Citation Nr: 21064315 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 14-19 489 DATE: October 19, 2021 ORDER The appeal as to the claim of entitlement to an initial disability rating in excess of 30 percent for migraine headaches prior to March 18, 2013 is dismissed. The appeal as to the claim of entitlement to a disability rating in excess of 50 percent for migraine headaches from March 18, 2013 is dismissed. The appeal as to the claim of entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to February 14, 2013 is dismissed. The appeal as to the claim of entitlement to a disability rating in excess of 70 percent for PTSD from February 14, 2013 is dismissed. REMANDED Entitlement to service connection for hypothyroidism, to include as due to exposure to contaminated water at Camp Lejeune, is remanded. Entitlement to an initial compensable disability rating for levator dehiscence, left eye, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to September 21, 2012 is remanded. FINDINGS OF FACT 1. The Veteran withdrew his appeal as to the claim of entitlement to an initial disability rating in excess of 30 percent for migraine headaches prior to March 18, 2013 at his July 12, 2021 Board hearing. 2. The Veteran withdrew his appeal as to the claim of entitlement to a disability rating in excess of 50 percent for migraine headaches from March 18, 2013 at his July 12, 2021 Board hearing. 3. The Veteran withdrew his appeal as to the claim of entitlement to an initial disability rating in excess of 50 percent for PTSD prior to February 14, 2013 at his July 12, 2021 Board hearing. 4. The Veteran withdrew his appeal as to the claim of entitlement to a disability rating in excess of 70 percent for PTSD from February 14, 2013 at his July 12, 2021 Board hearing. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal as to the claim of entitlement to an initial disability rating in excess of 30 percent for migraine headaches prior to March 18, 2013 are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the appeal as to the claim of entitlement to a disability rating in excess of 50 percent for migraine headaches from March 18, 2013 are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of the appeal as to the claim of entitlement to an initial disability rating in excess of 50 percent for PTSD prior to February 14, 2013 are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for withdrawal of the appeal as to the claim of entitlement to a disability rating in excess of 70 percent for PTSD from February 14, 2013 are 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 in the United States Marine Corps from July 1980 to November 1980, with additional periods of service in the United States Marine Reserve. These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2011 and March 2013, August 2013, and April 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) and were previously remanded by the Board in March 2018, July 2020, and April 2021. In July 2021, the Veteran testified at a virtual Board hearing before the undersigned. The Board notes that in its March 2018 decision, the issues of entitlement to service connection for right ankle disability, right knee disability, and cervical spine disability were remanded for further development. In an April 2020 rating decision, service connection was granted for right ankle, right knee, and cervical spine disabilities. This represents a full grant of the benefits sought, and the issues are no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). In a June 2015 rating decision, the RO assigned a 50 percent disability rating for migraine headaches effective March 18, 2013. As the rating periods prior to and from March 18, 2013 regarding the issue of migraine headaches are not the maximum allowable, the issue remains on appeal. AB. v. Brown, 6 Vet. App. 35 (1993). The Board notes that the Veteran was a granted a TDIU during the appeal, effective September 21, 2012. Here, the issue of entitlement to a TDIU prior to September 21, 2012 is still pending to the extent that it is intertwined with an increased rating issue. See Harper v. Wilkie, 30 Vet. App. 356 (2018) (holding that once entitlement to a TDIU is put in issue as part of a claim for a higher initial rating/increased rating and the RO grants a TDIU that does not span the entire period on appeal, the issue of entitlement to a TDIU for an earlier period is still on appeal). For that reason, entitlement to a TDIU prior to September 21, 2012 remains on appeal and will be addressed herein. The Board's April 2021 remand directed the RO to obtain any outstanding VA and private treatment records. The Board finds that there has been substantial compliance with its April 2021 remand directives, and it will proceed with adjudication of the issues on appeal. Stegall v. West, 11 Vet. App. 268 (1998). Withdrawn Appeals During his July 2021 Board hearing, the Veteran stated that he wished to withdraw his appeals as to the claims of entitlement to an initial disability rating in excess of 30 percent for migraine headaches prior to March 18, 2013; a disability rating in excess of 50 percent for migraine headaches from March 18, 2013; an initial disability rating in excess of 50 percent for PTSD prior to February 14, 2013; and a disability rating in excess of 70 percent for PTSD from February 14, 2013. Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. An appeal may be withdrawn in writing or during a hearing at any time before the Board promulgates a decision. Withdrawal may be made by the claimant or by his or her authorized representative. 38 C.F.R. § 19.55. The Veteran withdrew his appeals regarding the above-mentioned issues during his July 2021 Board hearing, and there remains no allegation of errors of fact or law for appellate consideration. As such, the Board does not have jurisdiction to review these claims. Thus, the appeals as to the claims of entitlement to an initial disability rating in excess of 30 percent for migraine headaches prior to March 18, 2013; a disability rating in excess of 50 percent for migraine headaches from March 18, 2013; an initial disability rating in excess of 50 percent for PTSD prior to February 14, 2013; and a disability rating in excess of 70 percent for PTSD from February 14, 2013 are dismissed. REASONS FOR REMAND 1. Entitlement to service connection for hypothyroidism, to include as due to exposure to contaminated water at Camp Lejeune, is remanded. Review of the record reflects that the Veteran was stationed at U.S. Marine Corps Base Camp Lejeune during his time in active duty service. VA has also acknowledged that persons residing or working at U.S. Marine Corps Base Camp Lejeune from August 1953 through December 1987 were potentially exposed to drinking water contaminated with volatile organic compounds. The Veteran contends that his claimed hypothyroidism is a result of exposure to contaminated water while stationed at U.S. Marine Corps Base Camp Lejeune. Review of the Veteran's post-service VA treatment records reflects a diagnosis of and treatment for hypothyroidism. To date, the Veteran has not been provided with a VA examination to determine the nature and etiology of his claimed hypothyroidism. VA's duty to assist includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d). The Board finds that an examination is necessary to determine whether the Veteran's hypothyroidism was either incurred in or is related to service, to include exposure to contaminated water at Camp Lejeune. In providing the requested opinion, the VA examiner should note that the mere fact that a condition is not noted by VA to be related to service at Camp Lejeune under 38 C.F.R. § 17.400, is not, in and of itself, a sufficient basis to deny service connection for that condition. See generally Polovick v. Shinseki, 23 Vet. App. 48, 55 (2009) (holding that it is inappropriate to "permit the denial of direct service connection simply because there is no presumptive service connection"). Rather, if the condition is linked to service or to exposure to contaminated water by probative medical opinion, service connection can be granted. 2. Entitlement to an initial compensable disability rating for levator dehiscence, left eye, is remanded. During his July 2021 Board hearing, the Veteran asserted that his service-connected left eye disability had worsened since his last VA examination in April 2015. Specifically, he indicated that he currently experiences an increase in blurred vision, as well as everyday swelling and twitching in his left eye. Therefore, a new VA examination is needed to ensure that the record reflects the current severity of the Veteran's left eye disability. The duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability or that the currently assigned disability rating may be incorrect. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 3. Entitlement to a TDIU prior to September 21, 2012 is remanded. In this decision, the Board is remanding the Veteran's increased rating claim as to his service-connected left eye disability, with an initial rating period that begin prior to September 21, 2012, to afford the Veteran a new VA examination. The development for this issue could potentially result in an increased initial rating, which could thus impact the outcome of the issue of entitlement to a TDIU prior to September 21, 2012. For this reason, the Board finds that the issue of entitlement to a TDIU prior to September 21, 2012 is considered inextricably intertwined with this issue and is remanded. Harris v. Derwinski, 1 Vet. App. 180, 183(1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of his diagnosed hypothyroidism. The Veteran's electronic claims file must be accessible for review by the VA examiner in conjunction with the examination. A complete history from the Veteran should be obtained and recorded. All testing deemed necessary by the examiner should be performed and the results reported in detail. A detailed rationale for all opinions expressed should be provided. Following the review of the claims file and examination of the Veteran, the examiner is asked to respond to the following: Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's hypothyroidism is etiologically related to the Veteran's active service, to include his exposure to contaminated drinking water at Camp Lejeune? 2. Schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and current severity of his service-connected bilateral eye disability. The Veteran's electronic claims file must be accessible for review by the VA examiner in conjunction with the examination. A complete history from the Veteran should be obtained and recorded. All testing deemed necessary by the examiner should be performed and the results reported in detail. A detailed rationale for all opinions expressed should be provided. 3. After completing all indicated development, the Agency of Original Jurisdiction should readjudicate the Veteran's claims, to include the intertwined issue of entitlement to a TDIU prior to September 21, 2012. If the benefits sought on appeal remain denied, the Veteran should be furnished with a supplemental statement of the case, given the opportunity to respond, and the case should thereafter be returned to the Board for further appellate review, if warranted. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Houle, 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.