Citation Nr: 21070792 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 17-44 348 DATE: November 26, 2021 ORDER The issue of service connection for insomnia is dismissed. The issue of service connection for depression is dismissed. Service connection for a left ankle disorder, to include as secondary to service-connected bilateral pes planus, is denied. REMANDED The issue of service connection for migraine headaches, to include as secondary to service-connected post-traumatic stress disorder (PTSD), is remanded. The issue of service connection for a right ankle disorder, to include as secondary to service-connected bilateral pes planus, is remanded. FINDINGS OF FACT 1. During the March 2021 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew her appeal of the issues of service connection for insomnia and depression before the Board. 2. The preponderance of the evidence of record is against finding that the Veteran has had a diagnosis of a left ankle disorder at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issues of service connection for insomnia and depression by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria to establish entitlement to service connection for a left ankle disorder, to include as secondary to service-connected bilateral pes planus, have not been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.310(a), 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 2004 to June 2005 and from December 2009 to December 2010. Effective January 2019, the Veteran's combined service-connected disability rating is 100 percent. During the March 2021 Board hearing, the Veteran withdrew her claims of service connection for insomnia and depression. Therefore, these claims will be dismissed. Service connection for a left ankle disorder, to include as secondary to service-connected bilateral pes planus, will be denied because the evidence does not show that the Veteran has had a diagnosis of a left ankle disorder at any time during or approximate to the pendency of the claim. The issues of service connection for migraine headaches, as secondary to service-connected PTSD, and for a right ankle disorder, to include as secondary to service-connected bilateral pes planus, will be remanded for VA examinations to determine the etiology of the disorders. 1. The issues of service connection for insomnia and depression have been withdrawn. Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. An appeal may be withdrawn in writing at any time before the Board promulgates a decision. See 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his authorized representative. Id. During the March 2021 Board hearing, the Veteran providently withdrew her appeal of the issues of service connection for insomnia and depression. Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011) ("[W]ithdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant"). There remains no allegation of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of the issues of service connection for insomnia and depression, and it is dismissed. Service Connection Service connection may be granted for a current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. §§ 1110. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §§ 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310(a). For secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). In deciding an appeal, the Board must first determine the competency of evidence. "Competency" means that the person who makes the statement is qualified by training, education, an occupation, or other reason to make the statement. For example, medical professionals are generally competent through training and experience to express opinions about whether a disability was caused by service. Generally, the opinions of medical professionals such as doctors, psychiatrists, nurses, and others who work in the health care field are evaluated by their apparent training, as well as the detail of their reports and knowledge of the facts in individual cases. Medical professionals may also report various findings of laboratory studies and clinical testing that could be evidence in a claim, such as the level of hearing impairment, blood tests, range of motion testing in joint pain, etc. If a person making a statement is not medically trained (i.e., a "layperson"), the Board must determine in individual cases whether a veteran's particular disability is the type where a layperson's statement may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because they require only personal knowledge of what is observed through senses and not medical expertise. Lay testimony is competent to establish the presence of observable symptoms, where the determination is not medical in nature and is capable of lay observation. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. See Jandreau, 492 F.3d at 1377. If the Board finds that the evidence is competent, it must then determine whether the evidence is credible. Credibility is a factual determination it involves deciding whether the testimony or other evidence is believable. Whether a statement is credible is decided after the evidence has been found competent. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Board must decide whether the evidence supports the claim, with the veteran prevailing; or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. §§ 5107(b); 38 C.F.R. §§ 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. §§ 5107(b). 2. Service connection for a left ankle disorder, to include as secondary to service-connected bilateral pes planus, is denied. The Veteran has not been diagnosed with a left ankle disorder and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The appeal will be denied. The Veteran's service treatment records do not contain any complaints, treatment, or diagnosis of any left ankle disorder. The June 2017 VA ankle disorders examination shows only a right ankle ligament strain with instability. The Veteran's post-service medical records do not show a diagnosis of a left ankle disorder. During the March 2021 Board hearing, the Veteran testified, "I think the right and left ankle pain is supposed to be only the right ankle pain [. . .] [s]o it should only be the right ankle." As discussed above, the Veteran's medical records do not contain a diagnosis of a left ankle disorder, and, in the March 2021 Board hearing, the Veteran testified that it was only her right ankle that caused her pain. Therefore, the preponderance of the evidence of record is against finding that the Veteran has had a diagnosis of a left ankle disorder at any time during or approximate to the pendency of the claim. Since the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. REASONS FOR REMAND 1. The issue of service connection for migraine headaches, to include as secondary to service-connected PTSD, is remanded. 2. The issue of a right ankle disorder, to include as secondary to service-connected bilateral pes planus, is remanded. The matters are REMANDED for the following action: 1. BACKGROUND FOR THE RO ADJUDICATOR: The Veteran contends that her service-connected PTSD worsens her migraine headaches. During the June 2017 VA examination, the examiner provided a negative nexus opinion on direct service connection. However, the examiner did not provide an opinion as to whether the disorder is secondarily related to the Veteran's service-connected PTSD, or wither the disorder is separate and distinct from her PTSD or merely a symptom thereof. Therefore, remand is necessary to determine the etiology of the Veteran's migraine headaches. The Veteran contends that her right ankle disorder is related to her service, to include as secondary to her service-connected bilateral pes planus. During the June 2017 VA foot disorders examination, the examiner provided a negative nexus opinion on direct service connection. However, the examiner did not provide an opinion as to whether the disorder is secondarily related to the Veteran's service-connected bilateral pes planus. Therefore, remand is necessary to determine the etiology of the Veteran's right ankle disorder. THE REMAND DIRECTIVES FOLLOW. 2. Schedule the Veteran for a VA examination with the examiner who conducted the June 2017 VA examination. If the examiner is no longer available, schedule the Veteran for an examination with an appropriate examiner, to determine the nature and etiology of her migraine headaches, to include as secondary to service-connected PTSD. The Veteran's claims file, to include a copy of this Remand, must be reviewed by the examiner. The examination report should reflect that this review was done. Based upon a review of the relevant evidence of record, history provided by the Veteran, and sound medical principles, the VA examiner MUST provide the following opinions: (a.) Provide an opinion as to whether the Veteran has a migraine headache disorder that his separate and distinct from symptoms of her service-connected PTSD. (b.) If the examiner determines that the Veteran's migraine headaches are separate and distinct from symptoms of her service-connected PTSD, opine as to whether her migraine headaches are caused or aggravated by her service-connected PTSD. (c.) If the examiner determines that the Veteran's migraine headaches are separate and distinct from symptoms of her service-connected PTSD, but that her migraine headaches are not caused or aggravated by her service-connected PTSD, to the extent possible, provide an opinion as to the likely etiology of her migraine headaches. The examiner must review the entire record in conjunction with rendering the requested opinions. In addition to any records that are generated because of this Remand, the VA examiner's attention is drawn to the following: * The Veteran's PTSD is service connected. * Service treatment records do no contain complaints, treatment, or diagnosis of a migraine headache disorder in-service. * A September 2011 private medical record shows a diagnosis of migraine headaches. * The June 2017 VA examiner provided a negative nexus opinion on direct service connection. However, the examiner did not opine as to whether the disorder was caused or aggravated by the Veteran's service-connected PTSD. * During the March 2021 Board hearing, the Veteran testified that her migraine headaches began in-service in 2010 and have been constant since discharge from service. She also testified that her PTSD worsens her migraine headaches. In particular, she testified that her PTSD causes her to clinch her jaw and grind her teeth, which causes headaches. 3. Schedule the Veteran for a VA examination with the examiner who conducted the June 2017 VA examination. If the examiner is no longer available, schedule the Veteran for an examination with an appropriate examiner, to determine the nature and etiology of her right ankle disorder, to include as secondary to service-connected bilateral pes planus. The Veteran's claims file, to include a copy of this Remand, must be reviewed by the examiner. The examination report should reflect that this review was done. Based upon a review of the relevant evidence of record, history provided by the Veteran, and sound medical principles, the VA examiner MUST provide the following opinions: (a.) Provide an opinion as to whether the Veteran's current right ankle disorder was caused or aggravated by her service-connected bilateral pes planus. (b.) If the examiner determines that the Veteran's current right ankle disorder was not caused or aggravated by her service-connected bilateral pes planus, to the extent possible, provide an opinion as to the likely etiology of her right ankle disorder. The examiner must review the entire record in conjunction with rendering the requested opinions. In addition to any records that are generated because of this Remand, the VA examiner's attention is drawn to the following: * The Veteran is service-connected for bilateral pes planus. * A September 2007 physical profile shows a right ankle ligament injury. * The Veteran has a current diagnosis of a right ankle strain with instability. * The June 2017 VA examiner provided a negative nexus opinion on direct service connection. However, the examiner did not opine as to whether the disorder was caused or aggravated by the Veteran's service-connected bilateral pes planus. * During the March 2021 Board hearing, the Veteran testified that she has had right ankle problems since her service. She testified to her belief that her bilateral pes planus causes her ankle to turn incorrectly. A thorough explanation must be provided for the opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, s/he should expressly indicate this and provide supporting rationale as to why the opinions cannot be made without resorting to speculation. The examiner is advised that by law, the mere statement that the claims folder was reviewed, and/or the examiner has expertise is not sufficient to find the examination/opinion sufficient. 4. Following the review and any additional development deemed necessary, re-adjudicate the claims. Should the claims not be granted in their entirety, issue an appropriate supplemental statement of the case (SSOC) and forward the claims to the Board for adjudication. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Timothy T. Emmart The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.