Citation Nr: 18150237 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-09 788 DATE: November 14, 2018 ORDER Entitlement to an initial disability rating higher than 10 percent for a left ankle disability is dismissed. REMANDED Entitlement to service connection for a lower back disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right foot disability is remanded. Entitlement to service connection for a left foot disability is remanded. Entitlement to service connection for irritable bowel syndrome (IBS) is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. FINDING OF FACT Prior to promulgation of a decision on his appeal, the Veteran withdrew his appeal with respect to the issue of entitlement to an increased initial rating for a left ankle disability. CONCLUSION OF LAW The criteria for withdrawal of a substantive appeal by the Veteran as to the issue of entitlement to an increased initial rating for a left ankle disability have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Introduction The Veteran served on active duty in the United States Army from May 2001 to May 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The June 2013 decision on appeal granted service connection for a left ankle disability and assigned an initial noncompensable rating. During the pendency of the appeal, in a February 2016 rating decision, the VA Evidence Intake Center in Newnan, GA, increased the initial rating from noncompensable to 10 percent throughout the period of the claim. Background and Analysis 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 A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. Id. The Veteran perfected an appeal as to his claim for an increased initial rating for a left ankle disability. In a May 2016 correspondence, however, the Veteran’s authorized representative unambiguously indicated the Veteran wished to withdraw his appeal with respect to this issue. Upon review, there is no further correspondence in the record from the Veteran or his representative regarding this issue. Based on the foregoing, the Board finds there remains no allegation of error of fact or law for appellate consideration with regard to this issue. Thus, the Board no longer has jurisdiction to review the appeal regarding this issue, and the claim is dismissed. REMAND At the outset, the Board notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). To be considered adequate, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In addition, a medical examiner is not free to simply ignore a veteran’s lay statements recounting symptoms or events. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Service connection for lower back, right shoulder, right hip, right ankle, bilateral knee, and bilateral foot disabilities In December 2012, the Veteran was afforded VA examinations of his lower back, right shoulder, right hip, right ankle, bilateral knees, and bilateral feet. The VA examiner noted the Veteran’s reports that he suffered from musculoskeletal pain in these areas that had its onset during service, and he cited the Veteran’s service treatment records (STRs), which corroborated the Veteran’s reports of in-service symptomatology. Upon examination, however, the examiner determined there was no objective or clinical evidence that the Veteran had disabilities of the lower back, right shoulder, right hip, right ankle, bilateral knees, or bilateral feet at the time of the examination. The examiner proceeded to opine that none of the Veteran’s claimed conditions were related to his service. In support of his opinions, the examiner observed there was no documented evidence of chronicity of any of the Veteran’s claimed conditions following service. Upon review of the foregoing, the Board observes the VA examiner provided no explanation for his disregard of the Veteran’s lay reports of continuous pain and other symptoms in the lower back, right shoulder, right hip, right ankle, bilateral knees, and bilateral feet from service to the present day. The Board also observes the December 2012 examination took place almost six years ago. Subsequent to the examination, the Veteran has maintained that he continues to experience symptomatology in his lower back, right shoulder, right hip, right ankle, bilateral knees, and bilateral feet. Under these circumstances, it is unclear whether any of the Veteran’s claimed symptoms may have progressed into diagnosable conditions since the December 2012 examinations. Finally, the Board notes that the December 2012 examination report shows the Veteran made several references to private medical treatment he had received for his musculoskeletal symptoms following service. A review of the record shows these private medical records have not been obtained. For the foregoing reasons, the Board finds a remand is warranted to obtain all relevant, outstanding medical records, and to afford the Veteran an additional VA examination or examinations. Service connection for IBS The record shows the Veteran has been diagnosed with IBS. He has contended he suffered from diarrhea and abdominal cramping in service, and that these symptoms have persisted to the present day. He has asserted the condition may be secondary to in-service exposure to burn pits while serving in Afghanistan. In January 2016, the RO requested a VA medical opinion as to whether the Veteran’s abdominal cramping and diarrhea symptoms were part of an undiagnosed illness or diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology, or instead were a diagnosable condition. If the symptoms represented a diagnosable condition, the VA examiner was requested to opine as to whether the condition was at least as likely as not related to the Veteran’s service, to include toxic exposure in Southwest Asia. The Veteran was afforded a VA Gulf War Examination. The examiner found the Veteran had IBS, and thus, that he did not have an undiagnosed illness or medically unexplained illness. The examiner then noted that upon a review of the Veteran’s STRs, the Veteran indicated he did not have intestinal or stomach problems on a May 2006 report of medical history at separation, and on this basis, the examiner opined that the Veteran’s IBS was less likely than not related to service. Upon review of the foregoing, the Board observes that the VA examiner failed to address or explain his disregard of the Veteran’s lay statements to the effect that he experienced diarrhea and abdominal cramping during service, which has persisted to the present day. In addition, the examiner failed to provide any medical explanation for any connection, or lack thereof, between the Veteran’s in-service burn pit exposure and his IBS. For the foregoing reasons, the Board finds the January 2016 VA examination report is inadequate for adjudication purposes, and that a remand is warranted for an additional examination and opinion. Service connection for GERD The record shows the Veteran has been diagnosed with GERD. He has contended the condition is secondary to in-service exposure to burn pits while serving in Afghanistan. He has asserted he experienced abnormal chest pains during service. Alternatively, he has contended his GERD is secondary to his service-connected acquired psychiatric disorder. In support of his contention, he has submitted two medical articles, entitled “Study Shows Heartburn, Mental Stress Link in 9/11 Workers,” and “[GERD] and Psychological Comorbidity,” in addition to a statement to a congressional committee by the Director of the National Institute of Mental Health at the Department of Health and Human Services. This evidence, in short, indicates that psychiatric symptoms may play a role in causing or worsening GERD. In January 2016, the RO requested a VA medical opinion addressing whether the Veteran’s GERD was caused or aggravated by his service-connected acquired psychiatric disorder. The Veteran was afforded a VA Gulf War Examination, and GERD was diagnosed. The VA examiner noted the Veteran reported his GERD symptoms began after service, and observed the Veteran had indicated he did not have frequent indigestion or heartburn on his report of medical history at discharge. The examiner noted the Veteran’s reports that certain foods sometimes precipitated his GERD, but that his acquired psychiatric disorder had not been a “major” precipitant of reflux symptoms. Based on the foregoing, the examiner opined that it was less likely than not that the Veteran’s GERD was proximately due to his acquired psychiatric disorder. Regarding aggravation, the examiner simply stated there was no evidence to support that the Veteran’s acquired psychiatric disorder was aggravating his GERD condition. Upon review of the foregoing, the Board first observes the VA examiner did not address the Veteran’s contentions that his GERD may be related to in-service exposure to burn pits, and that he experienced indigestion and abnormal chest pains during service. In addition, regarding secondary service connection, the examiner relied solely on the absence of any evidence that the Veteran’s GERD had been aggravated by his psychiatric symptoms, but otherwise provided no medical explanation for his opinion. For the foregoing reasons, the Board finds the January 2016 VA examination report is inadequate for adjudication purposes, and that a remand is warranted for an additional examination and opinion. The matters are REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claims, to include all private, post-service medical records related to treatment for lower back, right shoulder, right hip, right ankle, bilateral knee, and bilateral foot symptoms or conditions. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Afford the Veteran a VA examination to determine the nature and etiology of his lower back disability. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. Following the examination and a review of the relevant records and lay statements, the examiner should identify all lower back disabilities present during the period of the claim. If the examiner determines the Veteran has not had any lower back disability during the period of the claim, he or she should provide a medical explanation for this finding. Then, with regard to each identified lower back disability, the examiner should state whether it is at least as likely as not (50 percent probability or greater) that the disability had its onset during or is otherwise etiologically related to the Veteran’s military service. In providing his or her opinion(s), the examiner should address the Veteran’s service treatment records (STRs) showing he reported back pain during service. The examiner should also address the Veteran’s lay statements to the effect that he experienced lower back pain during service related to parachute jumps and marches, and that this pain has persisted to the present day. The examiner must provide a rationale for any proffered opinion. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. Afford the Veteran a VA examination to determine the nature and etiology of his right shoulder disability. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. Following the examination and a review of the relevant records and lay statements, the examiner should identify all right shoulder disabilities present during the period of the claim. If the examiner determines the Veteran has not had any right shoulder disability during the period of the claim, he or she should provide a medical explanation for this finding. Then, with regard to each identified right shoulder disability, the examiner should state whether it is at least as likely as not (50 percent probability or greater) that the disability had its onset during or is otherwise etiologically related to the Veteran’s military service. In providing his or her opinion(s), the examiner should address the Veteran’s service treatment records (STRs) showing he reported right shoulder pain during service. The examiner should also address the Veteran’s lay statements to the effect that he experienced right shoulder pain during service related to parachute jumps and marches, and that this pain has persisted to the present day. The examiner must provide a rationale for any proffered opinion. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 4. Afford the Veteran a VA examination to determine the nature and etiology of his right hip disability. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. Following the examination and a review of the relevant records and lay statements, the examiner should identify all right hip disabilities present during the period of the claim. If the examiner determines the Veteran has not had any right hip disability during the period of the claim, he or she should provide a medical explanation for this finding. Then, with regard to each identified right hip disability, the examiner should state whether it is at least as likely as not (50 percent probability or greater) that the disability had its onset during or is otherwise etiologically related to the Veteran’s military service. In providing his or her opinion(s), the examiner should address the Veteran’s service treatment records (STRs) showing he reported right hip pain during service. The examiner should also address the Veteran’s lay statements to the effect that he experienced right hip pain during service related to parachute jumps and marches, and that this pain has persisted to the present day. The examiner must provide a rationale for any proffered opinion. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 5. Afford the Veteran a VA examination to determine the nature and etiology of his right ankle disability. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. Following the examination and a review of the relevant records and lay statements, the examiner should identify all right ankle disabilities present during the period of the claim. If the examiner determines the Veteran has not had any right ankle disability during the period of the claim, he or she should provide a medical explanation for this finding. Then, with regard to each identified right ankle disability, the examiner should state whether it is at least as likely as not (50 percent probability or greater) that the disability had its onset during or is otherwise etiologically related to the Veteran’s military service. In providing his or her opinion(s), the examiner should address the Veteran’s service treatment records (STRs) showing he reported right ankle pain during service. The examiner should also address the Veteran’s lay statements to the effect that he experienced right ankle pain during service related to parachute jumps and marches, and that this pain has persisted to the present day. The examiner must provide a rationale for any proffered opinion. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 6. Afford the Veteran a VA examination to determine the nature and etiology of his bilateral knee disability. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. Following the examination and a review of the relevant records and lay statements, the examiner should identify all right and/or left knee disabilities present during the period of the claim. If the examiner determines the Veteran has not had any right and/or left knee disability during the period of the claim, he or she should provide a medical explanation for this finding. Then, with regard to each identified right and/or left knee disability, the examiner should state whether it is at least as likely as not (50 percent probability or greater) that the disability had its onset during or is otherwise etiologically related to the Veteran’s military service. In providing his or her opinion(s), the examiner should address the Veteran’s service treatment records (STRs) showing he reported bilateral knee pain during service. The examiner should also address the Veteran’s lay statements to the effect that he experienced bilateral knee pain during service related to parachute jumps and marches, and that this pain has persisted to the present day. The examiner must provide a rationale for any proffered opinion. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 7. Afford the Veteran a VA examination to determine the nature and etiology of his bilateral foot disability. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. Following the examination and a review of the relevant records and lay statements, the examiner should identify all right and/or left foot disabilities present during the period of the claim. If the examiner determines the Veteran has not had any right and/or left foot disability during the period of the claim, he or she should provide a medical explanation for this finding. Then, with regard to each identified right and/or left foot disability, the examiner should state whether it is at least as likely as not (50 percent probability or greater) that the disability had its onset during or is otherwise etiologically related to the Veteran’s military service. In providing his or her opinion(s), the examiner should address the Veteran’s service treatment records (STRs) showing he reported bilateral foot pain during service. The examiner should also address the Veteran’s lay statements to the effect that he experienced bilateral foot pain during service related to parachute jumps and marches, and that this pain has persisted to the present day. The examiner must provide a rationale for any proffered opinion. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 8. Afford the Veteran a VA examination to determine the nature and etiology of his IBS. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. Following the examination and a review of the relevant records and lay statements, the examiner should state whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s IBS had its onset during or is otherwise etiologically related to the Veteran’s military service. In providing his or her opinions, the examiner should address the Veteran’s lay statements to the effect that he experienced frequent diarrhea and abdominal cramping during service, and that these symptoms have persisted to the present day. The examiner should also address the Veteran’s contention that his IBS may be related to in-service exposure to burn pits. The examiner must provide a rationale for any proffered opinion. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 9. Afford the Veteran a VA examination to determine the nature and etiology of his GERD. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. Following the examination and a review of the relevant records and lay statements, the examiner should state whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s GERD had its onset during or is otherwise etiologically related to the Veteran’s military service. In providing his or her opinions, the examiner should address the Veteran’s lay statements to the effect that he experienced indigestion and abnormal chest pains during service. The examiner should also address the Veteran’s contention that his GERD may be related to in-service exposure to burn pits. If the examiner answers the above question in the negative, he or she should state whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s GERD is proximately due to his service-connected acquired psychiatric disorder. If not, the examiner should state whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s GERD has been aggravated (permanently worsened beyond its natural progression) by his service-connected acquired psychiatric disorder. In providing his or her opinions, the examiner should address the medical articles submitted by the Veteran, entitled “Study Shows Heartburn, Mental Stress Link in 9/11 Workers,” and “[GERD] and Psychological Comorbidity,” in addition to the transcript submitted by the Veteran of a statement to a congressional committee by the Director of the National Institute of Mental Health at the Department of Health and Human Services. If aggravation is found, the examiner should provide an opinion, to the extent possible, as to: a) the baseline manifestations of the Veteran’s GERD found prior to aggravation; and b) the increased manifestations which, in the examiner’s opinion, are proximately due to the Veteran’s acquired psychiatric disorder. The examiner must provide a rationale for any proffered opinion. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 10. Undertake any other development determined to be warranted. (Continued on the next page)   11. Then, readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs