Citation Nr: 21071530 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 19-25 667 DATE: November 30, 2021 ORDER Entitlement to an increased initial evaluation in excess of 50 percent for anxiety disorder with hyper-somnolence has been withdrawn. REMANDED Entitlement to service connection for a left ankle condition is remanded. Entitlement to service connection for a right ankle condition is remanded. Entitlement to service connection for hypothyroidism is remanded. FINDING OF FACT At a May 2021 hearing before the undersigned Veterans Law Judge (VLJ), the Veteran knowingly and willing withdrew his claim for entitlement to an increased initial evaluation in excess of 50 percent for an anxiety disorder with hyper-somnolence. CONCLUSION OF LAW The criteria for withdrawal of a claim for entitlement to an increased initial evaluation in excess of 50 percent anxiety disorder with hyper-somnolence by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2012 to June 2014. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran was provided with a hearing before the undersigned VLJ in May 2021. A copy of the transcript is of record and has been reviewed accordingly. At a May 2021 hearing before the undersigned Veterans Law Judge (VLJ), the Veteran knowingly and willing withdrew his claim of entitlement to an increased initial evaluation in excess of 50 percent for his service connected psychiatric disability. 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 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204.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. 38 C.F.R. § 20.204. In the present case, the Veteran, at the May 2021 hearing appearance, has withdrawn this appeal with regard to the issue of entitlement to an increased initial evaluation in excess of 50 percent for an anxiety disorder with hyper-somnolence, and, hence, there remains no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. REASONS FOR REMAND 1. Bilateral Ankles Service treatment records show the Veteran was treated for left ankle sprain in 2013. He contends current left ankle disability arises from that injury. He contends his right ankle disability is secondary to his left ankle impairment. A May 2018 MRI of the right ankle revealed mild multifocal patch bone marrow edema involving the distal tibia and talus; a longitudinal split tear of the peroneus brevis tendon in the inframalleolar segment; a remote sprain/attenuation of the anterior talofibular ligament (ATFL) and calcaneofibular ligament (CFL); a cluster of ossicles inferior to the tip of the medial malleolus compatible with an old avulsion injury; an moderate reactive tendon sheath fluid at the level of the medial malleolus. March 2018 left ankle x-rays revealed no significant abnormalities; but the Veteran was assessed as having left ankle pain with mechanical symptoms and left ankle instability. It was indicated he was to have an MRI of the left ankle, but the report of any such evaluation has not been associated with the file. The Veteran was provided with a VA examination in October 2018, and the examiner was asked to provide an opinion with respect to the left ankle. When examined, both ankles revealed reduced range of motion, although X-rays taken at that time were interpreted as normal. The examiner did not enter a diagnosis for either ankle, but she responded to the question posed, that it was less likely than not the claimed condition was incurred in or caused by the claimed in-service injury. The rationale was that there was no chronicity of symptoms since the in-service injury in May 2013. She noted the Veteran served another year without left ankle complaints, and when he sought post-service care, it was directed toward the right ankle. She also noted that the Veteran's initial claim for VA disability benefits did not mention the left ankle, but only the right ankle. In regard to this aspect of the appeal, the Board observes the earlier March 2018 private treatment records document left ankle complaints including tenderness and instability, and the Veteran now reports on-going discomfort in the left ankle since service. He explains the absence of documented complaints for a number of years post service, on his inability to obtain medical insurance. In view of the reported history and earlier findings, another opinion should be sought that more specifically addresses the Veteran's subjective history. In addition, as it appears the Veteran was to have a left ankle MRI that was ordered by his private physician, the record of which is not in the file, an attempt should be made to obtain it. 2. Hyperthyroidism The Veteran contends that his currently diagnosed Hashimoto's thyroid disease began in military service, as evidenced by symptoms of weight fluctuations and hypersomnolence documented at that time. Service treatment records show that the Veteran was diagnosed to have idiopathic hypersomnia in 2013. It also is observed that the Veteran had experienced weight fluctuations. It appears his weight on service entrance was 182 pounds, in October 2013 it was 205 pounds, and at service separation, 170 pounds. It also appears that the Veteran was provided with laboratory testing during service for suspected thyroid involvement, but the testing resulted in normal findings. The Veteran apparently was diagnosed to have Hashimoto's thyroid disease in 2017. A May 2021 statement from the Veteran's treatment provider indicated that hypersomnolence and fatigue could have been symptoms of the thyroid condition. However, no further rationale was provided. The Veteran was provided with VA examinations in April 2018 and October 2018. In both instances, while the Veteran's hypothyroidism diagnosis was confirmed, the examiner's found that that the fact that the Veteran's thyroid laboratory findings were normal made it less likely than not that such condition began in service. Although both acknowledged the Veteran's in-service complaints of hypersomnolence, they did not further discuss why such complaints could not be early indicators of Hashimoto's thyroid disease, as indicated by the private provider. Because both the private and VA opinions of record failed to provide complete rationales for their opinions, an addendum opinion with citations to relevant medical authority should be sought. The matters are REMANDED for the following action: 1. Ask the Veteran to identify any additional relevant records he wishes considered in connection with his claims, in particular any MRI reports of the left ankle as may have been sought by his private provider with Memorial Health System, in April 2018. The identified records should be sought. 2. Thereafter, schedule the Veteran for an examination with an appropriate examiner for his current bilateral ankle disabilities. The examiner should identify all diagnoses pertinent to each ankle. The examiner is asked to address the following: a) Whether it is at least as likely as not (a 50 percent probability or greater) that any current left ankle disability is related to an injury, event, or disease that occurred during active duty? b) Whether it is at least as likely as not (a 50 percent probability or greater) that any right ankle disability is due to, or was otherwise caused by, any current left ankle disability? c) Whether it is at least as likely as not (50 percent probability or greater) that any right ankle disability was aggravated (permanent worsening beyond the natural progression) by the Veteran's left ankle disability? The examination report should reflect consideration of the Veteran's documented medical history and lay assertions. For the limited purpose of providing the requested opinions, the examiner may assume the credibility of the Veteran's lay statements. A complete rationale should be provided for any opinions or conclusions expressed. 3. Obtain an opinion from an appropriate person regarding whether any in-service medical findings, including any hypersomnolence, fatigue and weight fluctuations, are early indicators of Hashimoto's thyroid disease. In so doing, the examiner should discuss the May 2021 private opinion finding that hypersomnolence and fatigue could be an early indication of Hashimoto's thyroid disease. The opinion also should discuss whether normal blood work could occur during the early stage of the Veteran's thyroid disability. A complete rationale should be provided for any opinions or conclusions expressed. 4. Readjudicate the appeal. M. E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dodd, Ryan 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.