Citation Nr: 21073089 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 18-46 997 DATE: December 7, 2021 ORDER The appeal concerning entitlement to service connection for a bilateral eye condition to include blindness, cataracts, and glaucoma has been withdrawn and is therefore dismissed. The appeal concerning entitlement to service connection for a right knee disability, to include arthritis has been withdrawn and is therefore dismissed. The appeal concerning entitlement to service connection for a right leg disability has been withdrawn and is therefore dismissed. REMANDED Entitlement to service connection for a left knee disability, to include arthritis, is remanded. Entitlement to service connection for a left leg disability is remanded. Entitlement to service connection for a bilateral foot condition is remanded. FINDINGS OF FACT 1. On October 1, 2018, prior to the promulgation of a decision in the appeal, the Board received written notification from the Veteran that a withdrawal of this appeal concerning entitlement to service connection for a bilateral eye condition is requested. 2. On October 1, 2018, prior to the promulgation of a decision in the appeal, the Board received written notification from the Veteran that a withdrawal of this appeal concerning entitlement to service connection for a right knee disability is requested. 3. On October 1, 2018, prior to the promulgation of a decision in the appeal, the Board received written notification from the Veteran that a withdrawal of this appeal concerning entitlement to service connection for a right leg disability is requested. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to service connection for a bilateral eye condition by the Veteran have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2021). 2. The criteria for withdrawal of entitlement to service connection for a right knee disability by the Veteran have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2021). 3. The criteria for withdrawal of entitlement to service connection for a right leg disability by the Veteran have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1969 to November 1969. This matter comes before the Board of Veterans' Appeals (Board) from a November 2013 and March 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Veteran's previous representative withdrew in April 2016. As the Veteran is now unrepresented in this case, VA has a duty to construe his claims liberally. See Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). In October 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of these proceedings has been associated with the Veteran's claims file. Withdrawn Issues 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 the present case, the Veteran has withdrawn his appeals for service connection for a bilateral eye condition, a right knee disability, and a right leg disability in written correspondence with VA and, hence, there remain no allegations of errors of fact or law for appellate consideration. As a matter of law, a withdrawal of an appeal is effective when received. See 38 C.F.R. § 19.55. As the Board does not have jurisdiction to review those claims, they are therefore dismissed. REASONS FOR REMAND 1. Entitlement to service connection for a left knee disability, to include arthritis, is remanded. 2. Entitlement to service connection for a left leg disability is remanded. 3. Entitlement to service connection for a bilateral foot condition is remanded. The Veteran originally claimed entitlement to service connection for a bilateral foot condition in May 2012, and for right knee and right leg disabilities in September 2014. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(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-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The Veteran has asserted in written statements that the two VA examinations from September 2018 he received were inadequate, in that the evaluations conducted while he was incarcerated were cursory and incomplete. He also contends the negative opinions provided for his claims by this examiner did not look at his multiple lay statements, the submitted statements of his buddies, or the medical records from his incarceration that were part of the claims file. The Veteran also testified to this with his Board hearing with the undersigned VLJ in October 2021. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 18, 22 (2007). The Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case. See Stefl, supra. A medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995); see also LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (a bare transcription of lay history, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the transcriber is a health care professional). The Board also takes notice of the recent precedential Federal Circuit case, Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), which held that pain alone may constitute a disability for VA compensation purposes when it results in "functional impairment of earning capacity." Id. at 1368. The Federal Circuit found that the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability." In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. VA must provide an examination that is adequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). If VA undertakes to provide an examination, even if not required to do so, the examination must be adequate, or the Veteran informed as why one cannot or will not be provided. Daves v. Nicholson, 21 Vet. App. 46, 52 (2007). Here, the Board finds that the Veteran's September 2018 VA examinations were inadequate, and therefore must remand for a new VA examinations and opinions for service connection for the three disabilities on appeal. The matters are REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any updated relevant VA medical records of the Veteran not previously obtained. Contact the Veteran and request that he identify any pertinent records not already identified and obtained and, with the appropriate authorization, attempt to obtain those records and associate them with the claims file. 2. After the record search is complete, and any new records are added to the claims file, schedule a VA examination by a VA medical professional with the expertise necessary to address the nature and etiology of the Veteran's claimed left knee, left leg, and bilateral foot disabilities, to include all orthopedic and neurological manifestations. The claims file must be made available to and reviewed by the examiner. A note that it was reviewed should be included in the report. Based on the review of the Veteran's entire record, the examiner should provide an opinion as to the following: Whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran's claimed left knee, left leg, and/or bilateral foot disabilities had their onset in service or are otherwise related any to any in-service disease, event, or injury? A detailed rationale supporting the examiner's opinion should be provided. In forming the opinion, the examiner must consider all lay statements of record. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required or the examiner does not have the needed knowledge or training). Attention is invited to the Veteran's reports and statements of chronic pain in his right knee, right leg, and bilateral feet since active service. The Board takes notice of the recent precedential Federal Circuit case, Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), which held that pain alone may constitute a disability for VA compensation purposes when it results in "functional impairment of earning capacity." Id. at 1368. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 3. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative, if one is selected, should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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 (2012). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Setter, 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.