Citation Nr: 18146741 Decision Date: 11/01/18 Archive Date: 10/31/18 DOCKET NO. 15-14 226A DATE: November 1, 2018 ORDER The appeal seeking entitlement to a disability rating in excess of 10 percent for right knee patellofemoral syndrome is dismissed. The appeal seeking entitlement to a disability rating in excess of 10 percent for left knee patellofemoral syndrome is dismissed. The appeal seeking entitlement to a compensable disability rating for residuals status post left great toe fracture is dismissed. The appeal seeking entitlement to a compensable disability rating for left ear hearing loss is dismissed. The appeal seeking entitlement to a compensable disability rating for gastroesophageal reflux disease (GERD) (claimed as heartburn and chest pain/tightness) is dismissed. The appeal seeking entitlement to a compensable rating for erectile dysfunction is dismissed. The appeal seeking entitlement to a compensable disability rating for scars status post skin infection (also claimed as MRSA) is dismissed. The appeal seeking entitlement to a compensable disability rating for scar, right thumb, is dismissed. The appeal seeking entitlement to a compensable disability rating for bilateral ingrown toenails (claimed as trench foot, and foot arch, ball & toe pain) is dismissed. REMANDED Entitlement to a disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) (also claimed as anxiety, dysthymia, and insomnia) is remanded. Entitlement to a disability rating in excess of 10 percent for residuals status post left shoulder AC separation is remanded. Entitlement to a compensable disability rating for cervical spine strain with degenerative joint disease is remanded. Entitlement to a disability rating in excess of 10 percent for thoracolumbar spine strain with degenerative joint disease (claimed as a lower back condition) is remanded. Entitlement to a compensable disability rating for traumatic brain injury (TBI) with photophobia is remanded. FINDING OF FACT In July 2018, prior to the promulgation of a Board decision in the matters of entitlement to disability ratings in excess of 10 percent for left and right knee disabilities and entitlement to compensable disability ratings for residuals of a left great toe fracture, left ear hearing loss, GERD, erectile dysfunction, scar of the right thumb, scar status post skin infection, and bilateral ingrown toenails, the Veteran requested that his appeals in these matters be withdrawn; there are no questions of fact or law in these matters remaining for the Board to consider. CONCLUSION OF LAW Regarding the claims of entitlement to disability ratings in excess of 10 percent for left and right knee disabilities and entitlement to compensable disability ratings for residuals of a left great toe fracture, left ear hearing loss, GERD, erectile dysfunction, scar of the right thumb, scar status post skin infection, and bilateral ingrown toenails, the criteria for withdrawal of these appeals are met; the Board has no further jurisdiction to consider appeals in these matters. 38 U.S.C. §§ 7104, 7105(d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from December 1998 to April 2011. These matters are before the Board of Veterans’ Appeals (Board) on appeal from August 2012 decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2018, the Board remanded the Veteran’s appeal seeking a compensable disability rating for his TBI with photophobia to the RO for further evidentiary development. In July 2018, the Veteran testified at a videoconference hearing before the undersigned; a transcript of that hearing is of record. Withdrawal of appeals The Board has jurisdiction where there is a question of fact or law in any matter which under 38 U.S.C. § 511(a) is subject to a decision by the Secretary. 38 U.S.C. § 7104. 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 by the appellant or by his or her authorized representative (in writing or on the record at a hearing) at any time before the Board promulgates a decision in the matter. 38 C.F.R. § 20.204. A withdrawal of an appeal is effective when received. 38 C.F.R. § 20.204(b)(3). During the videoconference hearing in July 2018, the Veteran requested withdrawal of his nine appeals seeking entitlement to a disability rating in excess of 10 percent for left knee disability, entitlement to a disability rating in excess of 10 percent for right knee disability, and entitlement to compensable disability ratings for residuals of a left great toe fracture, left ear hearing loss, GERD, erectile dysfunction, scar of the right thumb, scar status post skin infection, and bilateral ingrown toenails (see Board hearing transcript, pages 2-3). The transcript demonstrates that the Veteran was advised of the consequences of withdrawing these appeals, that the Veteran and his representative participated in a meaningful manner in the hearing, and that they were aware of the consequences of withdrawals of the claims at the time. The Board finds that the Veteran’s withdrawals were explicit, unambiguous and done with a full understanding of the consequences of such action. Given these circumstances, the Board finds that the Veteran met the requirements necessary for an effective oral withdrawal of these appeals. Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Thus, there remain no allegations of errors of fact or law for appellate consideration on these nine issues. Accordingly, the Board does not have jurisdiction to review them and they are dismissed. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) (also claimed as anxiety, dysthymia, and insomnia) is remanded. In his July 2018 hearing testimony, the Veteran asserted that his PTSD has increased in severity since he was last examined by VA in January 2012. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his PTSD. 2. Entitlement to a disability rating in excess of 10 percent for residuals status post left shoulder AC separation is remanded. In his July 2018 hearing testimony, the Veteran asserted that his left shoulder condition has increased in severity since the Veteran was last examined by VA in January 2012. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his left shoulder disability. 3. Entitlement to a compensable disability rating for cervical spine strain with degenerative joint disease is remanded. In his July 2018 hearing testimony, the Veteran asserted that his cervical spine strain with degenerative joint disease has increased in severity since his last VA examination, at least in part due to physical therapy exercises. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his cervical spine disability. 4. Entitlement to a disability rating in excess of 10 percent for thoracolumbar spine strain with degenerative joint disease (claimed as a lower back condition) is remanded. In his April 2015 Form 9 Substantive Appeal, the Veteran asserted that his thoracolumbar spine strain with degenerative joint disease has increased in severity since his last VA examination. The Veteran should be provided with an opportunity to report for a VA examination to ascertain the current severity and manifestations of his thoracolumbar spine disability. 5. Entitlement to a compensable disability rating for traumatic brain injury (TBI) with photophobia is remanded. This issue was remanded in a Board decision in May 2018. In July 2016, the VA notified the Veteran that his initial VA examination for TBI was improperly performed by a physician’s assistant instead of a psychiatrist, physiatrist, neurologist, or neurosurgeon and offered him a new examination. In a November 2016 letter the Veteran accepted the examination offer. This new VA examination for TBI had not been conducted as of May 2018, and the Board remanded this claim with instructions to complete the new TBI examination, to be performed by a psychiatrist, physiatrist, neurologist, or neurosurgeon. The directive of the May 2018 Board remand has not yet been performed. Therefore, the Board defers adjudication of this issue until a later date, after an examination has been completed. The matters are REMANDED for the following actions: 1. Obtain and associate with the Veteran’s electronic record VA treatment records from August 2018 to the present. Contact the Veteran and afford him the opportunity to identify or submit any pertinent evidence in support of his claims, to include records of any private treatment. Based on his response, attempt to procure copies of all records which have not been obtained from identified treatment sources. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. After obtaining any additional records, schedule the Veteran for examination(s) by an appropriate clinician(s) to determine the current severity of his service-connected residuals status post left shoulder AC separation, cervical spine strain with degenerative joint disease, and thoracolumbar spine strain with degenerative joint disease (claimed as a lower back condition). The examiner(s) should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria. The examiner(s) must 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 due to the service-connected residuals status post left shoulder AC separation, cervical spine strain with degenerative joint disease, and thoracolumbar spine strain with degenerative joint disease (claimed as a lower back condition) alone and discuss the effect of these 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). 3. After obtaining any additional records, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. 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 should attempt to elicit information regarding the severity, frequency, and duration of symptoms. 4. After completing the above development and the development requested in the Board’s May 2018 remand, readjudicate the claims, to include consideration of all evidence added to the file since issuance of the March 2015 statement of the case. If any benefit sought on appeal remains denied, in whole or in part, furnish to the Veteran and his representative a supplemental statement of the case. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Dean, Associate Counsel