Citation Nr: 21007343 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 17-58 980A DATE: February 9, 2021 ORDER The claim for a higher evaluation than 10 percent for tinnitus is dismissed. REMANDED The claim for an initial evaluation greater than 10 percent for right ankle condition, diagnosed as tendonitis, and with lateral collateral ligament and deltoid ligament strain, is remanded. The claim for service connection for neurological condition with limb incoordination affecting the right upper extremity is remanded. The claim for service connection for neurological condition with limb incoordination affecting the left lower extremity is remanded. The claim for service connection for neurological condition with limb incoordination affecting the left upper extremity is remanded. The claim for service connection for an eye condition (claimed as double vision, multiple vision, difficulty focusing on images, flashes ot black, loss of eyesight, ripple effect, and interrupted eyesight) is remanded. The claim for service connection for loss of consciousness and passing out is remanded. The claim for service connection for bladder problems is remanded. The claim for service connection for right hip condition (claimed as hip pain and problems) is remanded. The claim for service connection for left hip condition (claimed as hip pain and problems) is remanded. The claim for service connection for a stomach condition to include loss of appetite and nausea is remanded. The claim for service connection for a peripheral vestibular condition to include loss of balance, depth perception, and equilibrium is remanded. The claim for service connection for orthostatic hypotension is remanded. The claim for service connection for loss of muscle control, spasmodic movements, and pain is remanded. The claim for service connection for left elbow disorder is remanded. The claim for service connection for left knee disorder is remanded. FINDING OF FACT During the Board hearing that was held on February 19, 2020, the Veteran’s representative withdrew from appellate consideration the claim for a higher rating than 10 percent for tinnitus. CONCLUSION OF LAW The criteria for withdrawal of an appeal with regard to the issue of an evaluation higher than 10 percent for tinnitus have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the U.S. Marine Corps from March 1981 to June 1984. A February 2020 hearing was held before the undersigned Veterans Law Judge (VLJ) at the Board’s Central Office in Washington, D.C. The transcript of the proceeding is of record. By the November 2019 RO rating decision, there was granted the increased rating from noncompensable (0 percent) to 10 percent for the service-connected right ankle condition, effective September 4, 2014. The claim for still higher rating remains on appeal. See A.B. v. Brown, 6 Vet. App. 35 (1993) (the claimant is presumed to be seeking the highest possible rating for a disability unless he or she expressly indicates otherwise). During the hearing the Veteran’s representative also informally raised the issue of service connection for a traumatic brain injury (TBI), claiming that medical problem as being a residual of initial injury in service. That issue is not presently on appeal; however, the Veteran and his representative can file a formal claim with the VA Regional Office (RO) if they intend to pursue the matter. 38 C.F.R. § 3.155(d). 1. The claim for a higher evaluation than 10 percent for tinnitus is withdrawn from appeal. 2. 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 (2012). 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. § 20.204 (2019). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran, through his authorized representative, has withdrawn this claim on appeal. That determination and election was made pursuant to hearing testimony given at the aforementioned February 2020 Board hearing proceeding. An oral withdrawal at a hearing must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the claimant. Acree v. O’Rourke, 891 F.3d 1009 (2018). At the hearing, the undersigned informed the Veteran that his tinnitus claim would be dismissed and that should he wish to seek a higher rating for it in the future, he would have to file a new claim, which could impact the effective date of any award that may be granted. He was asked if he understood the impact of withdrawing his claim and he answered in the affirmative. Consequently, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the increased rating matter on appeal and it is dismissed. REASONS FOR REMAND 1. The claim for a higher initial evaluation than 10 percent for right ankle condition, diagnosed as tendonitis, and with lateral collateral ligament and deltoid ligament strain, is remanded. 2. The claim for service connection for neurological condition with limb incoordination affecting the right upper extremity is remanded. 3. The claim for service connection for neurological condition with limb incoordination affecting the left lower extremity is remanded. 4. The claim for service connection for neurological condition with limb incoordination affecting the left upper extremity is remanded. 5. The claim for service connection for an eye condition (claimed as double vision, multiple vision, difficulty focusing on images, flashes ot black, loss of eyesight, ripple effect, and interrupted eyesight) is remanded. 6. The claim for service connection for loss of consciousness and passing out is remanded. 7. The claim for service connection for bladder problems is remanded. 8. The claim for service connection for right hip condition (claimed as hip pain and problems) is remanded. 9. The claim for service connection for left hip condition (claimed as hip pain and problems) is remanded. 10. The claim for service connection for a stomach condition to include loss of appetite and nausea is remanded. 11. The claim for service connection for a peripheral vestibular condition to include loss of balance, depth perception, and equilibrium is remanded. 12. The claim for service connection for orthostatic hypotension is remanded. 13. The claim for service connection for loss of muscle control, spasmodic movements, and pain is remanded. 14. The claim for service connection for left elbow disorder is remanded. 15. The claim for service connection for left knee disorder is remanded. Reviewing the documented evidence and the Veteran’s account of having a series of residuals in-service injury after a 1982 motor vehicle accident, there is further development needed for the claims. On most of these claims, the Regional Office did attempt to examine the Veteran, however it could not be completed due to a brief period of unavailability. Another attempt at scheduling was not made and there was not a reason notated. VA examinations are necessary in this case for the Board to make a well informed determination At the hearing, the Veteran’s representative raised the theory of secondary service connection consistent with 38 C.F.R. § 3.310 as a further basis for inquiry for the Veteran’s loss of consciousness, orthostatic hypotension, vestibular condition, loss of muscle control, and eye condition. Apart from the above, there were claims on which the RO completed development, for instance, the VA examinations for a left knee disorder and for peripheral neuropathy (right upper extremity, and left lower and upper extremities), and whether due to in-service injury. The results did not show neuropathy of the right upper extremity, left lower and left upper extremities. Also an examination was done relatively recently on the right ankle condition. That notwithstanding, back in November 2014 the Veteran did allude to the fact that he had a pending appeal with the Social Security Administration (SSA) for disability benefits from that agency. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). These records may be relevant to the present appeal, such as upon the element of showing a current disability, and there is no indication otherwise. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Accordingly, the RO should obtain the SSA benefits decision and any supporting medical records. For the additional claims, VA examination is again requested to resolve the issue of medical causation, accounting for current signs and symptomatology along with the Veteran’s description of any further relevant background history. The matters are REMANDED for the following action: 1. Obtain the most recent VA outpatient treatment records and associate them with the electronic claims folder. 2. Attempt to obtain the Veteran’s relevant SSA records pertaining to his SSA disability claim and decision. Negative responses must be documented and the Veteran should be notified if the records cannot be obtained. 3. Schedule the Veteran for an examination or examinations by appropriate clinician(s) on the nature and etiology of the several disorders claimed as residuals from a 1982 in-service motor vehicle accident: (1) loss of consciousness; (2) bladder problems; (3) right and left hip conditions; (4) stomach condition; (5) peripheral vestibular disorder; (6) orthostatic hypotension; (7) a condition manifested by a loss of muscle control, spasmodic movements; (8) left elbow disorder. The examiner is requested to provide a diagnosis of all present conditions. Then provide an opinion as to whether each diagnosed condition at least as likely as not (50 percent or greater probability) began during the Veteran’s active service, or is otherwise etiologically related to an incident of service. In providing the requested opinion, the examiner should take into complete consideration all medical documentation, including Service Treatment Records (STRs) and the Veteran’s own account of the injury residuals and subsequent condition. (see also, the Veteran’s February 2016 own personal statement and account, and the February 2020 Board hearing testimony of record). For the following disabilities, the examiner must also address secondary service connection: (1) loss of consciousness, (2) orthostatic hypotension, (3) vestibular condition, (4) loss of muscle control, (5) eye condition. a. Determine whether the disability is least as likely as not proximately due to or the result of his service-connected carotid artery disability. b. Determine whether the disability is as least as likely as not aggravated beyond its natural progression by his service-connected carotid artery disability. The VA examiner is requested to give a complete rationale for any opinion provided. If for any reason an opinion is not possible without resort to speculation then the examiner should state that and why it happens to be the case. 4. Review the claims file. If the directives specified in this remand have not been implemented, take proper corrective action before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 5. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Lyons, 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.