Citation Nr: 21076423 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 18-32 118 DATE: December 23, 2021 ORDER The appeal for entitlement to service connection for fibromyalgia has been withdrawn. The appeal for entitlement to service connection for decreased sex drive has been withdrawn. The appeal for entitlement to service connection for a sleep disorder has been withdrawn. The appeal for entitlement to service connection for malodorous feet, also claimed as rash on the soles of the feet, has been withdrawn. Entitlement to service connection for a personality disorder is denied. REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for a bilateral vision disability is remanded. Entitlement to service connection for a skin condition on the buttocks is remanded. Entitlement to service connection for a bilateral foot disability is remanded. Entitlement to service connection for a bilateral knee disability is remanded. FINDINGS OF FACT 1. On the record at an August 2021 Board of Veterans' Appeals (Board) hearing, prior to the promulgation of a decision in the appeal, the Veteran requested a withdrawal of the appeals for entitlement to service connection for fibromyalgia, entitlement to service connection for decreased sex drive, entitlement to service connection for a sleep disorder, and entitlement to service connection for malodorous feet, which he also claimed as rash on the soles of the feet. 2. The Veteran's personality disorder is considered a congenital or developmental defect and is not a disease or injury subject to service connection. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeals for entitlement to service connection for fibromyalgia, entitlement to service connection for decreased sex drive, entitlement to service connection for a sleep disorder, and entitlement to service connection for malodorous feet have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for entitlement to service connection for a personality disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 4.9. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1990 to August 1992. In August 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. Neither the Veteran nor his representative has raised any issue with regard to the duty to notify or duty to assist as they pertain to the issue denied in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issue denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in the decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Dismissed Issues 1. Entitlement to service connection for fibromyalgia 2. Entitlement to service connection for decreased sex drive 3. Entitlement to service connection for a sleep disorder 4. Entitlement to service connection for malodorous feet, also claimed as rash on the soles of the feet 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. In this case, at the August 2021 Board hearing, the Veteran asked to withdraw the appeals for entitlement to service connection for fibromyalgia, entitlement to service connection for decreased sex drive, entitlement to service connection for a sleep disorder, and entitlement to service connection for malodorous feet. The withdrawal was explicit and unambiguous, as the Veteran specifically expressed agreement with the withdrawal of the issue as individually identified. In addition, the withdrawal was done with a full understanding of the consequences of such action. The Veteran continued an appeal of the remaining issues and presented relevant testimony as to those issues but not as to the withdrawn issues. In addition, the Veteran was represented at the hearing by his accredited representative and indicated that he had discussed the withdrawal with his representative prior to the hearing. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Therefore, the Board finds that the Veteran has withdrawn the appeal as to those issues and that there remain no allegations of errors of fact or law for appellate consideration as to the issues. 38 C.F.R. § 19.55. Accordingly, the Board does not have jurisdiction to review the appeal as to those issues, and the issues are dismissed. Service Connection Issues 5. Entitlement to service connection for a personality disorder The Veteran seeks entitlement to service connection for an acquired psychiatric disability. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (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 Veteran has been diagnosed with PTSD and with a personality disorder. The Board does not question that the Veteran has a current diagnosis of a personality disorder. However, under VA regulations, personality disorders are considered defects, and not "diseases or injuries" within the meaning of applicable legislation for VA disability compensation purposes. Therefore, personality disorders cannot be service connected either directly or on the basis of secondary causation or aggravation. See 38 C.F.R. §§ 3.303(c), 4.9, 4.127. Accordingly, to the extent the Veteran claims entitlement to service connection for his diagnosed personality disorder, the claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994). REASONS FOR REMAND 1. Entitlement to service connection for PTSD is remanded. The Veteran has submitted a September 2021 private psychiatric examination in which the examiner diagnoses the Veteran with PTSD based on reported in-service stressful events that occurred while the Veteran was deployed to Southwest Asia. A remand is required to allow VA to attempt to corroborate the Veteran's reported stressors, to include through obtaining any oustanding service personnel records. 2. Entitlement to service connection for a bilateral vision disability is remanded. The Veteran seeks entitlement to service connection for a bilateral vision disability, which he contends is related to being exposed to intense sunlight without sunglasses in Southwest Asia. His VA treatment records show that he has been diagnosed with chronic central serous chorioretinopathy. The Board finds that the threshold for providing a VA examination has been met, and that the issue must be remanded so that the Veteran may be provided such an examination. 3. Entitlement to service connection for a skin condition on the buttocks is remanded. 4. Entitlement to service connection for a bilateral foot disability is remanded. 5. Entitlement to service connection for a bilateral knee disability is remanded. The Veteran was provided VA examinations as to his claimed skin condition, bilateral foot disability, and bilateral knee disability in June 2015. The June 2015 VA examiner opined that the Veteran's claimed conditions are related to clear and specific diagnosable/explained etiology and not associated to Gulf War illness/exposure. The examiner did not address the Veteran's assertions that his claimed skin condition was caused by exposure to diesel and has been present since his active service. The examiner also did not address the Veteran's assertions that his current bilateral foot and bilateral knee disabilities are related to running and marching during his active service. Finally, although the examiner did address whether the claimed disabilities may be the result of an undiagnosed illness, he did not address whether they may be signs or symptoms of a medically unexplained chronic multisymptom illness. See 38 C.F.R. § 3.317. A remand is required to obtain an addendum opinion. The matters are REMANDED for the following action: 1. Attempt to corroborate the Veteran's reported in-service stressors, including those he reported on VA Forms 21-0781 received in May 2006 and December 2014 ; those he reported at a March 2015 VA PTSD examination; those he reported at the August 2021 Board hearing; and those he reported to the September 2021 private examiner. The efforts to corroborate the stressors should include obtaining any outstanding service personnel records. If more details are needed, contact the Veteran to request the information. 2. Schedule the Veteran for a VA examination for his claimed bilateral vision disability. The examiner must review the claims file. The examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's diagnosed chronic central serous chorioretinopathy is related to his active service, to include exposure to intense sunlight without sunglasses in Southwest Asia. For purposes of providing this opinion, the Veteran's reports in that regard should be accepted as credible. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? Provide a rationale to support the opinion. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's claimed skin condition on the buttocks is at least as likely as not (50 percent probability or greater) related to in-service exposure to diesel. Specifically, the Veteran has reported that during his active service he once had to drive for an extended period with diesel on his seat and in contact with the skin on his buttocks. For purposes of providing this opinion, the examiner should assume the Veteran's reports in that regard are credible. The examiner must also address the Veteran's reports that the rash on his buttocks has been present since his active service. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? If the response to the above is in the negative, then the examiner is asked to also provide responses to the following: (a.) Is the etiology of the Veteran's claimed skin disability (1) inconclusive, (2) partially understood, or (3) fully understood? This determination must be based on the Veteran's specific case and cannot be based on the etiology of the disease or disability population as a whole. (b.) Is the pathophysiology of the Veteran's claimed skin disability (1) inconclusive, (2) partially understood, or (3) fully understood? This determination must be based on the Veteran's specific case and cannot be based on the pathophysiology of the disease or disability population as a whole. A complete rationale must be provided for all opinions expressed. 4. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's claimed bilateral knee and/or bilateral foot disability is at least as likely as not (50 percent probability or greater) related to his active service. Specifically, the Veteran testified at the August 2021 Board hearing that he engaged in extensive running and marching during his active service. He also testified that he had foot and knee pain in service, that he did not seek treatment for that pain due to the stigma of going to sick call, and that he obtained insoles during service. For purposes of providing this opinion, the examiner should assume that the Veteran's reports in that regard are credible. Of note, the Veteran also testified at the Board hearing that he "did enough running in the military to last me a lifetime" and, therefore, "from '92 until present, I do not jog or run at all". For purposes of providing the above-requested opinion, the examiner should not treat the Veteran's reports in that regard as credible because they are contradicted by other evidence of record. Specifically, a March 2000 VA treatment note indicates that the Veteran "[s]tates he jogs several times per week about 2 miles. He also plays basketball during the week and walks his dog daily." In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? If the response to the above is in the negative, then the examiner is asked to also provide responses to the following: (a.) Is the etiology of the Veteran's claimed bilateral knee disability (1) inconclusive, (2) partially understood, or (3) fully understood? This determination must be based on the Veteran's specific case and cannot be based on the etiology of the disease or disability population as a whole. (b.) Is the pathophysiology of the Veteran's claimed bilateral knee disability (1) inconclusive, (2) partially understood, or (3) fully understood? This determination must be based on the Veteran's specific case and cannot be based on the pathophysiology of the disease or disability population as a whole. (c.) Is the etiology of the Veteran's claimed bilateral foot disability (1) inconclusive, (2) partially understood, or (3) fully understood? This determination must be based on the Veteran's specific case and cannot be based on the etiology of the disease or disability population as a whole. (d.) Is the pathophysiology of the Veteran's claimed bilateral foot disability (1) inconclusive, (2) partially understood, or (3) fully understood? This determination must be based on the Veteran's specific case and cannot be based on the pathophysiology of the disease or disability population as a whole. A complete rationale must be provided for all opinions expressed. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. J. Anthony, 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.