Citation Nr: 18148714 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 15-33 377 DATE: November 8, 2018 ORDER Entitlement to service connection for a liver disorder is dismissed. Entitlement to service connection for a functional gastrointestinal disorders (FGID) (claimed as a stomach disability) is granted. Entitlement to generalized anxiety disorder with depression is granted. FINDINGS OF FACT 1. During the November 2018 Board hearing, the Veteran withdrew from appellate consideration the claim of entitlement to service connection for a liver disorder. 2. An FGID is presumed due to military service. 3. Generalized anxiety disorder with depression is as likely as not attributable to service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to service connection for a liver disorder have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.204, 20.1404 (2017). 2. The criteria for entitlement to service connection for an FGID (claimed as a stomach disability) have been met. 38 U.S.C. §§ 1110, 1117, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.317 (2017). 3. The criteria for entitlement to generalized anxiety disorder with depression have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Marine Corps from January 2005 to March 2009 and from October 2011 to October 2012. The Veteran testified before the undersigned Veterans Law Judge during an October 2018 videoconference hearing. This case is being expedited under the Board’s One Touch Program which allows the Board to fully decide a case before a hearing transcript is generated if the full grant of benefits sought on appeal could be awarded. Service Connection Entitlement to service connection for a liver disorder is dismissed Pursuant to 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. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his/her authorized representative. 38 C.F.R. § 20.204. Withdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011) (“Although Mr. DeLisio ‘thought’ that the Board member had identified the issues to be discussed, the transcript reflects neither an explicit discussion of withdrawal nor any indication that Mr. DeLisio understood that he might be withdrawing claims for benefits for any disabilities not discussed.”). During the November 2018 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew the issue of entitlement to service connection for a liver disorder. The undersigned clearly identified the withdrawn issue, and the Veteran affirmed that he was requesting a withdrawal as to the appeal. The Veteran’s full understanding of the consequences are shown based on his acknowledgment that his past elevated liver function tests were now normal but that he could refile his claim in the future if a liver disability is diagnosed. See Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). The Board finds that the Veteran’s statement qualifies as a valid withdrawal of the appeal in accordance with the provisions of 38 C.F.R. § 20.204 as the transcript has been reduced to writing and is of record. See Tomlin v. Brown, 5 Vet. App. 355, 357-58 (1993). In light of the Veteran’s withdrawal of the appeal of the claim, there remains no allegation of error of fact or law for appellate consideration. Therefore, the Board does not have jurisdiction to review this claim which is, therefore, dismissed. Entitlement to service connection for a stomach disability and generalized anxiety disorder with depression Service connection may be established for disability resulting from personal injury sustained or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). The Veteran’s service personnel records reflect that he is a Persian Gulf War Veteran, and Congress has created special rules with regard to such Veterans establishing entitlement to service connection. Service connection may be established for a chronic disability manifested by certain signs or symptoms which became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2021, and which, by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1). A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): an undiagnosed illness; the following medically unexplained chronic multi-symptom illnesses that are defined by a cluster of signs or symptoms: (1) Chronic fatigue syndrome; (2) Fibromyalgia; (3) Functional gastrointestinal disorders; or (4) Any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multi-symptom illness; or any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 C.F.R. § 3.317(a). The term “medically unexplained chronic multi-symptom illness” means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a). “Objective indications of chronic disability” include both “signs,” in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317 (a). Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to: (1) Fatigue; (2) Signs or symptoms involving skin; (3) Headache; (4) Muscle pain; (5) Joint pain; (6) Neurologic signs and symptoms; (7) Neuropsychological signs or symptoms; (8) Signs or symptoms involving the respiratory system (upper or lower); (9) Sleep disturbances; (10) Gastrointestinal signs or symptoms; (11) Cardiovascular signs or symptoms; (12) Abnormal weight loss; and (13) Menstrual disorders. 38 C.F.R. § 3.317(b). The Veteran appeals the denial of service connection for a stomach disability and generalized anxiety disorder with depression. After weighing the evidence, the Board finds in favor of the Veteran’s claims. To that end, the Veteran was discharged from service in October 2012 and he reports his anxiety symptoms started around December 2012. In the June 2013 VA examination, the VA examiner found that the Veteran’s current anxiety was directly related to his service in the military. During the December 2013 VA examination, the Veteran reported daily multiple stools, about five to six, which started after his first tour of Iraq. He was diagnosed with functional bowel movement. The VA examiner opined that it was less likely as not that the Veteran’s loose stools were related to environmental exposure acquired during his military experience and more likely as not it is related to a functional bowel process. In resolving reasonable doubt in his favor, the Board finds that the Veteran’s generalized anxiety disorder with depression and functional bowel process are as likely as not related to service. The Veteran is competent to report anxiety and stomach problems and the circumstances surrounding such. Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds the Veteran has presented credible statements regarding the onset and continuity of his disabilities. Although the Veteran’s disabilities were not formally diagnosed in service, positive evidence has been submitted showing a link between the Veteran’s service and his current generalized anxiety disorder with depression. The Board also finds that the Veteran’s functional bowel process is as likely as not related to his Gulf War service. In this respect, the examiner found no structural gastrointestinal disorder to explain the Veteran’s symptoms, and presumptive service connection is warranted for an FGID per the presumptive rules for Persian Gulf service. Because there is an approximate balance of positive and negative evidence, the benefit of the doubt must be applied in favor of the Veteran. 38 U.S.C. § 5107(b); see Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also 38 C.F.R. § 3.102. Accordingly, resolving reasonable doubt in his favor, service connection for generalized anxiety disorder with depression and a stomach disorder is granted. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T.S. Willie