Citation Nr: 18145247 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 15-03 799 DATE: October 26, 2018 ORDER Entitlement to service connection for a heart condition is dismissed. REMANDED Entitlement to service connection for a bilateral foot condition is remanded. Entitlement to service connection for a left testicle condition is remanded. Entitlement to service connection for a left jaw injury is remanded. FINDING OF FACT Prior to promulgation of a decision by the Board, the Veteran withdrew his appeal with respect to the issue of entitlement to service connection for a heart condition. CONCLUSION OF LAW The criteria for withdrawal of the appeal of entitlement to service connection for a heart condition have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1987 to April 1990. This matter comes before the Board of Veterans’ Appeals (Board) from a January 2013 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2017, the Veteran testified at a Board hearing before a Veterans Law Judge. A transcript of the hearing is of record. 1. Entitlement to service connection for a heart condition 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204.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 appellant or by his or her authorized representative. 38 C.F.R. § 20.204. During the Board hearing, the Veteran’s representative stated that the Veteran wished to withdraw his appeal for entitlement to service connection for a heart condition. The withdraw was clear and unambiguous. As the claim of entitlement to service connection for a heart condition has been expressly withdrawn, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board concludes that it does not have jurisdiction to review the appeal as to the issue of entitlement to service connection for a heart condition, and it is dismissed. 38 U.S.C. § 7105(d)(5). REASONS FOR REMAND 1. Entitlement to service connection for a bilateral foot condition. 2. Entitlement to service connection for a left testicle condition. 3. Entitlement to service connection for a left jaw injury. Appellants are entitled to initial review by the Agency of Original Jurisdiction (AOJ) of evidence added to the file by the Department of Veterans Affairs (VA), and waiver of such review may not be presumed for certain types of evidence. See 38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.1304 (2017). Here, additional relevant evidence in the form of VA treatment records were associated with the claims file subsequent to the November 2014 Statement of the Case. However, no Supplemental Statement of the Case (SSOC) has been issued. See 38 C.F.R. § 20.1304(c). Regarding the claimed bilateral foot disability, the Veteran’s service treatment records (STRs) reflect a pre-existing moderate pes planus condition and the Veteran’s reported complaint of foot pain and cold feet following guard duty. The Board notes that in a November 2017 letter, a VA podiatrist indicated the Veteran’s preexisting equinus caused flat feet that was worsened by service. As the opinion did not provide adequate rationale for the conclusion, an examination and opinion is needed. Regarding the claimed left testicle condition, the Veteran’s June 1987 entrance examination noted an abnormal genitourinary system with the small left testis and his STRs document complaints of groin pain after being hit in the groin in January 1989. Although a November 2017 letter submitted by a VA urologist stated the Veteran’s current chronic scrotal pain is more likely than not due to the trauma sustained during service, the physician did not address the abnormality of the left testicle noted at entrance nor was a diagnosis for a left testicle condition provided. Therefore, the Board finds that an examination and opinion are needed. Updated medical treatment records should also be requested on remand. The matters are REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed bilateral foot, left testicle and left jaw disabilities. After securing any necessary releases, request any relevant records identified that are not duplicates of those associated with the claims file. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 2. After records development is completed, schedule the Veteran for a VA examination to determine address the Veteran’s left testicle claim. The claims file must be reviewed by the examiner in conjunction with the examination. All indicated tests should be conducted and the results reported. Following review of the claims file, the examiner should respond to the following: (a.) Does the Veteran suffer from a current left testicle disability? Please provide a diagnosis or indicate whether there is functional impairment related to the left testicle complaints. In rendering the opinion, the examiner is asked to consider the Veteran’s reported episodic left scrotum pain since service. (b.) If the examiner finds a current left testicle disability, is it at least as likely as not (50 percent probability or greater) that such left testicle disability arose during service or is otherwise related to service? The examiner should explain why or why not, to include addressing the Veteran’s in-service groin injuries and the significance, if any, of the pre-existing finding of a small left testicle on entrance examination. 3. After records development is completed, schedule the Veteran for a VA examination to determine address the Veteran’s claim for service connection for a bilateral foot claim. The claims file must be reviewed by the examiner in conjunction with the examination. All indicated tests should be conducted and the results reported. Following review of the claims file, the examiner should respond to the following: (a.) For any right and left foot disability found, is such disability a maturation of the Veteran’s preexisting asymptomatic pes planus condition or a distinct disorder? Please explain why or why not. (b.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s pre-existing pes planus underwent a permanent worsening during service (versus temporary exacerbation of symptoms)? Please explain why or why not, to include addressing the January 1989 complaints of foot pain following guard duty. (c.) If, and only if, the pre-existing pes planus underwent a permanent worsening during service, was that worsening clearly the result of the normal progression of pes planus (versus being the result of some incident or activity during service)? Please explain why or why not. (d.) For any current bilateral foot disability that did not pre-exist active duty service, is it at least as likely as not (50 percent probability or greater) that it arose in service or is otherwise related to service, to include the complaints of foot pain following guard duty in January 1989? The examiner should explain why or why not. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. C. Birder, Associate Counsel