Citation Nr: 21028170 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 17-52 270 DATE: May 10, 2021 ORDER Entitlement to service connection for a bilateral eye disability has been withdrawn and is dismissed. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for a left knee disability is denied. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for a bilateral hearing loss disability is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to a compensable rating for functional diarrhea is remanded. Entitlement to a rating in excess of 20 percent for residuals of left shoulder dislocation is remanded. FINDINGS OF FACT 1. At his March 2021 Board of Veterans Appeals (Board) hearing, prior to the promulgation of a decision in the matter, the Veteran requested to withdraw his appeal on the issue of entitlement to service connection for a bilateral eye disability; there are no questions of fact or law in this matter remaining for the Board to consider. 2. The Veteran's tinnitus onset in service. 3. The Veteran's current left knee strain did not onset in service and is not causally related to his service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to service connection for a bilateral eye disability by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304. 3. The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 2003 to July 2008, to include service in Southwest Asia. This appeal comes to the Board from March and April 2016 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). Withdrawal 1. Entitlement to service connection for a bilateral eye disability 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the appellant withdrew his appeal as to the issue of entitlement to service connection for a bilateral eye condition at his March 2021 Board hearing, and, hence, there remain no allegations of errors of fact or law for appellate consideration. The Board finds that the withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018). Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Here, the Veteran is considered a Persian Gulf veteran. 38 C.F.R. § 3.317(e). Service connection may be granted for a Persian Gulf veteran with objective indications of a qualifying chronic disability that manifested either during active service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). A qualifying chronic disability is a chronic disability that may result from an undiagnosed illness or a medically unexplained chronic multisymptom illness (MUCMI). 38 C.F.R. § 3.317(a)(2)(i). The term chronic means that the disability has existed for 6 months or more, to include intermittent episodes of improvement or worsening over that period. 38 C.F.R. § 3.317(a)(4). 2. Entitlement to service connection for tinnitus The Veteran contends he is entitled to service connection for tinnitus as it onset in and is causally related to his service. VA treatment records and a January 2016 VA examination indicate that the Veteran has been diagnosed with tinnitus. At his March 2021 Board hearing, the Veteran testified that his tinnitus began in service and had worsened since. The Board finds the Veteran competent and credible to describe the onset of his tinnitus. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for tinnitus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for a left knee disability The Veteran that he has a left knee disability that onset in service. On VA examination in March 2016, the Veteran was diagnosed with left knee strain. As left knee strain is a diagnosed condition, it cannot be considered an undiagnosed illness. 38 C.F.R. § 3.317(a)(1)(ii), (a)(2)(ii). However, the Board will consider whether direct service connection is warranted. Although the Veteran testified before the Board in March 2021 that he sought treatment for left knee pain in service, a review of the Veteran's service treatment records reflects no complaints or treatment related to his left knee. The only note of any knee issue is a February 2004 treatment record that indicates a diagnosis of patellofemoral syndrome after the Veteran reported right knee pain. The Veteran denied painful joints at his January 2007 post-deployment health assessment and denied knee trouble on his April 2008 report of medical history at separation. His lower extremities were also noted as normal on his separation examination. The March 2016 VA examiner opined that the Veteran's current left knee strain was less likely than not incurred in or caused by service. The examiner's rationale was that service treatment records show no documentation of a left knee condition and the evidence does not reflect that the Veteran's current left knee strain is a continuation from active duty. The Board concludes that while the Veteran has a current diagnosis of left knee strain, the preponderance of the evidence weighs against finding that it began during service or is otherwise related to an in-service injury, event, or disease. The Board acknowledges the Veteran's testimony of having periodic knee pain since service. While the Veteran is competent to report having experienced left knee pain intermittently since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of a disability that onset in service. The issue is medically complex, as it requires knowledge of the musculoskeletal system, pathology, and diagnostic testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). The Board finds the March 2016 examiner's opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Based on the forgoing, the Board finds that a preponderance of the evidence is against service connection for a left knee disability. REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea A VA opinion was obtained in January 2016 that the Veteran's obstructive sleep apnea is less likely than not related to a specific exposure event by the Veteran during service in Southwest Asia. However, no opinion has been obtained as to whether the Veteran's obstructive sleep apnea onset in service. On remand, such an opinion should be obtained. In rendering an opinion, the examiner should specifically consider the lay statements by the Veteran regarding the onset of symptoms in service. 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD The Veteran was afforded a VA PTSD examination in January 2016. The examiner did not make any mental disorder diagnosis. VA treatment records from 2017 indicate that the Veteran has since been diagnosed with unspecified anxiety disorder. He also indicated that he had received some additional mental health treatment at the VA since 2017. Therefore, on remand the Board finds that VA treatment records since November 2017 should be obtained and associated with the Veteran's claims file. The Veteran should then be scheduled for a new VA examination. The VA examiner should opine whether the Veteran has any acquired psychiatric disorder, to include PTSD and unspecified anxiety disorder. For each condition diagnosed, the examiner should opine whether it is at least as likely as not that it onset in or is causally related to his service. 3. Entitlement to service connection for a bilateral hearing loss disability The Veteran underwent a VA audiological examination in January 2016 that was noted to show normal hearing at all frequencies bilaterally. Subsequently to that examination, a July 2016 VA treatment record states that the Veteran has mild bilateral high frequency hearing loss, although no additional audiological testing is of record. As there is some suggestion the Veteran's hearing loss may have worsened since the January 2016 VA examination, the Board finds that a new VA examination is warranted. If a hearing loss disability for VA purposes is shown, the VA examiner should opine whether it is at least as likely as not that the Veteran's hearing loss is causally related to his service. In offering such an opinion, the examiner should specifically consider the Veteran's statements with respect to his exposure to loud noise in service. 4. Entitlement to service connection for a lumbar spine disability At his March 2021 Board hearing the Veteran testified that his back began hurting in when he was deployed in Iraq. He stated that he twisted wrong while wearing a pack and laid in bed for three days afterward although he did not seek medical attention. The Board notes that on a January 2007 post-deployment health assessment, the Veteran reported having back pain during his deployment. The Veteran testified that since service he has had chronic pain in his back. The Veteran underwent a VA back examination in January 2016 at which he was diagnosed with lumbar spine strain. The examiner opined that the lumbar strain is less likely than not related to a specific exposure experienced by the Veteran during his service in Southwest Asia. The examiner stated that literature does not support that Southwest Asia exposures cause lumbar spine strain and the Veteran's separation examination lists no diagnosis or complaints of a back condition. The VA examiner did not provide an opinion as to whether the Veteran's current lumbar spine strain onset in service or is causally related to service other than exposures in Southwest Asia. Thus, the Board finds that a new VA examination is needed. The examiner should opine whether it is at least as likely as not that the Veteran's current back disability onset in or is causally related to his service. 5. Entitlement to a compensable rating for functional diarrhea is remanded. The Veteran was most recently afforded a VA intestinal conditions examination in January 2016. His testimony at his March 2021 Board hearing suggests that his condition has worsened since that time. Thus, the Board finds that a new VA examination is needed to assess the nature and severity of his condition since his January 2016 VA examination. 6. Entitlement to a rating in excess of 20 percent for residuals of left shoulder dislocation is remanded. The Veteran was most recently afforded a VA examination of his left shoulder in January 2016. His testimony at his March 2021 Board hearing suggests that his condition has worsened since that time. Further, the January 2016 examination does not provide the results of testing in both active and passive motion and in weight-bearing and nonweight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). Therefore, a new examination is warranted. The matters are REMANDED for the following action: 1. Request that the Veteran provide all relevant private treatment records, including chiropractor records, or complete a VA Form 21-4142, Authorization and Consent to Release Information to VA, so that VA may obtain these records. 2. Obtain the Veteran's VA treatment records since November 2017, including all mental health treatment records and physical therapy records. 3. Arrange for a VA opinion to be obtained as to whether it is at least as likely as not that the Veteran's sleep apnea onset in service or is causally related to his service. The examiner should discuss whether obesity plays a role in the development of sleep apnea and, if so, whether it constitutes an intermediary step in causation between the sleep apnea and service and/or other service-connected disabilities. The examiner should comment on the lay statements of the Veteran and his spouse and the opinion of O.B., D.O. that the condition had its onset in service. 4. After relevant private and VA treatment records have been obtained, arrange for the Veteran to undergo a VA mental health examination. The VA examiner should opine whether the Veteran has any acquired psychiatric disorder, to include PTSD and unspecified anxiety disorder. For each condition diagnosed, the examiner should opine whether it is at least as likely as not that the condition onset in or is causally related to his service. 5. Arrange for the Veteran to undergo a VA audiological examination. If a hearing loss disability for VA purposes is shown, the VA examiner should opine whether it is at least as likely as not that the Veteran's hearing loss is causally related to his service. In offering such an opinion, the examiner should specifically consider the Veteran's statements with respect to his exposure to loud noise in service. 6. Arrange for the Veteran to undergo a VA back examination. The examiner should opine whether it is at least as likely as not that the Veteran has a current back disability that onset in or is causally related to his service. In offering such an opinion, the examiner should specifically consider the Veteran's statements regarding injuring his back in service and his 2007 report of back pain during deployment. (Continued on the next page) 7. Arrange for the Veteran to undergo a VA examination of his functional diarrhea. The examiner should describe the nature and severity of the condition since the Veteran's last VA examination in January 2016. 8. Arrange for the Veteran to undergo a VA examination to evaluate the nature and severity of his left shoulder disability. Range of motion should be tested actively and passively, in weight-bearing and nonweight-bearing, and after repetitive use. The examiner should consider whether there is likely to be additional range of motion loss due to any of the following: (1) during flare-ups; and (2) as a result of pain, weakness, fatigability, or incoordination. If so, the examiner is asked to describe the additional loss, in degrees, if possible. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Christensen 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.