Citation Nr: 21077380 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 18-24 541 DATE: December 29, 2021 ORDER Entitlement to service connection for a disability of the left ankle is dismissed. Entitlement to service connection for a disability of the lower back is dismissed. REMANDED Entitlement to service connection for a disability of the left foot is remanded. FINDING OF FACT During the September 2021 hearing, the Veteran made an explicit and unambiguous withdrawal of his appeal of the denial of service connection for claimed disabilities of the left ankle and lower back. He made this withdrawal with a full understanding of the consequences. CONCLUSION OF LAW For the issues of service connection for claimed disabilities of the left ankle and lower back, the criteria for the withdrawal of an appeal by an appellant have been met. 38 U.S.C. § 7105(b)(2),(d)(5); 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1977 to January 1997. This case comes to the Board from a decision issued by the Agency of Original Jurisdiction (AOJ) in October 2014. In September 2021, the Veteran testified before the undersigned at a videoconference hearing. A transcript of that hearing is of record. The October 2014 decision described the Veteran's low back, left foot, and left ankle claims as requests to reopen previously denied claims. It is true that the AOJ denied the same claims in an earlier decision, issued in April 2013, but the Veteran indicated his disagreement with that decision in a May 2013 written statement. Before March 2015, the use of a standard notice of disagreement (NOD) form was not required to initiate an appeal. See 79 Fed. Reg. 57,660 (September 25, 2014). Under these circumstances, the Board does not need to receive new and material evidence before it may consider these claims on their merits. Service Connection for Claimed Disabilities of the Left Ankle and Lower Back The Board may dismiss any appeal which fails to allege a 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. During the hearing, the Veteran, through his representative, indicated his intention to withdraw his appeal of the denial of service connection for disabilities of the left ankle and lower back. Accordingly, the Board finds that the Veteran's withdrawal of both claims was explicit and unambiguous. The Board further finds that the Veteran was fully aware of the consequences of his decision to withdraw his appeal. The undersigned asked the Veteran whether he understood that, if he withdrew his appeal, the Board would not issue a decision on his left ankle and lower back claims. In response, the Veteran said he understood these consequences. For these reasons, for the issue of service connection for disabilities of the left ankle and lower back, the Veteran's withdrawal of his appeal was explicit, unambiguous, and done with a full understanding of the consequences of his actions. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018); DeLisio v. Shinseki, 25 Vet. App. 45, 57-58 (2011). With respect to both claims, there are no longer any alleged errors of fact or law for appellate consideration. See 38 C.F.R. § 20.205(b). The Board no longer has jurisdiction to review the left ankle and lower back claims and they are dismissed. REASONS FOR REMAND The Veteran testified that, in approximately 1980 or 1981, he began to experience pain in his left foot during physical training. According to him, this pain never fully resolved or got better. Service treatment records indicate a contusion to the left foot in February 1981. But subsequent in-service medical examination reports described the feet as normal and, on multiple subsequent reports of medical history, the Veteran marked "no" to indicate that he was not experiencing and, indeed, had never experienced, foot trouble. When the AOJ denied the claim, it relied on the report of a nurse practitioner who examined the Veteran's feet in July 2014. Section I of the report indicates there was no current diagnosis for any condition associated with foot pain. The examiner reviewed x-ray images of the left foot, which indicated "small calcaneal enthesophytes with otherwise normal feet." The examiner added, "These enthesophytes are not located in the area of the Veteran's pain, nor are they the cause of the Veteran's pain." In the examiner's opinion, it was less likely than not that the Veteran's currently reported foot pain was related to service. To support this conclusion, the examiner mentioned the absence of any record of in-service foot complaints after 1981. The opinion acknowledged, "one note regarding a left foot complaint to his provider in 2011, thirty years after discharge. The complaint to his provider was regarding his heels and did not match the complaint that is reported today. There is not sufficient clinical evidence to diagnose a current acute or chronic left foot condition at this time." The quoted language probably refers to an August 2011 note from the Veteran's primary care physician, which described complaints of left foot pain, which the physician attributed to plantar fasciitis. The statements of the subsequent VA examiner suggest that, by July 2014, symptoms of plantar fasciitis were not present or not discernible. However, in a claim for service-connected compensation, the requirement for evidence of a current disability is satisfied if the claimed disability is present when the claim is filed or at any time while the claim is pending, even if the disability resolves before the final adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Under these circumstances, an adequate opinion would consider whether plantar fasciitis was present during the appeal period and, if so, whether a relationship between plantar fasciitis and military service is at least as likely as not. While the Board regrets the need for further delay, it is necessary to remand the case to obtain an adequate opinion. In Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018), the Court held that, even without a specific diagnosis, persistent symptoms such as pain can satisfy the requirement if those symptoms impair the claimant's earning capacity. To provide the information needed to apply Saunders, the post-remand examiner should complete the part of the examination questionnaire for "foot injuries, other", record range of motion measurements for the left foot, and, if no diagnosis is apparent at the time of the examination, should prepare an opinion assessing the probability that any functional impairment associated with the Veteran's left foot is related to service. On remand, further development concerning possible presumptive service connection pursuant to 38 C.F.R. § 3.317 would also be useful. In a written statement, the Veteran indicated that, in 1994, he was deployed to Saudi Arabia in support of Operation Vigilant Warrior. Although it seems this operation did not involve hostilities, Saudi Arabia is considered part of the Southwest Asia Theater of Operations for the purposes of 38 C.F.R. § 3.317(e)(2). 38 U.S.C. § 101(33) defines "Persian Gulf War" as "the period beginning on August 2, 1990, and ending on the date thereafter prescribed by Presidential proclamation or by law." These provisions are potentially significant to this case because a Persian Gulf veteran (defined as "a veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War") may be eligible for service-connected compensation despite the absence of a specific diagnosis. 38 C.F.R. § 3.317(b). The Board must presume that a qualifying chronic disability, such as undiagnosed illness, is related to service, provided that such disability: (i) Became manifest either during active military, naval, or air service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2026; and (ii) by history, physical examination and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.117(a)(1). Apparently realizing the potential significance of the Veteran's service in Saudi Arabia, the AOJ asked the National Personnel Records Center to verify that service. But it appears that the agency never provided a clear answer. Personnel records, provided by the Defense Personnel Records Information Retrieval System (DPRIS), include a performance evaluation commending the Veteran on his help to "safely deploy his section in support of Operation Vigilant Warrior." The evaluation indicates that, at the time, he was the assigned to B Company, 324th Support Battalion, a unit affiliated with the 24th Infantry Division. But it is unclear from the report whether the Veteran's activities "in support" of the operation included physical presence in Saudi Arabia. It is likely that research into the relevant unit records could verify this. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file copies of all records of the Veteran's VA medical treatment since March 2018. 2. The AOJ should conduct or request research into potentially relevant unit histories, unit records, or other appropriate records depositories to verify the Veteran's claimed deployment to Saudi Arabia. The AOJ is advised that, according to the Veteran, he deployed there in 1994 in support of Operation Vigilant Warrior. At the relevant time, the Veteran was assigned to B Company, 324th Support Battalion, 24th Infantry Division. The AOJ should prepare a memorandum for the claims file describing the results of this research into the relevant unit records. 3. Schedule the Veteran for a new VA examination for the purpose of assessing the nature and etiology of his claimed disability of the left foot. The complete claims file should be made available to the examiner, who should thoroughly review the file before he or she prepares the requested opinion. After the records review and the examination are complete, the examiner should prepare a report, which should respond to the part of the standard VA foot conditions disability benefits questionnaire concerning other foot injuries and should also include subtalar range of motion test results for the left foot in degrees of inversion and eversion as well as test results for metatarsophalangeal range of motion in terms of degrees of dorsiflexion and plantar flexion. The examiner should then respond to the following requests: (a) Identify all current diagnosable disabilities manifested by pain in the left foot. The examiner is advised that the current disability requirement is satisfied if any left foot disability existed at any time when this claim has been pending i.e., from June 21, 2011 to the present. (b) For every current disability manifested by pain in the left foot, including plantar fasciitis, and/or for any functional impairment associated with the Veteran's left foot, is it at least as likely as not (50 percent or greater probability) that the disability or. if there is no diagnosable disability, any current functional impairment had its onset in service or is otherwise related to any in-service disease, injury or event, including the February 1981 contusion of the left foot mentioned in the Veteran's service treatment records? (c) If the Veteran does not have a diagnosable disability manifested by pain the left foot, please detail the symptoms of which the Veteran complains (e.g. pain) and specifically note if there are objective indications of chronic disability (to include undiagnosed illness). If the Veteran does not have a diagnosable condition manifested by pain in the left foot, please indicate whether, based on a review of the record, the undiagnosed disability manifested to a degree of 10 percent or more prior to December 31, 2026. Objective indications of chronic disability 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. The examiner should thoroughly explain the medical reasons for his or her opinions. 4. The AOJ must ensure that the examination reports requested above comply with the directives of this remand. If any examination report or opinion is deficient in any manner, the AOJ must implement corrective action. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Nye, 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.