Citation Nr: 21006261 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 17-11 105 DATE: February 3, 2021 ORDER Service connection for a dental condition has been withdrawn. Service connection for an acquired psychiatric disability, to include PTSD is granted. REMANDED An initial compensable rating for left tibia fracture residuals is remanded. Service connection for a left hip condition, to include as secondary to a service-connected disability is remanded. FINDINGS OF FACT 1. On August 27, 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of the issue of service connection for a dental condition is requested. 2. Resolving reasonable doubt in the Veteran’s favor, his PTSD is at least as likely as not related to an in-service injury. CONCLUSIONS OF LAW 1. The criteria for withdrawal of service connection for a dental condition by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for service connection for PTSD are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, had service from November 1979 to October 1992. In August 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is associated with the claims file. 1. Service connection for a dental condition. 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55.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 In the present case, the Veteran has withdrawn the issue of service connection for a dental condition and, hence, there remain no allegations of errors of fact or law for appellate consideration. The Veteran made an oral withdrawal of this issue during the August 2020 Board hearing before the undersigned. The Board hearing transcript shows his withdrawal of the issue was explicit, unambiguous and done with a full understanding of the consequences of such action on the part of the Veteran. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see Acree v. O’Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018) (the Board must address all three prongs of the DeLisio standard when it applies). Accordingly, the Board does not have jurisdiction to review the issue and it is dismissed. 2. Service connection for an acquired psychiatric disability, to include PTSD. The Veteran contends that his PTSD is related to an in-service injury he incurred. The Board concludes that the Veteran has a current disability that is related to an in-service injury. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). July 2020 private treatment records show the Veteran has a current diagnosis of PTSD. During service, the Veteran was treated for a left leg fracture he incurred as a pedestrian when a motor vehicle struck him. Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. The evidence against the claim includes a January 2017 VA examination. The VA examiner did not diagnose the Veteran with PTSD and opined that he did not have a mental disorder diagnosis related to service. The rationale was that his VA treatment records from December 2013 to February 2016 did not show mental health symptoms or residuals from the motor vehicle injury. The VA examiner further explained that the Veteran’s current stressors of starting a new business and underlying bipolar disorder traits “are the more proximate etiology of his depressive moods.” The VA examiner’s opinion is less probative as it relies on the absence of VA mental health treatment records from 2013 to 2016, and does not account for the private treatment records in the Veteran’s file that show a history of continuous mental health treatment since 2014. The evidence in favor of the claim includes a July 2020 private nexus opinion and February 2017 PTSD Disability Benefits Questionnaire in which the same treating psychologist diagnosed PTSD that originated from the Veteran’s in-service left leg injury. The rationale was that the Veteran’s left leg injury was such a “traumatic event” and so “pivotal in his life that he has suffered with symptoms and problems since that incident, and because of that incident.” The private psychologist explained that the Veteran’s PTSD symptoms “have increased and continued through the years and have become triggered by various other situations [the Veteran] has encountered...” The private psychologist noted a history of treating the Veteran since July of 2014, first as part her private treatment provider contract with the Vet Center until budget cuts in 2017, and then continued private treatment thereafter. The Board finds this medical opinion highly probative of a positive nexus between the Veteran’s current condition and service because it not only contains a clear conclusion with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current PTSD is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for PTSD is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. An initial compensable rating for left tibia fracture residuals is remanded. The Veteran testified during the August 2020 Board hearing that his left tibia fracture residuals are worse than reflected by the currently assigned noncompensable rating. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of the left tibia fracture residuals. 2. Service connection for a left hip disability, to include as secondary to a service-connected disability is remanded. The April 2013 VA examination opinion is inadequate to the extent it did not consider whether the Veteran’s left hip condition was aggravated by a service-connected disability. See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (indicating that findings of “not due to,” “not caused by,” and “not related to” a service-connected disability are insufficient to address the question of aggravation under 3.310(b)). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left tibia fracture residuals. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Furthermore, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Schedule the Veteran for a VA examination for his left hip disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: a) Is the left hip disability at least as likely as not related to service? In providing the requested opinion, consider the Veteran’s description of his/her in-service injury and symptoms as well as his post-service symptoms. b) Is it at least as likely as not that the left hip disability (1) began during active service, (2) manifested within one-year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? c) Is left hip disability at least as likely as not proximately due to a service-connected disability, to include the lumbar spine, bilateral lower extremity radiculopathy, and/or left tibia fracture residuals? d) Is the left hip disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by a service-connected disability, to include the lumbar spine, bilateral lower extremity radiculopathy, and/or left tibia fracture residuals? A complete rationale for all opinions is required. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Connally, 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.