Citation Nr: 21074556 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 18-07 508 DATE: December 15, 2021 ORDER Entitlement to service connection for a disability manifested by aches and pains is dismissed as withdrawn. Entitlement to service connection for bipolar disorder is granted. REMANDED Entitlement to service connection for a right hand pointer finger injury is remanded. Entitlement to service connection for a stomach/digestive system disability is remanded. FINDINGS OF FACT 1. At a December 2021 hearing, prior to the promulgation of a decision in the appeal, the Veteran requested withdrawal of the issue of entitlement to service connection for a disability manifested by aches and pains. 2. Resolving reasonable doubt in the Veteran's favor, his bipolar disorder is at least as likely as not related to his military service. CONCLUSIONS OF LAW 1. The criteria for dismissal of entitlement to service connection for a disability manifested by aches and pains by the Appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for entitlement to service connection for bipolar disorder have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1995 to June 1999. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). The transcript of the hearing is not yet available. However, this appeal meets the criteria for VA's one-touch initiative program, and, as such, this decision is being prepared pursuant to such program in order to provide an immediate response to the Veteran after his hearing. A transcript of the hearing will be added to the Veteran's file later in the normal course of business. Entitlement to service connection for a disability manifested by aches and pains. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. See 38 C.F.R. § 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. See 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 requested to withdraw the claim of entitlement to service connection for a disability manifested by aches and pains at a December 2021 Board hearing, prior to the promulgation of a decision by the Board. The repercussions of withdrawal of the issues were explained to the Veteran by the undersigned VLJ, and the Veteran expressed understanding of the consequences of such action. Id. As such, the withdrawal was 1) explicit; 2) unambiguous; and 3) done with a full understanding of the consequences of such action by the appellant. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Therefore, there remains no allegation of error of fact or law for appellate consideration as to the issues of entitlement to service connection for a disability manifested by aches and pains. Accordingly, the Board does not have jurisdiction to review the appeal of this issue further and it is dismissed. Entitlement to service connection for bipolar disorder. The Veteran seeks service connection for a mood/bipolar disorder. See April 2016 VA Form 21-526. Specifically, the Veteran testified that his symptoms began while he was deployed to Bosnia and have continued since service. Generally, service connection may be established for a disability resulting from disease or injury in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The evidence of record demonstrates the Veteran is diagnosed with a bipolar disorder. See March 2016 private examination; July 2016 private treatment records; December 2017 VA treatment records. Therefore, the first element of service connection has been met. See Shedden, 381 F.3d at 1166-67. With respect to the second element of service connection, in-service injury, event, or disease, the Board notes the Veteran's complete in-service treatment records are not available for review except for a December 1976 post-deployment health assessment. In May 2016, the RO determined the Veteran's service treatment records could not be located. See May 2016 VA Memo. Where, as here, a veteran's service treatment records are unavailable, "the [Board's] obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule is heightened." See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In regard to an in-service event, injury, or disease, the Board finds that the Veteran has consistently reported that his psychiatric symptoms began during his period of active duty service. The Board notes the Veteran is competent to provide lay evidence of the existence of symptoms that are capable of lay observation and may provide sufficient support for a claim of service connection. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 470 (1994). In this case, the undersigned VLJ noted the Veteran testified that he became overwhelmed with anxiety when he arrived in Bosnia on deployment. The Veteran also testified that he believes his psychiatric symptoms are related to being in stressful situations as a guard. Specifically, the Veteran asserted that he was faced with local Bosnian women who were searching for their children. See April 2016 correspondence; March 2016 private examination. In regard to the third element of service connection, the Veteran asserted that after service he began to change; had severe night sweats; began to lose sleep; and became paranoid about everything. See April 2016 correspondence. The Veteran's VA treatment records show the Veteran reported that after the military, he started having anxiety and waking up in the middle of the night sweating. See June 2016 VA treatment records. The undersigned VLJ noted the Veteran testified that his psychiatric symptoms continued since service. In support of his claim, the Veteran provided a March 2016 private psychiatric evaluation. The private physician noted that after a thorough mental health assessment, the Veteran was suffering from bipolar disorder with mixed anxiety, suspiciousness, unprovoked irritability, and chronic sleep impairment. See March 2016 private examination. The private physician noted the Veteran's report that he recalled being overwhelmed with anxiety at the gravity of his assignment when he was deployed to Bosnia; the reality of being confronted with the threat of death and serious injury became evident immediately; and he was faced with local Bosnian women searching for their missing children, which prompted ruminating thoughts of close family members, the loss of children, and the destruction of homeland. Id. The Veteran also reported his assignment required alternating shifts for guard duty which was the onset of his inability to sleep adequately and feeling "on guard" and edgy through the night. Id. The Veteran reported that over the years, he continued to suffer from depressed mood, mixed anxiety, unprovoked irritability with episodes of aggression, and chronic sleep impairment. Id. In light of the above, the private physician concluded that it was more likely than not that the Veteran's condition was aggravated by and/or incurred during his active duty military assignment. Id. The Board finds the March 2016 private examination adequate for decision making purposes and entitled to significant probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). The Board notes that a Veteran may be competent and credible to provide a lay opinion as to the nexus or etiology of a disability depending on the nature of the disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau, 492 F.3d at 1376-77. Moreover, in appropriate situations, the Veteran can report symptoms to establish the link between an in-service incurrence and subsequent diagnosis of a disability. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Taking Davidson, Jandreau, and Layno together, leads the Board to the conclusion that the complexity of the question and whether a nexus could be rendered based on personal observation are factors in determining whether a non-expert nexus opinion or diagnosis is competent evidence. In this case, the Board finds the Veteran's current bipolar disorder is related to his service. The Board reiterates that the Veteran has consistently and credibly reported experiencing symptoms, including anxiety, since service that has continued since service and is associated with his current diagnosis of bipolar disorder. Additionally, a March 2016 private physician determined the Veteran's bipolar disorder is more likely than not related to his active duty. There is no opinion to the contrary. Therefore, after resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's bipolar disorder is related to his active duty service as his symptoms began in service, continued since service, and led to his current diagnosis. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303(d); see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As such, service connection for bipolar disorder is granted on a direct incurrence basis. REASONS FOR REMAND Entitlement to service connection for a right hand pointer finger injury is remanded. The Veteran seeks service connection for a right hand pointer finger injury incurred in service. See April 2016 VA Form 21-526. The Board cannot make a fully informed decision on the issue of entitlement to service connection for a low back disability because the Veteran has not yet been afforded a VA examination in relation to his claim. VA will provide a medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing that certain diseases manifested during an applicable presumptive period for which the veteran qualifies; (3) an indication that the disability or persistent recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability; but (4) there is insufficient competent medical evidence on file for VA to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). In this case, the Veteran contends that a meaty portion of his right hand pointer finger was cut off and sown back on while in service. See April 2016 correspondence. The Veteran testified that he was carrying glass bottle and fell resulting in his finger injury at the Aberdeen Proving Ground during AIT in late 1995. The Veteran testified that he was treated locally with stitches and the injury has healed, but he does not have full feeling and experiences pain with scar. VA treatment records demonstrate the Veteran has a right hand first finger scar. See June 2016 VA treatment records. The Board finds that the low threshold for provision of a VA examination described in McLendon has been met. Given the missing service treatment records and VA's heightened duty to assist, the Veteran should be afforded a VA examination to determine the nature and etiology of his right hand pointer finger injury. See O'Hare, 1 Vet. App. at 367; 38 C.F.R. § 3.159(c). Entitlement to service connection for a stomach and/or digestive system disability is remanded. The Veteran seeks service connection for a stomach/digestion disability. See April 2016 VA Form 21-526. The Board cannot make a fully informed decision on the issue of entitlement to service connection for a low back disability because the Veteran has not yet been afforded a VA examination in relation to his claim. In this case, the evidence of record demonstrates the Veteran has a current diagnosis for gastroesophageal reflux disease (GERD). See May 2020 private treatment records. The Veteran asserted that, while on active duty in Croatia, he got very sick from eating in the mess hall and that a form of food poisoning or salmonella was going around. See April 2016 correspondence. The Veteran stated that he was down for 4 days with severe diarrhea and lost about 10 pounds; experienced severe chills; and hooked to an IV. Id. The Veteran stated that he got sick again while in Germany; believed it was food or alcohol poisoning; and that he had to be hospitalized. Id. The undersigned VLJ noted the Veteran testified that ever since then he has been having digestive issues and that the symptoms are the same as he had in service. The Board finds that the low threshold for provision of a VA examination described in McLendon has been met. Given the missing service treatment records and VA's heightened duty to assist, the Veteran should be afforded a VA examination to determine the nature and etiology of his right hand pointer finger injury. See O'Hare, 1 Vet. App. at 367; 38 C.F.R. § 3.159(c). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of any right hand pointer finger disability. Provide a copy of this Remand and the record to the examiner for review. Any and all tests and evaluations deemed necessary by the examiner should be performed. The examiner must indicate review of all medical evidence of record. The examiner must address the following: (a.) Identify any right hand pointer finger disability demonstrated by (1) diagnosis or (2) functional impairment, during, or proximate, to the appeal. (b.) The examiner must provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that any diagnosed right hand pointer finger disability had its onset in, or is otherwise related to, the Veteran's active duty service. A complete rationale should be given for all opinions and conclusions expressed. The VA examiner must consider and address the Veteran's lay statements regarding his right hand pointer finger injury that he asserts occurred during his service when he fell carrying a glass bottle and the meaty portion of his right index finger was severed and later reattached with stitches. If the examiner cannot provide an opinion without resorting to speculation, he/she should explain why an opinion cannot be provided. 2. Schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of any stomach/digestive disability, including GERD. Provide a copy of this Remand and the record to the examiner for review. Any and all tests and evaluations deemed necessary by the examiner should be performed. The examiner must indicate review of all medical evidence of record. The examiner must address the following: (a.) Identify any current stomach/digestive disabilities demonstrated during, or proximate to, the appeal period. The VA examiner must consider and address the Veteran's private treatment records that demonstrate the Veteran has a current diagnosis for GERD. See May 2020 private treatment records. (b.) The examiner must provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that any diagnosed stomach/digestive disability, including GERD, had its onset in, or is otherwise related to, the Veteran's active duty service. A complete rationale should be given for all opinions and conclusions expressed. The VA examiner must consider and address the Veteran's lay statements regarding his in-service stomach/digestive symptoms, including his food poisoning while deployed in Bosnia and digestive issues in Germany, including a period of hospitalization for treatment of digestive issues. If the examiner cannot provide an opinion without resorting to speculation, he/she should explain why an opinion cannot be provided. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Carlin 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.