Citation Nr: 21068142 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 18-41 441 DATE: November 9, 2021 ORDER The appeal seeking service connection for a bilateral knee condition is dismissed. The appeal seeking service connection for bilateral shin splints is dismissed. The appeal seeking service connection for right ear hearing loss is dismissed. The appeal seeking a compensable rating for left ear hearing loss is dismissed. Service connection for a lumbar spine disability is granted. Service connection for bilateral pes planus is granted. Service connection for plantar fasciitis is granted. Service connection for sleep apnea is granted. Service connection for a bilateral foot injury is denied. REMANDED Service connection for a deviated septum is remanded. FINDINGS OF FACT 1. In his March 2021 hearing, the Veteran in the presence of his representative, requested to withdraw from appellate status his claims for service connection for bilateral knee disabilities, bilateral shin splints, and right ear hearing loss, and his claim for a compensable rating for left ear hearing loss. 2. The Veteran has a diagnosis of a lower back disorder, bilateral pes planus, and bilateral planar fasciitis which are attributable to his active duty service. 3. The Veteran has a diagnosis of sleep apnea which has been attributed to his active duty service and his service connected respiratory disability and lumbar spine disorder. 4. Other than the Veteran's pes planus and plantar fasciitis, there is no diagnosed bilateral foot injury which has been attributed to his active duty service. CONCLUSIONS OF LAW 1. The criteria for dismissal of the claims for service connection for bilateral knee disabilities, bilateral shin splints, and right ear hearing loss, and his claim for a compensable rating for left ear hearing loss are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for service connection for a lower back disorder, bilateral pes planus, and bilateral planar fasciitis are met. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.3.09. 3. The criteria for service connection for sleep apnea are met. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.3.09, 3.310. 4. The criteria for a bilateral foot injury are not met. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.3.09. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1988 to November 1988 and from February 1990 to January 1993. He is the recipient of the Combat Action Ribbon. In March 2021, the Veteran testified before the undersigned Veterans' Law Judge. A copy of the transcript is associated with the record. Dismissal 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. In his March 2021 hearing, the Veteran in the presence of his representative, stated that he wanted to withdraw his claims for service connection for bilateral knee disabilities, bilateral shin splints, and right ear hearing loss, and his claim for a compensable rating for left ear hearing loss. The withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of such action. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018); DeLisio v. Shinseki, 25 Vet. App. 45 (2011). As such, there remains no allegation of error of fact or law for the Board to address. Accordingly, the Board does not have jurisdiction to review the appeal of these issues and they are dismissed. Service Connection Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. In deciding the Veteran's claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Lower Back Bilateral Pes Planus Bilateral Plantar Fasciitis In this matter, the Veteran has been diagnosed with a lower back disability, bilateral pes planus, and bilateral plantar fasciitis. See August 2014, April 2015 VA examination, and November 2016, December 2016, February 2021, March 2021 private medical reports. The Veteran has submitted private medical records and private medical opinions from his treating providers that these conditions are related to his periods of active duty service. See February 2021 and March 2021 private medical reports. These examiners reviewed the Veteran's service treatment records and treated the Veteran for his claimed conditions. The Board is aware that there are VA examinations which have found that the Veteran's claimed disabilities are not related to his active duty service, including his service in Southwest Asia. As such, there is an approximate balance of positive and negative evidence regarding the etiology of the Veteran's low back and foot disabilities. The Board finds that the evidence is in equipoise as to the etiology of the Veteran's back, pes planus, and plantar fasciitis disabilities. Service connection for the Veteran's back, pes planus, and plantar fasciitis, then, is granted. Sleep Apnea The record shows that the Veteran has been diagnosed with sleep apnea. See April 2015 VA examination and November 2016, January 2017, and March 2021 private medical records. The Veteran has submitted medical records which have attributed his sleep apnea to his Southwest service, respiratory disabilities/asthma, and neck disabilities. See January 2017 and March 2021 private medical records. Though the record also contains VA examinations which did not find that the Veteran's sleep apnea was related to his active duty service, to include his service in Southwest Asia, or his service connected disabilities, the Board notes that the examinations occurred prior to the Veteran's service connection for his respiratory conditions (contained in an August 2021 Rating Decision) or his back disability, as discussed above. As such, the Board does not afford these examinations probative weight. The remaining evidence does establish a connection between the Veteran's service, respiratory conditions, and back disability to his sleep apnea. Secondary service connection requires a finding that that the current disability was either caused by or aggravated by a service-connected disability. As to the Veteran's sleep apnea, such a connection is supported by the evidence of record. Accordingly, the Board finds that service connection for sleep apnea, as secondary to his service connected respiratory conditions and back disability, is warranted. Bilateral Foot Injury The records submitted by the Veteran regarding his foot disabilities showed he had been diagnosed with bilateral pes planus and plantar fasciitis. See February 2021 and March 2021 private medical records. These records, upon which the Board granted service connection, do not show that the Veteran has been diagnosed with any other foot injury. Further, there is no other evidence of record which establishes that the Veteran has been diagnosed with any other foot disability which is attributable to his active duty service. In his hearing testimony, the Veteran did not identify any other foot injury or disability beyond his pes planus and plantar fasciitis that he associated with his active duty service. As such, the Board finds that the preponderance of the evidence is against find that the Veteran has a bilateral foot injury which is attributable to the Veteran's active duty service. As such, the claim for a bilateral foot injury must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Deviated Septum The medical evidence of record shows the Veteran has a deviated septum. See .... The Veteran testified in his March 2021 hearing that he suffered a facial injury during service. Upon review of the record, the Board notes that no examination regarding the etiology of the Veteran's deviated septum and its possible link to the Veteran's service has been conducted. Remand is necessary as the low threshold for obtaining such an examination and medical opinion has been surpassed in this case. See 38U.S.C. §5103A (d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The matter is REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his deviated septum. The claims file should be made available to the examiner for review. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's deviated septum was incurred in, or due to, the Veteran's service. The Veteran's lay statements regarding onset and continuity of symptomology should be recorded and considered. The examiner is asked to specifically consider the Veteran's March 2021 hearing testimony wherein he reported an injury to his face during his active duty. The examiner is reminded that the Veteran is credible in his report of his in-service injury and that the lack of a service treatment record regarding the injury is not sufficient cause to find the Veteran's report of his in-service injury not credible. A rationale for all opinions must be provided. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Parrish, 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.