Citation Nr: 21064891 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 17-25 097 DATE: October 21, 2021 ORDER 1. The appeal concerning the issue of entitlement to service connection for a left elbow disability is dismissed. 2. The appeal concerning the issue of entitlement to service connection for a left knee disability is dismissed. 3. The appeal concerning the issue of entitlement to service connection for bilateral hearing loss is dismissed. 4. The appeal concerning the issue of entitlement to service connection for a right shoulder injury is dismissed. 5. The appeal concerning the issue of entitlement to service connection for right shoulder nerve damage and numbness is dismissed. 6. The appeal concerning the issue of entitlement to service connection for right shoulder scarring is dismissed. REMANDED 1. Entitlement to service connection for major depressive disorder (MDD) is remanded. 2. Entitlement to service connection for residuals of a fractured nose, to include a deviated septum, is remanded. 3. Entitlement to service connection for residuals of a broken rib is remanded. 4. Entitlement to service connection for left shoulder nerve damage and numbness is remanded. 5. Entitlement to service connection for a left ankle disability, to include as secondary to the service-connected right ankle disability, is remanded. FINDINGS OF FACT Prior to the promulgation of a decision in the appeal, at the July 2021 Board hearing, the Veteran withdrew his appeal concerning the issues of entitlement to service connection for a left elbow disability, a left knee disability, bilateral hearing loss, a right shoulder disability, right shoulder nerve damage, as well as right shoulder scarring. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran regarding the issue of entitlement to service connection for a left elbow disability have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2020). 2. The criteria for withdrawal of an appeal by the Veteran regarding the issue of entitlement to service connection for a left knee disability have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2020). 3. The criteria for withdrawal of an appeal by the Veteran regarding the issue of entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2020). 4. The criteria for withdrawal of an appeal by the Veteran regarding the issue of entitlement to service connection for a right shoulder injury have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2020). 5. The criteria for withdrawal of an appeal by the Veteran regarding the issue of entitlement to service connection for right shoulder nerve damage have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2020). 6. The criteria for withdrawal of an appeal by the Veteran regarding the issue of entitlement to service connection for right shoulder scarring have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1999 to June 2013. These matters come to the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision issued by the Department of Veterans Affairs (VA) RO. In July 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. Withdrawal Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. A substantive appeal may be withdrawn at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. At the July 2021 Board hearing, the Veteran knowingly, explicitly, and unambiguously withdrew his appeal concerning the issues of entitlement to service connection for a left elbow disability, a left knee disability, bilateral hearing loss, a right shoulder disability, right shoulder nerve damage, as well as right shoulder scarring. Hence, there remain no allegations of errors of fact or law for appellate consideration regarding these issues. Accordingly, the Board does not have jurisdiction to review these issues and they are dismissed. REASONS FOR REMAND 1. Entitlement to service connection for MDD is remanded. The Veteran contends that his MDD was incurred during his military service. The record reflects that the Veteran has been diagnosed by a licensed marriage and family therapist to have MDD. In the report of an August 2021 evaluation, she suggested the condition began during military service. Notably, service treatment records submitted by the Veteran in August 2021 indicate he sought mental health treatment during between December 2012 and March 2013. However, the actual notes made during this treatment are not set out withing the document. Instead there is the entry "See AHLTA for Encounter Details." Although the Veteran was not diagnosed to have a psychiatric disorder when examined for VA purposes in 2014, given his recent diagnosis and the apparent treatment in service, another examination and opinion should be obtained after the content of the service records have been determined. 2. Entitlement to service connection for residuals of a fractured nose, to include a deviated septum, is remanded. The Veteran contends that he experiences a residual injury related to a fractured nose that was incurred during his military service. The record reflects that the Veteran has been diagnosed with a deviated septum. He attributes this condition to a skateboarding accident that occurred while he was on active duty. Photographs taken at the time reflect a nose injury. A VA opinion has not yet been obtained as to whether the claimed nose fracture residuals are at least as likely as not etiologically linked to the Veteran's active service. As such, a remand is warranted to provide him with a VA examination to clarify the diagnosis of the claimed condition and obtain a nexus opinion. See McLendon, supra. 3. Entitlement to service connection for left shoulder nerve damage and numbness; left ankle condition; and residuals of a broken rib is remanded. At the July 2021 Board hearing, the Veteran testified that he experienced tingling in his left arm, hand, and fingers and that he occasionally had no feeling in the left upper extremity. The record confirms that the Veteran injured his left shoulder and underwent surgery as a result of the April 2010 skateboarding accident. He is service connected for status post open reduction internal fixation left shoulder surgery residuals. With respect to his left ankle, at the July 2021 Board hearing, the Veteran testified that he sprained his left ankle on multiple occasions due to compensating for his injured right ankle. He described left ankle symptoms including swelling, giving way, and limitation of motion. Regarding the rib, the Veteran testified at his hearing that he continued to experience a "catching" of the left rib that was broken during service. The record confirms that the Veteran fractured a left rib due to the April 2010 skateboarding accident. In September 2021, the Veteran submitted a private medical opinion from a chiropractor, who suggested a link between service and the Veteran's left shoulder condition; rib complaints and ankle complaints, tracing the association to his physical duties and skateboarding accident. Although vaguely stated, it triggers the duty to assist and obtain a medical opinion to clarify any diagnoses and obtain a nexus opinion. The matters are REMANDED for the following action: 1. After obtaining any necessary authorization from the Veteran, the RO should obtain unredacted versions of all records related to the Veteran's mental health treatment during service, specifically between December 2012 and March 2013, and associate these records with the claims file. If these records are unavailable, the RO should document the attempts that were made to obtain these records. 2. Ask the Veteran to identify all outstanding VA and non-VA health care providers, other than those already associated with his claims file, and to authorize VA to obtain non-VA records. The identified non-VA records should be sought, and updated VA treatment records should be obtained. If any requested records cannot be obtained, the Veteran should be informed; and told of the efforts made and the further actions that will be taken with regard to the claim. The Veteran may submit medical records directly to VA. 3. After the above has been completed to the extent possible, arrange for the Veteran to undergo a VA mental health examination, by an appropriately trained person. The contents of the entire claims file should be made available to the individual designated to examine the Veteran. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. If PTSD is diagnosed, the examiner should identify the stressor and, if appropriate, render a determination as to whether the collective evidence indicates that the Veteran's alleged in-service stressor occurred. If PTSD is not diagnosed, the examiner should set forth the criteria that have not been met for the diagnosis. For any other diagnosed psychiatric disorder, to include MDD, the examiner should express an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such disability had its onset during the Veteran's active service. The examiner should specifically indicate the reasons and bases for the conclusions expressed and must address the August 2021 private medical opinion. If the examiner is unable to offer the requested opinions, that person should offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. The Veteran should be afforded an appropriate VA examination for the purpose of determining the nature and etiology of his claimed residuals of a fractured nose. The claims file must be made available to the examiner for review in connection with the examination. Following a review of the relevant evidence, to include the claims file, service treatment records, post-service treatment records; a history obtained from the Veteran, the clinical evaluation, and any tests that are deemed necessary, the examiner should: (A) Confirm the exact diagnoses of the claimed condition, to include a deviated septum. (B) Opine as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed residuals of a fractured nose, to include a deviated septum, began during or are causally related to service, to include the April 2010 skateboarding accident. The examiner should specifically indicate the reasons and bases for the conclusions expressed. If the examiner is unable to offer the requested opinions, that person should offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 5. The Veteran should be afforded an appropriate VA examination for the purpose of determining the nature and etiology of his claimed residuals of a broken rib. The claims file must be made available to the examiner for review in connection with the examination. Following a review of the relevant evidence, to include the claims file, service treatment records, post-service treatment records; a history obtained from the Veteran, the clinical evaluation, and any tests that are deemed necessary, the examiner should: (A) Confirm the exact diagnosis of the claimed condition. (B) Opine as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed disability is related to the inservice rib fracture. The examiner should specifically indicate the reasons and bases for the conclusions expressed and must address the August 2021 private medical opinion. If the examiner is unable to offer the requested opinions, that person should offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 6. The Veteran should be afforded an appropriate VA examination for the purpose of determining the nature and etiology of his claimed left shoulder nerve damage. The claims file must be made available to the examiner for review in connection with the examination. Following a review of the relevant evidence, to include the claims file, service treatment records, post-service treatment records; a history obtained from the Veteran, the clinical evaluation, and any tests that are deemed necessary, the examiner should: (A) Confirm the exact diagnosis of the claimed condition. (B) Opine as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed nerve disability began during or is causally related to service, to include the April 2010 skateboarding accident and related surgery; and/or the Veteran's service connected left shoulder disability. The examiner should specifically indicate the reasons and bases for the conclusions expressed and must address the August 2021 private medical opinion. If the examiner is unable to offer the requested opinions, that person should offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 7. The Veteran should be afforded a VA examination for the purpose of determining the nature and etiology of his claimed left ankle disability. The claims file must be made available to the examiner for review in connection with the examination. Following a review of the relevant evidence, to include the claims file, service treatment records, post-service treatment records; a history obtained from the Veteran, the clinical evaluation, and any tests that are deemed necessary, the examiner (A) Confirm the exact diagnosis of the claimed condition. (B) Opine as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed left ankle disability began during or is causally related to service. (B) Opine as to whether it is at least as likely as not that any diagnosed left ankle disability, is either proximately due to OR aggravated by the service-connected right ankle disability. If the examiner finds that the Veteran has a left ankle disability that has been aggravated by right ankle disability, the examiner should state the baseline level of severity of the left ankle, established by the earliest available medical evidence, and describe the extent to which the condition was worsened by the Veteran's right ankle disability. The examiner should specifically indicate the reasons and bases for the conclusions expressed and must address the August 2021 private medical opinion. If the examiner is unable to offer the requested opinions, that person should offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Erin J. Trojanowski, 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.