Citation Nr: 20026024 Decision Date: 04/15/20 Archive Date: 04/15/20 DOCKET NO. 18-06 602 DATE: April 15, 2020 ORDER The appeal of the issue of entitlement to a rating in excess of 10 percent for right wrist fracture residuals is dismissed. REMANDED Entitlement to service connection for PTSD is remanded. Entitlement to service connection for an acquired mental disorder other than PTSD is remanded. Entitlement to service connection for posterior tibial dysfunction (PTD) is remanded. Entitlement to service connection for right knee disorder is remanded. Entitlement to service connection for bilateral pes planus is remanded. FINDING OF FACT At the Board hearing, on the record, the Veteran withdrew his claim of entitlement to a rating higher than 10 percent for his right wrist disability. CONCLUSION OF LAW The criteria for dismissal of the appeal of the issue of entitlement to a rating higher than 10 percent for right wrist fracture residuals have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDING AND CONCLUSION As a member of a State Army National Guard (ARNG) unit the Veteran had active service from August 2000 to February 2001, and from February 2003 to February 2004. The latter tour included service in Iraq. The Agency of Original Jurisdiction (AOJ) adjudicated the Veteran’s claims under the new and material evidence standard. As concerns the PTSD claim, however, while the rating decision notes NME, the January 2016 decision was in fact a de novo review after the Veteran’s service treatment records (STRs) were obtained and added to the claims file. See 01/09/2016 Rating Decision – Narrative; see also 38 C.F.R. § 3.156(c). Initially, a March 2006 rating decision denied service connection for pes planus, PTD, and a right knee disorder. See 03/02/2006 Rating Decision – Narrative. Afterward, however, VA treatment records were added the file, and the claim was reviewed de novo and again denied. See 07/03/2007 Medical Treatment-Government Facility; 04/27/2006 Rating Decision – Narrative. The Veteran did not perfect his appeal of the issues after issuance of a SOC. See 03/17/2008 SOC; see also 38 C.F.R. §§ 20.200, 20.302. All of the Veteran’s available STRs were added to the claims file in 2015. The January 2016 rating decision, however, only considered the claims for the right wrist, PTSD, and thrombosed hemorrhoids. Hence, although the Veteran did not apply to reopen his claim of entitlement to service connection for the right knee, PTD, and pes planus until May 2017, those issues were not reviewed on the basis of the STRs added in 2015 until the August 2017 rating decision. Hence, the Board reviews these issues de novo. The January 2016 rating decision included a denial of service connection for thrombosed hemorrhoids, and the Veteran appealed the decision and requested a hearing before an AOJ decision review officer (DRO). See 02/08/2016 NOD. The DRO hearing was scheduled, but the Veteran and his representative opted for an Informal Conference in lieu of the hearing. See 06/23/2017 VA 21-0820. Further, commensurate with the discussion at the conference, the Veteran, through his representative, withdrew the appeal of the hemorrhoids claim. See 06/30/2017 Third Party Correspondence. The AOJ acknowledged the withdrawal and informed the Veteran that no further action would be taken on the issue. See 09/08/2017 Correspondence. Withdrawal of the issue of entitlement to a rating higher than 10 percent for right wrist fracture residuals. Legal Requirements 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. 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. § 20.205. Withdrawal may be made by an appellant or by his or her authorized representative. Id. Discussion In the present case, at the Board hearing and on the record, the Veteran, through his authorized representative, withdrew his appeal of the issue of an increased rating for his right wrist disability. The undersigned affirmatively addressed the Veteran and insured that he understood the full ramifications of withdrawing the issue. The Veteran stated his understanding and confirmed the withdrawal. See Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018); DeLisio v. Shinseki, 25 Vet. App. 45 (2011). Hence, 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, as noted in the Order above, it is dismissed. REASONS FOR REMAND 1. Entitlement to service connection for PTSD is remanded. 2. Entitlement to service connection for an acquired mental disorder other than PTSD, including anxiety is remanded. At the hearing, the Veteran presented sworn testimony on all of the issues pending before the Board. His testimony constitutes competent evidence on the issues. See 38 C.F.R. § 3.159(a)(2). He testified to having experienced mental health symptoms shortly after returning from Iraq. Further, the Veteran’s representative has submitted a non-VA mental evaluation by a licensed psychologist who opined that the Veteran’s reported symptoms meet the DSM criteria for a diagnosis of PTSD and major depressive disorder. See 02/18/2020 VA Examination. A VA examiner opined that the Veteran did not meet the DSM criteria for a diagnosis of any mental disorder. The rationale for this was that the Veteran’s responses on the MMPI-2 were interpreted as causing an invalid profile due to overreporting of symptoms. See 01/05/2016 C&P Exam, 4th Entry. Hence, an examination and medical nexus opinion is needed. 3. Entitlement to service connection for a right knee disorder, including instability, is remanded. 4. Entitlement to service connection for PTD is remanded. 5. Entitlement to service connection for bilateral pes planus is remanded. The Veteran testified that he started having problems with his right knee while in Iraq; and, prior to his tour in Iraq he was able to run 2 miles in 15 minutes. See Hearing Testimony, P. 11, 13. Further, the claims file does not currently include evidence that the Veteran underwent a physical examination prior to either of his tours of active service. Hence, the presumption of soundness is not for application. Nonetheless, VA outpatient records reflect that the Veteran was treated for this disorder a month after his release from active service. See 03/30/2004 Government Facility. The examiner noted a congenital condition but also noted that it could be exacerbated by increased activity. In the March 2006 rating decision the AOJ denied service connection for PTD and pes planus on the ground that it is a congenital condition without addressing whether it was aggravated beyond natural progression. Further, the physical examination for demobilization, which was conducted the month of his release from active service, reflects that severe, symptomatic pes planus of each foot, and PTD were noted, as well as the fact that the Veteran could not fully extend his right knee. See 03/23/2004 Government Facility. At the hearing, the Veteran testified that he had flat feet prior to service, but that it did not bother him until during service. For the foregoing reasons, examinations are warranted with respect to these claims. The matters are REMANDED for the following action: 1. The AOJ shall again inquire of the appropriate entity that maintains ARNG records as to whether there is a record of the Veteran having undergone a physical examination prior to entry onto either of his tours of active service in 2000 and 2003. Any records obtained should be added to the claims file. Document all efforts to obtain the records. 2. After the above is complete, arrange a mental examination of the Veteran by an appropriate examiner to determine whether he has PTSD, or another acquired mental disorder. In addition to the specific stressors the Veteran identified, the claimed PTSD should also be assessed under the auspices of fear for his life due to hostile enemy or terrorist activity. As part of the examination report, the mental examiner is also asked to address the assertion that the MMPI-2 is no longer considered a reliable diagnostic tool. Please provide a full explanation. The examiner is also asked to address the efficacy of any diagnostic tool used, to include the CAPS-5 the non-VA examiner noted [see 02/18/2020 VA Examination, P. 14]. The examiner is asked to opine whether it is at least as likely as not (at least a 50 percent probability) that any acquired mental disorder diagnosed at the examination had onset in active service or is otherwise causally connected to active service. Please provide a full explanation for all opinions rendered. Inform the examiner further that the Board has not made any determination of the credibility of the Veteran’s lay reports. Nonetheless, the Veteran’s lay report of his history and claimed stressors must be considered. 3. After the above is complete, arrange an examination of the Veteran by an appropriate examiner(s) to assess his right knee, PTD, and bilateral pes planus. If the examiner opines that PTD and pes planus are congenital, ask the examiner to opine whether it is at least as likely as not (at least a 50 percent probability) that either, or both, were aggravated beyond natural progression by the rigors of the Veteran’s active service. The Veteran’s lay reports must be considered; and, the examiner is asked to provide a full explanation for all opinions rendered.   Concerning the right knee, ask the examiner to opine as to whether it is at least as likely as not (at least a 50 percent probability) that any currently diagnosed right knee disorder had onset in active service or is otherwise causally related to active service. Please provide a full explanation for all opinions rendered. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. T. Snyder 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.