Citation Nr: 21002535 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 17-13 735 DATE: January 14, 2021 ORDER Entitlement to an effective date earlier than March 13, 2013, for the grant of service connection for tinnitus is dismissed. Entitlement to an effective date earlier than May 2, 2013, for the grant of service connection for bilateral hearing loss is dismissed. Entitlement to an effective date earlier than May 2, 2013, for the grant of service connection for residuals of scar on the chin is dismissed. Entitlement to an initial rating in excess of 10 percent for tinnitus is dismissed. Entitlement to service connection for residuals of left arm burn scar is granted. REMANDED Entitlement to an initial compensable rating for bilateral hearing loss is remanded. Entitlement to an initial compensable rating for residuals of scar on the chin is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a bilateral hip disability, as secondary to a right ankle disability, is remanded. Entitlement to service connection for residuals of mandible facture is remanded. Entitlement to service connection for headaches, as secondary to residuals of mandible fracture and/or service-connected tinnitus, is remanded. Entitlement to service connection for a gastrointestinal condition, to include ulcer condition and gastroesophageal reflex disease (GERD), as secondary to headaches, is remanded. FINDINGS OF FACT 1. At the February 2020 Board hearing, the Veteran submitted testimony on the record that he wanted to withdraw his appeal with respect to his claims for an earlier effective date for tinnitus, bilateral hearing loss, and residuals of scar on the chin as well as his claim for an increased rating for tinnitus. 2. Resolving reasonable doubt in the Veteran’s favor, his left arm burn scar is as likely as not related to service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim for an effective date earlier than March 13, 2013, for the grant of service connection for tinnitus have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the claim for an effective date earlier than May 2, 2013, for the grant of service connection for bilateral hearing loss have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of the claim for an effective date earlier than May 2, 2013, for the grant of service connection for residuals of scar on the chin have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for withdrawal of the claim for an initial rating in excess of 10 percent for tinnitus have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 5. The criteria for service connection for residuals of left arm burn scar have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1965 to May 1969. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014, October 2014, and March 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceeding is associated with the electronic claims file. Generally, the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and any other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In this case, although the Veteran filed a claim for an ulcer condition, a review of his medical treatment records indicate that he has a diagnosis of GERD. Therefore, the Board has expanded the Veteran’s claim as noted above. Moreover, the Board has re-characterized the issue on appeal as entitlement to service connection for an acquired psychiatric disorder, to include PTSD, to make clear that the issue before the Board is entitlement to a psychiatric disability, regardless of the particular diagnosis. Id.   Withdrawal 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 appellant or by his or her authorized representative. Id. Withdrawal of a claim must be “explicit, unambiguous, and done with a full understanding of the consequences of such action.” See generally Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018); DeLisio v. Shinseki, 25 Vet. App. 45, 47 (2011). In this case, the Veteran withdrew his claims for an earlier effective date for tinnitus, bilateral hearing loss, and residuals of scar on the chin as well as his claim for an initial increased rating for tinnitus at the February 2020 Board hearing. The Board finds that the statements made at the Board hearing satisfy the Acree and DeLisio criteria; hence, there remain no allegations of errors of fact or law for appellate consideration as it relates to these issues. Accordingly, the Board does not have jurisdiction to review the appeal as to these issues, and the claims are dismissed. 38 U.S.C. § 7105(d). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. In order to establish service connection on a direct basis, the record must contain: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran contends that service connection is warranted for residuals of left arm scar. The Veteran’s service treatment records (STRs) indicate that the Veteran was injured in a flare gun incident in July 1966. A medical record indicates that he sustained a first and second degree burn over the left arm. A July 1972 examination noted a one-inch scar on the left upper arm and a one-half-inch scar on the left scapula. A July 2013 VA examiner noted while the Veteran reported burns to the left upper arm at time of the 1966 in-service incident, there were no residual scars present. Resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection for residuals of left arm burn scar is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran credibly testified at the February 2020 Board hearing that he has a visible scar on his left arm due to the in-service flare gun incident. The Board notes that the Veteran is competent to report observable symptoms, such as the location and etiology of his visible scar. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As such, the Board finds the evidence is at least in equipoise as to the presence of a left arm scar, despite the July 2013 VA examiner’s report. REASONS FOR REMAND Increased Rating for Bilateral Hearing Loss At the February 2020 Board hearing, the Veteran testified that his bilateral hearing loss symptoms have worsened since his last October 2014 VA examination. When a veteran alleges that his service-connected disability has worsened since he was previously examined, a new examination may be required to evaluate the current degree of impairment. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Given the foregoing, the Veteran should be scheduled for a VA examination to determine the current nature and severity of his service-connected bilateral hearing loss. Increased Rating for Residuals of Scar on the Chin During the February 2020 Board hearing, the Veteran testified that his scar on the chin meets several characteristics of disfigurement of the head, face, or neck as noted under Note (1) of 38 C.F.R. § 4.118, Diagnostic Code 7800. Specifically, he stated that his scar was elevated or depressed and that his scar goes down to approximately his Adam’s apple. The Board cannot make a fully-informed decision on the issue of whether an initial compensable rating is warranted for the Veteran’s scar on the chin and finds that clarification is required to determine if any of the criteria for characteristics of disfigurement are met. Accordingly, remand is required to obtain an updated VA examination. Service Connection for an Acquired Psychiatric Disorder The Veteran contends that his acquired psychiatric disorder is due to the in-service flare gun incident. Specifically, he testified that he receives VA treatment for anxiety, fear, depression, and PTSD. See February 2020 hearing transcript. A review of the record indicates that the Veteran has not been provided a VA examination. VA’s duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Board finds that there is sufficient evidence of record for this duty to assist to attach. Accordingly, an appropriate examination shall be conducted upon remand. Service Connection for a Right Ankle Disability The Veteran contends that his right ankle disability is due an in-service fall down a flight of stairs in November 1965. He reports that he was treated at the base hospital, where he was diagnosed with several torn ligaments and was given crutches to use for approximately six-weeks. See May 2013 statement. The Veteran’s service treatment records (STRs) indicate that he was diagnosed with a sprained right ankle in December 1966. The record indicates that an ace bandage was applied, and that the Veteran was instructed to keep off his leg for 24 hours. The Veteran was afforded a VA examination in October 2014, in which the VA examiner indicated that the Veteran did not have a current right ankle disability. At the February 2020 Board hearing, the Veteran testified that he has since been diagnosed with right ankle arthritis. To ensure that the Veteran’s claim is given every possible consideration, the Board finds that remand is warranted for an updated VA examination, to clarify whether the Veteran has a current right ankle disability. Moreover, as noted above, the Veteran testified that he was treated at Patuxent River Naval Air Station base hospital. These records are not associated with the claims file. Accordingly, remand is required to obtain these missing military hospital records. Service Connection for a Bilateral Hip Disability The Veteran alleges that his right ankle disability altered his gait thereby causing his bilateral hip disability. See May 2013 statement; February 2020 Board hearing transcript. Adjudication of the claim for service connection for a bilateral hip disability is inextricably intertwined with the claim for service connection for a right ankle disability. Consequently, consideration of the claim for service connection for a bilateral hip disability must be deferred until the claim for service connection for a right ankle disability is adjudicated. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). Service Connection for Residuals of Mandible Fracture The Veteran alleges that he sustained a mandible fracture due to the in-service flare gun incident. He contends that he was hospitalized at the Bethesda Naval Hospital for two-months and that his X-rays at the time showed that his jaw was broken in three places. The Veteran’s STRs note diagnosis of “fracture, mandible, symphysis, compound, displaced and fracture, mandible, left body, simple.” See July 1966 medical records. The Veteran was afforded a VA examination in June 2013, in which the examiner opined that the Veteran did not have a dental or oral condition related to the claimed in-service incident. The Veteran’s March 2016 private treatment records note diagnosis of sprained or strained temporomandibular joint (TMJ). Additionally, during the February 2020 Board hearing, the Veteran testified having difficulty chewing and swallowing. Consequently, the Board finds that remand is warranted for an updated VA examination to assess the current nature and etiology of the Veteran’s claimed residuals of mandible fracture. Moreover, as noted above, the record indicates that the Veteran was treated at the Bethesda Naval Hospital. These records are not associated with the claims file. Accordingly, remand is required to obtain these missing military hospital records. Service Connection for Headaches The Veteran contends that his headaches are secondary to his residuals of mandible fracture. Alternatively, he alleges that his headaches are secondary to his service-connected tinnitus. The Board notes that the Veteran’s VA medical records note reports of headaches since the 1966 flare gun incident. See 2013 and 2015 VA treatment records. Additionally, during the July 2013 VA examination, the Veteran reported that while he has had headaches since the flare gun incident, they were not severe enough to cause him to seek medical attention. Rather, he treated the condition with over-the-counter-medication. The Board finds that adjudication of the claim for service connection for headaches is inextricably intertwined with the claim for service connection for residuals of mandible fracture. Consequently, consideration of the claim for service connection for headaches must be deferred until the claim for service connection for residuals of mandible fracture is adjudicated. See Harris, 1 Vet. App. at 183. Moreover, the Board finds that a VA medical opinion has not been obtain as to whether the Veteran’s headaches are secondary to his service-connected tinnitus. Accordingly, on remand a VA medical opinion shall be obtained. Service Connection for a Gastrointestinal Condition The Veteran contends that his gastrointestinal condition is secondary to his headaches. Specifically, he contends that his consistent use of over-the-counter-medication for his headaches caused his gastrointestinal issues. Adjudication of the claim for service connection for a gastrointestinal condition is inextricably intertwined with the claim for service connection for headaches. Consequently, consideration of the claim for service connection for a gastrointestinal condition must be deferred until the claim for service connection for headaches is adjudicated. Id. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Obtain in-patient hospital records from Patuxent River Naval Air Station base hospital and Bethesda Naval Hospital. Document all requests for information as well as all responses in the claims file. 3. After completing directive #1, schedule the Veteran for a VA examination with an appropriate medical professional to determine and current severity of the Veteran’s bilateral hearing loss. All appropriate tests and studies should be accomplished. The examiner is asked to provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. 4. After completing directive #1, schedule the Veteran for a VA examination with an appropriate medical professional to determine the current severity of his residuals of scar on the chin. The examiner is asked to provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must describe the Veteran’s scar residuals, to include its total aggregate size, as well as record any characteristics of disfigurement of the head, face, or neck. 5. After completing directives #1-2, schedule the Veteran for a VA examination to determine the nature and etiology of any acquired psychiatric disorder. The examiner is asked to identify all current psychiatric disorders found on examination. For each diagnosed psychiatric disorder, the examiner is asked to opine as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed psychiatric disorder manifested in or is otherwise etiologically related to the Veteran’s military service, to include the in-service flare gun incident. If PTSD is diagnosed, the examiner should detail the stressor(s) upon which this diagnosis is based. A complete rationale must be provided for all opinions expressed. If an opinion cannot be offered without resort to mere speculation, the examiner must indicate why this is the case and what additional evidence, if any, would allow for a more definitive opinion. 6. After completing directives #1-2, schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s right ankle disability. Following a review of the record, the examiner should identify any diagnoses for the right ankle and opine as to the whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s right ankle disability manifested in or is otherwise etiologically related to service. A complete rationale must be provided for all opinions expressed. If an opinion cannot be offered without resort to mere speculation, the examiner must indicate why this is the case and what additional evidence, if any, would allow for a more definitive opinion. 7. After completing directives #1-2, schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s residuals of mandible fracture. Following a review of the record, the examiner should identify any residuals of mandible fracture and opine as to the whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s residuals of mandible fracture manifested in or are otherwise etiologically related to service, to include the in-service flare gun incident. A complete rationale must be provided for all opinions expressed. If an opinion cannot be offered without resort to mere speculation, the examiner must indicate why this is the case and what additional evidence, if any, would allow for a more definitive opinion. 8. After completing directives #1-2 and 7, schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s headaches. Following a review of the record, the examiner should opine as to the following: a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s headaches began during service or are otherwise etiologically related to service; b) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s headaches are proximately due to, the result of, his service-connected tinnitus; c) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s headaches are aggravated beyond normal progression by his service-connected tinnitus? If the Veteran’s residuals of mandible fracture are found to be related to service, the examiner is also asked to opine as to the following: a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s headaches are proximately due to, the result of, his residuals of mandible fracture; b) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s headaches are aggravated beyond normal progression by his residuals of mandible fracture? A complete rationale must be provided for all opinions expressed. If an opinion cannot be offered without resort to mere speculation, the examiner must indicate why this is the case and what additional evidence, if any, would allow for a more definitive opinion. 9. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined claims for service connection for a bilateral hip disability, secondary to a right ankle disability, and service connection for a gastrointestinal condition, secondary to headaches. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Robinson, 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.