Citation Nr: 21021006 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 16-27 332 DATE: April 9, 2021 ORDER Entitlement to service connection for diabetes mellitus has been withdrawn. Entitlement to service connection for acquired psychiatric disorder is granted. Entitlement to service connection for hip disability is granted. REMANDED Entitlement to service connection for back disability is remanded. FINDINGS OF FACT 1. On May 20, 2020, during the Board hearing and prior to the promulgation of a decision in the appeal, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew his appeal of entitlement to service connection for diabetes mellitus. 2. Resolving doubt in favor of the Veteran, his acquired psychiatric disability began in service. 3. Resolving doubt in favor of the Veteran, his bilateral hip disability began in service as a result of his in-service knee injury. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the Veteran’s appeal of the claim for service connection for diabetes mellitus have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for service connection for acquired psychiatric disorder are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. 3. The criteria for service connection for bilateral hip disability are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1984 to July 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2014 and October 2016 rating decisions. In May 2020, the below Veterans Law Judge held a Board hearing in this matter. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. Entitlement to service connection for diabetes mellitus has been withdrawn. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. 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. In DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011), the Court held a valid oral withdrawal must be: (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action by the appellant. During the May 2020 Board hearing, the Veteran withdrew from appeal the issue of entitlement to service connection for diabetes mellitus. The Veteran stated that he wanted to withdraw the issue and confirmed he understood the consequences of the withdrawal. The Veteran confirmed that he understood that the claim would be dismissed without the Board looking at the evidence or weighting the evidence. He confirmed that he understood that the claim would not be pursued any further. See May 2020 Board Tr., pp. 18-19. The Board finds the Veteran’s withdrawal was explicit, unambiguous, and done with a full understanding of the consequences. Thus, the Board finds the Veteran’s withdrawal of this issue at the hearing meets the requirements of Delisio. This issue is therefore dismissed because there remains no allegation of error of fact or law for appellate consideration. 38 U.S.C. § 7105. Service Connection Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In order to establish entitlement to service connection for any disability on a direct basis, the record must contain competent evidence of (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence showing that a current disability exists and that the disability was caused by or aggravated by a service-connected disability. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for acquired psychiatric disorder is granted. Considering the pertinent evidence in light of the governing legal authority, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection for acquired psychiatric disorder is warranted. The Veteran reported psychiatric issues during service, including an in-service hospital stay in May 1985. While the Veteran’s service treatment records do not contain any complaints, treatment, or diagnoses related to a psychiatric condition, there is a note in the Veteran’s service personnel records showing an April 30, 1985, Ireland Army Hospital admission with an unknown cause. In December 1985, five months after separation from service, in seeking service connection for a nervous condition, the Veteran reported that he was hospitalized for 23 days in May 1985 at Ireland Army Hospital during service. A January 1986 hospital summary references an active duty 23-day hospitalization following suicidal ideation. The January 1986 hospital summary also shows that the Veteran was hospitalized from December 10, 1985, to January 2, 1986, with a diagnosis of depression with psychotic features. In post-service treatment, the Veteran reported hearing “chronic voices since the 1980’s,” and also reported a past suicide attempt in 1984 by overdose and running his car into an embankment. The record also contains records from the Social Security Administration (SSA), to include the Veteran’s August 2010 SSA report of psychological evaluation, which shows the Veteran’s reports that he experienced emotional difficulties during service following his knee injury partly because he was upset that he would not be able to have a career in the military. This is consistent with the Veteran’s testimony in May 2020 with the undersigned indicating he was upset that he lost his career in the military after his knee injury. The Veteran has never been afforded a VA examination, but he did supply his own private psychiatric opinion dated in November 2020. The private examiner reviewed the Veteran’s file, interviewed the Veteran, and opined that the Veteran’s schizoaffective disorder as likely as not began during service. The examiner explained that the Veteran began experiencing psychiatric symptoms, including visual and auditory hallucinations, during service. The examiner explained that the records show a suicide attempt in 1984, during service, with another episode of depression months after service in 1986. The examiner explained that the Veteran has been in and out of the hospital for psychiatric issues since service. There is no contrary medical opinion in the Veteran’s claims file. Viewing the evidence as a whole, and resolving doubt in favor of the Veteran, the Veteran’s acquired psychiatric disorder began in service. Accordingly, service connection for acquired psychiatric disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for hip disability is granted. Considering the pertinent evidence in light of the governing legal authority, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection for bilateral hip disability is warranted. The Veteran has met the criteria to establish service connection for bilateral hip disability. The Veteran has been diagnosed with degenerative changes of the bilateral hips. An October 2020 private examiner reviewed the Veteran’s records and opined that it is as likely as not that the Veteran’s hip condition began in service due to his in-service knee injury. The examiner explained that the Veteran developed bilateral hip pain, with the right hip worse than the left, after his in-service knee injury and that this was not unusual due to his abnormal gait due to his knee injury. The examiner noted that the Veteran’s hip pain has continued and is worse with prolonged walking or standing. The private opinion is supported by the evidence in the claims file. The Veteran’s service treatment records note hip pain in November 1984 after the Veteran’s October 1984 in-service knee injury. The Veteran’s service records show a torn meniscus in his left knee during service, that he underwent a meniscectomy, but that he still had pain and instability and was discharged from service for a physical disability. See April 1985 service records. In the years following service, the Veteran underwent VA examinations relating to his left knee. In February 1988 and June 1990 VA examinations, the Veteran reported hip pain when discussing his left knee problems. The February 1988 VA examiner also noted a marked left leg limp when discussing the Veteran’s knee symptoms. More recent VA treatment also notes an antalgic gait. See October 2007 VA Treatment Record. The Board notes that an August 2016 VA examiner opined that the Veteran’s bilateral hip disability was less likely than not incurred in or related to service. However, the VA examiner did not address the Veteran’s in-service left knee injury and how the knee injury affected his hips. In addition, the VA examiner noted no hip complaints in the records until 2016 but the Veteran complained of hip pain in 1988 and 1990 VA knee examinations. Viewing the evidence as a whole, and resolving doubt in favor of the Veteran, the Veteran’s bilateral hip disability arose in service due to his knee injury. Accordingly, service connection for bilateral hip disability, diagnosed as degenerative changes of the bilateral hips, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for back disability is remanded. The Veteran contends his current back condition is related to his in-service left knee injury. The Board finds the evidence is insufficient to render a decision. An August 2016 VA examiner opined that the Veteran’s back disability was less likely than not incurred in or related to service. However, the VA examiner did not address the Veteran’s in-service left knee injury and how the knee injury may potentially affect his back. An October 2020 private examiner opined that it is as likely as not that the Veteran’s low back pain began in service due to his knee injury. The examiner explained that undue stress on his low back occurred due to his abnormal gait from his left knee injury. The examiner noted the Veteran was seen for low back pain during service. However, the private opinion lacks an adequate rationale in light of the evidence in the claims file. In particular, the Board notes that although service treatment records show the Veteran complained of back pain in April 1984, this notation is well before his October 1984 in-service knee injury. Thus, it is entirely unclear how the Veteran’s complaints of back pain could be related to a knee injury that had not yet occurred. In fact, the service treatment records do not contain back complaints after his in-service knee injury. In addition, the Veteran’s reports of when his back pain began have been varied. During the May 2020 Board hearing, the Veteran reported that he did not have a back problem when he left service but that it began 20 years prior to the hearing. In contrast, VA treatment records show the Veteran’s reports of intermittent back pain since the 1980s. Thus, it is entirely unclear from the record whether the Veteran’s current back condition is related to the one notation of in-service back pain (which was prior to the knee injury), related to the knee injury and years of walking with an antalgic gait, or some other incident of service. A remand is warranted to obtain additional VA medical opinion to clarify these nexus questions. While this matter is on remand, outstanding private and federal treatment records should be obtained, including updated VA treatment records and any additional records from Ireland Army Community Hospital. The matters are REMANDED for the following action: 1. After securing any necessary authorization, obtain any private treatment records as the Veteran may identify relevant to his claim. If the Veteran provides a signed authorization form, make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 2. Obtain any additional VA treatment records. 3. Obtain any additional treatment records from Ireland Army Hospital at Fort Knox. 4. After outstanding records are obtained to the extent possible, ask an appropriate examiner to review the Veteran’s file. The necessity of an in-person examination is left to the discretion of the examiner. The examiner should opine regarding whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s back disability: (a) had an onset in service; (b) is otherwise related to service, to include the Veteran’s in-service knee injury; or (c) is caused by or aggravated by his service-connected left knee disability. Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected condition. The examiner should consider all medical and lay evidence of record. The examiner should specifically address the in-service April 1984 complaint of back pain, the Veteran’s October 1984 in-service knee injury, the February 1988 VA examiner’s notation of a marked left leg limp when discussing the Veteran’s knee symptoms, and the October 2007 VA treatment record noting an antalgic gait. The examiner is asked to explain the reasons behind any opinions expressed. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 5. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Purcell, 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.