Citation Nr: 1045622 Decision Date: 12/06/10 Archive Date: 12/14/10
DOCKET NO. 06-03 888 ) DATE ) )
On appeal from the Department of Veterans Affairs Regional Office in San Diego, California
THE ISSUES
1. Entitlement to service connection for chronic headaches.
2. Entitlement to service connection for arthritis.
3. Entitlement to service connection for bilateral otitis media.
4. Entitlement to service connection for bilateral breast cysts.
5. Entitlement to service connection for hemorrhoids.
6. Entitlement to service connection for bilateral pes planus.
7. Entitlement to service connection for left knee patella tendonitis.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
R. Poulson, Associate Counsel
INTRODUCTION
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002).
The Veteran served on active duty in the Navy from January 1973 to August 1977 and from August 1990 to January 1992. She served in the Navy Reserves from May 1978 to June 2001.
This matter is before the Board of Veterans' Appeals (Board) from a January 2005 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which denied, in pertinent part, service connection for chronic headaches, bilateral otitis media, bilateral breast fibroid cysts, hemorrhoids, bilateral pes planus, left knee patella tendonitis, and arthritis of multiple joints.
In October 2007, the Veteran testified at a video conference hearing before a Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claim folder.
In December 2007, the Board remanded the claims for further development.
The VLJ who conducted the October 2007 hearing and issued the December 2007 decision no longer works at the Board. In April 2010, the Board advised the Veteran by letter that she had the right to another hearing by a VLJ who would decide her appeal and was asked whether she desired to have a new Board hearing. See 38 C.F.R. § 20.707. She responded in the affirmative shortly thereafter. Accordingly, the Board remanded the case for a new hearing in May 2010.
In November 2010, the Veteran testified at a video conference hearing before the undersigned VLJ. A transcript of the hearing is associated with the claim folder.
The issues of service connection for chronic headaches, arthritis, bilateral pes planus, and left knee patella tendonitis are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. During the May 2010 hearing, prior to the promulgation of a decision, the Veteran testified that she wished to withdraw the issue of service connection for bilateral otitis media.
2. During the May 2010 hearing, prior to the promulgation of a decision, the Veteran testified that she wished to withdraw the issue of service connection for bilateral breast cysts.
3. During the May 2010 hearing, prior to the promulgation of a decision, the Veteran testified that she wished to withdraw the issue of service connection for hemorrhoids.
CONCLUSIONS OF LAW
1. Because the Veteran has withdrawn her appeal with respect to the claim for service connection for bilateral otitis media, the Board does not have jurisdiction to consider the claim and it is dismissed. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2010); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2010).
2. Because the Veteran has withdrawn her appeal with respect to the claim for service connection for bilateral breast cysts, the Board does not have jurisdiction to consider the claim and it is dismissed. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2010); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2010).
3. Because the Veteran has withdrawn her appeal with respect to the claim for service connection for hemorrhoids, the Board does not have jurisdiction to consider the claim and it is dismissed. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2010); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran testified that she wished to withdraw the issues of service connection for bilateral otitis media, bilateral breast cysts, and hemorrhoids. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Accordingly, the Board does not have jurisdiction and these issues are dismissed.
ORDER
The appeal with respect to the claim for entitlement to service connection for bilateral otitis media is dismissed.
The appeal with respect to the claim for entitlement to service connection for bilateral breast cysts is dismissed.
The appeal with respect to the claim for entitlement to service connection for hemorrhoids is dismissed.
REMAND
The Veteran contends that she developed her alleged conditions "while I was in the reserve or was on active duty or serving in some type of reserve capacity." Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated while performing active duty for training (ACDUTRA) or for injury incurred or aggravated while performing inactive duty training (INACDUTRA). 38 U.S.C.A. §§ 101(24), 106, 1110, 1131. Service treatment records (STRs) include a notation of ACDUTRA from May 1983. In addition, the Veteran alleges active duty from September 1989 to August 1990.
The December 2007 Remand Order instructed the RO to verify the Veteran's periods of ACDUTRA and INACDUTRA with the Navy Reserve. In a February 2008 request, the RO asked the National Personnel Records Center (NPRC) to verify the Veteran's periods of service. In a March 2009 response, the NPRC stated that it had no records for the Veteran and suggested that the RO/AMC address another request to Code 31. This was not done.
The December 2007 Remand Order also instructed the RO/AMC to obtain additional service treatment records, to include records from the Veteran's reserve service. In a February 2008 request, the AMC asked the NPRC for service treatment records. In a March 2009 response, the NPRC stated that it had previously furnished STRs to the San Diego RO in August 2004. In a March 2009 letter, the AMC requested reserve service treatment records from the Veteran's unit. No response was received.
Finally, the Board instructed the RO to obtain civilian medical records. In a February 2008 letter, the AMC asked the Veteran to provide consent forms for various providers. The Veteran submitted three consent forms in August 2008. One of the providers submitted medical records to the AMC. Another provider submitted a negative response. The third provider is the Naval Medical Center San Diego (NMCSD). The Veteran claims that she received treatment at this military treatment facility for her knee and arthritis disabilities from September 1988 to February 2001.
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Citation Nr: 1045622 Decision Date: 12/06/10 Archive Date: 12/14/10
DOCKET NO. 06-03 888 ) DATE ) )
On appeal from the Department of Veterans Affairs Regional Office in San Diego, California
THE ISSUES
1. Entitlement to service connection for chronic headaches.
2. Entitlement to service connection for arthritis.
3. Entitlement to service connection for bilateral otitis media.
4. Entitlement to service connection for bilateral breast cysts.
5. Entitlement to service connection for hemorrhoids.
6. Entitlement to service connection for bilateral pes planus.
7. Entitlement to service connection for left knee patella tendonitis.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
R. Poulson, Associate Counsel
INTRODUCTION
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002).
The Veteran served on active duty in the Navy from January 1973 to August 1977 and from August 1990 to January 1992. She served in the Navy Reserves from May 1978 to June 2001.
This matter is before the Board of Veterans' Appeals (Board) from a January 2005 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which denied, in pertinent part, service connection for chronic headaches, bilateral otitis media, bilateral breast fibroid cysts, hemorrhoids, bilateral pes planus, left knee patella tendonitis, and arthritis of multiple joints.
In October 2007, the Veteran testified at a video conference hearing before a Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claim folder.
In December 2007, the Board remanded the claims for further development.
The VLJ who conducted the October 2007 hearing and issued the December 2007 decision no longer works at the Board. In April 2010, the Board advised the Veteran by letter that she had the right to another hearing by a VLJ who would decide her appeal and was asked whether she desired to have a new Board hearing. See 38 C.F.R. § 20.707. She responded in the affirmative shortly thereafter. Accordingly, the Board remanded the case for a new hearing in May 2010.
In November 2010, the Veteran testified at a video conference hearing before the undersigned VLJ. A transcript of the hearing is associated with the claim folder.
The issues of service connection for chronic headaches, arthritis, bilateral pes planus, and left knee patella tendonitis are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. During the May 2010 hearing, prior to the promulgation of a decision, the Veteran testified that she wished to withdraw the issue of service connection for bilateral otitis media.
2. During the May 2010 hearing, prior to the promulgation of a decision, the Veteran testified that she wished to withdraw the issue of service connection for bilateral breast cysts.
3. During the May 2010 hearing, prior to the promulgation of a decision, the Veteran testified that she wished to withdraw the issue of service connection for hemorrhoids.
CONCLUSIONS OF LAW
1. Because the Veteran has withdrawn her appeal with respect to the claim for service connection for bilateral otitis media, the Board does not have jurisdiction to consider the claim and it is dismissed. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2010); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2010).
2. Because the Veteran has withdrawn her appeal with respect to the claim for service connection for bilateral breast cysts, the Board does not have jurisdiction to consider the claim and it is dismissed. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2010); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2010).
3. Because the Veteran has withdrawn her appeal with respect to the claim for service connection for hemorrhoids, the Board does not have jurisdiction to consider the claim and it is dismissed. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2010); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran testified that she wished to withdraw the issues of service connection for bilateral otitis media, bilateral breast cysts, and hemorrhoids. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Accordingly, the Board does not have jurisdiction and these issues are dismissed.
ORDER
The appeal with respect to the claim for entitlement to service connection for bilateral otitis media is dismissed.
The appeal with respect to the claim for entitlement to service connection for bilateral breast cysts is dismissed.
The appeal with respect to the claim for entitlement to service connection for hemorrhoids is dismissed.
REMAND
The Veteran contends that she developed her alleged conditions "while I was in the reserve or was on active duty or serving in some type of reserve capacity." Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated while performing active duty for training (ACDUTRA) or for injury incurred or aggravated while performing inactive duty training (INACDUTRA). 38 U.S.C.A. §§ 101(24), 106, 1110, 1131. Service treatment records (STRs) include a notation of ACDUTRA from May 1983. In addition, the Veteran alleges active duty from September 1989 to August 1990.
The December 2007 Remand Order instructed the RO to verify the Veteran's periods of ACDUTRA and INACDUTRA with the Navy Reserve. In a February 2008 request, the RO asked the National Personnel Records Center (NPRC) to verify the Veteran's periods of service. In a March 2009 response, the NPRC stated that it had no records for the Veteran and suggested that the RO/AMC address another request to Code 31. This was not done.
The December 2007 Remand Order also instructed the RO/AMC to obtain additional service treatment records, to include records from the Veteran's reserve service. In a February 2008 request, the AMC asked the NPRC for service treatment records. In a March 2009 response, the NPRC stated that it had previously furnished STRs to the San Diego RO in August 2004. In a March 2009 letter, the AMC requested reserve service treatment records from the Veteran's unit. No response was received.
Finally, the Board instructed the RO to obtain civilian medical records. In a February 2008 letter, the AMC asked the Veteran to provide consent forms for various providers. The Veteran submitted three consent forms in August 2008. One of the providers submitted medical records to the AMC. Another provider submitted a negative response. The third provider is the Naval Medical Center San Diego (NMCSD). The Veteran claims that she received treatment at this military treatment facility for her knee and arthritis disabilities from September 1988 to February 2001. She was apparently a military spouse during this time period and went by her married name. In a March 2009 letter, the AMC requested treatment records under the Veteran's maiden name. No response was received.
The Board is obligated by law to ensure that the RO complies with its directives. Compliance by the RO is neither optional nor discretionary. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance, and a further remand of the case will be mandated. Stegall v. West, 11 Vet. App. 268 (1998).
Finally, the question of whether the Veteran's current disabilities had their onset in or are otherwise related to active service requires competent medical evidence as to causation. Grottveit v. Brown, 5 Vet. App. 91, 92 (1993). Thus, a medical opinion is necessary to resolve these claims. See 38 U.S.C.A. § 5103A(d); McClendon v. Nicholson, 20 Vet. App. 79 (2006) (holding that a medical examination is necessary when the record (1) contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of the disability; (2) contains evidence, which indicates that the disability or symptoms may be associated with the claimant's active duty; and (3) does not contain sufficient medical evidence for VA to make a decision).
Accordingly, the case is REMANDED for the following action:
(This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.)
1. Contact the Veteran's Navy Reserve unit to determine if additional service treatment records are present. If such records are available, obtain them and place them into the claims file. A copy of any negative response(s) should be included in the claim file. All attempts to procure records should be documented in the file. If, after inquiry, it is apparent that the Veteran's additional records are not in the custody of the federal government, annotate the record to reflect this.
2. Obtain verification of the Veteran's periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) with the Navy Reserve. Request additional medical records pertaining to any and all periods of ACDUTRA and INACDUTRA. A copy of any negative response(s) should be included in the claim file. All attempts to procure records should be documented in the file. If such service cannot be verified, indicate whether the pertinent records do not exist and whether further efforts to obtain the records would be futile.
3. Take the necessary steps to obtain any records from September 1988 to February 2001 for treatment received at the Naval Medical Center San Diego under both the Veteran's married and maiden names, and associate them with the claim file. A copy of any negative response(s) should be included in the claim file. All attempts to procure records should be documented in the file. If these records cannot be obtained, a notation to that effect should be inserted in the file.
4. Schedule appropriate VA examination(s) for the disabilities claimed on appeal. The examiners should state whether there is any current chronic headache disability or any current disability of the left knee, bilateral feet, or arthritis of multiple joints, and if so, whether it is at least as likely as not that any of the current disabilities are related to service. A full and complete rationale for all opinions expressed must be provided.
The claim folder and a copy of this remand should be made available to the clinician(s) for review.
5. Review the claim file to ensure that all the foregoing requested development is completed, and arrange for any additional development indicated. Readjudicate the claims on appeal. If any of the benefits sought remain denied, issue an SSOC and provide the Veteran and her representative an appropriate period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the Veteran unless she is notified.
The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).
______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs