Citation Nr: 18142064 Decision Date: 10/15/18 Archive Date: 10/12/18 DOCKET NO. 15-30 474 DATE: October 15, 2018 ORDER Entitlement to an initial compensable rating for hypertension is dismissed. Entitlement to an initial rating in excess of 10 percent for left carpal tunnel syndrome is dismissed. Entitlement to an initial rating in excess of 10 percent for right carpal tunnel syndrome is dismissed. REMANDED Entitlement to an initial compensable rating for right shoulder strain is remanded. Entitlement to an initial compensable rating for right lateral epicondylitis is remanded. Entitlement to an initial compensable rating for right ankle strain is remanded. Entitlement to an initial rating for left and right plantar fasciitis in excess of 10 percent prior to July 27, 2015 and in excess of 50 percent thereafter is remanded. Entitlement to an initial compensable rating for upper airway resistance syndrome is remanded. Entitlement to an initial rating in excess of 10 percent for posttraumatic stress disorder (PTSD) is remanded. FINDING OF FACT At a February 2018 Board of Veterans’ Appeals (Board) hearing, prior to promulgation of a decision on the appeal, the Veteran withdrew his appeal for entitlement to an initial compensable rating for hypertension, an initial rating in excess of 10 percent for left carpal tunnel syndrome, and an initial rating in excess of 10 percent for right carpal tunnel syndrome. CONCLUSION OF LAW The criteria for withdrawal of a substantive appeal on the issues of an initial compensable rating for hypertension, initial rating in excess of 10 percent for left carpal tunnel syndrome, and an initial rating in excess of 10 percent for right carpal tunnel syndrome by the Veteran have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1992 to September 2012. The Veteran testified at a July 2016 Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in his claims file. Increased Rating 1. Entitlement to an initial compensable rating for hypertension 2. Entitlement to an initial rating in excess of 10 percent for left carpal tunnel syndrome 3. Entitlement to an initial rating in excess of 10 percent for right carpal tunnel syndrome Under 38 U.S.C. § 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 in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b). In Acree, the United States Court of Appeals for the Federal Circuit held that the withdrawal must be explicit, unambiguous, and done with a full understanding of the consequences of such action by the appellant and the subsequent Board dismissal must include findings as to all three elements. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018), 2018 U.S. App. LEXIS 14959, adopting the rule of DeLisio v. Shinseki, 25 Vet. App. 45, 57-58 (2011). In an April 2013 rating decision, the Winston Salem RO, in pertinent part, granted service connection for hypertension and right and left carpal tunnel syndrome, each rated as noncompensable. In an August 2015 rating decision, the RO increased the ratings for left and right carpal tunnel syndrome to 10 percent each, effective October 1, 2012. Prior to the July 2016 Board hearing, the Veteran, his representative, and the undersigned discussed the issues that had been certified to the Board and the Veteran indicated his desire to withdraw from appeal claims for increased ratings for hypertension and bilateral carpal tunnel syndrome. During the hearing, the undersigned clearly identified the withdrawn issues, which are listed above, and the Veteran affirmed that he was requesting a withdrawal as to those appeals. The Veteran also submitted a VA Form 21-4138, Statement in Support of Claim, at that time indicating that he was withdrawing the issues from appeal. Based upon the pre-hearing discussion, the hearing testimony, and statement, the Board finds the Veteran explicitly, unambiguously, and with a full understanding of the consequences of such action, withdrew the claims listed above. See Acree, 891 F.3d at 1009. Accordingly, those claims are dismissed. As the Veteran withdrew his appeal for increased ratings for hypertension and right and left carpal tunnel syndrome, there is no remaining allegation of error of fact or law for appellate consideration on those matters. Accordingly, the Board does not have jurisdiction over these claims, and the appeal in regards to these claims is dismissed. REASONS FOR REMAND 1. Entitlement to an initial compensable rating for right shoulder strain is remanded. 2. Entitlement to an initial compensable rating for right lateral epicondylitis is remanded. 3. Entitlement to an initial compensable rating for right ankle strain is remanded. 4. Entitlement to an initial compensable rating for upper airway resistance syndrome is remanded. 5. Entitlement to an initial rating in excess of 10 percent for PTSD is remanded. During the July 2016 Board hearing, the Veteran reported that his right shoulder, elbow, and ankle disabilities had worsened since the prior VA examinations. Specifically, he complained of pain with motion, restricted motion and flare-ups. Additionally, it appears that the Veteran’s upper airway resistance may have increased in severity, as the Veteran has been prescribed a CPAP machine. See February 2016 private treatment report. The Veteran also reported additional symptomatology regarding his service-connected PTSD during the July 2016 Board hearing. Based on the Veteran’s testimony and medical evidence of worsening symptomatology, and the fact that his last VA examination related to his PTSD appears to have taken place in July 2013 and his last VA examinations related to the other disabilities noted took place in July 2015, the Board finds that he should be afforded new VA examinations to determine the current severity of his service-connected right shoulder, elbow, and ankle disabilities as well as upper airway resistance syndrome and PTSD. Snuffer v. Gober, 10 Vet. App. 400 (1997). 6. Entitlement to an initial rating for left and right plantar fasciitis in excess of 10 percent prior to July 27, 2015 and in excess of 50 percent thereafter is remanded. The Veteran’s right and left foot plantar fasciitis were previously rated separately as noncompensable under Diagnostic Code 5284. Pursuant to the August 2015 rating decision, the right and left foot conditions are rated together as bilateral plantar fasciitis with a 10 percent rating prior to July 27, 2015 and 50 percent rating thereafter under Diagnostic Code 5276. Diagnostic Codes 5276 through 5283 address specific types of foot injuries or disorders; none of those codes address plantar fasciitis. 38 C.F.R. § 4.71a. Diagnostic Code 5276 pertains to acquired flat foot (or pes planus). Diagnostic Code 5284 may involve limitation of motion and therefore require consideration under 38 C.F.R. §§ 4.40 and 4.45. See VAOPGCPREC 9-98. Here, the Veteran attended an additional VA examination in August 2018; however, no SSOC addressing this additional evidence was issued. The matters are REMANDED for the following actions: 1. Schedule the Veteran for VA examinations to assess the current nature and severity of his service-connected right shoulder, right elbow, and right ankle disabilities. The entire record must be reviewed by the examiner in conjunction with the examination, and any tests or studies deemed necessary should be completed. All pertinent symptoms and related impairment should be described in detail. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. Opposite joint range of motion testing is to be conducted as well. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments and discuss the effect of the Veteran’s right shoulder, elbow, and ankle disabilities on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Schedule the Veteran for evaluation of his upper airway resistance syndrome. The entire record must be reviewed by the examiner in conjunction with the examination, and any tests or studies deemed necessary should be completed. All pertinent symptoms and related impairment should be described in detail. Specifically, he or she should indicate whether the disability: (1) is asymptomatic but with documented sleep disorder breathing, (2) causes persistent day-time hypersomnolence, (3) requires use of breathing assistance device such as continuous airway pressure (CPAP) machine, or (4) results in chronic respiratory failure with carbon monoxide retention or cor pulmonale, or; requires tracheostomy. The examiner must specifically take into consideration the February 2016 private medical evidence. 3. Schedule the Veteran for a VA examination to assess the current severity of his PTSD. The entire record must be reviewed by the examiner in conjunction with the examination, and any tests or studies deemed necessary should be completed. All pertinent symptoms and related impairment should be described in detail. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to PTSD alone. (Continued on the next page)   4. In readjudicating the claims for increased ratings, the AOJ must take into consideration all evidence added to the record since the June and July 2015 SOCs. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Williams, Counsel