Citation Nr: 21015607 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-42 461 DATE: March 17, 2021 ORDER Entitlement to an effective date prior to May 11, 2015, for the award of service connection for a right ankle disability is dismissed. Entitlement to an effective date prior to May 11, 2015, for the award of service connection for a right knee disability is dismissed. Entitlement to service connection for bilateral pes planus is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for pseudofolliculitis barbae (PFB) is remanded. Entitlement to service connection for a skin disorder, other than PFB is remanded. Entitlement to a disability rating higher than 10 percent for a right ankle disability is remanded. Entitlement to a disability rating higher than 10 percent for a right knee disability is remanded. FINDINGS OF FACT 1. On the record at his hearing on December 8, 2020, the Veteran requested withdrawal of his claims for entitlement to an effective date prior to May 11, 2015, for the award of service connection for a right ankle disability and a right knee disability. 2. The Veteran’s mild bilateral pes planus, which was noted at enlistment, was not aggravated by service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for entitlement to an effective date prior to May 11, 2015, for the award of service connection for a right ankle disability are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for withdrawal of the appeal for entitlement to an effective date prior to May 11, 2015, for the award of service connection for a right knee disability are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 3. The criteria for service connection for pes planus are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1153, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.304(b), 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1988 to May 1991. In December 2020, he testified at a teleconference hearing held before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. Dismissal of Withdrawn Claims A veteran may withdraw his appeal in writing at any time before the Board promulgates a final decision. 38 C.F.R. § 20.204. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204(b). When a veteran does so, the withdrawal effectively creates a situation in which an allegation of error of fact or law no longer exists. In such an instance, the Board does not have jurisdiction to review the appeal, and a dismissal is then appropriate. 38 U.S.C. § 7105(d); 38 C.F.R. §§ 20.101, 20.202. On December 8, 2020, on the record at his Board hearing, the Veteran requested a withdrawal of the claims for entitlement to effective dates prior to May 11, 2015, for the award of service connection for a right ankle disability and right knee disability. (A written transcript of that hearing has been associated with the claims file). His withdrawal was undertaken with a full understanding of the consequences of such action. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). In view of the Veteran’s expressed desire, further action with regard to these claims is not appropriate. Accordingly, the Board does not have jurisdiction to review them and they are dismissed. Service Connection The Veteran is seeking service connection for pes planus. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Continuity of symptomatology may also provide a basis for a grant of service connection for those diseases defined as “chronic” by VA. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Here, the record raises a question of whether the Veteran’s pes planus preexisted his military service. See Report of Medical Examination dated March 31, 1988. In that case, service connection is available for preexisting conditions aggravated during service beyond the course of their natural progression. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. The law provides that Veterans are presumed sound upon entry into service except for conditions noted upon entry or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. However, if, as here, a preexisting disability is noted upon entry into service, a veteran cannot bring a claim for service incurrence for that disability but may bring a claim for service-connected aggravation of that disability. Paulson v. Brown, 7 Vet. App. 466, 468 (1995). In such a case, the provisions of 38 U.S.C. § 1153 and 38 C.F.R. § 3.306 apply. It is the Veteran who bears the burden of establishing aggravation under 38 U.S.C. § 1153. Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). A preexisting disease or injury will be found to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). The Veteran must submit, or the record must contain, some evidence demonstrating that the preexisting disability increased in severity during service for the presumption of aggravation to attach. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir 2004); Verdon v. Brown, 8 Vet. App. 529 (1996). Once the presumption attaches, it may be rebutted only by clear and unmistakable evidence demonstrating that any increase in disability was due to the natural progress of the disease, which burden is on the government. Wagner, supra; Cotant v. Principi, 17 Vet. App. 116 (2003); 38 C.F.R. § 3.306(b). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, any reasonable doubt is resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. At his December 2020 hearing, the Veteran testified that his foot problems started as a result of long hours of marching, running, physical fitness training and standing on hard surfaces (steel decks) in military boots. He stated that he was given “special” boots and was allowed to wear soles in his boots for comfort. The problems have continued since separation from service and requires that he basically wear tennis shoes or running shoes daily. See December 2020 hearing transcript (Tr.) at pgs. 36-43. Service treatment records show mild asymptomatic pes planus was noted at enlistment in March 1988. Thus, the presumption of soundness at entrance does not attach and the Board needs next to determine whether the pre-existing disorder was aggravated during service. The remaining service treatment records are negative for any evidence that bilateral pes planus symptoms manifested during service or that any measured worsening of such symptoms occurred during active service. The Veteran’s separation physical in May 1991 shows he denied foot trouble and did not report any foot injury. Clinical evaluation of the feet was within normal limits. The lack of findings/problems during service and at discharge weighs against a finding of worsening (increase) in service. So, while pes planus was noted at enlistment, without a showing of an in-service increase in the disability, aggravation is not established. As such, the Veteran has not demonstrated that pes planus was aggravated or worsened during service. This conclusion is further supported by the post-service evidence. To the extent that the Veteran claims that his feet have been symptomatic since service, he has neither submitted nor identified evidence showing he received treatment for any foot disorder immediately after service or for many years thereafter. In other words, there is no evidence of a continuity of bilateral foot problems symptomatology, which strengthens the conclusion that his pre-service pes planus was essentially unaffected by service. The cumulative effect of the foregoing is that the Veteran’s pes planus was noted upon entry into service in 1988. As such, he is not presumed sound as to this disorder at service entrance, and with no increase in the severity of it during service, a discussion of clear and unmistakable evidence to rebut the presumption of aggravation is not required. Wagner, 370 F.3d at 1096; Horn, 25 Vet. App. at 234. There is no basis to allow the claim. Accordingly, the preponderance of the evidence is against the claim and there is no reasonable doubt to be resolved. 38 U.S.C. § 5107 (b). REASONS FOR REMAND an acquired psychiatric disorder to include PTSD The Veteran is seeking service connection for psychiatric symptoms which he asserts had their origins during military service. At his December 2020 hearing, the Veteran testified that during a permanent change of station from the USS New Jersey to the USS Paul F. Foster, he filed for humanitarian reassignment due to his terminally ill grandmother. Before he reached the ship, he was intercepted by the Red Cross and temporarily quartered at a POW compound in Riyadh for several weeks. As part of the out-processing for a hardship discharge, he was at the Riyadh airport when it was hit during a SCUD missile attack. The Veteran maintains that he was frightened and fearful for his life and as a result of this incident suffers from PTSD. See VA Form 21-0781, Statement in Support of Claim for PTSD, received in December 2015. The AOJ attempted to verify the Veteran’s claimed in-service stressor and submitted a request to the Joint Services Records Research Center (JSSRC) via the Defense Personnel Records Information Retrieval System (DPRIS). In their response, DPRIS noted that according to the Naval History & Heritage Command (NHHC), the USS New Jersey was decommissioned for the final time on February 8, 1991 preventing any participation in Operations Desert Shield/Storm and that the Veteran’s service personnel records show he was on that ship until that time. The response also noted there were SCUD missile attacks against Riyadh on multiple dates in January and February 1991. The AOJ did not attempt to confirm the Veteran’s military experiences after the USS New Jersey was decommissioned on February 8, 1991. Because the circumstances surrounding the Veteran’s request for humanitarian reassignment and his subsequent hardship discharge are potentially verifiable events, the AOJ should seek any official service department records-such as relevant travel orders, transfers, and other supporting documents that might corroborate his account of being present at the Riyadh airport during a SCUD missile attack. A VA examination is also necessary to assess all potential mental health diagnoses and determine whether the Veteran has a psychiatric disorder, to include PTSD related to a verified service stressor. low back disorder The Veteran seeks service connection for a low back disorder that he contends was injured in the same incident in which he sustained his service-connected neck disorder. At his December 2020 Board hearing, the Veteran testified that he injured his back during a training drill as part of a security alert team. He was told to rest for the remainder of the day and returned to duty. Also, during the hearing, he raised the issue of secondary service connection for his back disorder. He argues that his back problem is aggravated due to the altered gait caused by his service-connected neck, knee and ankle disabilities. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004) (all theories of entitlement, direct and secondary, must be considered if raised by the evidence of record). The Veteran has not been afforded a VA examination regarding his claimed back disorder and VA has a duty to assist him in substantiating his claim by obtaining a competent medical opinion addressing the etiology and onset of his claimed disability. See 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). PFB skin disorder other than PFB The Veteran seeks service connection for skin disorders, including PFB that he contends had their onset during military service and have continued since service discharge. Service treatment records show the Veteran was treated for symptoms associated with PFB, tinea versicolor, tinea cruris, and hives. However, when examined by VA in October 2016, the examiner noted there was no evidence of scarring or PFB breakout at the current time and did not otherwise address the Veteran’s history of in-service episodes of groin rash and hives. Since then the Veteran testified at his December 2020 hearing that he had not been examined during a flare-up of symptoms and that it takes about two days after shaving with a razor for the irritation and bumps associated with PFB to appear. He also testified that he continues to experience hives due to allergic reactions and fungal infections that are recurrent if not treated daily. The Veteran’s description of recurrent skin problems suggests that the negative objective findings from the 2016 VA examination are not entirely representative of his skin conditions, and the duty to assist requires at least some further effort to obtain an examination be during an active phase of symptoms. See Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (where fluctuating conditions escape detection on examination, VA must conduct an examination during the active stage). right ankle disability right knee disability The Veteran is seeking higher disability ratings for his service-connected right ankle and right knee disabilities. At his December 2020 Board hearing he testified that the severity of his right ankle sprain and right knee sprain has worsened since the last examination in 2018, therefore an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); Snuffer v. Gober, 10 Vet. App. 400 (1997). The matters are REMANDED for the following action: 1. Followup with the Veteran and his representative on his description of his in-service stressor made during the December 2020 hearing. He should be given another opportunity to provide any additional specific information that might corroborate his alleged stressor, including the date, place, and names of other individuals who were also present or knew of the incident. The Veteran is advised that this information is necessary to obtain supportive evidence of the alleged stressor event, and that he must be as specific as possible, because without such details an adequate search for verifying information cannot be conducted. 2. The AOJ should take additional steps to verify the Veteran’s claimed stressor, to include requesting travel orders, transfers, temporary duty orders, and assignments that might corroborate the Veteran’s report that he was at the Riyadh airport during a SCUD missile attack or that he was assigned to a POW camp in Riyadh. The AOJ should note the Veteran has clarified that these events took place after the USS New Jersey was decommissioned on February 8, 1991. 3. If verification of the requested information is accomplished and after any additional records are associated with the file, schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the onset and etiology of his claimed psychiatric disorder. The examiner should identify all psychiatric diagnoses present on evaluation and noted during the appeal period. In this case, the Veteran’s medical history includes, adjustment disorder, depressive disorder and a positive PTSD screen. If a diagnosis of PTSD is appropriate, the VA examiner must explain how the diagnostic criteria of DSM-5 are met, to include whether the Veteran’s reported stressor is sufficient to support a diagnosis of PTSD, and whether his symptoms are related to that stressor. If a psychiatric disorder other than PTSD is diagnosed, the examiner should state whether such disorder is at least as likely as not, (i.e., a 50 percent probability or greater), began during service or is otherwise causally related. If any diagnosed psychiatric disorder cannot be regarded as having had its onset during active service, the examiner should explicitly indicate so and provide an appropriate explanation. 4. Schedule the Veteran for VA examination to determine the onset and etiology of his claimed back disorder (or telehealth interview, review of the record, etc., if an in-person examination is not feasible). The examiner should identify all current back disorders and state whether any such disorder at least as likely as not, (i.e., a 50 percent probability or greater) had its clinical onset during service or was otherwise related to service. The examiner is advised that a lack of documentation of treatment in the service records or a lack of formal diagnosis of back disorder during service cannot be the only basis by which to reject a possible nexus to service. If any diagnosed back disorder cannot be regarded as having had its onset during active service, the examiner should state whether such back disorder is at least as likely as not, (a probability of 50 percent or greater), caused or aggravated by his service-connected neck, knee and ankle disabilities. If no aggravation is found, the examiner should specifically indicate so. In providing the requested opinion, the examiner must discuss: 1) the objective medical findings in service treatment records; 2) the Veteran’s December 2020 testimony that he injured his back during a military training drill with continued problems since then; and 3) his testimony that his service-connected neck, knee, and ankle disabilities cause an altered gait that aggravates his back problems. 5. Schedule the Veteran for appropriate VA examinations (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the onset and etiology of his skin disorders. Before scheduling the requested examination, ask the Veteran to provide an estimated time or time of the year when he experiences or is likely to experience flare-ups of tina versicolor, tinea cruris, hives, or other skin disorders, in order to schedule the Veteran for a new skin examination during a flare-up. (The Veteran has reported that he experiences the most active stages of PFB two days after shaving with a razor). The examiner should identify all current skin disorders to include PFB, tinea versicolor, tinea cruris, and hives, even if they have since resolved and state whether any diagnosed disorder at least as likely as not (a probability of 50 percent or greater) had its onset during military service or is otherwise causally related to service. In providing the requested opinion, the examiner must discuss: 1) the objective medical findings in the service treatment records including the documented treatment for PFB, tinea versicolor, tinea cruris, and hives; and 2) the Veteran’s December 2020 testimony that his current skin disorders represent a continuation of the type of symptoms he experienced during service. (Continued on the next page)   6. Schedule the Veteran for appropriate VA examinations to assess the current severity of his service-connected right ankle and right knee disabilities. Any appropriate evaluations, studies, and testing deemed necessary should be conducted, and the results included in the examination report. The examiner must use the appropriate Disability Benefits Questionnaires (DBQ). The examiner should also provide a full description of impairment associated with each disability and its impact on occupational and everyday functioning. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Bryant, Jeana R 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.