Citation Nr: 21000449 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-63 920 DATE: January 5, 2021 ORDER Service connection for chronic obstructive pulmonary disease (COPD) is dismissed. Service connection for a back disability is dismissed. Service connection for a right toe disability is granted. REMANDED Service connection for a psychiatric disorder to include depression and post-traumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. On the record at his September 2020 Board hearing, prior to the promulgation of a decision in this appeal, the Veteran withdrew his appeal of the claims for entitlement to service connection for COPD and a back disability. 2. The Veteran’s right toe disability is related to an in-service injury.   CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeals for service connection for COPD and a back disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for service connection for a right toe disability are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1973 to September 1976. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. At the hearing, the Veteran was granted a 30-day abeyance period for the submission of additional evidence to support his claims. During that time period, the Veteran submitted additional evidence which has been included in the record for consideration. 38 U.S.C. § 7105(e) (2012). The United States Court of Appeals for Veterans Claims (Court) has held that, although a veteran claims service connection for a specified diagnosed disability, it cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any disability that may reasonably be encompassed by several factors, including the veteran’s description of the claim, the symptoms the veteran describes, and the information the veteran submits or that VA obtains in support of the claim. The Court reasoned that a veteran does not file a claim to receive benefits only for a particular diagnosis, but for the affliction (symptoms) his condition, however described, causes him. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Here, although the Veteran filed his claim seeking service connection for depression, he has been diagnosed with major depressive disorder. The Board therefore finds that, pursuant to Clemons, the Veteran’s claim seeking service connection for bipolar disorder and anxiety is more accurately characterized as one for any acquired psychiatric disorder other than PTSD and has recharacterized the issue accordingly. 23 Vet. App. at 1. A. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. § 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. § 3.159. In this case, any error in notice or assistance regarding the right toe claim is harmless given the favorable determination. B. Withdrawn Claims 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. § 19.55. Withdrawal may be made by the Veteran or by his or her attorney. Id. Except for appeals withdrawn on the record at hearings, the withdrawal must be in writing. Id. On the record at his September 2020 Board hearing, prior to the promulgation of a decision in this appeal, the Veteran knowingly withdrew his appeal for the claims of entitlement to service connection for COPD and a back disability. The withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the Veteran. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see Acree v. O’Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018). As the Veteran has withdrawn his appeal of these issues in accordance with 38 C.F.R. § 19.55, there remains no allegation of error of fact or law for the Board to address. Accordingly, the Board does not have jurisdiction to review the appeal and the claims of entitlement to service connection for COPD and a back disability, must be dismissed.   C. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to direct service connection requires evidence of three elements: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). For Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In some cases, when a disease listed in 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran has been diagnosed with degenerative changes in the right second proximal interphalangeal joint and first metatarsophalangeal joint; thus, the Veteran has a current disability. The Veteran stated he hurt his right toe in the summer of 1976, while in California. The Veteran explained that he was at the beach and stubbed his toe when he jumped into the water. The Veteran added that his toe appeared to be broken and that he repositioned it. The Veteran testified that his toe began to give him problems three years after service. The Veteran is competent to provide evidence regarding the facts or circumstances of what he experienced in service. The Veteran’s service treatment records shows that he was in California in May 1976. The Board finds the Veteran’s statements regarding an injury to his right toe during service to be credible, as they are consistent with the circumstances of his service as reflected by his service records. 38 C.F.R. § 3.159(a)(2). Therefore, the second element of the claim of service connection is met. What remains to be established is whether there is a relationship between the Veteran’s service and his disability. In September 2020, the Veteran submitted a nexus opinion from Dr. R.M. Dr. R.M. diagnosed the Veteran with degenerative changes in the right second proximal interphalangeal joint and first metatarsophalangeal joint. Dr. R.M. opined that it was at least as likely as not that the Veteran’s right toe condition was due to the Veteran’s in-service injury of stubbing his right toe. Dr. R.M. explained that medical literature from the American College of Foot and Ankle Surgeons shows that degenerative arthritis is considered a wear-and-tear disease because the cartilage in the joint wears down. Dr. R.M. explained that a jamming injury can cause degenerative arthritis even though it may take years after the injury for the condition to develop. The Board finds that the Veteran’s right toe disability was caused by an in-service injury. In so doing, the Board assigns substantial weight of probative value to Dr. R.M.’s nexus opinion. The Board affords Dr. R.M.’s conclusion that it is more likely than not that the Veteran’s right toe disability was due to an in-service injury significant weight of probative value because Dr. R.M.’s opinion is based on a thorough review of the medical evidence, is well-reasoned, and supported by medical evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). For example, Dr. R.M. stated that medical literature documents that when cartilage in a joint wears down it can lead to degenerative arthritis. Dr. R.M. explained that a jamming injury, such as the one the Veteran sustained during service, can cause degenerative arthritis, even though it may take years after the injury for the condition to develop. This is supported by other evidence. For example, the Veteran testified at the September 2020 Board hearing that his right toe began to bother him approximately three years after the in-service injury, which supports Dr. R.M.’s explanation that it may take years after the injury for degenerative arthritis to develop. Additionally, there is no evidence in opposition to Dr. R.M.’s opinion. As such, the Board affords great weight of probative value to Dr. R.M.’s nexus opinion. Based on the foregoing, the Board finds that the Veteran’s right toe disability is due to an in-service injury. As such, service connection for a right toe disability is granted. REASONS FOR REMAND Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Concerning the psychiatric disorder claim, the Veteran was afforded a VA examination in September 2016. The examiner diagnosed persistent depressive disorder, alcohol use disorder (moderate), and cocaine use disorder (severe and in remission). The examiner offered a negative nexus opinion. The examiner’s rationale was that the Veteran reported no credible trauma related symptoms based on the in-service stressor. The Board finds the September 2016 opinion to be inadequate. First, the examiner’s rationale is limited to a conclusory statement. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Second, the examiner’s opinion rests on the premise that the Veteran reported no symptoms based on the in-service stressor. However, the Veteran has indicated that the in-service incident “stayed with” him for a long time. The Veteran added that after witnessing the in-service incident, he began to self-medicate with marijuana, does not watch military movies, and does not like loud noises. Thus, the examiner’s premise that the Veteran reported no symptoms based on the in-service stressor is misplaced and the examiner’s opinion is of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that an opinion based upon an inaccurate factual premise has no probative value); see also Miller v. Wilkie, 32 Vet. App. 249, 258-60 (2020) (holding that an examination that does not address credible and relevant lay evidence does not include enough detail to inform the Board’s decision and, thus, is inadequate). The Board acknowledges that the Veteran submitted nexus evidence from H.H., Ph.D. Dr. H.H. diagnosed the Veteran with recurrent major depressive disorder. Dr. H.H. opined that the Veteran’s in-service incident “caused his depression to be aggravated beyond its natural progression.” The Board concludes this opinion is inadequate to grant service connection. First, Dr. H.H.’s opinion is limited to conclusory statement without supporting rationale. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Dr. H.H. failed to explain how the Veteran’s in-service incident resulted in his mental disorder. Second, Dr. H.H. appears to be under the assumption that the Veteran had a preexisting mental disorder prior to service because Dr. H.H. stated the Veteran’s service caused his depression to be aggravated beyond its natural progression. However, the Veteran’s induction examination does not show the presence of any mental disorder; thus, the Veteran is presumed sound as to a mental disability. See 38 C.F.R. § 3.304(b). The Veteran indicated depression and excessive worry at the time of the induction examination, but a history of pre-service existence of conditions recorded at the time of examination does not constitute a “notation” of such a condition. See 38 C.F.R. § 3.304(b)(1). Thus, Dr. H.H.’s premise that the Veteran had a preexisting mental disorder is misplaced and Dr. H.H.’s etiology opinion is of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that an opinion based upon an inaccurate factual premise has no probative value).   The matter is REMANDED for the following actions: 1. Obtain and associate with the claims file VA treatment records from August 2016 to the present. 2. After completing the development above, schedule the Veteran for an appropriate VA examination to determine the nature, extent, and etiology of any acquired psychiatric disorder. The entire claims file should be made available to the examiner in conjunction with this request. All tests deemed necessary, including psychological testing, should be performed and all findings should be reported in detail. The examiner should also answer the following questions: a. Does the Veteran have a diagnosis of PTSD under pertinent DSM criteria? b. If the answer to (a) is yes, then is it at least as likely as not (50 percent probability or greater) that PTSD is related to the in-service incident of the Veteran witnessing a U.S. Navy fighter-bomber accidentally shoot down a U.S.helicopter? c. For any psychiatric diagnosis(es) other than PTSD, is it at least as likely as not (a 50 percent probability or greater) that such psychiatric disorder(s) began in service or is otherwise related to a disease, event or injury in service, including the in-service incident of the Veteran witnessing a U.S. Navy fighter-bomber accidentally shoot down a U.S. helicopter? A complete rationale for any opinion provided is requested. If the examiner is unable to provide an opinion without resorting to speculation, an explanation as to why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered should be provided. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Patel, 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.