Citation Nr: 21063467 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 18-54 585 DATE: October 14, 2021 ORDER New and material evidence having been received, the claim of service connection for bilateral pes planus is reopened. New and material evidence having been received, the claim of service connection for sleep apnea is reopened. New and material evidence having been received, the claim of service connection for migraine headaches is reopened. New and material evidence having been received, the claim of service connection for an acquired psychiatric disorder is reopened. Entitlement to service connection for eczema rash, to include whether new and material evidence has been received to reopen the claim, is dismissed. Entitlement to service connection for irritable bowel syndrome (IBS) is dismissed. Entitlement to service connection for gastroesophageal reflux disease (GERD) is dismissed. Entitlement to service connection for epididymitis is dismissed. Entitlement to service connection for lactose intolerance, to include whether new and material evidence has been received to reopen the claim, is dismissed. Entitlement to service connection for residuals of vasectomy, to include whether new and material evidence has been received to reopen the claim, is dismissed. Entitlement to service connection for Gulf War syndrome is dismissed. REMANDED Entitlement to service connection for bilateral pes planus is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for residuals of a traumatic brain injury (TBI) is remanded. Entitlement to service connection for migraine headaches is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. In an unappealed March 2006 decision, the RO denied the claims of service connection for bilateral pes planus, sleep apnea, migraine headaches, and an acquired psychiatric disorder. 2. Evidence received since the March 2006 rating decision is not duplicative of evidence previously submitted and considered on the merits, and the evidence, by itself or when considered with previous evidence of record, relates to unestablished facts necessary to substantiate the claims of service connection for bilateral pes planus, sleep apnea, migraine headaches, and an acquired psychiatric disorder. 3. On January 11, 2021, prior to the promulgation of a decision in the appeal, the Veteran requested withdrawal of his appeal as to the issues of service connection for eczema rash, IBS, GERD, epididymitis, lactose intolerance, residuals of vasectomy, and Gulf War syndrome. CONCLUSIONS OF LAW 1. The March 2006 rating decision denying service connection for bilateral pes planus, sleep apnea, migraine headaches, and an acquired psychiatric disorder is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. 2. New and material evidence sufficient to reopen the claims of service connection for bilateral pes planus, sleep apnea, migraine headaches, and an acquired psychiatric disorder has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for dismissal of the appeal as to service connection for eczema rash, IBS, GERD, epididymitis, lactose intolerance, residuals of vasectomy, and Gulf War syndrome are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Army from November 1977 to November 1981 and the Air Force from January 1983 to October 1998. The appeal originates from a September 2013 decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared for a hearing before the undersigned in January 2021. 1.- 4. Whether new and material evidence has been received to reopen the claim of service connection for bilateral pes planus, sleep apnea, migraine headaches, and an acquired psychiatric disorder. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). A March 2006 rating decision denied service connection for sleep apnea and posttraumatic stress disorder (PTSD) and declined to reopen the claims of service connection for bilateral pes planus and migraine headaches (following a prior February 1999 rating decision). The RO determined, in essence, that the Veteran failed to provide evidence of a current diagnosis of sleep apnea or PTSD, a nexus between migraine headaches and service, or aggravation of preexisting bilateral pes planus by service. The Veteran neither appealed the decision nor sought reconsideration and new and material evidence was not received within one year. The decision therefore became final. The Veteran has petitioned to reopen the preceding claims. Evidence added to the record since the March 2006 rating decision includes a May 2017 VA sleep apnea examination specifying a current diagnosis of obstructive sleep apnea, a May 2021 letter from a private psychologist indicating a current diagnosis of PTSD, and January 2021 hearing testimony from the Veteran as to having chronic headaches and progressively worsening foot symptomology since service. The evidence is new, because it was not of record at the time of the rating decision, and material, because it suggests current diagnoses of sleep apnea and PTSD, a nexus between migraine headaches and service, and aggravation of preexisting bilateral pes planus. The evidence received is presumed credible, is neither cumulative nor redundant of the evidence of record, and raises a reasonable possibility of substantiating the claims. As such, the claims must be reopened. 5. Entitlement to service connection for eczema rash, to include whether new and material evidence has been received to reopen the claim. 6. Entitlement to service connection for IBS. 7. Entitlement to service connection for GERD. 8. Entitlement to service connection for epididymitis. 9. Entitlement to service connection for lactose intolerance, to include whether new and material evidence has been received to reopen the claim. 10. Entitlement to service connection for residuals of vasectomy, to include whether new and material evidence has been received to reopen the claim. 11. Entitlement to service connection for Gulf War syndrome. 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. 38 C.F.R. § 19.55. Appeal withdrawals must include the name of the claimant, the applicable claim number, and a statement that the appeal is being withdrawn. 38 C.F.R. § 19.55. If the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirety, or list the issue(s) withdrawn from the appeal. At the hearing on January 11, 2021, the Veteran requested withdrawal of the appeal as to the issues of service connection for eczema rash, IBS, GERD, epididymitis, lactose intolerance, residuals of vasectomy, and Gulf War syndrome. The Veteran was identified at the outset of the hearing along with a notation of the claims file number. After he affirmed his desire to withdraw the appeal, the undersigned inquired, "I will ... be noting your desire to withdraw the appeal [as to the preceding issues] and that they will just be dismissed ... without any findings. Is that your understanding as well, sir?" The Veteran replied, "Understood, sir. Yes." The undersigned then confirmed the issues that would be remaining on appeal. The Board finds that the Veteran's request to withdraw his appeal as to the preceding issues was explicit, unambiguous, and with a full understanding of the consequences of the action. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Thus, the issues are no longer within the Board's jurisdiction and are dismissed. See Hamilton v. Brown, 4 Vet. App. 528 (1993) (en banc), aff'd, 39 F.3d 1574 (Fed. Cir. 1994). REASONS FOR REMAND Initially, there is some question as to whether the Veteran's complete service treatment records have been obtained. Although rating decisions reference a complete set of service treatment records, the claims file does not appear to contain any records from the first period of active service. See November 1998 STR. There also does not seem to be a formal finding of unavailability of these records. As such, remand is necessary to determine whether these records can be obtained. 1. Entitlement to service connection for bilateral pes planus is remanded. The Veteran contends that his diagnosed bilateral pes planus, which was noted at entry to his second period of active service in February 1982, was aggravated by wearing tight boots and performing physical activities in service, such as marching and running. See January 2021 Hearing Transcript. He was afforded a VA examination in May 2017 and the examiner expressed an inability to opine on direct service connection without resort to mere speculation due to the absence of an enlistment examination from the first period of active service. However, this does not address a theory of aggravation of a preexisting disability. Therefore, a new opinion should be obtained. 2. Entitlement to service connection for sleep apnea is remanded. The Veteran contends that his diagnosed obstructive sleep apnea had its onset in service. He identified symptoms such as fatigue and tiredness. See January 2021 Hearing Transcript. He was afforded a VA examination in May 2017 and the examiner opined that sleep apnea is less likely as not related to service. Yet the rationale offered appears to be vague, only stating that "[m]edical records do not contain any evidence of the claimant having sleep apnea." It is unclear what this refers to, i.e., service treatment records or post-service treatment records, or the significance of the finding. It also remains unclear as to whether his reported history of fatigue and tiredness was considered. Accordingly, a new opinion should be obtained. 3. Entitlement to service connection for residuals of a TBI is remanded. The Veteran contends that he has a TBI (with symptoms such as memory problems, lightheadedness, imbalance, and disorientation) due to being near a car explosion in Germany or due to a documented incident in September 1983 in which he struck his head on the side of a plane. See May 2017 VA Examination; January 2021 Hearing Transcript. He was afforded a VA examination in May 2017 and found not to have a clinical diagnosis of a TBI. Given that the requested development for private treatment records (see below) may bear on the question of a current disability, the Board will defer adjudication of the issue at this time. 4. Entitlement to service connection for migraine headaches is remanded. The Veteran contends that he has had progressively worsening chronic headaches since service. See January 2021 Hearing Transcript. He was afforded a VA examination in May 2017 and diagnosed with migraine including migraine variants. The examiner rendered a negative nexus opinion, finding that chronicity could not be established as the Veteran was only twice seen for headaches in October 1995 and February 1996. Yet there are additional records showing treatment for headaches in August 1984 and September 1997 which the examiner did not address. As such, remand is needed for a new opinion. 5. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran contends that he has PTSD due to a variety of in-service stressors, such as disposing of bodies in Grenada and being in the vicinity of sniper fire, explosions, and a car bombing in Germany. See January 2021 Hearing Transcript. He was afforded a VA examination in May 2017 and found not to have a DSM-5 diagnosis of PTSD, but rather adjustment disorder with anxiety unrelated to service. The Veteran submitted a letter from a private psychologist in May 2021 stating that he has a diagnosis of PTSD, moderate anxiety disorder, and depression and that he is currently undergoing psychotherapy. He has not submitted treatment records from this provider or been prompted to provide authorization to obtain them. Accordingly, remand is warranted for this development, as well as to provide a new examination to clarify his diagnosis. The matters are REMANDED for the following action: 1. Request service treatment records for the Veteran's first period of active service. If the records are unavailable, make a formal finding of unavailability and provide appropriate notice to the Veteran. 2. Request authorization from the Veteran to obtain treatment records from J.J., licensed clinical psychologist, in Savannah, Georgia. 3. Then, request an addendum opinion from the May 2017 foot examiner. The examiner is asked to address the following: a. Is there clear and unmistakable evidence that bilateral pes planus preexisted the first period of active service? b. If bilateral pes planus did not preexist the first period of active service, is it at least as likely as not that it had its onset in or is otherwise etiologically related to the first period of active service? c. Is there clear and unmistakable evidence that bilateral pes planus was not aggravated beyond natural progress by the second period of active service? The examiner should address service treatment records showing foot complaints in April and September 1998 and provide a thorough rationale that discusses the service treatment records, post-service treatment records, and lay reporting of symptom manifestation. 4. Then, request an addendum opinion from the May 2017 sleep apnea examiner. The examiner is asked to opine whether it is at least as likely as not that sleep apnea had its onset in or is otherwise etiologically related to active service. The examiner should provide a thorough rationale that discusses the service treatment records, post-service treatment records, and lay reporting of symptoms since service. 5. Then, request an addendum opinion from the May 2017 migraine examiner. The examiner is asked to opine whether it is at least as likely as not that a migraine disorder had its onset in or is otherwise etiologically related to active service. The examiner should provide a thorough rationale that discusses the service treatment records, post-service treatment records, and lay reporting of symptoms since service. 6. Then, schedule the Veteran for a PTSD examination. The examiner is asked to address the following: a. Specify whether the Veteran meets the DSM-5 criteria for a diagnosis of PTSD. If a diagnosis is not made, indicate which criteria were not met and reconcile the finding with the May 2021 letter from J.J., licensed clinical psychologist, and treatment records. 7. For any acquired psychiatric disorder, is it at least as likely as not that the disorder had its onset in or is otherwise etiologically related to any in-service stressor? The examiner should provide a thorough rationale that discusses the service treatment records, post-service treatment records, and lay reporting of symptom manifestation. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Alhinnawi 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.