Citation Nr: 1828811 Decision Date: 05/18/18 Archive Date: 05/23/18 DOCKET NO. 14-25 323 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial compensable rating for service-connected bilateral pes planus. 2. Entitlement to service connection for hearing loss. 3. Entitlement to service connection for a bilateral knee disability, to include as secondary to service-connected bilateral pes planus. 4. Entitlement to service connection for a low back disability, to include as secondary to service-connected bilateral pes planus. 5. Entitlement to service connection for a chest disability. 6. Entitlement to service connection for syncope. 7. Entitlement to service connection for bilateral plantar fasciitis. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and her husband ATTORNEY FOR THE BOARD G. T. Raftery, Associate Counsel INTRODUCTION The Veteran served honorably on active duty with the United States Army from July 1999 to February 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Board notes that the Veteran has submitted multiple claims to reopen previously denied claims for the issues on appeal. The claims on appeal were originally denied in an August 2006 rating decision. The Veteran was notified of the denial in a notification letter dated August 18, 2006. The evidence of record includes a letter from the Veteran stating her desire to appeal the August 2006 rating decision. To be considered timely, a notice of disagreement (NOD) must be filed within one year from the date that the agency mails notice of the determination to him or her; otherwise, that determination will become final. The date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. 38 C.F.R. § 20.302 (a) (2017). A response postmarked prior to expiration of the applicable time limit will be accepted as having been timely filed. If the postmark is not of record, the postmark date will be presumed to be five days prior to the day of receipt of the document by VA. 38 C.F.R. § 20.305 (a). In this case, there is no postmark associated with the Veteran's letter, though the Veteran herself dated the letter August 17, 2007-one day prior to the expiration of the applicable time limit. Neither is there a date stamp showing the date of receipt by VA, though there is a routing stamp dated September 6, 2017. Inexplicably, the letter was associated with the Veteran's electronic claims file on December 5, 2006. Ultimately, a question as to timeliness or adequacy of the notice of disagreement shall be decided by the Board. 38 U.S.C. § 7105 (b)(1)(C) (2012). Given the ambiguities in this case, the Board will interpret the evidence in the light most favorable to the Veteran and liberally construes the letter dated August 17, 2007 as a timely filed NOD. Therefore, the August 2006 rating decision is the rating decision currently on appeal. In August 2017, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A copy of the transcript is associated with the claims file. For reasons discussed below, the issues of entitlement to an initial compensable rating for bilateral pes planus, and entitlement to service connection for a bilateral knee disability, a low back disability, a chest disability, and syncope are REMANDED to the AOJ for further development. VA will notify the Veteran if further action is required. FINDING OF FACT Prior to the promulgation of a decision in the appeal, the Veteran stated on the record during her August 2017 Board hearing that she wanted to withdraw her claim of entitlement to service connection for hearing loss. CONCLUSION OF LAW The criteria for withdrawal of the claim of entitlement to service connection for hearing loss have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific errors of fact or law in the determination being appealed. A substantive appeal may be withdrawn on record at a hearing or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by her authorized representative. 38 C.F.R. § 20.204. In this case, the Veteran withdrew her claim of entitlement to service connection for hearing loss on the record at her August 2017 Board hearing. However, in a letter submitted in October 2017, the Veteran suggested that her representative had misled her into withdrawing the claim and stated her desire to have it reinstated, citing "new information and findings" and asking that her appeal be reconsidered based on the evidence of record. Nevertheless, the rules for reinstating a withdrawn claim are the same as those for reinstating a withdrawn notice of disagreement or substantive appeal. 38 C.F.R. § 20.204 (c). Here, the decision on appeal was issued years ago, and the time period under which a valid substantive appeal could be submitted have long since expired. 38 C.F.R. § 20.204. In sum, the Veteran is unable to revoke her withdrawal here because the time period for doing so has elapsed. Id. The Veteran has withdrawn her appeal; therefore, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. ORDER The claim of entitlement to service connection for hearing loss is dismissed. REMAND Although the Board regrets the delay, remand is necessary in order to ensure there is a complete record upon which to decide the Veteran's claim. VA has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (c) (2017). This duty includes obtaining relevant records in the custody of a Federal department or agency under 38 C.F.R. § 3.159 (c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159 (c)(1). During her August 2017 Board hearing and in statements in support of her claim, the Veteran indicated that she receives VA treatment for her claimed disabilities. Partial VA treatment records that have been associated with the claims file suggest the existence of relevant VA medical evidence not currently of record; therefore, remand is necessary in order to obtain any and all outstanding VA treatment records. The Veteran also indicated that she receives private treatment for some of her claimed disabilities. Therefore, remand is also necessary to obtain any outstanding private medical treatment records relevant to her claim. VA's duty to assist also includes a duty to provide a medical examination or obtain a medical opinion when it is deemed necessary to make a decision on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c) (4). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006); Robinette v. Brown, 8 Vet. App. 69, 76 (1995). With regard to her claim of entitlement to a compensable rating for her service-connected bilateral pes planus, the Veteran testified at her August 2017 Board hearing that her disability has worsened since her most recent VA examination in 2009. Specifically, the Veteran testified that she experiences pain in her feet "all the time," and that the pain is not relieved despite regular use of assistive devices like inserts and ankle braces. A veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). Reexaminations will be requested whenever VA determines there is a need to verify either the continued existence or the current severity of a disability. 38 C.F.R. § 3.327 (a) (2017). Because the evidence of record suggests that the Veteran's disability has worsened during the pendency of the appeal, remand is necessary in order to afford the Veteran a new VA examination. Remand is also necessary to afford the Veteran new VA examinations in connection with her claims of entitlement to service connection for a bilateral knee disability and a low back disability. During the period on appeal, the Veteran's service treatment records (STRs) were associated with her claims file. Moreover, VA and private medical records that have been associated with the claims file during the appeals period provide additional information concerning the nature and etiology of the Veteran's claimed disabilities. The private medical evidence in particular suggests alternate theories of service connection and includes positive nexus opinions connecting the Veteran's disabilities to her active service. While probative, this evidence ultimately does not provide an adequate basis to support a grant or denial of the Veteran's claims, especially in light of the negative VA evidence of record. Nevertheless, the evidence necessitates further development to clarify the Veteran's diagnoses and determine etiology. Therefore, remand is necessary to afford the Veteran new VA examinations. Furthermore, the Board notes that the evidence of record indicates the Veteran served in the Southwest Asia theater of operations during the Persian Gulf War. Some of the private medical evidence provided by the Veteran suggests that her chest disability and syncope might be associated with exposure to environmental hazards while serving in Southwest Asia. However, to date, the Veteran has not been afforded a VA Persian Gulf Protocol Examination. Pursuant to 38 C.F.R. § 3.317, VA will pay compensation to a Persian Gulf veteran with symptoms due to an undiagnosed illness or an unexplained chronic multi-symptom illness, such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders. On remand, the Board finds that the Veteran should be afforded a VA Gulf War Protocol examination to specifically address her claimed chest disability and syncope. Following examination, the examiner should provide an opinion whether the Veteran's current disabilities either originated in service or are considered an unexplained chronic multi-symptom illness. Finally, with respect to the Veteran's claim of entitlement to service connection for plantar fasciitis, remand is necessary in order to furnish the Veteran a Statement of the Case (SOC). The record shows that in August 2007, the Veteran submitted a notice of disagreement (NOD) in response to the August 2006 rating decision granting denying service connection. In this NOD, the Veteran expressed her desire to appeal the rating decision. However, there is no indication that an SOC was ever issued that specifically addressed the Veteran's claim of entitlement to service connection for plantar fasciitis. Where a claimant files an NOD and the RO has not issued an SOC, the issue must be remanded to the RO for an SOC. See Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). Accordingly, the case is REMANDED for the following action: 1. Obtain any all outstanding VA treatment records and associate them with the Veteran's claims file. 2. With any necessary assistance from the Veteran, obtain all outstanding private medical treatment records relevant to the Veteran's claim. Efforts to obtain the additional evidence must be documented in the paper and/or electronic claims files. If VA is unable to secure these records, it must notify the Veteran and (a) identify the specific records it is unable to obtain; (b) briefly explain the efforts that it made to obtain those records; (c) describe any further action to be taken with respect to the claim; and (d) notify the Veteran that he is ultimately responsible for providing the evidence. 38 U.S.C. § 5103A (b) (2) (2012); 38 C.F.R. § 3.159(e) (1) (2017). 3. Schedule the Veteran for a VA examination of the feet to determine the current severity of her service-connected bilateral pes planus. The Veteran's electronic claims file must be reviewed by the examiner. All indicated testing must be conducted, and all pertinent symptomatology must be reported in detail. The examiner is asked to distinguish between symptoms due to service-connected pes planus, and symptoms due to any non-service-connected disorders affecting the feet. Any opinions expressed by the examiner must be accompanied by a complete rationale. 4. Afford the Veteran VA examinations to determine the nature and etiology of her claimed bilateral knee and low back disabilities. The claims file, including a copy of this Remand, must be made available to and be reviewed by the examiner. Particular attention is drawn to the private medical evidence submitted in August 2017, in which a private practitioner suggested that the Veteran's disabilities are related to her service-connected bilateral pes planus. The examiner is asked to provide a complete rationale for any opinion given. Specifically, with regard to the Veteran's claimed bilateral knee disability, the examiner must provide detailed opinions concerning the following questions: a) Does the Veteran have a bilateral knee disability that at least as likely as not (50 percent probability or greater) originated during her period of active service or is otherwise etiologically related to active service? b) For any diagnosed bilateral knee disability that is NOT found to be directly related to service, is it at least as likely as not (50 percent probability or greater) that the Veteran's bilateral knee disability was caused or aggravated by her service-connected bilateral pes planus? Likewise, with regard to the Veteran's claimed low back disability, the examiner must provide a detailed opinion concerning the following question: a) Does the Veteran have a low back disability that at least as likely as not (50 percent probability or greater) originated during her period of active service or is otherwise etiologically related to active service? b) For any diagnosed low back disability that is NOT found to be directly related to service, is it at least as likely as not (50 percent probability or greater) that the Veteran's low back disability was caused or aggravated by her service-connected bilateral pes planus? The term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of the evidence of record. If an opinion cannot be offered without resorting to mere speculation, the examiner should explain why this is the case and identify any additional evidence that may allow for a more definitive opinion. 5. The Veteran should also be afforded a VA Gulf War Protocol examination by a physician with sufficient expertise to address the nature etiology of the Veteran's claimed chest disability and syncope disabilities. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the relevant records and lay testimony, the examiner should determine the nature of Veteran's chest disability and state whether it at least as likely as not (a 50 percent probability or greater): a) originated during her period of active service or is otherwise etiologically related to active service; or b) is a chronic multi-symptom disability, and if so, the examiner should state whether the disability: i. results from a clear and distinct etiology, ii. partially known etiology, or iii. an unknown etiology. Likewise, the examiner must determine the nature of the Veteran's claimed syncope disability and state whether it at least as likely as not (a 50 percent probability or greater): a) originated during her period of active service or is otherwise etiologically related to active service; or b) is a chronic multi-symptom disability, and if so, the examiner should state whether the disability: i. results from a clear and distinct etiology, ii. partially known etiology, or iii. an unknown etiology. The examiner is asked to provide a complete rationale for any opinion expressed. If the examiner is unable to provide the required opinion, or 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. Readjudicate the claim of entitlement to service connection for plantar fasciitis. If the benefit sought is not granted, issue an SOC. The Veteran should be advised that a timely substantive appeal must be filed to vest the Board with jurisdiction over the issue. 38 C.F.R. § 20.202. If the Veteran perfects an appeal, return the case to the Board for appellate review. 7. Finally, readjudicate the remaining issues on appeal. If the benefits sought remain denied, issue a supplemental statement of the case to the Veteran and her representative and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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 (2012). _________________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals