Citation Nr: 1803885 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 14-03 904 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for left foot bunions. 2. Entitlement to service connection for right foot bunions. 3. Entitlement to service connection for a chronic psychiatric disability, to include depression. 4. Entitlement to service connection for degenerative disc disease of the lumbar spine. 5. Entitlement to service connection for chronic lower back pain. 6. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD S. Morrad, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1979 to July 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement (NOD) was received in December 2011, a statement of the case (SOC) was issued in December 2013, and a substantive appeal was timely received in January 2014. The Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge in April 2017. At the hearing, the Veteran expressed his desire to withdraw the appeals for the issues of entitlement to service connection for degenerative disease of the lumbar spine, chronic lower back pain, and entitlement to a TDIU. A transcript of the hearing has been associated with the Veteran's electronic claims file. The issues of entitlement to service connection for left foot bunions, right foot bunions, and for a chronic psychiatric disability, to include depression, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT In April 2017, the Veteran requested to withdraw his appeals for the issues of entitlement to service connection for degenerative disease of the lumbar spine, chronic lower back pain, and entitlement to a TDIU. CONCLUSION OF LAW The criteria for withdrawal of the issues of entitlement to service connection for degenerative disease of the lumbar spine, chronic lower back pain, and entitlement to a TDIU, have been met. 38 U.S.C. § 7105 (West 2014); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn on the record at a hearing or in writing 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 or her authorized representative. Id. As noted above, the Veteran testified at a videoconference Board hearing in April 2017. At the hearing, the Veteran expressed his desire to withdraw the appeals for the issues of entitlement to service connection for degenerative disease of the lumbar spine, chronic lower back pain, and entitlement to a TDIU. Those oral statements, when transcribed, became a "writing." Tomlin v. Brown, 5 Vet. App. 355 (1993). Therefore, the Veteran's appeal for the issues of service connection for degenerative disease of the lumbar spine, and chronic lower back pain, and entitlement to a TDIU were withdrawn. See 38 C.F.R. § 20.204. As the Veteran has withdrawn his appeal as to these three issues, there remain no allegations of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the Veteran's appeal as to any one of those three claims and they are dismissed. ORDER The Veteran's appeal as to the issue of entitlement to service connection for degenerative disc disease of the lumbar spine is dismissed. The Veteran's appeal as to the issue of entitlement to service connection for lower back pain is dismissed. The Veteran's appeal as to the issue of entitlement to a TDIU is dismissed. REMAND Although further delay is regrettable, the Board finds additional development must be undertaken prior to adjudication of the Veteran's claims for service connection for left foot bunions, right foot bunions, and for a chronic psychiatric disability, to include depression. The Veteran claims that his bilateral foot bunions are caused by him having to wear combat boots while in service. The Veteran's service treatment records show that he complained of calluses on his left foot in July 1979. The calluses were trimmed at the time. The Veteran elected not to undergo a separation examination upon discharge in July 1979. The Veteran's post-service treatment records show a history of hallux valgus and bilateral bunion deformity. See January 2012 VA treatment records. Regarding the Veteran's claimed psychiatric condition, the Veteran claims that while he was in service, he witnessed a man being held down and beaten by other soldiers. The Veteran contends that he spoke to his drill sergeant and told him that he would kill himself rather than see kids get beat up. As a result of his experience in the military, the Veteran claims that he still experiences nightmares and loss of sleep. A written statement from the Veteran's mother in June 2017 describes the Veteran as returning from the military a different person. The Veteran's service treatment records show that he was having trouble adjusting to military life. See June 1979 service treatment record. The Veteran's military personnel records show that he threatened to kill himself if he could not be discharged. After counseling, it was determined that he was not trainable, and he was recommended for discharge immediately. See military personnel records from July 1979. The Veteran's post-service treatment records show a diagnosis for chronic depression with complaints of anxiety. See October 2010 VA mental health records. In this regard, the Veteran should be afforded VA medical examinations to determine the nature and etiology of his diagnosed bilateral foot bunions and psychiatric conditions, to include depression. In light of service treatment and personnel records, and since the Veteran contends that his conditions are linked to his service, and since the record medical evidence contains a diagnosis of and treatment for bilateral foot bunions and depression, the Board is of the opinion that VA medical examinations are needed in order to address the Veteran's contentions. See McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). Accordingly, the case is REMANDED for the following action: 1. Associate with the claims folder any outstanding VA treatment records from the Dublin VAMC. 2. Schedule the Veteran for an examination to determine the nature and etiology of the Veteran's claimed bilateral foot bunions. The electronic claims file must be made available to, and reviewed by, the examiner in conjunction with the examination. All indicated tests must be done, and all findings reported in detail. Based on a review of the record and examination and interview of the Veteran, the examiner should provide opinions responding to the following: a. Is it at least as likely as not (50 percent or greater probability) that the Veteran suffers from left foot bunions that manifested during, or as a result of, military service, to include as due to wearing combat boots? b. Is it at least as likely as not (50 percent or greater probability) that the Veteran suffers from right foot bunions that manifested during, or as a result of, military service, to include as due to wearing combat boots? The examiner should specifically consider the Veteran's service treatment records from June 1979 showing treatment for calluses of the left foot. The examiner should also consider the Veteran's lay statements that he sought treatment for his bilateral foot condition after service from a private physician, who is now deceased. A fully articulated rationale for each opinion requested must be set forth in the medical report. The examiner must discuss the particulars of this Veteran's medical history and the relevant medical science applicable to this case, which may reasonably make clear the medical guidance in the study of this case. 3. Schedule the Veteran for an examination to determine the nature and etiology of the Veteran's psychiatric conditions, to include depression. The electronic claims file must be made available to, and reviewed by, the examiner in conjunction with the examination. All indicated tests must be done, and all findings reported in detail. Based on a review of the record and examination and interview of the Veteran, the examiner should provide an opinion responding to the following: a. Is it at least as likely as not (50 percent or greater probability) that the Veteran suffers from any psychiatric disability, to include depression, that manifested during, or as a result of, military service? The examiner should specifically consider the Veteran's lay statements where he claims to have seen a fellow soldier beaten by other soldiers. The examiner should also consider the Veteran's military personnel records that show his recommendation for immediate discharge as a result of him wanting to commit suicide and being found effectively not trainable. A fully articulated rationale for each opinion requested must be set forth in the medical report. The examiner must discuss the particulars of this Veteran's medical history and the relevant medical science applicable to this case, which may reasonably make clear the medical guidance in the study of this case. 4. The RO should then carefully review the examination reports obtained to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, the RO should return the case to the examiner for completion of the inquiry. 5. The RO should then readjudicate the claims on appeal in light of all the evidence of record. If the issues remain denied, the RO should provide the Veteran a supplemental statement of the case as to the issues on appeal, and afford him a reasonable period of time within which to respond thereto. 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 2014). ______________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs