Citation Nr: 21029525 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 18-11 425 DATE: May 13, 2021 ORDER New and material evidence having been received, the claim for service connection for a bilateral ankle condition is reopened. To this extent only, the claim is granted. New and material evidence having been received, the claim for service connection for a bilateral knee condition is reopened. To this extent only, the claim is granted. New and material evidence having been received, the claim for service connection for a low back condition is reopened. To this extent only, the claim is granted. Entitlement to an earlier effective date for initial grant of service connection for pes planus prior to March 23, 1999 and earlier effective date for evaluation of pes planus, currently evaluated as 30 percent disabling effective October 21, 2011, has been withdrawn. REMANDED Entitlement to service connection for a bilateral ankle condition is remanded. Entitlement to service connection for a bilateral knee condition is remanded. Entitlement to service connection for a bilateral hip condition is remanded. Entitlement to service connection for a low back condition is remanded. Entitlement to service connection for a bilateral shoulder condition is remanded. FINDINGS OF FACT 1. In an unappealed rating decision issued in July 2006, the RO denied service connection for bilateral leg, knee, and ankle conditions as well as for a lower back condition. The Veteran was notified of the decision but did not file a notice of disagreement; evidence received since that decision relates to unestablished facts necessary to substantiate these claims. 2. At the March 2021 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew her claim for entitlement to an earlier effective date for initial grant of service connection for pes planus prior to March 23, 1999 and earlier effective date for evaluation of pes planus, currently evaluated as 30 percent disabling effective October 21, 2011. CONCLUSIONS OF LAW 1. New and material evidence having been received, the claim for service connection for a bilateral ankle condition is reopened. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. 2. New and material evidence having been received, the claim for service connection for a bilateral knee condition is reopened. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. 3. New and material evidence having been received, the claim for service connection for a low back condition is reopened. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. 4. The criteria for withdrawal of entitlement to an earlier effective date for initial grant of service connection for pes planus prior to March 23,1999 and earlier effective date for evaluation of pes planus, currently evaluated as 30 percent disabling effective October 21, 2011, by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from August 1986 to July 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2013, July 2015, and January 2018 rating decisions of a VA Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a March 2021 hearing before the Board of Veterans' Appeals (Board). During the March 2021 Board hearing, the Veteran indicated that she was satisfied with her appeal regarding entitlement to an earlier effective date for initial grant of service connection for pes planus and were withdrawing the claim. 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. § 20.204. Withdrawal may be made by the appellant or by her authorized representative. Id. The withdrawal was effective immediately upon receipt by VA. 38 C.F.R. § 20.204(b)(3). The Board finds that the Veteran's withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of such action, where the undersigned explained to them what withdrawal of the claim would mean and how she would have to bring another claim if she withdrew the claim. See DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Accordingly, the issue is dismissed. Additionally, during the Board hearing, the Veteran's representative stated that service connection for a bilateral leg condition was among the issues the Veteran wanted to appeal. While the Veteran indicated in her February 2018 Form 9 that she was appealing all issues listed in the January 2018 Statement of the Case (SOC), entitlement to service connection for a bilateral leg condition was not among the issues listed in that SOC. The Board notes that in the Veteran's December 2015 Notice of Disagreement (NOD), it appears that she wrote "legs" as one of the issues that she wished to appeal. As the writing is difficult to read, this may have caused the RO to fail to recognize the issue and include it in the SOC. Nevertheless, as the issue was not properly appealed, the Board lacks jurisdiction over it and cannot consider it in this decision. Accordingly, the issue of entitlement to service connection for a bilateral leg condition is referred back to the RO. The RO should consider whether any action regarding the claim is needed, including issuance of an SOC or readjudication. In March 2006, the Veteran filed a claim for service connection for bilateral ankle conditions, bilateral knee conditions, and a lower back condition. In a July 2006 rating decision, the RO denied the Veteran's claims. This decision was not appealed and became final. Evidence received since that denial includes Board hearing testimony, VA examination reports, and new medical evidence. New and material evidence has been received sufficient to reopen the claims for service connection for bilateral ankle conditions, bilateral knee conditions, and a lower back condition. To this extent only, the appeals are granted. REASONS FOR REMAND 1. to 4. Entitlement to service connection for bilateral ankle, bilateral knee, bilateral, and low back conditions are remanded. The Veteran asserts that her ankle, knee, hip, and back conditions may have been caused or aggravated by her service-connected pes planus. See, e.g., February 2019 Form 9 statement. During the March 2021 Board hearing, the Veteran's representative stated that the most recent VA examinations on the nature and etiology of the claimed conditions only addressed the possibility of direct service connection. The examiner did not opine as to the likelihood that the Veteran's conditions were caused or aggravated by her service-connected disabilities. The Board notes that in a June 2017 VA medical opinion that accompanied the Veteran's VA examinations for ankle, knee, hip, and back conditions, the VA examiner found that each condition was less likely than not related to service. However, she did not address whether any of the conditions were caused or aggravated by her service-connected disabilities. A February 2021 private medical opinion states that the Veteran's service-connected pes planus may have affected her gait and caused problems with wear and injury of her joints. Accordingly, these claims must be remanded for an additional VA examination to address the possibility of secondary service connection. 5. Entitlement to service connection for a bilateral shoulder condition is remanded. The Veteran asserts that she experienced a bilateral shoulder condition as a result of service, including as secondary to her service-connected disabilities. See, e.g., February 2019 Form 9 statement. The Veteran's VA treatment records reflect treatment for chronic shoulder pain. See, e.g., July 2016 VA treatment record. The Veteran has not been afforded a VA examination on the nature and etiology of this condition. Accordingly, this claim must be remanded for additional development. The matters are REMANDED for the following action: Schedule the Veteran for a VA orthopedic examination addressing the nature and etiology of the claimed bilateral ankle, knee, hip, and shoulder conditions as well as a lower back condition. The examiner must review the claims file in conjunction with the examination. After reviewing the record, the examiner must first opine whether there exists a clinical diagnosis for each claimed condition. If no clinical diagnosis is made, the examiner must ascertain whether the Veteran's pain associated with the claimed condition constitutes a functional impairment of earning capacity. If the Veteran's pain does not reach this threshold and thus should not be considered a disability, the examiner should so clarify. If either a clinical diagnosis or a functional impairment of earning capacity due to any claimed condition is ascertained, the examiner should next opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's claimed condition was: 1) incurred during or as a result of her service, or 2) caused or aggravated (worsened beyond natural progression) by her service-connected bilateral flatfoot disability. Any opinion expressed by the examiner MUST be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity to report for an examination. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Hicks, Associate 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.