Citation Nr: 21003354 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 16-41 816 DATE: January 21, 2021 ORDER A rating higher than 50 percent for major depressive disorder prior to December 6, 2019, and higher than 70 percent thereafter has been withdrawn. A compensable rating for pes planus prior to December 11, 2019, and higher than 50 percent thereafter has been withdrawn. A compensable rating for anemia prior to December 11, 2019 and a rating higher than 10 percent thereafter has been withdrawn. A compensable rating for chronic conjunctivitis prior to December 14, 2019, and higher than 10 percent thereafter has been withdrawn. A compensable rating for allergic rhinitis prior to December 11, 2019, and a rating higher than 10 percent thereafter has been withdrawn. REMANDED Service connection for bilateral shin splints is remanded. Service connection for left knee condition is remanded. Service connection for gastroenteritis is remanded. FINDING OF FACT In August 2020, prior to the promulgation of a decision in the appeal, the Board received an Appeal Satisfaction Notice from the appellant indicating that a withdrawal of her appeals on the issues of increased ratings for major depressive disorder, pes planus, anemia, chronic conjunctivitis, and allergic rhinitis is requested. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a rating higher than 50 percent for major depressive disorder prior to December 6, 2019, and higher than 70 percent thereafter, by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of a compensable rating for pes planus prior to December 11, 2019, and a rating higher than 50 percent thereafter, by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of a compensable rating for anemia prior to December 11, 2019, and a rating higher than 10 percent thereafter, by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for withdrawal of a compensable rating for chronic conjunctivitis prior to December 14, 2019, and a rating higher than 10 percent thereafter, by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 5. The criteria for withdrawal of a compensable rating for allergic rhinitis prior to December 11, 2019, and a rating higher than 10 percent thereafter, by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 2012 to January 2015. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for major depressive disorder, right hamstring strain, pes planus, allergic rhinitis, chronic conjunctivitis, and anemia; and denied service connection for bilateral hearing loss, fatigue, chronic constipation, right chronic medial stress syndrome and iliotibial band syndrome, migraine headaches, gastroenteritis, shin splint, lumbar lordosis, and left knee condition. In a September 2015 notice of disagreement, the Veteran appealed the initial ratings assigned for allergic rhinitis, major depressive disorder, pes planus, and anemia; and the denials of service connection for fatigue, gastroenteritis, left knee condition, chronic constipation, migraine headaches, right chronic medial stress syndrome and iliotibial band syndrome, shin splint, and lumbar lordosis. The Veteran struck through the issue of an increased rating for right hamstring strain. This notice of disagreement did not include an appeal of the initial rating assigned for chronic conjunctivitis or the denial of service connection for bilateral hearing loss. The RO issued a July 2016 statement of the case on the issues of increased initial ratings for major depressive disorder, pes planus, allergic rhinitis, chronic conjunctivitis, and anemia; and service connection for fatigue, chronic constipation, right chronic medial stress syndrome and iliotibial band syndrome, migraine headaches, gastroenteritis, shin splint, lumbar lordosis, and left knee condition. The Veteran perfected her appeal of all of these listed issues with an August 2016 VA Form 9. The Board adjudicated this appeal in an August 2019 decision, which denied service connection for bilateral shin splints and a left knee disability; remanded the issues of service connection for chronic fatigue syndrome, chronic constipation, gastroenteritis, headaches, right thigh disability, and low back disability; remanded increased initial rating claims for major depressive disorder, pes planus, allergic rhinitis, conjunctivitis, and anemia; and entitlement to a total disability rating based on individual unemployability (TDIU). Insofar as this was a final denial of the Veteran’s claims of service connection for bilateral shin splints and a left knee disability, she appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In August 2020, the Court granted a joint motion for remand (JMR) of the Veteran and the Secretary of Veterans Affairs (the Parties), vacated the August 2019 Board decision insofar as it denied service connection for bilateral shin splints and a left knee disability and remanded the claim to the Board for action consistent with the terms of the JMR. In a July 2020 decision review officer (DRO) decision, the Veteran’s ratings for major depressive disorder, pes planus, allergic rhinitis, anemia, and chronic conjunctivitis were increased; she was granted service connection for chronic fatigue syndrome, migraine headaches, lumbosacral strain, chronic constipation, right thigh disability, and radiculopathy of the bilateral lower extremities; she was awarded special monthly compensation (SMC) based on the housebound criteria; basic eligibility for Dependents’ Educational Assistance was established; and a total disability rating based on individual unemployability (TDIU) was found moot. This represents a full grant of the benefits sought with regard to these service connection issues, and they are not presently before the Board. Although the Veteran’s representative lists increased ratings for chronic fatigue syndrome, migraine headaches, lumbosacral lordosis, and chronic constipation as part of his December 2020 brief, there is no notice of disagreement of record for the initial ratings assigned for these disabilities. TDIU is likewise no longer before the Board as the combined schedular rating is 100 percent, and the Veteran has been awarded SMC at the housebound rate. Insofar as higher ratings are available for major depressive disorder, pes planus, allergic rhinitis, anemia, and conjunctivitis, the Veteran is ordinarily presumed to be seeking the maximum available benefit, these issues remain on appeal. See AB v. Brown, 6 Vet. App. 35, 39 (1993). Withdrawal 1. A rating higher than 50 percent for major depressive disorder prior to December 6, 2019, and higher than 70 percent thereafter 2. A compensable rating for pes planus prior to December 11, 2019, and higher than 50 percent thereafter 3. A compensable rating for anemia prior to December 11, 2019 and a rating higher than 10 percent thereafter 4. A compensable rating for chronic conjunctivitis prior to December 14, 2019, and higher than 10 percent thereafter 5. A compensable rating for allergic rhinitis prior to December 11, 2019 and a rating higher than 10 percent thereafter 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. In an August 20, 2020, Appeals Satisfaction Notice, the Veteran indicated that, following the recent decision to grant some of the issues on appeal, she no longer wanted to pursue the remaining issues contained in her recent supplemental statement of the case. The July 2020 rating decision had granted some of her claims, and the July 2020 supplemental statement of case addressed the remaining issues of increased ratings for major depressive disorder, pes planus, anemia, chronic conjunctivitis, and allergic rhinitis. As such, the August 2020 communication withdrew her appeals with regard to these issues, and, hence, there remain no allegations of errors of fact or law for appellate consideration with regard to these issues. Accordingly, the Board does not have jurisdiction to review the appeals of these issues, and they are dismissed. REASONS FOR REMAND 1. Service connection for bilateral shin splints is remanded. 2. Service connection for left knee condition is remanded. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical examination is adequate when it is based on consideration of the Veteran’s relevant medial history and provides the Board with sufficient information to render a fully informed decision on the claim. See Ardison v. Brown, 6 Vet. App. 405, 407 (1994). The July 2015 VA knee and lower leg conditions disability benefits questionnaire (DBQ) is inadequate, as it relies on an inaccurate medical history. Specifically, with regard to the issue of service connection for bilateral shin splints, this DBQ notes a history of shin splints during bootcamp in October 2012 that resolved without complications following bootcamp. This is contradicted by the service treatment records that note ongoing complaints of shin splints, particularly during the Veteran’s deployment. Likewise, with regard to the issue of service connection for a left knee condition, this DBQ found no objective findings to support any former or current knee condition, but failed to address the Veteran’s documented subjective complaints of left knee pain during service. A further examination is needed to correct these deficiencies. 3. Service connection for gastroenteritis is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the issue of service connection for gastroenteritis. The August 2019 Board decision remanded the issue of service connection for gastroenteritis for further development, including a Gulf War Protocol examination, and readjudication. While the record includes a Gulf War Protocol examination, the subsequent July 2020 rating decision and July 2020 supplemental statement of the case do not include this issue. As such, the issue of service connection for gastroenteritis has not yet been readjudicated, and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination or examinations for her bilateral shin splints and left knee condition. The examiner must review the claims file. If a diagnosis cannot be provided, but the Veteran’s condition manifests in symptoms that cause a functional impairment of earning capacity, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide responses to the following: Are bilateral shin splints at least as likely as not (a 50 percent or greater probability) related to service, including the Veteran’s repeated complaints of shin splints during service? Is a left knee disability at least as likely as not (a 50 percent or greater probability) related to service, including her in-service complaints of left knee pain? Provide a rationale to support the opinion(s). 2. Finally, readjudicate the claims on appeal, including the claim for service connection for gastroenteritis. If any benefit sought on appeal remains denied, then furnish the Veteran and her representative with a supplemental statement of the case and allow them an opportunity to respond. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Houbeck 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.