Citation Nr: 21070349 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 19-30 571 DATE: November 23, 2021 ORDER The appeal as to the issue of entitlement to service connection for lymphadenopathy is dismissed. The appeal as to the issue of entitlement to service connection for gynecomastia is dismissed. REMANDED The issue of entitlement to service connection for an acquired psychiatric condition claimed as anxiety is remanded. The issue of entitlement to service connection for a right shoulder disability is remanded. The issue of entitlement to service connection for chronic fatigue is remanded. The issue of entitlement to service connection for memory loss is remanded. The issue of entitlement to service connection for a respiratory condition claimed as a collapsed lung with shortness of breath is remanded. FINDINGS OF FACT 1. Prior to the promulgation of a decision regarding the issue of entitlement to service connection for lymphadenopathy, the Veteran requested a withdrawal of the appeal of this issue. 2. Prior to the promulgation of a decision regarding the issue of entitlement to service connection for gynecomastia, the Veteran requested a withdrawal of the appeal of this issue. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal regarding the issue of entitlement to service connection for lymphadenopathy are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for withdrawal of the appeal regarding the issue of entitlement to service connection for gynecomastia are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 2002 to July 2008. These matters come to the Board of Veterans' Appeals (Board) on appeal from a June 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction is currently with the RO in Cleveland, Ohio. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in April 2021 and a transcript of the hearing has been associated with the claims file. The Board notes that the Veteran previously filed a claim for entitlement to service connection for spontaneous pneumothorax with shortness of breath (claimed as lung condition and collapsed lung) that was denied in a May 2016 rating decision. The Veteran was notified of that denial in May 2016 and, as the Veteran neither appealed nor submitted additional evidence within one year of the decision, it became final. Pursuant to 38 C.F.R. § 3.156, a claimant may reopen a finally adjudicated claim by submitting new and material evidence. The Board finds that such evidence has been received and it will reopen the pending claim for service connection. As such, the case is in a posture such that the Veteran's claim may be addressed on its merits. 1. Entitlement to service connection for lymphadenopathy 2. Entitlement to service connection for gynecomastia 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. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative and must be in writing, except for appeals withdrawn on the record at a hearing. Id. In Acree v. O'Rourke, the Federal Circuit Court of Appeals held that an effective claim withdrawal must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the veteran. 891 F.3d 1009 (Fed. Cir. 2018). Here, during the April 2021 Board hearing, the Veteran indicated that he wished to withdraw his appeal regarding the issues of entitlement to service connection for lymphadenopathy and entitlement to service connection for gynecomastia. The Veteran further indicated that he understood that by withdrawing those issues, the VLJ would not be able to make a decision on them. The Veteran's statement to withdraw was made on the record during his hearing and was later reduced to writing. The Board finds that this communication reflects an explicit and unambiguous withdrawal of the Veteran's claims and demonstrates a full understanding of the effect of such withdrawal. As a result, there remain no allegations of errors of fact or law for appellate consideration of this issue. Accordingly, the Board does not have jurisdiction and the Veteran's appeal as to these issues is dismissed. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric condition claimed as anxiety is remanded. 2. Entitlement to service connection for memory loss is remanded. The Veteran has not yet been afforded a VA examination in connection with his claims. VA must provide an examination when there is competent evidence of a disability (or persistent or recurrent symptoms of a disability) that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Lay testimony as to continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service, and the threshold for finding that the disability (or symptoms of a disability) may be associated with service is low. Id. at 83. Furthermore, the Veteran is competent to testify to in-service injuries, symptoms, and events. Jandreau v. Nicholson, 492 F.3d 1372, 1372 (Fed. Cir. 2007). The Veteran is seeking service connection for an acquired psychiatric condition claimed as anxiety. The Veteran is also seeking service connection for memory loss. The Veteran testified during the April 2021 Board hearing that he has current memory loss as a result of an in-service explosion during training. The Veteran testified during the April 2021 Board hearing that his current mental health problems and memory loss initially began during service and continued thereafter. The Veteran's service treatment records (STRs) document that the Veteran sought treatment for his mental health. The Veteran's STRs also document a head injury resulting in a concussion with loss of consciousness. The Board therefore finds that the threshold of the McLendon standard has been met, and that the Veteran should be afforded initial VA examinations addressing whether he has an acquired psychiatric condition incurred in or aggravated by military service and addressing whether he has memory loss incurred in or aggravated by military service. McLendon, 20 Vet. App. at 81. 3. Entitlement to service connection for a right shoulder disability is remanded. The Veteran contends that he has a right shoulder disability secondary to scarring associated with lung treatment. Accordingly, this matter is inextricably intertwined with the claim for service connection for a respiratory condition claimed as a collapsed lung with shortness of breath and must be deferred pending resolution of that claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1993) (holding that two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). 4. Entitlement to service connection for chronic fatigue is remanded. The Veteran is seeking service connection for chronic fatigue. Specifically, the Veteran contends that he noticed symptoms including constant tiredness shortly after his discharge from service. In this regard, the evidence of record includes May 2016 and October 2018 VA Gulf War examination reports in which the examiner indicated that the Veteran did not have a diagnosed illness with no etiology. The Board finds the May 2016 and October 2018 VA Gulf War examinations inadequate to decide the Veteran's claim for service connection for chronic fatigue. The examiners did not provide a rationale for their opinion that the Veteran did not have a diagnosed illness with no etiology. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning, and neither an examination report nor a medical opinion is entitled to any weight if it contains only data and conclusions). Further, the examiners did not address the Veteran's competent lay statements regarding experiencing symptoms of constant tiredness shortly after his discharge from service which continued thereafter. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (finding a medical examination inadequate where the examiner "impermissibly ignored the appellant's lay assertions that he had sustained a back injury during service"). Therefore, the Board finds that a remand is warranted to obtain a VA opinion with a comprehensive rationale. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). 5. Entitlement to service connection for a respiratory condition claimed as a collapsed lung with shortness of breath is remanded. The Veteran is seeking service connection for a respiratory condition claimed as a collapsed lung with shortness of breath. In this regard, the evidence of record includes an April 2016 VA Respiratory Conditions examination report in which the examiner opined that it was less likely than not that the Veteran's history of collapsed lung and occasional shortness of breath were related to a specific exposure event during Gulf War service. The examiner reasoned that there was no evidence that his history of collapsed lung and shortness of breath were caused by any specific exposure event during Gulf War service. The Board finds the April 2016 VA examiner opinion inadequate to decide the Veteran's claim for service connection for a respiratory condition. Specifically, the Board finds the April 2016 VA examiner opinion of low probative value because the examiner provided an inadequate rationale to support his negative nexus opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Accordingly, the Board finds that a remand is warranted to obtain a VA opinion with a more comprehensive rationale. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The matters are REMANDED for the following action: 1. Request that the Veteran provide or authorize VA to obtain records of his relevant treatment that have not yet been associated with the claims file, and associate with the claims file any outstanding VA treatment records. 2. Schedule the Veteran for a VA psychiatric examination to determine the nature, etiology, and date of onset of any psychiatric disorders that were diagnosed during the appeal period, to include claimed anxiety disorder. The claims file should be made available to the examiner and review of the file should be noted in the requested report. The examiner should record the full history of the identified disorders, including the Veteran's competent account of his symptoms. (a.) Please identify all current psychiatric disorders. Please specifically address anxiety listed on the Veteran's "Active Problems" list in his post-service medical records. (b.) For each diagnosed psychiatric disorder, is it at least as likely as not (50 percent probability or more) that it had its onset in service, or within one year of his separation from service, or is otherwise related to service? The examiner is asked to specifically address the Veteran's contention that his current mental health problems initially began during service and continued thereafter. The examiner is also asked to specifically discuss the Veteran's complaint and treatment for mental health symptoms documented in the STRs, including, little interest or pleasure in doing things; feeling down, depressed, or hopeless; and feeling numb or detached from other, activities, or surroundings documented on his post-deployment health assessment. (c.) All findings and conclusions should be supported with a complete rationale and set forth in a legible report, which should reflect the examiner's consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. 3. Schedule the Veteran for a VA examination to determine the nature, etiology, and date of onset of his memory loss. The claims file should be made available to the examiner and review of the file should be noted in the requested report. The examiner should record the full history of the identified disorder, including the Veteran's competent account of his symptoms. Following review of the claims file and examination of the Veteran, the examiner should respond to the following: (a.) Is it at least as likely as not (50 percent probability or more) that it had its onset in service, or within one year of his separation from service, or is otherwise related to service? The examiner is asked to specifically address the Veteran's contention that his current memory problems initially began during service and continued thereafter. The examiner is also asked to specifically address the head injury and concussion with loss of consciousness from an explosion documented in the Veteran's STRs. (b.) All findings and conclusions should be supported with a complete rationale and set forth in a legible report, which should reflect the examiner's consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. 4. Schedule the Veteran for a VA examination to determine the nature, etiology, and date of onset of his chronic fatigue. The claims file should be made available to the examiner and review of the file should be noted in the requested report. The examiner should record the full history of the identified disorder, including the Veteran's competent account of his symptoms. Following review of the claims file and examination of the Veteran, the examiner should respond to the following: (a.) Is it at least as likely as not (50 percent probability or more) that it had its onset in service, or within one year of his separation from service, or is otherwise related to service? The examiner is asked to specifically address the Veteran's contention that he noticed symptoms including constant tiredness shortly after his discharge from service. (b.) If a nexus to service cannot be established, please provide an opinion as to whether the disability pattern is consistent with (1) an undiagnosed illness; (2) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology; (3) a diagnosable chronic multisymptom illness with a partially explained etiology; or (4) a disease with a clear and specific diagnosis and etiology. (c.) If the Veteran's disability pattern is consistent with (3) or (4), the examiner is asked to answer whether it is at least as likely as not that the disability pattern or diagnosed disease is related to environmental exposures experienced by the Veteran during active duty, to include his service in Southwest Asia. (d.) All findings and conclusions should be supported with a complete rationale and set forth in a legible report, which should reflect the examiner's consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. 5. Return the file to the April 2016 VA examiner for an addendum opinion. If that examiner is unavailable, the opinion should be provided by another examiner. The claims file, and a copy of the remand, must be reviewed by the examiner. Following review of the file, and the remand, the examiner is to address the following: (a.) Is it at least as likely as not (50 percent probability or more) that it had its onset in service, or within one year of his separation from service, or is otherwise related to service? The examiner is asked to specifically address the Veteran's contention that he has a current respiratory condition as a result of in-service exposures related to his MOS duties while stationed in Iraq (securing massive burn pits). The examiner is also asked to specifically address environmental exposures, including exposure to burning trash and feces documented in the Veteran's STRs. (b.) Is it at least as likely as not that the Veteran's right shoulder disability was caused or aggravated beyond the natural progression by the Veteran's respiratory condition, to include collapsed lung with shortness of breath? Please address both causation and aggravation and explain why or why not. (c.) If the examiner finds the Veteran's right shoulder disability was aggravated by the respiratory condition, he/she should attempt to quantify the degree of aggravation beyond the baseline level. (d.) All findings and conclusions should be supported with a complete rationale and set forth in a legible report, which should reflect the examiner's consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith-Jennings, 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.