Citation Nr: 20044729 Decision Date: 07/06/20 Archive Date: 07/06/20 DOCKET NO. 15-46 730 DATE: July 6, 2020 ORDER The appeal seeking entitlement to service connection for a sleep disorder, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is dismissed. The appeal seeking service connection for erectile dysfunction, to include as secondary to service-connected PTSD, is dismissed. The appeal seeking service connection for bilateral hearing loss is dismissed. The appeal seeking service connection for an anal perianal fistula (claimed as gastrointestinal issues) is dismissed. The appeal seeking service connection for irritable bowel syndrome (IBS), to include as due to an undiagnosed illness, is dismissed. REMANDED Entitlement to service connection for sinusitis is remanded. Entitlement to service connection for asthma, bronchial is remanded. Entitlement to service connection for shortness of breath is remanded. Entitlement to service connection for headaches is remanded. Entitlement to a compensable disability rating for service-connected residuals of a right index finger surgery prior to October 7, 2018 and in excess of 10 percent thereafter is remanded. FINDING OF FACT The Veteran’s March 2020 withdrawal of the appeals seeking entitlement to service connection for a sleep disorder, erectile dysfunction, bilateral hearing loss, an anal perianal fistula, and IBS was explicit, unambiguous, and completed with a full understanding of the consequences of his actions. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal seeking entitlement to service connection for a sleep disorder, to include as secondary to service-connected PTSD, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for withdrawal of the appeal seeking entitlement to service connection for erectile dysfunction, to include as secondary to service-connected PTSD, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 3. The criteria for withdrawal of the appeal seeking entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 4. The criteria for withdrawal of the appeal seeking entitlement to service connection for an anal perianal fistula (claimed as gastrointestinal issues) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 5. The criteria for withdrawal of the appeal seeking entitlement to service connection for IBS, to include as due to an undiagnosed illness, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from March 2002 to December 2005. In March 2020, a videoconference hearing was held before the Board of Veterans Appeals (Board). A transcript of the hearing is of record. At the hearing, the record was held open for 60 days for the submission of additional evidence. Additional medical treatment records were received in March 2020 and will be considered in the adjudication of these claims. Withdrawn Claims The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C. § 7104; 38 C.F.R. § 20.101. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege a specific error of fact or law in the determination being appealed. An appellant, or his or her authorized representative, may withdraw an appeal. 38 C.F.R. § 20.205. Appeal withdrawals should be filed with the Board. Id. When an appellant does so, the withdrawal effectively creates a situation where there no longer exists any allegation of error of fact or law. Consequently, in such an instance, the Board does not have jurisdiction to review the appeal, and the appropriate action by the Board is dismissal. 38 U.S.C. §§ 7104, 7105(d). With respect to withdrawal of claims generally, the Board notes that “withdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a 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)). The Board must also address whether an oral withdrawal is with a full understanding of the consequences and “[t]he need to ensure that a veteran understands the consequences of claim withdrawal is particularly acute when, as here, he suffers from psychiatric illness....” Acree v. O’Rourke, 891 F.3d 1009, 1013 (Fed. Cir. 2018). At the March 2020 videoconference hearing, the Veteran withdrew from appellate consideration the appeals seeking to entitlement to service connection for a sleep disorder, to include as secondary to service-connected PTSD; erectile dysfunction, to include as secondary to service-connected PTSD; bilateral hearing loss; an anal perianal fistula (claimed as gastrointestinal issues); and IBS, to include as due to an undiagnosed illness. The undersigned Veterans Law Judge confirmed with the Veteran and his representative that they understood that by withdrawing the issues, the Veteran would have to file a new claim in order to seek service connection for any of the aforementioned issues in the future, and if awarded, any effective date would be assigned from the date of the new claim, as VA would take no further action on the current claims. As a result, the Board finds that the withdrawal of the appeals for entitlement to service connection for a sleep disorder, erectile dysfunction, bilateral hearing loss, an anal perianal fistula, and IBS was explicit, unambiguous, and done with a full understanding of the consequences of such action. There is no indication, in the hearing transcript or elsewhere in the record, that the Veteran was unaware of the consequences of the withdrawal. Although the Veteran is diagnosed with PTSD, his psychiatric illness has not been shown to prevent his understanding of the withdrawals. In this regard, the record on appeal has consistently shown that the Veteran accurately and reliably discusses his health problems and conveys coherent arguments. This includes at the Board hearing. As outlined above, it is not shown that the Veteran was unaware of the consequences of his withdrawal. Moreover, the hearing transcript reflects that the withdrawal was discussed prior to the hearing and raised at the hearing by the Veteran and his representative’s request. Given the Veteran’s clear intent to withdraw his appeals seeking entitlement to service connection for sleep disorder, to include as secondary to service-connected PTSD; erectile dysfunction, to include as secondary to service-connected PTSD; bilateral hearing loss, an anal perianal fistula (claimed as gastrointestinal issues); and IBS, to include as due to an undiagnosed illness, further action by the Board on these issues would not be appropriate and they are dismissed.  38 U.S.C. § 7105. REASONS FOR REMAND 1. Entitlement to service connection for sinusitis is remanded. At the March 2020 Board hearing, the Veteran testified he was exposed to firefighting chemicals (HTH) during service which caused a chemical reaction, burning his nostrils. He testified he was treated in service and continued to suffer from sinus issues since that incident. Service treatment records (STRs) dated January 2004 confirm HTH exposure and a resulting nosebleed. See STRs. Importantly, the Veteran also testified that his ear nose and throat doctor, Dr. S., had informed him that his headaches and sinus condition were related to the HTH exposure he suffered during service, and that approximately a year and half or two years ago, he had submitted a private medical opinion from Dr. S. in support of his claim. Upon careful review of the claims file, the Board is unable to locate this private medical opinion. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim includes making reasonable efforts to obtain relevant private medical records. 38 C.F.R. § 3.159 (c)(1). As a result, a remand is required to obtain the outstanding private treatment records and provide the Veteran with another opportunity to submit another medical opinion from Dr. S. 2. Entitlement to service connection for bronchial asthma and shortness of breath is remanded. Regarding the Veteran’s claims for service connection for bronchial asthma and shortness of breath, the record was previously silent for a diagnosis of asthma or shortness of breath. However, following the March 2020 Board hearing, the Veteran’s representative submitted a copy of a September 2014 private treatment record from Dr. J.T., which shows that the Veteran has a diagnosis of exercise induced asthma included on his active problems list. The record also shows that he has been prescribed an albuterol inhaler. See Private treatment records received March 2020. In consideration of the Veteran’s hearing testimony regarding breathing difficulties, combined with the September 2014 treatment record and the documented in-service exposure to HTH, the Board finds a VA examination is needed to determine the nature and etiology of any breathing difficulties prior to adjudicating these claims. 3. Entitlement to service connection for headaches is remanded. As with the Veteran’s claim for service connection for sinusitis, he testified at the March 2020 Board hearing that he has been experiencing persistent headaches since the in-service incident involving HTH exposure. He testified that the headaches occur at least once a day, for which he takes over the counter Excedrin, and that they are located in either the back or the side of his head, and sometimes cause blindness. See Hearing Transcript and see Headache Log. He also testified that he experiences headaches in conjunction with his sinusitis and argued that it could be secondary to that condition as well. The Veteran was provided a VA examination in October 2018, during which the examiner did not find a diagnosis of chronic or recurrent headaches, cluster headaches, or migraines headaches in the Veteran’s medical records. Nevertheless, in the examination report, the examiner documented the Veteran’s treatment plan for his reported headaches as including over the counter Excedrin migraine medication. He was also noted to have symptoms inclusive of headache pain, localized to one side of the head as well as sensitivity to light, lasting less than a day and located on the left side of his head. The examiner also found that the Veteran had characteristic prostrating attacks of migraines. See October 2018 VA examination. The examiner does not reconcile these findings with her conclusion that the Veteran does not have a diagnosis relating to headaches. Moreover, it is noted that headaches were identified in a December 2017 VA examination report regarding the Veteran’s sinuses. See December 2017 VA examination. Considering the Veteran’s hearing testimony regarding the existence of persistent, chronic headaches, taken in conjunction with the 2017 and 2018 VA examiners’ findings regarding the Veteran’s head pain, the Board finds that another VA examination is required to clarify whether he has a headache disability and, if so, the etiology of that disability. Entitlement to a compensable disability rating for service-connected residuals of a right index finger surgery prior to October 7, 2018 and in excess of 10 percent thereafter is remanded. At the March 2020 Board hearing, the Veteran testified that his right index finger had scarring and nerve loss that affected his grip and overall strength. The Veteran also testified, specifically, with respect to the scar that it was painful, although it did not ever come apart. A review of the reports from VA examinations conducted in June 2019 and September 2019 show that the VA examiners did not find the presence of a scar associated with the Veteran’s right index finger surgery. This contrasts with the Veteran’s testimony. As a scar is something that would be visible to the lay person, the Board finds another VA examination is necessary to clarify and determine the present nature and severity of his condition, giving particular attention to any scarring and nerve loss that may exist. The matters are REMANDED for the following actions: 1. Notify the Veteran that although he indicated at the March 2020 Board hearing that he had submitted a private medical opinion from Dr. S., such opinion is not associated with the record. Provide him with the opportunity to submit another medical opinion from Dr. S. Also ask the Veteran to complete a VA Form 21-4142 for Dr. S.’s treatment records. Make two requests for the authorized records from Dr. S., unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any sinusitis. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s in-service exposure to HTH and resulting nosebleed. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any asthma and/or shortness of breath. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s in-service exposure to HTH. 4. Schedule the Veteran for another examination by an appropriate clinician to determine the nature and etiology of any headaches. The examiner must opine whether he has a headache disability that is at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s in-service exposure to HTH. If the Veteran’s sinusitis is found to be related to his military service, the examiner is then also asked to opine as to whether any diagnosed headaches are at least as likely as not (1) proximately due to sinusitis, or (2) aggravated beyond its natural progression by the Veteran’s sinusitis. (Continued on the next page)   5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected residuals of a right index finger surgery. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria, including the presence of any scarring and/or nerve loss associated with the surgery. If scarring is not found, this finding should be reconciled with the Veteran’s report that he has a painful scar. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Churchwell, 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.