Citation Nr: 21008217 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 16-40 590A DATE: February 12, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability, other than posttraumatic stress disorder (PTSD) has been withdrawn. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a bilateral foot disability, to include a bilateral heel disability and hammertoe of the left foot, is remanded. Entitlement to service connection for fibromyalgia, to include a disability manifested by joint and muscle aches and pain, is remanded. FINDING OF FACT At the November 2020 Board hearing, which was prior to the promulgation of a decision in the appeal, the Veteran withdrew the claim for entitlement to service connection for an acquired psychiatric disability, other than PTSD. CONCLUSION OF LAW The criteria for withdrawal of a substantive appeal on the claim for entitlement to service connection for an acquired psychiatric disability, other than PTSD, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1975 to January 1978. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision. He testified before the undersigned Veterans Law Judge in November 2020. A copy of the transcript is of record. The Veteran’s VA Form 9 (substantive appeal) was received by VA in August 2016, more than 60 days after issuance of the May 2016 statement of the case regarding the issues listed above. See 38 U.S.C. § 7105; 38 C.F.R. §§ 19.20, 19.52. The Board acknowledges that a substantive appeal is not a jurisdictional requirement, and VA may waive the filing of a substantive appeal, either explicitly or implicitly, where appropriate. Percy v. Shinseki, 23 Vet. App. 37 (2009). In the present case, the agency of original jurisdiction (AOJ) treated the matter as if there was a timely substantive appeal filed as to the issues listed above, and certified the appeal to the Board. Therefore, as the appeal has been treated as perfected, the Board finds that it has jurisdiction to adjudicate the claims. The Board additionally notes that the AOJ separately considered claims for service connection for a right foot and heel pain, service connection for a left foot and heel pain and service connection for hammer toe of the left foot. The Board will consider the Veteran’s claims for service connection as encompassing any foot disability. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). As such, these three separately adjudicated claims on appeal have been characterized as a single claim as is noted on the title page. Withdrawal 1. Entitlement to service connection for an acquired psychiatric disability, other than PTSD. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. Withdrawal may be made by the appellant or by his or his authorized representative. 38 C.F.R. § 19.55. The Veteran indicated his desire to withdraw his appeal regarding the issue of entitlement to service connection for an acquired psychiatric disability, other than PTSD, at his November 2020 Board Hearing. The Board finds that the statements of the Veteran and his representative indicating the Veteran’s intention to withdraw the appeal, once transcribed as part of the record of his hearing, satisfy the requirements for the withdrawal of a substantive appeal. See Tomlin v. Brown, 5 Vet. App. 355 (1993). The Board finds that the represented Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew the issue. The undersigned clearly identified the withdrawn issue, and the Veteran affirmed that he was requesting a withdrawal as to that appeal. See Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). The Veteran has withdrawn his appeal regarding the above-identified claim, and hence there remains no allegation of error of fact or law for appellate consideration as to that issue. Accordingly, the Board does not have jurisdiction to review the appeal as to this issue, and the issue is dismissed. REASONS FOR REMAND Further evidentiary development is required prior to reviewing the issues remaining on appeal. 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a bilateral foot disability, to include a bilateral heel disability and hammertoe of the left foot. 3. Entitlement to service connection for fibromyalgia, to include a disability manifested by joint and muscle aches and pain. The Veteran asserts that he suffers from a low back disability, bilateral foot disability, and fibromyalgia disability stemming from an in-service assault that occurred around 1976. He asserts that during this assault he was kicked down several flights of stairs. See November 2020 BVA Hearing Transcript; April 2011 Statement. The Veteran has additionally submitted an August 2014 buddy statement from a fellow service member attesting that he saw the Veteran being punched, kicked, and thrown down a stairwell in service by another solider. The Veteran was subsequently granted service connection for PTSD based on this stressor. Service treatment records reflect that the Veteran sought treatment in June 1976 for a left leg cramp. The Veteran sought treatment in September 1976 for an achy back muscle. Treatment records in February 1977 reflect that the Veteran sought medical care after being hit in the eye by a fist. Treatment records in May 1977 and August 1977 reflect treatment for various right foot issues. Although the Veteran was provided a March 2016 VA examination and medical opinions regarding his foot and muscles, the VA examiner did not consider the Veteran’s assertions that his current disabilities all began in service following his assault. The Board finds that additional VA examinations and opinions are necessary to adjudicate the Veteran’s claims. Based on the credible statements and testimony provided by the Veteran regarding his longstanding low back, bilateral foot, and fibromyalgia (joint and muscle aches and pains), and his allegations of continuity of symptomatology since service, the Board finds that a remand for VA examinations and opinions regarding the claims of service connection is necessary. 38 U.S.C. § 5103A(d)(2); McLendon v. Nicholson, 20 Vet. App. 79 (2006). On remand, the AOJ should also obtain and associate with the claims file all outstanding treatment records. The matters are REMANDED for the following actions: 1. After obtaining the appropriate release from the Veteran, obtain any outstanding private treatment records. Additionally, obtain any outstanding VA treatment records. 2. Arrange for the Veteran to undergo VA examinations to determine the nature and etiology of his low back disability, bilateral foot disability, and fibromyalgia, to include a disability manifested by joint and muscle aches and pain. Any necessary testing should be conducted. The claims file must be reviewed in conjunction with the examinations, and the examiner(s) must indicate that such review occurred. The examiner should provide well-reasoned opinions on: a) Whether it is at least as likely as not (a 50 percent probability or greater) that any low back disability had its clinical onset during the Veteran’s active duty service, within one year of service separation, or is otherwise etiologically related to his active service, to include an in-service assault of being thrown down several flights of stairs. b) Whether it is at least as likely as not (a 50 percent probability or greater) that any bilateral foot disability had its clinical onset during the Veteran’s active service, within one year of service separation, or is otherwise etiologically related to his active service, to include an in-service assault of being thrown down several flights of stairs. c) Whether it is at least as likely as not (a 50 percent probability or greater) that any fibromyalgia, to include a disability manifested by joint and muscle aches, had its clinical onset during the Veteran’s active duty service, within one year of service separation, or is otherwise etiologically related to his active service, to include an in-service assault of being thrown down several flights of stairs. Any opinion(s) offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds that he or she cannot provide any requested opinions without resort to speculation, he or she should so indicate and explain why such a finding is made. The examiner is advised that the Veteran is competent to report his symptoms and history; and such reports must be considered in formulating any opinions. The examiner should provide a rationale for rejecting any reports by the Veteran. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claims should be readjudicated based on the entirety of the evidence. (Continued on the next page)   If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. M. Clark, 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.