Citation Nr: 21064904 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 17-15 815 DATE: October 21, 2021 ORDER Entitlement to service connection for myopia is dismissed. REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a bilateral knee disability is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a left foot disability is remanded. Entitlement to service connection for a respiratory disability with chest pain is remanded. Entitlement to service connection for a disability manifested by blackouts is remanded. Entitlement to an initial rating in excess of 70 percent for anxiety and depressive disorders is remanded. Entitlement to a compensable rating for left maxillary sinusitis is remanded. Entitlement to an initial compensable rating for right foot pes planus prior to February 17, 2015, is remanded. Entitlement to a rating in excess of 20 percent for right foot pes planus beginning February 17, 2015, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT During a June 2021 hearing, the Veteran withdrew the issue of entitlement to service connection for myopia. CONCLUSION OF LAW The criteria for withdrawal of the issue of entitlement to service connection for myopia are met. 38 C.F.R. § 38 U.S.C. § 7105(b)(2), (d)(5) (2018); 38 C.F.R. § 20.204 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 2008 to March 2012 in the United States Marine Corps (USMC). This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In June 2021, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Withdrawn Issue The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. A substantive appeal may be withdrawn on record at a hearing or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. During the June 2021 Board hearing, the Veteran indicated that he no longer wanted to pursue the issue of entitlement to service connection for myopia. As such, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review that issue on appeal, and it is dismissed. REASONS FOR REMAND The Board finds that additional development is required before the claims remaining on appeal are decided. During the June 2021 Board hearing, the Veteran stated that he had been hospitalized three times, including at least once for anxiety. He indicated that he had been hospitalized once in Connecticut and twice in Florida, including at Seminole Hospital and Adventist Health. Those records have not been associated with the claims file. Therefore, a remand is necessary so that an attempt can be made to secure them. The Veteran has also indicated that he received treatment from the Deltona and Ocala VA Community Based Outpatient Clinics (CBOCs); however, those records have not been associated with the claims file. Therefore, a remand is necessary so that an attempt can be made to secure them. In addition, the claims file indicates that the Veteran applied for Chapter 31 vocational rehabilitation benefits. Those records may also be relevant to his current appeal; therefore, a remand is needed so that an attempt can be made to obtain them. Service Connection Hearing Loss A VA examination for hearing loss was conducted in December 2011. The examination report indicated that the Veteran's audiology results did not meet the threshold requirements to be considered a hearing loss disability for VA purposes. See 38 C.F.R. §3.385. During the Board hearing, the Veteran indicated that his hearing loss has worsened since then. Therefore, the Board finds that an additional VA examination is warranted. Service Connection Right Shoulder and Bilateral Knees At a December 2011 pre-discharge VA examination, the Veteran complained of right shoulder and bilateral knee pain. On examination, his right shoulder and bilateral knees were normal. The examiner indicated that there was no pathology to render diagnoses for the right shoulder and bilateral knees. During the June 2021 Board hearing, the Veteran indicated that his right shoulder locked up and cracked from time to time. He indicated that he had limited range of motion in his right shoulder and that it was difficult for him to lift certain objects at a normal weight. He also indicated that he had continued bilateral knee pain since service, received treatments with a TENS unit, and had to wear a leg brace. Given the Veteran's complaints of right shoulder and knee pain during active service and his current reports of functional impairment, the Board finds that a remand is warranted for additional VA examinations. Service Connection Back Disability The Veteran maintains that his current back disability is related to the rigors of military service. During the June 2021 Board hearing, he noted that a post-service X-ray showed curvature of the spine and that his spine was normal when he entered service. The report of a December 2011 VA pre-discharge examination indicated that the Veteran's back was normal on examination. An X-ray of the thoracic spine showed a left convex curvature, which the examiner noted was not considered clinically significant. An X-ray of the lumbar spine showed a right convex curvature. The examiner indicated that there was no pathology to render a diagnosis; however, he did not address the X-ray reports. An August 2013 VA treatment record noted that the Veteran complained of upper and lower back pain. On examination, there was tenderness to palpation along the entire spine. A May 2014 X-ray showed scoliosis. In June 2014, the impression was thoracolumbar scoliosis with mechanical low back pain. Based on the foregoing, the Board finds that the December 2011 VA examination is inadequate and that a remand for an additional VA examination is warranted. Service Connection Left Foot The Veteran maintains that his current left foot disability is related to the rigors of military service. The report of a December 2011 VA pre-discharge examination indicated that the Veteran complained of bilateral foot pain with no history of injury or trauma. On examination, his feet were normal. An X-ray of the right foot showed mild pes planus. An X-ray of the left foot was normal. The examiner indicated that there was no pathology to render a diagnosis for either foot. The report of a June 2015 VA foot examination indicated that the Veteran was diagnosed with bilateral flat foot (pes planus). He indicated that he was diagnosed with flat feet while on active duty and that he continued to have problems with his feet. The examiner did not provide a medical opinion regarding the Veteran's left foot pes planus. Based on the foregoing, the Board finds that the December 2011 and June 2015 VA examinations are inadequate and that a remand for an additional VA examination is warranted. Service Connection Respiratory Disability with Chest Pain During a December 2021 pre-discharge VA examination, the Veteran complained chest pain and shortness of breath when running long distances. His chest, heart, and lungs were normal on examination. The examiner indicated that there was no pathology to render a diagnosis. During the June 2021 Board hearing, the Veteran stated that he believed his chest pain was due to a breathing condition. He stated that he had been diagnosed with asthma and bronchitis. He stated that he believed his current chest pain and breathing problems were related to exposure to chemicals during service, noting that his duties included disposal of fire extinguishers and other hazardous materials. Given the Veteran's complaints of chest pain and shortness of breath during active service and his current reports of functional impairment, the Board finds that a remand is warranted for an additional VA examination. Service Connection Blackouts During a December 2011 pre-discharge VA examination, the Veteran reported having a history of dizziness with near syncope. He reported no overall functional impairment resulting the condition. The examiner indicated that there was no pathology to render a diagnosis. During the June 2021 Board hearing, the Veteran stated that he has had blackouts since service. He stated that he was told they might be related to anxiety or breathing problems. He stated that he had been hospitalized for blackouts, which he described as a loss in body control. Given the Veteran's complaints of blackouts during active service and his current reports of functional impairment, the Board finds that a remand is warranted for an additional VA examination. Increased Rating Claims Psychiatric Disability, Sinusitis, and Right Foot Pes Planus During the June 2021 Board hearing, the Veteran stated that his service-connected anxiety disorder, sinusitis, and right foot pes planus had worsened since he was last examined. Therefore, the Board finds that a remand is necessary for additional VA examinations. TDIU During the Board hearing, the Veteran raised the issue of entitlement to TDIU in connection with his claims for increased ratings. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the claim for a TDIU is inextricably intertwined with the claims remanded herein. Action on that issue is therefore deferred. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file, to include VA treatment records from Deltona and Ocala VA CBOCs, and private treatment records from Seminole Hospital and Adventist Health. 2. Obtain the Veteran's vocational rehabilitation file and associate it with his claims file. 3. Then, schedule the Veteran for a VA audiological evaluation to determine the nature and etiology of any currently present hearing loss. The claims file must be made available to, and reviewed by the examiner. Any indicated studies must be performed. The examiner should determine whether the Veteran has a hearing loss disability for VA purposes. If so, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present hearing loss is etiologically related to the Veteran's active service. A rationale for all opinions expressed must be provided. 4. Then, schedule the Veteran for an examination by an examiner with appropriate expertise to determine the nature and etiology of his claimed right shoulder disability. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any currently present right shoulder disability manifested during or is etiologically related to the Veteran's active service. A rationale for all opinions expressed must be provided. 5. Then, schedule the Veteran for an examination by an examiner with appropriate expertise to determine the nature and etiology of his claimed bilateral knee disability. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any currently present knee disability manifested during or is etiologically related to the Veteran's active service. A rationale for all opinions expressed must be provided. 6. Then, schedule the Veteran for an examination by an examiner with appropriate expertise to determine the nature and etiology of his claimed back disability. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any currently present back disability manifested during or is etiologically related to the Veteran's active service. A rationale for all opinions expressed must be provided. 7. Then, schedule the Veteran for an examination by an examiner with appropriate expertise to determine the nature and etiology of his claimed left foot disability. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any currently present left foot disability manifested during or is etiologically related to the Veteran's active service. A rationale for all opinions expressed must be provided. 8. Then, schedule the Veteran for an examination by an examiner with appropriate expertise to determine the nature and etiology of his claimed respiratory disability with chest pain. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any currently present respiratory disability manifested during or is etiologically related to the Veteran's active service, to include exposure to chemicals and/or hazardous materials. A rationale for all opinions expressed must be provided. 9. Then, schedule the Veteran for an examination by an examiner with appropriate expertise to determine the nature and etiology of his claimed disability manifested by blackouts. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any currently present disability manifested by blackouts was incurred in or is etiologically related to the Veteran's active service. A rationale for all opinions expressed must be provided. 10. Then, schedule the Veteran for an appropriate VA examination to determine the current level of severity of all impairment resulting from his service-connected anxiety and depressive disorders. The claims file must be made available to and reviewed by the examiner. All indicated tests should be performed and all findings should be reported in detail. The examiner should provide all information required for rating purposes and describe the effects of the service-connected disability on the Veteran's ordinary activity, including his ability to work. 11. Then, schedule the Veteran for an appropriate VA examination to determine the current level of severity of all impairment resulting from his service-connected left maxillary sinusitis. The claims file must be made available to and reviewed by the examiner. All indicated tests should be performed and all findings should be reported in detail. The examiner should provide all information required for rating purposes and describe the effects of the service-connected disability on the Veteran's ordinary activity, including his ability to work. 12. Then, schedule the Veteran for an appropriate VA examination to determine the current level of severity of all impairment resulting from his service-connected right foot pes planus. The claims file must be made available to and reviewed by the examiner. All indicated tests should be performed and all findings should be reported in detail. The examiner should provide all information required for rating purposes and describe the effects of the service-connected disability on the Veteran's ordinary activity, including his ability to work. 13. Confirm that the VA examination reports and all opinions provided comport with this remand and undertake any other development found to be warranted. 14. Then, readjudicate the remaining issues on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Mishalanie, 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.