Citation Nr: 1800540	
Decision Date: 01/05/18    Archive Date: 01/19/18

DOCKET NO.  14-19 921A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to service connection for right foot plantar fasciitis.

2.  Entitlement to service connection for left foot plantar fasciitis.

3.  Entitlement to service connection for a right ankle disorder.  

4.  Entitlement to service connection for a left ankle disorder.  

5.  Entitlement to service connection for an acquired psychiatric disability, to include depression.

6.  Entitlement to service connection for bipolar disorder.  

7.  Entitlement to service connection for attention deficit disorder (also claimed as ADD). 



REPRESENTATION

Appellant (Veteran) represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

Christopher McEntee, Counsel


INTRODUCTION

The Veteran served on active duty from August 1985 to November 1987.     

This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.  In July 2017, the Veteran testified before the Board in a videoconference hearing convened at the RO.  A transcript of the hearing has been included in the record.  The record consists entirely of electronic claims files and has been reviewed.  

The issues regarding bipolar disorder and ADD will be dismissed below.  The remaining claims are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).



FINDING OF FACT

On July 10, 2017, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of the claims to service connection for bipolar disorder and attention deficit disorder is requested.


CONCLUSION OF LAW

The criteria for withdrawal by the Veteran of the appealed service connection claims for bipolar disorder and attention deficit disorder have been met.  38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

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 (2012).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2017).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.  In the present case, the Veteran has withdrawn the claims of service connection for bipolar disorder and attention deficit disorder.  Hence, there remain no allegations of errors of fact or law for appellate consideration regarding these issues.  Accordingly, the Board does not have jurisdiction to review the claims and each is dismissed.


ORDER

The appeal regarding the claim of service connection for bipolar disorder is dismissed.

The appeal regarding the claim of service connection for attention deficit disorder is dismissed.


REMAND

A remand is warranted for VA compensation examination into the service connection claims remaining on appeal.  The evidence noted in VA treatment records documents that the Veteran has current bilateral foot and ankle disabilities.  Further, in lay statements of record, she describes the ways in which she injured her feet and ankles during service, and then developed depression as the result.  See McClendon v. Nicholson, 20 Vet. App. 79 (2006).  The lay assertions may prove significant in this matter because the record indicates that some of the Veteran's service treatment records (STRs) are missing.  See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991) (where it appears that a veteran's service records are incomplete, the Board's obligation to explain its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule, is heightened).

Accordingly, the case is REMANDED for the following action:

1.  Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims.  Include in the record any outstanding VA treatment records, the most recent of which are dated in May 2014.  All records/responses received must be associated with the electronic claims file.  

2.  Schedule the Veteran for an examination to determine the nature and etiology of any foot or ankle disability.  The examiner should review the claims folder, and then respond to the following questions. 


Foot/ankle

(a)  What foot and/or ankle disabilities has the Veteran been diagnosed with since July 2011?  

(b)  Is it at least as likely as not (i.e., probability of 50 percent or greater) that any diagnosed foot or ankle disability is related to a disease, event, or injury during service?  

In answering (b), please consider and discuss the November 1987 discharge reports of medical examination and history which are negative for foot or ankle disability.  Please also consider the Veteran's lay assertions in which she describes injuring her feet and ankles during service.  In assessing her lay assertions, please note that certain STRs are missing from the record.  

Psychiatric

(a)  If it is determined that foot and/or ankle disability is service connected, is it at least as likely as not that any diagnosed acquired psychiatric disability (e.g., depression) is due to or caused by service-connected disability (e.g., foot and/or ankle disability)?     

(b)  If the response to (a) is negative, is it at least as likely as not that any diagnosed psychiatric disability has been aggravated (i.e., permanently or temporarily worsened beyond the natural progress) by service-connected disability?     

If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the disorder found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disorder(s). 

Please explain in detail any opinion provided.  

3.  After the completion of any action deemed appropriate in addition to that requested above, the claims should be readjudicated.  All evidence received since the May 2014 Statement of the Case (SOC) should be considered.  If any benefit sought remains denied, the Veteran and his representative should be provided with a Supplemental SOC.  

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).


These claims 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. §§ 5109B, 7112 (2012). 



______________________________________________
KRISTI L. GUNN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs