Citation Nr: 21015657 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 18-09 656 DATE: March 18, 2021 ORDER The appeal of the claim for service connection for colon cancer is dismissed. The appeal of the claim for service connection for a rectal tumor is dismissed. REFERRED The Veteran filed a claim for a total disability based on an individual unemployability (TDIU) in July 2018. However, the RO has not adjudicated this claim. Thus, the claim for a TDIU is referred to the AOJ for adjudication. REMANDED The service connection claim for an acquired psychiatric disability, including and not limited to major depressive disorder, is remanded. The service connection claim for a right foot disability is remanded. The service connection claim for a left foot disability is remanded. The service connection for a right shoulder disability is remanded. The service connection for a left shoulder disability is remanded. FINDINGS OF FACT 1. On January 8, 2021, prior to the announcement of a decision in the appeal of the claim for service connection for colon cancer, the Board received notification from the Veteran that a withdrawal of this appeal is requested. 2. On January 8, 2021, prior to the announcement of a decision in the appeal of the claim for service connection for a rectal tumor, the Board received notification from the Veteran that a withdrawal of this appeal is requested. CONCLUSIONS OF LAW 1. The criteria for a withdrawal of the appeal of the service connection claim for colon cancer have been met. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 19.55. 2. The criteria for a withdrawal of the appeal of the service connection claim for a rectal tumor have been met. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1975 to August 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In January 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. Dismissal of Claims on Appeal 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board announces a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the Veteran or by his or her authorized representative. Id. In the present case, the Veteran has withdrawn his appeal of the service connection claims for colon cancer and a rectal tumor. As there remain no allegations of errors of fact or law for appellate consideration, the Board does not have jurisdiction to review the appeal on these two claims, and thus, they are dismissed. 38 U.S.C. § 7104. REASONS FOR REMAND The Board regrets further delay, but finds that additional developments are necessary before a decision may be rendered on the remaining issues on appeal. 1. Acquired Psychiatric Disability The Veteran asserts entitlement to service connection for his psychiatric disability, to include as secondary to his bilateral foot disabilities. See January 2021 Virtual Hearing Transcript. The Veteran reported that he has been undergoing mental health treatment with a psychologist, and psychiatrist on a monthly basis, and that through the years, he has been diagnosed with a mental health disability. See November 2013 Statement in Support of Claim. Accordingly, he completed and submitted an authorization and release form for the RO to obtain his mental health records from Dr. R.O., from 2011 to current. In a December 2014 notification letter, however, the RO informed the Veteran that due to a change in privacy law, his November 2013 authorization and release form was no longer valid. Although, the Veteran submitted a subsequent authorization and release form, in December 2014, it does not appear that the RO sought to obtain the private mental health treatment records, as they have not been associated with the claims file, even though private treatment records from other providers have been associated with the claims file. Additionally, the RO indicated that the Veteran did not report to his VA examination for mental conditions, and that the Veteran did not show good cause for his failure to do so. However, the Veteran clarified that he attempted to reschedule his examination, well in advance, but that the RO did not reschedule the examinations. See July 2015 Notice of Disagreement; see also January 2021 Virtual Hearing Transcript. Therefore, a remand is required for the RO to obtain all outstanding mental health treatment records, rescheduling the Veteran for a VA examination, and obtaining an etiological opinion on his psychiatric disability. 2. Right and Left Feet Disabilities (Bilateral Foot Disabilities) The Veteran asserted that his bilateral foot disabilities are the result of using improper footwear (sneakers) during his active military service. See January 1977 Correspondence from the United States Marine Corps (noting that “there has been an inordinate delay in the issue of special measurement footwear); see also November 2013 Statement in Support of Claim; see too, January 2021 Virtual Hearing Transcript. Service treatment records (STR) reflect that the Veteran complained about his feet growing too fast, and that he had a constant problem securing special boots. See August 1976 Clinical Record, STRs. STRs also suggest that he complained about foot pain, related to his footwear. See e.g. May 1976 Podiatry Note, STRs; see also April 1977 Chronological Record of Medical Care, STRs. In March 2015, the Veteran was afforded a VA examination for foot conditions. The VA examiner noted that the Veteran had current diagnoses of flat foot (pes planus); hammer toes; and hallux valgus. In this VA examination report, the VA examiner was not responsive to the question in the form, “[does] the Veteran have a diagnosis of a bilateral foot condition that is at least as likely as not (50 percent or greater probability) incurred in or caused by wearing too small issued boots during service?” Nonetheless, the VA examiner appears to have opined that the Veteran’s bilateral foot condition was not caused by wearing “too small issued boots during service.” Additionally, the VA examiner did not provide a clear, substantive rationale to support this opinion, but rather, she merely listed evidence from treatment records, as well as a list of the Veteran’s complaints. In a July 2017 addendum opinion, the VA examiner expressly opined that the Veteran’s bilateral feet conditions were less likely than not (less than 50 percent probability), incurred in or caused by an in-service, injury, event, or illness. As the rationale for this opinion, the VA examiner reasoned that there is no documented evidence that the diagnoses of pes planus, hammer toes, and hallux valgus existed while on active duty. However, this opinion is inadequate, as it is solely based on the absence of evidence in-service foot diagnoses. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the VA examiner did not comment on the Veteran’s report of in-service injury and instead relied entirely on the absence of evidence in the service treatment records (STRs) to provide a negative opinion). In doing so, the VA examiner did not consider all of the probative evidence. For example, a July 2012 private treatment note from Dr. D.L. indicates that the Veteran has chronic pain on the top of his feet, secondary to rigid hammertoes; his walking is compromised as a result of the contracture of digits and pain along the bottom of both feet; and that he has multiple lesions on the bottom of both feet, which are extremely painful. Therefore, a remand is required for a new VA examination and opinion on the etiology of the Veteran’s bilateral foot disabilities. 3. Right and Left Shoulder Disabilities (Bilateral Shoulder Disabilities) The Veteran asserts that his bilateral shoulder disabilities are the result of his active service. See e.g. January 2021 Virtual Hearing Transcript. The Veteran was afforded a VA examination for shoulder conditions in March 2015. After this examination, a VA examiner determined that the Veteran did not have a current diagnosis associated with his shoulders. At the same time, although the VA examiner was not responsive to the question, “[does] the Veteran have a diagnosis of a bilateral shoulder condition that is at least as likely as not (50 percent or greater probability) incurred in or caused by the shoulder complaints during service?”, she appears to have opined that the Veteran’s bilateral shoulder condition was not caused by shoulder complaints during service. Although the VA examiner noted, in part, that the Veteran stated that he could not recall when he started to have problems with his bilateral shoulder, she did not provide a clear rationale for this opinion. In a July 2017 addendum opinion, the VA examiner expressly opined that the Veteran’s bilateral shoulder was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. As the rationale for this opinion, the VA examiner reasoned that the Veteran was diagnosed with an acute left shoulder strain in November 1976, and that there is no documented medical evidence of a chronic bilateral shoulder condition related to service. She also noted that the Veteran stated that he had left shoulder replacement surgery, and that this is 35 years after his separation from service. However, this opinion is inadequate as it is based on an inaccurate factual premise, and particularly, the VA examiner overlooked critical, probative evidence, in formulating an etiological opinion for the bilateral shoulder conditions. Specifically, the VA examiner overlooked evidence from the Veteran’s STRs, which indicates that the Veteran may have had a pre-enlistment shoulder condition, he complained about his shoulder popping in and out, and a shoulder X-ray reflected “minimal humeral head damage.” See April 1977 Chronological Record of Care, STRs. Additionally, post service treatment records reflect a current diagnosis of a bilateral osteoarthritis of the right and left shoulders, status post bilateral shoulder replacement surgeries, even though the VA examiner noted that the Veteran did not have a current diagnosis associated with his shoulders. See January 2018 Private Treatment Note, Social Security Administration (SSA) Records. Thus, a remand is required for a new VA examination and etiological opinion on the bilateral shoulder condition. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based on an inaccurate factual premise has no probative value.); see also Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (holding that “[if] the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely.”) (citing Reonal)). The matters are REMANDED for the following action: 1. Provide the Veteran with the requisite authorization and release form to complete and submit to the RO, and obtain all outstanding mental health private treatment records from Dr. R.O., from 2011 to current. a. All attempts to obtain these records, including the mandatory response to this request, must be documented in the claims file. b. If all attempts to obtain the outstanding private treatment records are unsuccessful, notify the Veteran in a memorandum of unavailability, and associate this correspondence with the claims file. 2. Also, schedule the Veteran for a new VA examination with a physician (VA examiner), who has not yet evaluated the Veteran, to determine the etiology of his bilateral foot disabilities. The VA examiner must review the claims file and must note that review in the report. A copy of this REMAND must be made available to the VA examiner. The VA examiner must undertake the following: a. Identify all foot conditions that the Veteran has been diagnosed with, since November 23, 2012 (one year prior to the date he filed this claim). b. For each foot disability, opine whether it is at least as likely as not (more than 50 percent probability), the pertinent foot disability is the result of the Veteran’s use of improper footwear during service; an injury, illness or event in service; or is otherwise related to his active service. c. In rendering an opinion, the VA examiner should also consider all statements from the Veteran and witnesses (buddy statements) about onset, symptomatology, and continuity, relating to the Veteran’s report of chronic pain and or/ other foot problems from the use of improper footwear in service. d. Consider all probative evidence, including and not limited to, in-service complaints of foot conditions, and/or problems with the Veteran’s footwear. e. A detailed explanation is requested for all opinions provided. If an opinion cannot be provided without resort to speculation, provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be rendered. 3. Also, schedule the Veteran for a new VA examination with a physician (VA examiner), who has not yet evaluated the Veteran to obtain an opinion addressing the etiology of his bilateral shoulder disabilities. The VA examiner must review the claims file and must note that review in the report. A copy of this REMAND must be made available to the VA examiner. The VA examiner must undertake the following: a. Identify all shoulder conditions that the Veteran has been diagnosed with, since November 23, 2012 (one year prior to the date he filed this claim). b. For each shoulder disability, describe any medical evidence that shows that the Veteran had a left or right shoulder condition that existed prior to service. i. If you believe that a left or right shoulder condition existed at the time of his entry onto active duty, opine whether it is at least as likely as not (more than 50 percent probability), the pre-existing shoulder disability was aggravated by the Veteran’s active service. ii. “Aggravation” means an increase in severity of the disorder beyond any medically established baseline. c. If you believe that a left or right shoulder condition was not present upon entry onto active duty, opine whether it is at least as likely as not (50 percent probability or greater) that the pertinent current shoulder condition is the result of an in-service injury, illness, disease, or event; and/or is otherwise related the Veteran’s active service. d. In rendering an opinion, consider all probative medical evidence, including the Veteran’s lay statements. Specific attention is drawn to the April 1977 chronological record of care, which suggests that the Veteran may have had a pre-enlistment shoulder condition, he complained about his shoulder popping in and out, and a shoulder X-rays reflected “minimal humeral head damage.” The VA examiner should address and discuss this piece of evidence, in establishing an etiological opinion. A detailed explanation is requested for all opinions provided. If an opinion cannot be provided without resort to speculation, provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be rendered. 4. After obtaining all outstanding mental health private treatment records, to the extent possible, and after obtaining a VA opinion on the Veteran’s bilateral foot disabilities, schedule the Veteran for a new VA examination with a physician (VA examiner) to determine the etiology of his mental disability. The VA examiner must review the claims file and must note that review in the report. A copy of this REMAND must be made available to the VA examiner. The VA examiner must undertake the following: a. Identify all of the Veteran’s mental diagnoses. b. For each mental disability, opine whether it is at least as likely as not (50 percent probability or greater) that the pertinent mental disability is the result of an in-service injury, illness, disease, or event; and/or is otherwise related the Veteran’s active service. c. For each mental disability, opine whether it is at least as likely as not (50 percent probability or greater) that the pertinent mental disability is caused by a service-connected disability, if applicable. d. For each mental disability, opine whether it is at least as likely as not (50 percent probability or greater) that the pertinent mental disability is aggravated a service-connected disability, if applicable. A detailed explanation is requested for all opinions provided. If an opinion cannot be provided without resort to speculation, provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be rendered. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V-N. Pratt 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.