Citation Nr: 18146454 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 15-28 831 DATE: October 31, 2018 ORDER Entitlement to service connection for hypertension is dismissed. Entitlement to service connection for a kidney disorder is dismissed. Entitlement to service connection for altered skin color is dismissed. Entitlement to service connection for loss of hair is dismissed. Entitlement to service connection for chloracne is dismissed. Entitlement to service connection for skin cancer is dismissed. Entitlement to service connection for personality disorder is dismissed. Entitlement to service connection for a bilateral elbow condition is dismissed. Entitlement to service connection for hypotension is dismissed. Entitlement to service connection for a teeth disorder is dismissed. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for degenerative disc and joint disease (DDD/DJD) of the lumbar spine is remanded. Entitlement to service connection for a bilateral knee disorder, to include as due to DDD/DJD of the lumbar spine is remanded. Entitlement to service connection for a bilateral leg disorder, to include as due to DDD/DJD of the lumbar spine is remanded. Entitlement to service connection for erectile dysfunction, to include as due to an acquired psychiatric disorder and/or DDD/DJD of the lumbar spine. Entitlement to a total disability based on individual unemployability (TDIU) due to service-connected disabilities. FINDING OF FACT At the video conference hearing held in March 2018, the Veteran expressed his intent to withdraw the appeal for entitlement to service connection for hypertension, kidney disorder, altered skin color, loss of hair, chloracne, skin cancer, personality disorder, bilateral elbow disorder, hypotension, and a teeth disorder. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal on the issue of entitlement to service connection for hypertension are met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.202, 20.204. 2. The criteria for withdrawal of a substantive appeal on the issue of entitlement to service connection for a kidney disorder are met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.202, 20.204. 3. The criteria for withdrawal of a substantive appeal on the issue of entitlement to service connection for altered skin color are met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.202, 20.204. 4. The criteria for withdrawal of a substantive appeal on the issue of entitlement to service connection for loss of hair are met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.202, 20.204. 5. The criteria for withdrawal of a substantive appeal on the issue of entitlement to service connection for chloracne are met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.202, 20.204. 6. The criteria for withdrawal of a substantive appeal on the issue of entitlement to service connection for skin cancer are met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.202, 20.204. 7. The criteria for withdrawal of a substantive appeal on the issue of entitlement to service connection for a personality disorder are met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.202, 20.204. 8. The criteria for withdrawal of a substantive appeal on the issue of entitlement to service connection for a bilateral elbow disorder are met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.202, 20.204. 9. The criteria for withdrawal of a substantive appeal on the issue of entitlement to service connection for hypotension are met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.202, 20.204. 10. The criteria for withdrawal of a substantive appeal on the issue of entitlement to service connection for a teeth disorder are met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.202, 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1974 to April 1976. In March 2018, a videoconference hearing was held before the undersigned. A transcript of the hearing is associated with the record. In March 2018, the Veteran submitted a timely notice of disagreement (NOD) to the April 2017 rating decision that denied entitlement to service connection for insomnia. No Statement of the Case (SOC) has been procured with regard to this issue. Ordinarily, the claim would be remanded for the issuance of an SOC pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). However, the Agency of Original Jurisdiction (AOJ) has acknowledged receipt of the NOD in the Veteran’s Appeals Control and Locator System (VACOLS) and this situation is distinguishable from Manlincon where an NOD had not been recognized. Accordingly, remand of this issue is not necessary at this time. The Board notes that although the Veteran initially raised a claim for posttraumatic stress disorder (PTSD), the claim has been recharacterized more broadly as a claim for an acquired psychiatric condition. Clemons v. Shinseki, 23 Vet. App. 1 (2009). 1. Entitlement to service connection for hypertension, kidney disorder, altered skin color, loss of hair, chloracne, skin cancer, personality disorder, bilateral elbow disorder, hypotension, and a teeth disorder. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which 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. Withdrawal may be made by the veteran or by her authorized representative and must be in writing (except for appeals withdrawn on the record at a hearing). 38 C.F.R. § 20.204. On the record, during the March 2018 video conference hearing, the Veteran explicitly, unambiguously, and with full understanding of the consequences, withdrew his appeal for entitlement to service connection for hypertension, kidney disorder, altered skin color, loss of hair, chloracne, skin cancer, personality disorder, bilateral elbow disorder, hypotension, and a teeth disorder. In pertinent part, the undersigned explained to the Veteran that by withdrawing his claims, VA would take no further action on his claims and the Veteran expressed that he fully understood those consequences. Given the foregoing, there remain no allegations of errors of fact or law for appellate consideration with respect to these specific matters. Accordingly, the Board does not have jurisdiction to review the appeal of these issues and they are therefore dismissed. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. In August 2013, the Veteran underwent a VA examination to determine the etiology of his PTSD. The examiner diagnosed the Veteran with chronic PTSD, depressive disorder NOS, and personality disorder NOS. The examiner opined that it was less likely than not that the Veteran’s PTSD was related to a confirmable military sexual trauma corroborated by any accepted markers in the service record. The examiner explained that there were no clear markers of military sexual trauma in the record. He also explained that if additional information was presented, he may be able to provide a follow-up opinion based on such information. Thereafter, in April 2017, the Veteran underwent another VA examination to assess his PTSD. The examiner, however, found no psychiatric diagnoses and explained that no diagnosis was rendered due to significant concerns regarding the credibility of the Veteran’s self-reported psychological symptoms. The examiner explained further that the Veteran overreported his psychiatric symptoms. In spite of the VA examinations provided above, the Board, nevertheless, finds that the current evidence is insufficient to properly adjudicate the Veteran’s claim. In pertinent part, in rendering his opinion, the August 2013 VA examiner failed to adequately consider and discuss the pertinent lay evidence of record which indicated that the Veteran’s personality changed following the alleged military sexual trauma and following service. See June 2013 Buddy Statements. Instead, the examiner appears to have relied on the absence of corroborating service treatment records. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Board also notes that the August 2013 VA examiner diagnosed the Veteran with multiple psychiatric disorders, but only rendered an etiological opinion with regard to PTSD. Moreover, while the April 2017 VA examiner found no diagnosis for PTSD, she did not otherwise reconcile this finding with the VA treatment records, which consistently show Diagnostic and Statistical Manual of Mental Disorders, 5th edition (DSM-5) diagnoses for PTSD. Based on the foregoing, the Board finds that the above VA examinations are insufficient and, therefore, may not be relied upon to adjudicate the Veteran’s claim. Accordingly, remand is required to obtain a new VA examination and opinion consistent with the directives herein. 2. Entitlement to service connection for DDD/DJD of the lumbar spine is remanded. The Veteran’s VA treatment records document objective evidence of DJD of the lumbar spine. See July 2011 VA Treatment records. He has also testified that his back pain began during service and has continued since. See March 2018 Hearing Transcript. Accordingly, as the Veteran has not been provided a VA examination with regard to his DDD/DJD of the lumbar spine, the Board finds that such information is sufficient to meet the requirements for affording the Veteran a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79, 81-84 (2006). 3. Entitlement to service connection for erectile dysfunction, bilateral knee, and bilateral leg disorder and entitlement to a TDIU are remanded. The Veteran has testified that his erectile dysfunction is secondary to his PTSD and his low back problems. See March 2018 Hearing Transcript. He has also testified that his bilateral knee and leg disorders are secondary to his low back disorder. Id. As such, these issues are inextricably intertwined with the claims for service connection for a psychiatric disorder and DDD/DJD of the lumbar spine remanded herein. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Consequently, remand of the inextricably intertwined claims for service connection for erectile dysfunction, bilateral knee, and bilateral leg disorder is required. Consideration of entitlement to a TDIU is dependent upon the impact of the Veteran’s service-connected disabilities on his ability to obtain or retain substantially gainful employment. Accordingly, the matter of a TDIU is inextricably intertwined with the Veteran’s service connection claims remanded herein, and must also be remanded. Id. The matters are REMANDED for the following actions: 1. Make reasonable efforts to obtain any outstanding VA and private treatment records, to include VA treatment records dated after August 2018. With the Veteran’s assistance, if needed, obtain copies of any pertinent records and add them to the claims file. 2. Following the records development above, obtain a VA examination and opinion from an appropriate examiner to determine the nature and etiology of the Veteran’s acquired psychiatric disability. 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. a) After considering the pertinent information in the record, the examiner should identify all diagnosed acquired psychiatric disorders. If the examiner disagrees with any diagnosis previously rendered in the record, such should be explained for the record. b) For each currently diagnosed acquired psychiatric disorder, the examiner should opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the diagnosed acquired psychiatric disorder had its onset during active service, or is otherwise related to active service. The examiner is 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 his 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. 3. Following the records development above, obtain a VA examination and opinion from an appropriate examiner to determine the nature and etiology of the Veteran’s DDD/DJD of the lumbar spine and his knee/leg disorders. 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: a) Provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s DDD/DJD of the lumbar spine had its onset in or is otherwise related to his active duty service. b) If, and only if, the Veteran’s DDD/DJD of the lumbar spine is determined to be etiologically related to his service, provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s bilateral knee and/or leg disorders (to include radiculopathy) were caused OR aggravated by his DDD/DJD of the lumbar spine. The examiner is 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 his 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. 4. If, and only if, the AOJ determines that service connection is warranted for an acquired psychiatric disorder and/or DDD/DJD of the lumbar spine the AOJ should obtain a VA examination and opinion from an appropriate examiner to determine the nature and etiology of the Veteran’s claimed erectile dysfunction. a) The examiner should indicate whether the Veteran has a current diagnosis for erectile dysfunction. b) If so, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s erectile dysfunction was caused OR aggravated by his service-connected acquired psychiatric disorder and/or DDD/DJD of the lumbar spine. The examiner is 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 his 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