Citation Nr: 21068108 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 19-36 166A DATE: November 9, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for right knee patellofemoral pain syndrome has been withdrawn. Entitlement to an initial disability rating in excess of 10 percent for right elbow triceps tendonitis has been withdrawn. REMANDED Entitlement to an initial compensable disability rating for residuals of right orbital floor fracture is remanded. Entitlement to service connection for a left elbow disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include generalized anxiety disorder is granted. FINDINGS OF FACT 1. During the August 6, 2021 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran requested withdrawal of the appeal of his claim for entitlement to an initial disability rating in excess of 10 percent for right knee patellofemoral pain syndrome. 2. During the August 6, 2021 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran requested withdrawal of the appeal of his claim for entitlement to an initial disability rating in excess of 10 percent for right elbow triceps tendonitis. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to an initial disability rating in excess of 10 percent for right knee patellofemoral pain syndrome by the Appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of entitlement to an initial disability rating in excess of 10 percent for right elbow triceps tendonitis by the Appellant have been 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 from March 2011 to October 2016. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision and a June 2017 rating decision. In August 2021, the Veteran and his spouse testified before the undersigned Veterans Law Judge (VLJ) at a hearing. A transcript of that hearing is of record. 1. Entitlement to an initial disability rating in excess of 10 percent for right knee patellofemoral pain syndrome has been withdrawn. 2. Entitlement to an initial disability rating in excess of 10 percent for right elbow triceps tendonitis has been withdrawn. 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. Id. An oral withdrawal of an appeal, such as one made at a hearing, must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the claimant. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018) (the Board must address all three prongs of the DeLisio standard when it applies). In the present case, the Appellant has withdrawn his claims for entitlement to increased disability ratings for right knee patellofemoral pain syndrome and right elbow triceps tendonitis and, hence, there remain no allegations of errors of fact or law for appellate consideration. First, the Board finds that the withdrawal was explicit and unambiguous as the August 2021 hearing transcript provides that the Veteran responded "[y]es" when asked whether he wished to proceed with the withdrawal of the above issues. Further, the withdrawal was done with a full understanding of the consequence of such action as the hearing transcript demonstrates that the undersigned VLJ explained that withdrawing these claims would mean that the Veteran is no longer pursuing them and that the Board would not decide them on the merits. Id. Moreover, the Board finds that the hearing transcript satisfies the written requirements of 38 C.F.R. § 19.55 concerning the withdrawal of the appeal for these issues. See Tomlin v. Brown, 5 Vet. App. 355, 357-58 (1993). Accordingly, the Board does not have jurisdiction to review the above issues and they are dismissed. REASONS FOR REMAND Unfortunately, the below claims must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims, so he is afforded every possible consideration. 3. Entitlement to an initial compensable disability rating for residuals of right orbital floor fracture is remanded. The Board finds that a new VA examination is warranted to assess the current nature and severity of the Veteran's service-connected residuals of right orbital floor fracture. See 38 C.F.R. § 3.327(a) (providing that reexaminations will be requested whenever VA needs to determine the current severity of a disability). The Veteran was last afforded an Eye Conditions Disability Benefits Questionnaire in July 2018. The examination report states that the Veteran reported sudden pain behind his right eye multiple times per week that lasts for one to two seconds and fades away. He also advised of a vertical tracking issue that can cause nausea. The examination report provides that the Veteran does not have diplopia or double vision and he does not have an astigmatism. The examination report concludes that his eye disability does not impact his ability to work. Since that time, the evidence demonstrates that the Veteran's residuals of right orbital floor fracture have worsened. During the August 2021 hearing, the Veteran stated that the symptoms that he has relating to his residuals of right orbital floor fracture are eye pain, ocular migraine, visual field loss, double vision, and spasms and related functional impairment at school and work. Further, a September 2021 private treatment record provides that the Veteran has right eye pain and nystagmus. He has had intermittent, very sharp, 10 out of 10 pain behind his right eye. His right eye twitches at times and shakes. When completing a peripheral vision test, the line that the Veteran was supposed to follow with his eyes was "wiggling." He occasionally has double vision and some astigmatism. Considering that the Veteran's last examination occurred more than three years ago and the evidence that his disability picture has changed, the Board finds that the current evidence of record does not adequately reveal the present state of his residuals of right orbital floor fracture. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (wherein the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month-old examination was too remote in time to adequately support the decision in an appeal for an increased rating); Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007), citing Caluza v. Brown, 7 Vet. App. 498, 505-06 (1998) (Where the record does not adequately reveal the current state of the claimant's disability the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination."); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). 4. Entitlement to service connection for a left elbow disability is remanded. The Veteran was afforded a July 2018 Elbow and Forearm Conditions Disability Benefits Questionnaire. The examination report does not indicate that the Veteran has a diagnosis or symptoms relating to his left elbow. The examination report states that the Veteran has right triceps tendonitis and he reported right elbow symptoms of pain associated with bodyweight exercises and weightlifting. For the reasons discussed below, the Board finds that the examination report is inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). During the August 2021 hearing the Veteran stated that he currently has the same symptomatology in his left elbow as he does in his right elbow. In terms of functional impairment, the Veteran also provided that he has related functional impairment as difficulty with bodyweight exercises. The Board finds the July 2018 examination report is inadequate because under Saunders v. Wilkie, the United States Court of Appeals for the Federal Circuit Court held that pain alone, even without an underlying pathology or diagnosis, can constitute a disability under VA law where such pain results in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a "disability" under 38 U.S.C. § 1110 refers to functional impairment of earning capacity; pain need not be diagnosed as connected to a current underlying condition to function as an impairment.). The Board notes that the Veteran's recent private treatment records demonstrate that he has chronic left elbow pain. Considering Saunders and that pain alone resulting in functional impairment (without an underlying pathology) can constitute a disability for VA purposes, as well as the Veteran's competent statements of experiencing left elbow and related functional impairment and private treatment records showing chronic elbow pain, the Board finds that he should be afforded a new VA examination to determine the nature and etiology of any identified disability. 5. Entitlement to service connection for a right ankle disability is remanded. 6. Entitlement to service connection for an acquired psychiatric disorder, to include generalized anxiety disorder is remanded. Because there is at least an indication that the Veteran's right ankle disability and acquired psychiatric disorder may be related to his active service, examinations and opinions must be provided to make an informed decision on these claims for service connection. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); see also Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is not competent to substitute its own opinion for that of a medical expert). VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon, 20 Vet. App. 79. The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83. That threshold having been met for the above claims for service connection, VA examinations and opinions must be provided to make informed decisions on the Veteran's claims. The Board notes that the Veteran failed to report for scheduled examinations to evaluate the nature and etiology of his right ankle disability and acquired psychiatric disorder. Evidence from the Veteran's claims folder demonstrates that there was confusion regarding the scheduling of these examinations. Given the Veteran's circumstances, the Board finds that there is good cause for him having missed the previously scheduled examinations. See 38 C.F.R. § 3.655. The Veteran also stated during the August 2021 hearing that if examinations were ordered, he would report to those examinations. Therefore, additional efforts should be undertaken to provide the Veteran with examinations to evaluate the nature and etiology of his right ankle disability and acquired psychiatric disorder. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Ask the Veteran to complete a VA Form 21-4142 for any physicians and facilities relating to treatment for the issues on appeal. Make two requests for the authorized records from all physicians and facilities identified by the Veteran relating to treatment for the issues on appeal, unless it is clear after the first request that a second request would be futile. 3. After the above development is completed, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected residuals of right orbital floor fracture. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's residuals of right orbital floor fracture under the rating criteria. In doing so, the examiner must consider the lay statements contained in the Veteran's claims folder, including his August 2021 hearing testimony, concerning his reported and observed symptoms. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left elbow disability. The examiner must review the Veteran's claims folder. The examiner must: (a.) Identify all current left elbow disabilities by either (1) diagnosis or (2) functional impairment. (b.) Opine whether it is at least as likely as not (50 percent probability or greater) that any diagnosed left elbow disability, to include pain resulting in functional impairment of earning capacity, had its clinical onset during his active service or is related to an in-service injury, event, or disease. In providing these opinions, the examiner must consider the lay statements contained in the Veteran's claims folder concerning his reported and observed symptoms during and after his active service. All examination findings, along with the complete rationale for all opinions expressed, must be set forth in the examination report. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any right ankle disability. The examiner must review the Veteran's claims folder. The examiner must: (a.) Identify all current right ankle disabilities by either (1) diagnosis or (2) functional impairment. (b.) Opine whether it is at least as likely as not (50 percent probability or greater) that any diagnosed right ankle disability, to include pain resulting in functional impairment of earning capacity, had its clinical onset during his active service or is related to an in-service injury, event, or disease. In providing these opinions, the examiner must consider the lay statements contained in the Veteran's claims folder concerning his reported and observed symptoms during and after his active service; this includes the Veteran's August 2021 hearing testimony that he sprained and rolled his ankle several times during service. All examination findings, along with the complete rationale for all opinions expressed, must be set forth in the examination report. 6. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder. The examiner must review the Veteran's claims folder. The examiner must: (a.) Identify all current acquired psychiatric disorder(s) found to be present during the pendency of the appeal. (b.) Opine whether each diagnosed disorder is at least as likely as not (50 percent probability or greater) related to an in-service injury, event, or disease, to include witnessing an assault at Camp Buehring, Kuwait. In providing these opinions, the examiner must consider the lay statements contained in the Veteran's claims folder concerning his reported and observed symptoms during and after his active service. In particular: A July 2017 Neuropsychological Screening states that the Veteran reported that he experiences problems with concentration, distraction, problems hearing, forgetfulness, slowed thinking, trouble sleeping, frustration tolerance, and problems falling asleep. Additionally, he reported symptoms of anxiety and trouble relaxing and feeling afraid that something bad may happen more days than not. He has some nervousness, irritability, restlessness. He feels depressed and he has some PTSD symptoms. The examiner diagnosed generalized anxiety disorder, mild, and a history of attention deficit/hyperactivity disorder. The Veteran advised in an October 2020 written statement that during his active service had problems sleeping, irritability, and was easily overwhelmed, withdrawn, and less optimistic about life. The Veteran and his spouse sought counseling through Military and Family Life Counseling Program (MFLAC) during his active service. He continues to have problems with anxiety, and symptoms of dread, restlessness, irritability, and withdrawal. He has had these symptoms since his active service and has been prescribed medication for anxiety. In an October 2020 written statement, the Veteran's spouse stated that since his deployment ended, he has been depressed, despondent, anxious, and had difficulty sleeping. He was withdrawn from family, friends, and activities after his deployment, and this has continued since his active service. During the August 2021 hearing, the Veteran advised of currently feeling threatened by the unhoused population in Hawaii, and experiencing an exaggerated startle response, hypervigilance, problems with memory, paranoia, crowd avoidance, and difficulty sleeping. All examination findings, along with the complete rationale for all opinions expressed, must be set forth in the examination report. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mussey, Sean 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.