Citation Nr: 21012122 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 17-38 350 DATE: March 3, 2021 ORDER Service connection for carpal tunnel syndrome (CTS) of the left upper extremity is dismissed. Service connection for pes planus is granted. REMANDED Service connection for acid reflux is remanded. Service connection for CTS of the right upper extremity is remanded. Service connection for sinusitis is remanded. Service connection for a back disability is remanded. Service connection for shin splints of the right leg is remanded. Service connection for shin splints of the left leg is remanded. FINDINGS OF FACT 1. During an October 29, 2020 Board hearing, prior to the promulgation of a decision in the appeal, the appellant requested that her appeal for service connection for CTS of the left upper extremity be withdrawn. 2. The Veteran’s pes planus began during active service and have continued to the present. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim for service connection for CTS of the left upper extremity by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for service connection for pes planus 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 served on active duty from October 1997 to January 2000 and February 2003 to November 2003. A Board hearing was held in October 2019, but the transcript was unavailable. A second Board hearing was held in October 2020. A transcript is of record. 1. Withdraw of Left Carpal Tunnel Syndrome During the October 2020 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew the issues of entitlement to service connection for CTS of the left upper extremity. The undersigned clearly identified the withdrawn issue, and the Veteran affirmed that they were requesting a withdrawal as to that issue. See October 2020 Hearing Transcript, at 4. The Veteran’s full understanding of the consequences are shown as she clearly explained that she wished to withdraw the claim for CTS for her left upper extremity and keep the claim for the right upper extremity as part of her appeal. See Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Veteran has withdrawn the issues of entitlement to service connection for CTS of the left upper extremity. Accordingly, the Board does not have jurisdiction to review the appeal of the issue and it is dismissed. 2. Service Connection for Pes Planus The Veteran asserts that her bilateral pes planus began in service and has continued since that time. See October 2020 Hearing Transcript, at 7. The Board concludes that the Veteran has bilateral pes planus that began during active service. 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). The Court of Appeals for Veterans Claims (Court) has held that a lay claimant is competent to report symptoms related to pes planus. Falzone v. Brown, 8 Vet. App. 398, 403 (1995). Thus, the first Shedden element is met and is not in dispute. The Veteran’s service records are incomplete. See December 2014 Service Treatment Record Certification. At the outset of her first term of active duty service, her feet were normal. See September 1997 Entrance Examination. No separation examination is available for that period of service and very limited treatment records are in evidence. Likewise, very limited service treatment records for her second period of active duty are in evidence, and neither an entrance examination nor a separation examination are available for review. The Veteran contends she developed pes planus in service as a result of extensive standing, moving CONEX boxes, and ruck marches, and she has had consistent symptoms since service. See October 2020 Hearing Transcript, at 7. The Veteran is competent to testify regarding observable symptoms, such as her foot pain and the effect pes planus had on her service. 38 C.F.R. § 3.159(a)(2); see Layno v. Brown, 6 Vet. App. 465 (1994); see also Washington v. Nicholson, 19 Vet. App. 362 (2005). The Board also finds the Veteran’s statements to be credible and probative, as they are consistent with each other, consistent with the limited available service treatment records, and have been the same throughout the appeal. The Veteran’s assertions are further bolstered by November 2014 statements by J.D. and S.C. and September 2017 and January 2019 statements from C.T., all of whom served with her during her second period of active duty, as well as a January 2019 statement from her son. No evidence of record contradicts these findings. Accordingly, the Board finds that the Veteran’s pes planus is etiologically related to service. Therefore, the criteria for service connection for the Veteran’s flat feet have been met. See 38 C.F.R. §§ 3.102, 3.159, 3.303; Gilbert v. Derwinski, 1 Vet. App. 9, 55-57 (1990). REASONS FOR REMAND 1. Service Connection for Acid Reflux, Right Upper Extremity CTS, Back Disability, and Bilateral Shin Splints The Veteran testified that her acid reflux, right upper extremity CTS, back disability, and bilateral shin splints began in service and have continued since. The Veteran’s service treatment records are incomplete, and VA therefore has a heightened duty to assist. As such, the claims must be remanded for VA examinations. See 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Sinusitis The January 2015 VA examiner diagnosed sinusitis but gave no opinion as to the etiology of the condition, including the Veteran’s asserted exposure to smoke and fumes from burn pits. The examination is inadequate, and the claim must be remanded. The matters are REMANDED for the following action: 1. Schedule the Veteran for VA examinations for her claimed acid reflux, right upper extremity carpal tunnel syndrome, back disability, and bilateral shin splints. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s conditions manifest in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinions below. The examiner is asked to provide a response to the following: Is any diagnosed disability at least as likely as not related to service, including the Veteran’s assertion that the disabilities began in service? Provide a rationale to support the opinions. In providing the requested opinion, consider the Veteran’s description of her in-service injury and symptoms as well as her 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 her current disability, this should be noted. Stated another way, do the Veteran’s reports about her 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? 2. Obtain an opinion from an appropriate clinician regarding whether the Veteran’s sinusitis is at least as likely as not related to her active duty service that specifically addresses her asserted exposure to fumes from burn pits and sand. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. M. Mills Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Mine, 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.