffered.
The examiner must note that applicable VA law establishes that the legal provision for presumptive service connection does not otherwise preclude a veteran from establishing service connection with proof of actual direct causation on a nonpresumptive direct incurrence basis.
(c.) If not, whether it is at least as likely as not (50 percent or greater probability) that the condition is proximately due to or the result of his service-connected disabilities, specifically to include his service-connected diabetes mellitus, type II.  
(d.) If not, whether it is at least as likely as not (50 percent or greater probability) that the condition was aggravated by his service-connected disabilities, specifically to include his service-connected diabetes mellitus, type II.
“Aggravation” is defined as a worsening beyond the natural progression of the disease. 
Additionally, pursuant to Atencio, the VA examiner must provide separate findings and rationales as to whether the liver disability is caused by, or aggravated by, his service-connected disability(ies).
3. Schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected bilateral hearing loss.  The record and a copy of this remand must be made available to and reviewed by the examiner.  The examination must include all physical and diagnostic testing deemed necessary by the examiner in conjunction with this request.  The examiner should report all manifestations and functional impairment related to the Veteran’s service-connected bilateral hearing loss.
4. After completion of the above, review the expanded record, including the evidence entered since the most recent statement of the case, and determine whether service connection for hypertension, service connection for a liver disability, and a compensable initial rating for bilateral hearing loss may be granted.  If any benefit sought remains denied, furnish the Veteran and his 
 
representative with a supplemental statement of the case.  The appropriate period should be allowed for response before the appeal is returned to the Board.     

 
U. R. POWELL
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	B. G. LeMoine, Associate Counsel

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