Citation Nr: 21004432 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 16-56 474 DATE: January 27, 2021 ORDER The appeal for entitlement to service connection for headaches is dismissed. REMANDED The issue of entitlement to service connection for sleep apnea is remanded. The issue of entitlement to service connection for gastroesophageal reflux disease is remanded. The issue of entitlement to service connection for bilateral pes planus is remanded. The issue of entitlement to a disability rating in excess of 10 percent, prior to September 15, 2016, for degenerative joint and disc disease, lumbar spine, is remanded. The issue of entitlement to a disability rating in excess of 20 percent, from September 15, 2016, for degenerative joint and disc disease, lumbar spine, is remanded. FINDING OF FACT During the October 2019 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew the appeal for entitlement to service connection for headaches. CONCLUSION OF LAW The criteria for withdrawal of the appeal for entitlement to service connection for headaches have been met. 38 U.S.C. § 7105 ; 38 C.F.R. §§ 20.202, 20.204. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from June 1986 to June 1990 and from November 1999 to September 2004. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a November 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. The Board notes that a complete transcript of the video conference hearing was not able to be produced due to audio malfunctions. In an October 2020 correspondence the Veteran reported that he did not wish to appear at another hearing. As such, this decision is based on the evidence currently of record. In an October 2016 rating decision, the Agency of Original Jurisdiction (AOJ) increased the rating for the Veteran’s low back disability to 20 percent, effective September 15, 2016. As the increase did not satisfy the appeal in full, the issue remains on appeal and has been characterized as shown on the title page of this decision. See AB v. Brown, 6 Vet. App. 35 (1993). Withdrawal 1. Entitlement to service connection for headaches is withdrawn. The Veteran has perfected an appeal as to the issue of entitlement to service connection for headaches. The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202, 20.204 (b). Withdrawal may be made by the claimant or the claimant’s authorized representative. 38 C.F.R. § 20.204 (a). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204 (b) (1). In this case, following certification of the appeal to the Board and prior to promulgation of a decision in this case, during the October 2019 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew the appeal for entitlement to service connection for headaches. The undersigned Veterans Law Judge clearly identified the issue, and the Veteran was encouraged to and did discuss his options with his representative. After the undersigned Veterans Law Judge explained the effect of withdrawal of the appeals, the Veteran affirmed that he was requesting a withdrawal as to the appeal, and that he understood the consequences. As a result, there remains no allegation of error of fact or law for appellate consideration as to the claim of entitlement to service connection for headaches. As the Board does not have jurisdiction to review the appeal for entitlement to service connection for headaches, the appeal is dismissed. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. Regarding the Veteran’s claim for entitlement to service connection for sleep apnea, remand is required to provide the Veteran with a VA examination. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA’s duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C. § 5103 (d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third prong may be satisfied by lay evidence of continuity or equivocal or non-specific medical evidence). The Veteran has not yet been provided with an examination. Here, the Veteran’s VA treatment records reflect that he has a current diagnosis of obstructive sleep apnea. Additionally, the Veteran’s service treatment records reflect that he had surgery for a deviated septum during his active service. Furthermore, the Veteran has reported that he has suffered from sleep apnea since his in-service deviated septum surgery. Thus, there is evidence of a current disability, an in-service event, and an indication that the disability may be associated with service. Accordingly, remand is required for an examination. 2. Entitlement to service connection for GERD is remanded. 3. Entitlement to service connection for bilateral pes planus The Veteran seeks entitlement to service connection for GERD and bilateral pes planus. The Veteran was provided a VA examination as to his GERD and bilateral pes planus in December 2014. VA has a duty to ensure that any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board’s evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Here, the Board finds the December 2014 VA examination related to the Veteran’s GERD is inadequate for decision-making purposes. The VA examiner opined that the Veteran’s GERD is less likely than not incurred in or caused by the claimed in-service injury, event or illness. As rationale, the VA examiner explained that there was no objective evidence in the Veteran’s service treatment records of a diagnosis of GERD. The VA examiner further explained that although there is record of treatment for subjective complaints of GERD, there was no permanent residual disability subject to service connection. However, in rendering the opinion the VA examiner did not address the March 2005 VA examination, six months after the Veteran’s separation from active service, that reflects a diagnosis of acid reflux disease. As the examination is not adequate for decision-making purposes, the Veteran must be provided a new VA examination to address whether his current GERD is related to his active service, to include his in-service treatment for gastrointestinal issues and his diagnosis of acid reflux disease shortly after his separation from active service. As to the Veteran’s claim for entitlement to service connection for bilateral pes planus, the Board finds the December 2014 VA examination is inadequate for decision-making purposes. The VA examiner opined that the Veteran’s bilateral pes planus is less likely than not incurred in or caused by the claimed in-service injury, event or illness. As rationale, the VA examiner explained that the Veteran was noted to have episodes of plantar fasciitis during his active service which resolved during his active service. As such, the VA examiner explained there was no permanent residual or chronic disability subject to service connection. However, the VA examiner did not address the March 2005 VA examination, six months after the Veteran’s separation from active service, reflecting a diagnosis of bilateral arched feet. As the examination is not adequate for decision-making purposes, the Veteran must be provided a new VA examination to address whether his current bilateral pes planus is related to his active service, to include his in-service treatment for feet issues and his diagnosis of bilateral low arched feet shortly after his separation from active service. 4. Entitlement to increased ratings for low back disability is remanded. The Board finds that further development is necessary before a decision on the merits may be made regarding the issue of entitlement to a disability rating in excess of 10 percent, prior to September 15, 2016, and in excess of 20 percent, from September 15, 2016 for degenerative joint and disc disease, lumbar spine. The Veteran was last provided a VA examination relating to his low back disability in September 2016, over four years ago. In an October 2020 correspondence the Veteran’s representative stated that the Veteran’s condition has increased in severity. In light of the Veteran’s assertions, a new VA examination is required so that the current nature and severity of the Veteran’s service-connected disability may be determined. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination); Weggenmann v. Brown, 5 Vet. App. 281 (1993) (VA has a duty to provide an examination when there is evidence that the disability has worsened since the previous examination). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of sleep apnea. Provide a copy of this remand and the record for the examiner to review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must address the following: (a.) Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the condition had its onset during the Veteran’s service or is otherwise etiologically related to his service, to include his in-service surgery related to a deviated septum. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of GERD. Provide a copy of this remand and the record for the examiner to review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must address the following: (a.) Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the condition had its onset during the Veteran’s service or is otherwise etiologically related to his service, to include his in-service treatment for gastrointestinal complaints and his diagnosis of acid reflux disease shortly after separation from active service. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his bilateral pes planus. Provide a copy of this remand and the record for the examiner to review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must address the following: (a.) Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the condition had its onset during the Veteran’s service or is otherwise etiologically related to his service, to include his in-service treatment for foot complaints and his diagnosis of bilateral low arched feet shortly after separation from active service. 4. Schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected low back disability. The record and a copy of this remand must be made available to and reviewed by the examiner. The examination must include all physical and diagnostic testing deemed necessary by the examiner in conjunction with this request. The examiner should report all manifestations related to the Veteran’s service-connected low back disability. The examiner must address the following: (a.) The examiner should record the results of range-of-motion testing for pain on both active and passive motion and in weight-bearing and nonweight-bearing for the low back. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner should clearly explain why that is so. In recording the ranges of motion for the Veteran’s low back, the examiner should note whether, upon repetitive motion, there is any pain, weakened movement, excess fatigability, or incoordination of movement, and whether there is likely to be additional functional loss due to pain on use, weakened movement, excess fatigability, or incoordination over time. If there is no pain, no limitation of motion, and/or no limitation of function, such facts must be noted in the report. (b.) The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use over time or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range-of-motion loss, if possible. If the Veteran indicates that he is not currently experiencing a flare-up at the time of the examination, the examiner should estimate any additional functional loss during flare-ups or on repeated use, if feasible. If it is not feasible to determine, even by estimation, the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups without resorting to speculation, the examiner must provide an explanation for why this is so. 5. After completion of the above, review the expanded record, including the evidence entered since the most recent statement of the case, and determine whether service connection for sleep apnea, GERD, and/or bilateral pes planus may be granted and whether increased ratings for the Veteran’s low back disability may be granted. If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. G. LeMoine, 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.