Citation Nr: 21071557 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-46 889 DATE: November 30, 2021 ORDER Entitlement to service connection for right lower extremity edema is dismissed. REMAND Entitlement to service connection for impaired short-term memory loss is remanded. Entitlement to service connection for left lower extremity edema is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for left leg torn ligaments is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to an initial compensable rating for service-connected tendonitis of the left ankle (hereafter referred to as a left ankle disability") is remanded. FINDING OF FACT At her July 21, 2021, hearing, the Veteran withdrew the issue of entitlement to service connection for right lower extremity edema. CONCLUSION OF LAW The criteria for withdrawal of entitlement to service connection for right lower extremity edema are met. Acree v. O'Rourke, 891 F.3d 1009, 1012 (Fed. Cir. 2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Air Force from June 1986 to June 1989 and in the Air Force Reserves from June 1989 to December 2011. During the latter period, her unit was put into active status from February 2003 to September 2004 and March 2, 2010, to March 8, 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. A Board hearing was conducted via the virtual hearing process. A transcript of this hearing is contained within the electronic claims file. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55(a). Oral withdrawal may be made by a veteran or by an authorized representative and must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action by the appellant. Acree, 891 F.3d at 1012; DeLisio v. Shinseki, 25 Vet. App. 45, 5758 (2011). A satisfactory withdrawal of an appeal will be deemed a withdrawal of the Notice of Disagreement (NOD) and, if filed, the Substantive Appeal (VA Form 9), as to all issues to which the withdrawal applies. Withdrawal does not preclude filing a new NOD and, after a Statement of the Case is issued, a new VA Form 9, as to any issue withdrawn, provided such filings would be timely under these rules if the appeal withdrawn had never been filed. 38 C.F.R. § 19.55(c). At the hearing, the Veteran indicated that at "this point in my right leg, sir, I'm not having significant swelling." July 21, 2021, Hearing Transcript (Tr.) at 6. The undersigned Veterans Law Judge (VLJ) replied: "Okay. So, do you want to continue the right leg edema claim, or do you want to withdraw it?" Id. The Veteran confirmed that she wanted to withdraw the claim because she was not "really having symptoms in that leg[.]" Id. The Board finds that the withdrawal comports with the necessary requirements. The Veteran's desire to withdrawal this claim was explicit, unambiguous, and done with an understanding that her claim would be denied because she has no symptoms in her right leg. See Acree, 891 F.3d at 1012. As an effective withdrawal, the associated NOD and VA Form 9 also have been withdrawn. As such, the Board is precluded form effectuating appellate consideration over this issue, so the appeal hereby is dismissed. See 38 C.F.R. § 19.55(c). REASONS FOR REMAND If further evidence, clarification of the evidence, correction of a procedural defect, or any other action is essential for a proper appellate decision, a VLJ shall remand the case to the agency of original jurisdiction (AOJ), specifying the action to be undertaken. 38 C.F.R. § 20.904(a). 1. Entitlement to service connection for impaired short term memory loss is remanded. The Veteran alleges that she experiences short term memory loss due to chemical exposure during her time in Kuwait in 2003; this has caused her to be "not as sharp in recalling recent events." Tr. at 14. These symptoms began about six monthsone year after she returned from that deployment. Id. Service connection may be warranted for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2026. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). Compensation shall not be paid under this section for a chronic disability if there is affirmative evidence that the disability (1) was not incurred during active military, naval, or air service in the Southwest Asia theater of operations, (2) was caused by a supervening condition or event that occurred between the veteran's most recent departure from active duty in the Southwest Asia theater of operations and the onset of the disability, or (3) is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(a)(7). Unlike service connection on a direct basis, the provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 do not require a competent medical nexus of a link between the qualifying chronic disability and military service. The term "Persian Gulf Veteran" means a veteran who, during the Persian Gulf War, served on active military, naval, or air service in the Southwest Asia theater of operations. The Southwest Asia theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(e)(2). The term "chronic," in "qualifying chronic disability," as it appears in subsection (a)(1), further is defined. Disabilities that have existed for six months or more or that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered "chronic." The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). The term "qualifying chronic disability" means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; and (B) a medically unexplained chronic multi-symptom illness (MUCMI) that is defined by a cluster of signs or symptoms, such as: (1) chronic fatigue syndrome; (2) fibromyalgia; and (3) functional gastrointestinal disorders (excluding structural gastrointestinal disorders). 38 C.F.R. § 3.317(a)(2)(i). For purposes of subsection (a)(2)(i)(B), a MUCMI means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). In Stewart v. Wilkie, 30 Vet. App. 383, 389 (2018), the United States Court of Appeals for Veterans Claims (CAVC) held that a chronic multi-symptom illness is a MUCMI where either etiology or pathophysiology of the illness is inconclusive. Conversely, an illness is not a MUCMI where both the etiology and pathology are partly understood. Furthermore, the determination of whether an illness is a MUCMI is to be done on a case-by-case basis. That is to say, the question is not whether the illness at hand generally is considered a MUCMI, but whether the illness in the veteran at hand is a MUCMI. Id. at 392. The phrase "objective indications of a qualifying chronic disability," as it appears in subsection (a)(1), include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of an undiagnosed illness (subsection (a)(2)(i)(A)) or a MUCMI (under subsection (a)(2)(i)(B)) include, but are not limited to: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317 (b). The record reveals that the Veteran served in both Qatar and Kuwait. Thus, she is presumed to have been exposed to environmental hazards, and she even indicated as such in a May 2003 and August 2004 post-deployment health assessments. The Veteran also testified that she began experiencing memory problems, at most, a year after her Kuwait deployment, causing her to write things down so as not to forget them. The Board is satisfied that this evidence warrants a medical examination and opinion regarding the Veteran's alleged memory problems. Due to her service in Qatar and Kuwait, she meets the regulatory definition of a "Persian Gulf Veteran." 38 C.F.R. § 3.317(e)(2). As a lay person, she is competent to assert her struggles with short-term memory, see Layno v. Brown, 6 Vet. App. 465, 469 (1994), and her lay observations and testimony that this problem has persisted since about a year after her deployment meets the definition for chronic. See 38 C.F.R. § 3.317(a)(3). As the regulations note, the "objective indications" requirement can be satisfied by objective perception by medical examiners or other non-medical indicators that are capable of lay observation. 38 C.F.R. § 3.317(a)(3). The Veteran's alleged short-term memory problems would fall under neurological signs or symptoms recognized by the regulations as a potentially undiagnosed illness or MUCMI. See 38 C.F.R. § 3.317 (b). Thus, the only remaining questions are whether the Veteran's alleged memory problems are an undiagnosed illness or MUCMI. Thus, the Board will remand this claim for the AOJ to secure a medical examination and opinion. See 38 C.F.R. § 20.904(a). 2. Entitlement to service connection for left lower extremity edema, a left hip disability, left leg torn ligaments, a left knee disability; and an initial compensable rating for service-connected left ankle disability is remanded. In a claim for disability compensation, VA will make efforts to obtain the claimant's service medical records, if relevant to the claim; other relevant records pertaining to the claimant's active military, naval or air service that are held or maintained by a governmental entity; VA medical records or records of examination or treatment at non-VA facilities authorized by VA; and any other relevant records held by any Federal department or agency. The claimant must provide enough information to identify and locate the existing records including the custodian or agency holding the records; the approximate time frame covered by the records; and, in the case of medical treatment records, the condition for which treatment was provided. 38 C.F.R. § 3.159(c)(3). VA's duty to assist includes assisting the veteran in the procurement of relevant private treatment records. 38 U.S.C. § 5103A(b); 38 C.F.R. § 3.159(c)(1). A veteran, however, must provide VA with enough information to obtain the private treatment records, such as the person, company, agency, or other custodian holding the records; the approximate time frame covered by the records; and, in the case of medical treatment records, the condition for which treatment was provided; the veteran also must execute the necessary authorization for VA to obtain these records. The CAVC has held that "reasonable efforts" under 38 C.F.R. § 3.159(c) generally consists of "an initial request for the records and, if the records are not received, at least one followup request." McKinney v. McDonald, 28 Vet. App. 15, 35 (2016). If, however, VA is unable to obtain those records after making reasonable attempts, it must provide notice of that fact to the claimant; such notice must include that it is the ultimate responsibility of the claimant to obtain the records and a description of any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits those records. 38 C.F.R. § 3.159(e)(1). At the hearing, the Veteran testified that that she sees both a private orthopedic specialist and has undergone physical therapy within the last eighteentwenty months. Tr. at 3, 7. There are no private treatment records within this period associated in the claims file, nor has the VA made any attempts to secure any private records. Thus, because the remining conditions are musculoskeletal in nature, the Board finds that remand is required so the Veteran may have the opportunity to identify these records for the AOJ and so that it thereafter can make reasonable attempts to secure any identified records. See 38 C.F.R. § 20.904(a). The matters are REMANDED for the following action: 1. Obtain any ongoing VA treatment records. Should they exist, associate them with the claims file. 2. Send to the Veteran the necessary forms to identify any private treatment she has received for any of these claims. VA also must send her forms necessary to authorize VA to obtain these records on her behalf. If the Veteran identifies any records, then make reasonable attempts to obtain them. Such attempts must be documented in the claims file. 3. If, after reasonable attempts have been made, any identified records cannot be obtained, then notify the Veteran as such in accordance with 38 C.F.R. § 3.159(e). 4. Schedule the Veteran for a neurological examination for her claim for short-term memory loss. The examiner shall answer the following: (a.) Does the Veteran have any neurological disability? (b.) For each identified neurological disability, is it at least as likely as not (a fifty percent probability or greater) that said neurological disability is either (i) an undiagnosed illness, or (ii) a medically unexplained chronic multi-symptom illness (MUCMI)? Note: A condition is considered a MUCMI where either etiology or pathophysiology of the illness is inconclusive. The determination of whether an illness is a MUCMI is done on a case-by-case basis. Thus, the question is not whether the illness at hand generally is considered a MUCMI, but whether the illness in this particular Veteran is a MUCMI. 5. Based on the above development, conduct any other development deemed necessary and then readjudicate the Veteran's claims. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or United States Court of Appeals for Veterans Claims must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, Associate 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.