Citation Nr: 18139935 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 16-09 404 DATE: October 1, 2018 ORDER Entitlement to service connection for tuberculosis is dismissed. REMANDED Entitlement to service connection for sensitivity to light (photophobia) is remanded. FINDING OF FACT During the September 2018 videoconference hearing, the Veteran requested to withdraw the appeal regarding the claim for entitlement to service connection for tuberculosis. CONCLUSION OF LAW The criteria for withdrawal of entitlement to service connection for tuberculosis have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 2001 to August 2001 and from June 2005 to September 2005. The Veteran also had additional service in the Army Reserves, was deployed from August 2004 to March 2005, and had various periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). In September 2018, a videoconference hearing was held before the undersigned. At the September 2018 Board hearing, it was asserted that because the Veteran’s claim for service connection for sensitivity to light (photophobia) was related to an in-service head injury, his claim should be expanded under Clemons v. Shinseki, 23 Vet. App. 1 (2009), to include any residuals of a traumatic brain injury (TBI). However, a review of the records shows that service connection for TBI was denied initially in the same April 2015 rating decision that denied service connection for sensitivity to light (and the Veteran appealed only the denial of service connection for sensitivity to light). His claim for service connection for TBI was most recently denied in a December 2017 rating decision, and the Veteran has one year from the date of that notification letter to file a notice of disagreement. Entitlement to service connection for tuberculosis. 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his authorized representative and must be in writing (except for appeals withdrawn on the record at a hearing). 38 C.F.R. § 20.204. At the September 2018 Board hearing, the Veteran expressly, and with full understanding of the consequences, withdrew his appeal for entitlement to service connection for tuberculosis. The undersigned clearly identified the withdrawn issue and explained the consequences of withdrawing an appeal, and the Veteran affirmed that he was requesting a withdrawal of his claim for service connection for tuberculosis. Hence, there is no allegation of error of fact or law for appellate consideration in this claim. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. REASONS FOR REMAND Entitlement to service connection for sensitivity to light (photophobia) is remanded. The Veteran seeks service connection for sensitivity to light, which he asserts is related to an improvised explosive device (IED) blast he experienced during active duty service. The Veteran’s DD-214 reflects that he received a Combat Action Ribbon for his service in Iraq. Accordingly, his statements regarding the circumstances of his service in Iraq, to include the problems he experienced with light sensitivity in his eyes therein, are deemed credible. See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). However, 38 U.S.C. § 1154(b) does not create a presumption of service connection for a combat Veteran’s alleged disability; he is still required to meet the evidentiary burden as to service connection (which includes the presence of a current disability). In this regard, the Veteran’s VA treatment records show that he has been treated for photophobia/photosensitivity with a history of TBI and received a visor to assist with the light sensitivity in his eyes. However, he has not been afforded a VA examination to determine the diagnosis associated with these symptoms. Given the Veteran’s competent and credible testimony at the September 2018 Board hearing regarding the continuity of light sensitivity symptoms in his eyes since service, the Board finds that a VA examination for a medical opinion is warranted in this case. The Veteran is advised, however, that the duty to assist is not a one-way street and he has an obligation to cooperate with VA in ensuring that duty is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood v. Derwinski, 1 Vet. App. 190 (1991). Furthermore, any failure to report for a scheduled examination without good cause may result in an adverse determination. 38 C.F.R. § 3.655. The matter is REMANDED for the following actions: 1. With the Veteran’s assistance, if necessary, obtain any outstanding records of pertinent medical treatment from VA or private health care providers. 2. After the above records request has been completed, to the extent possible, obtain a VA examination and opinion from an appropriate examiner to determine the nature and etiology of the Veteran’s claimed sensitivity to light, to include photophobia and photosensitivity. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All indicated tests should be accomplished and all clinical findings reported in detail. The examiner should specifically provide an opinion as to whether the Veteran has a diagnosis associated with his symptoms of sensitivity to light (photophobia/ photosensitivity) and, if so, whether it at least as likely as not (50 percent or better probability) had its onset in service or is otherwise related to his service. For the purposes of this remand, it is presumed that the Veteran sustained an in-service, combat-related head injury from an IED blast. The examiner is further advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If any of the Veteran’s reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. E. Metzner, Associate Counsel