Citation Nr: 20021319 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 17-29 011 DATE: March 25, 2020 ORDER Entitlement to an initial increased evaluation for service-connected adjustment disorder with mixed anxiety and depression is dismissed. REMANDED Entitlement to service connection for traumatic brain injury (TBI) secondary to a head injury is remanded. Entitlement to an initial disability in excess of 10 percent prior to March 9, 2017, and in excess of 20 percent, on and after March 9, 2017, for service-connected right ankle, posterior tibial tendon tear status post repair is remanded. FINDING OF FACT During the January 2020 Board hearing, the Veteran indicated on the record that he wished to withdraw his appeal as to the issue of an increased evaluation for adjustment disorder with mixed anxiety and depression. CONCLUSION OF LAW The criteria for dismissal of an increased evaluation for a service-connected adjustment disorder with mixed anxiety and depression have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.2014 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 2012 to June 2015. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision by the Department of Veterans Affairs (VA) Portland, Washington Regional Office (RO). In January 2020, the Veteran presented testimony at a video hearing before the undersigned Veterans Law Judge (VLJ). 1. Entitlement to an increased evaluation for service-connected adjustment disorder with mixed anxiety and depression A substantive appeal may be withdrawn in writing by the Veteran at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Except for appeals withdrawn on the record at a hearing, withdrawal of an issue must be done in writing. See 38 C.F.R. § 20.204(b). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. The “[w]ithdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with full understanding of the consequences of such action on the part of the claimant.” DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011) (citing Hanson v. Brown, 9 Vet. App. 29, 32 (1996)). At the January 2020 Board hearing, the undersigned VLJ noted that the Veteran and his representative indicated that the Veteran wished to withdraw his claim of increased evaluation for adjustment disorder with mixed anxiety and depression. The VLJ confirmed with the Veteran that he understood that by withdrawing the claim on appeal, he would have to file a new claim with the RO if he wished to address this issue at any point again. The Board finds that the Veteran’s withdrawal of his claim was explicit, unambiguous, and done with a full understanding of the consequences of such action on part of the Veteran. See Acree v. O’Rourke, 891 F.3d 1009, 1012-1013 (2018). Because the pertinent criteria for withdrawal have been satisfied, the claim for an increased evaluation for adjustment disorder with mixed anxiety and depression is dismissed. RESONS FOR REMAND 1. Entitlement to service connection for TBI secondary to head injury. Remand is required for an adequate examination and an opinion that addresses all relevant evidence and diagnoses of record. When the VA provides a veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran received an August 2014 VA examination for a TBI. The examiner did not find that the Veteran had a diagnosis of TBI because there was no pathology to render a diagnosis. The examiner did not consider, however, a November 2014 letter from an Army psychologist stating that the Veteran underwent an initial neuropsychological screening intake after sustaining a head injury in July 2014. The psychologist noted that the Veteran shows evidence of mild TBI. Additionally, the examination fails to address all diagnoses of record including a seizure disorder. The Veteran was diagnosed with a seizure disorder in July 2014. Furthermore, a February 2015 neuropsychological examination was conducted which indicated no diagnosis of TBI. Accordingly, a new examination is warranted to more specifically address these issues. 2. Entitlement to an increased evaluation for right ankle posterior tibial tendon tear status-post repair Remand is required for an adequate VA examination. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In increased evaluation claims, a VA examination report is not adequate without an explanation for an examiner’s failure to evaluate the functional effects of a flare-up or on repetitive use. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board may accept a VA examiner’s statement that he or she cannot offer an opinion in that regard without resorting to speculation, but only after determining that this is not based on the absence of procurable information or on a particular examiner’s shortcomings or general aversion to offering an opinion on issues not directly observed. Although not binding on VA examiners, the VA Clinician’s Guide instructs examiners when evaluating certain musculoskeletal conditions to obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves. Sharp, 29 Vet. App. at 34-35, citing VA CLINICIAN’S GUIDE, ch. 11. The Veteran testified at the January 2020 Board hearing that his ankle has been the same for the entire period on appeal and that there is no right, left, up, or down movement in his right ankle. In an August 2014 VA examination conducted while the Veteran remained on active duty, the examiner found that the Veteran has functional loss and or functional impairment of his right ankle. The examiner found that the Veteran’s right ankle dorsiflexion was to 10 degrees and plantar flexion was to 15 degrees. There was no change with repetitive motion. There was 5/5 muscle strength and no ankylosis. The examiner noted the Veteran’s regular use of his cane. The Veteran underwent another VA examination in March 2017. Plantar flexion was to 25 degrees and dorsiflexion was from 5 degrees to 25 degrees; the Veteran had a flexion contracture and could not dorsiflex to zero degrees. The Veteran reported that flare-ups caused him to have to stop what he is doing and do nothing. The examiner noted that regarding flare-ups, they were not witnessing such a flare-up but opined that they did not expect any additional limitation. Furthermore, regarding repetitive motion, the examiner opined that they could not provide an estimate regarding any additional functional loss, as they were not observing repeated use over time. Accordingly, no examination fully meets the criteria of Sharp, and an adequate VA examination is warranted. The matters are REMANDED for the following action: 1. Obtain an appropriate examination to determine the presence and etiology of TBI residuals. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that there is a TBI that had onset in, or is otherwise related to, active military service. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the seizure disorder had onset in, or is otherwise related to, active military service. The examiner must address the following: 1) the Veteran’s assertions of an in-service head injury; 2) the Veteran’s STRs, to include the November 2014 finding of evidence of a mild TBI; 3) the February 2015 neuropsychological evaluation; and 4) the August 2014 VA examination report. 2. Provide the Veteran with an appropriate examination to determine the severity of the service-connected right ankle disability. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The relevant Disability Benefits Questionnaire must be utilized. The examiner is also asked to indicate the point during range of motion testing that motion is limited by pain. The examiner must test the range of motion and pain of the right ankle in active motion, passive motion, weight-bearing, and non-weight-bearing. The examiner must also conduct the same testing on the left ankle. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why that is so. Describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and following repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion must also be noted. If the Veteran describes flare-ups of pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups. All losses of function due to problems such as pain should be equated to additional degrees of limitation of flexion and extension beyond that shown clinically. Should the examiner state that he or she is unable to offer such an opinion without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner is directed to do all that reasonably can be done to become informed before such a conclusion, to include ascertaining adequate information-i.e. frequency, duration, characteristics, severity, or functional loss-regarding his flares by alternative means. 3. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2019). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B.White, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.