Citation Nr: 1806478 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-07 964 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for an earache disability, to include as secondary to service-connected sinusitis. 2. Entitlement to service connection for an acquired psychiatric disability to include insomnia, anxiety, attention deficit disorder, hyperactivity, and major depressive disorder. 3. Entitlement to service connection for a right knee disability. 4. Entitlement to service connection for erectile dysfunction. 5. Entitlement to service connection for papilloma. 6. Entitlement to service connection for a right hip disability. 7. Entitlement to service connection for bilateral plantar fasciitis, to include foot numbness. 8. Entitlement to service connection for a right elbow disability. 9. Entitlement to service connection for gastroesophageal reflux disease (GERD). 10. Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Ron Thomas, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Biggins, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1981 to December 1992 with additional service in the Army Reserves, to include March 2003 to March 2005. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Baltimore, Maryland, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at an August 2017 Board hearing and a transcript of this hearing is of record. The Board notes the RO had originally listed the Veteran's claims for entitlement to service connection for insomnia, anxiety, attention deficit disorder, hyperactivity, and major depressive disorder as separate claims. However as the Veteran's claim encompasses all disabilities that may be reasonably encompassed by the Veteran's description of the claim, reported symptoms, and the other information of record the Veteran's claim for has been recharacterized as shown on the title page. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The issues of entitlement to service connection for a right knee disability, earache, and psychiatric disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT At his August 2017 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran testified that a withdrawal of his appeal as to the issues of entitlement to service connection for erectile dysfunction, papilloma, a right hip disability, bilateral plantar fasciitis, right elbow disability, GERD, and a back disability, is requested. CONCLUSION OF LAW The criteria for withdrawal of an appeal by the Veteran have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION 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 (West 2014). 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 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the appellant has withdrawn his appeal as to the issues of and entitlement to service connection for erectile dysfunction, papilloma, a right hip disability, bilateral plantar fasciitis, right elbow disability, GERD, and a back disability, hence, there remain no allegations of errors of fact or law for appellate consideration, as to these claims. Accordingly, the Board does not have jurisdiction to review the appeal as to the aforementioned claims and they are dismissed. ORDER The Veteran's appeal for the claims of entitlement to service connection for erectile dysfunction, papilloma, a right hip disability, bilateral plantar fasciitis, right elbow disability, GERD, and a back disability is dismissed. REMAND The Veteran is seeking entitlement to service connection for an earache disability. The Veteran testified at his August 2017 Board hearing that he had experienced chronic ear infections during his active service and continually since. The Veteran also testified that he believes his current earaches may be etiologically related to his service-connected sinusitis. Given the Veteran has been service-connected for sinusitis and his testimony that his sinusitis and current earaches are etiologically related a VA examination and opinion must be obtained. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran is seeking entitlement to service connection for a psychiatric disability. The Veteran testified at his August 2017 Board hearing that he had been experiencing symptoms of a psychiatric disability consistently since his active service. The Veteran's claims file indicates diagnoses to include attention deficit disorder, primary insomnia, anxiety disorder not otherwise specified (NOS), major depression, and panic disorder. See April 2006 VA treatment record, September 2008 VA treatment record, and May 2012 private treatment record. Given the Veteran's diagnosed psychiatric disabilities of attention deficit disorder, primary insomnia, anxiety disorder NOS, major depression, and panic disorder and his testimony that these disabilities have been present since his active service a VA examination and opinion must be obtained on remand. See McLendon, supra. The Veteran is seeking entitlement to service connection for a right knee disability. The Veteran was provided with a November 2010 VA examination in connection with his claim. The examiner concluded the Veteran presented with right knee patellofemoral syndrome which was not etiologically related to his active service. The examiner noted the Veteran had patellar tendonitis in service but that it had resolved which was evidenced by the fact that he was thereafter noted to have normal physical endurance. The examiner added that if patellofemoral syndrome had been present it likely would have limited the Veteran's ability to run. The Board finds the November 2010 opinion to be inadequate. The examiner concluded that the Veteran's in-service right knee disability had resolved because he had normal physical endurance thereafter, however, this rationale does not address the Veteran's lay statements. The Veteran testified at his August 2017 Board hearing that he did not seek treatment or report right knee pain following his initial treatment because it would cause him to be medically disqualified from Airborne School. As such, an addendum opinion must be obtained on remand. The Veteran provided testimony at his August 2017 Board hearing that he had received private treatment from Dr. L.G. at Aleks House and at Life Christian Therapy, however, these records do not appear to be associated with the Veteran's claims file. As such, attempts should be made to obtain these records and associate them with the Veteran's claims file on remand. In addition it appears the Veteran continues to receive treatment at a VA medical center. As such, any and all outstanding VA treatment records must be obtained on remand. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain and associate with the Veteran's claims file any and all outstanding VA treatment records. 2. Obtain the names and addresses of all medical care providers who treated the Veteran for a right knee disability, earaches, or psychiatric disability since service. After securing the necessary release, take all appropriate action to obtain these records, including records from Dr. L.G. at Aleks House and Life Christian Therapy. Inform the Veteran and provide him with the chance to submit additional records. 3. After the completion of steps one and two schedule the Veteran for an appropriate VA examination to determine the current nature and likely etiology of any current earache disability other than sinusitis. Copies of all pertinent records should be forwarded to the examiner for review. All indicated testing should be carried out. Based on the examination and review of the record, the examiner should offer an opinion as to following: (a) Is at least as likely as not (50 percent or higher degree of probability) that any currently diagnosed earache disability is etiologically related to the Veteran's active service? (b) If the answer to (a) is no is it at least as likely as not (50 percent or higher degree of probability) that any currently diagnosed earache disability is caused by the Veteran's service-connected sinusitis? (c) If the answer to (b) is no is it at least as likely as not (50 percent or higher degree of probability) that any currently diagnosed earache disability is aggravated by the Veteran's service-connected sinusitis? The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. 4. After the completion of steps one and two schedule the Veteran for an appropriate VA examination to determine the current nature and likely etiology of any diagnosed psychiatric disability to include attention deficit disorder, primary insomnia, anxiety NOS, major depression, and panic disorder. Copies of all pertinent records should be forwarded to the examiner for review. All indicated testing should be carried out. Based on the examination and review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or higher degree of probability) that any currently diagnosed psychiatric disability is etiologically related to the Veteran's active service? The examiner is advised it is impermissible to rely solely on the absence of medical records corroborating the continuity of a condition. 5. After the completion of steps one and two the AOJ must contact the VA examiner who examined the Veteran in November 2010 in connection with his claim for service-connection for a right knee disability and request an addendum opinion. The claims file should be made available to and reviewed by the examiner. Based on the examination and review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or higher degree of probability) that any current right knee disability is etiologically related to the Veteran's active service. The examiner should consider and discuss as necessary the Veteran's August 2017 Board hearing testimony that he did not seek follow up treatment for his right knee pain because he did not want to be medically disqualified from Airborne School. The examiner is advised it is impermissible to rely solely on the absence of medical records corroborating the continuity of a condition. If the November 2010 VA examiner is unavailable, another qualified examiner should be requested to provide the same opinions. If a new VA examination needs to be conducted in order to obtain the opinions, then one should be scheduled. All indicated tests and studies should be undertaken. 6. Then adjudicate the Veteran's service connection claims. If the benefits sought remain denied, the Veteran and his attorney must be furnished a Supplemental Statement of the Case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2014). ______________________________________________ M.E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs