Citation Nr: 21031093 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 10-44 157 DATE: May 20, 2021 ORDER The issue of entitlement to service connection for bilateral lower extremity radiculopathy is dismissed without prejudice. REMANDED The issue of entitlement to service connection for a bilateral foot disability, to include bilateral flat feet, is remanded. The issue of entitlement to an initial evaluation in excess of 20 percent disabling for the period prior to April 4, 2017, and in excess of 40 percent disabling for the period thereafter, for service-connected residuals of low back injury with compression fracture of T11 and mild degenerative changes is remanded. The issue of entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) for the period prior to June 1, 2011, is remanded. The issue of entitlement to service connection for sleep apnea is remanded. The issue of entitlement to service connection for migraines is remanded. The issue of entitlement to service connection for sinusitis is remanded. The issue of entitlement to service connection for GERD is remanded. The issue of entitlement to service connection for bilateral athlete's foot is remanded. FINDING OF FACT On January 15, 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran's authorized representative that he wishes to withdraw the appeal for the issue of entitlement to service connection for bilateral lower extremity radiculopathy. CONCLUSION OF LAW The criteria for withdrawal of the appeal for the issue of entitlement to service connection for bilateral lower extremity radiculopathy have been met. 38 U.S.C. § 7105 (2018); 38 C.F.R. § 19.55 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June to October 1989, and from April 1992 to May 1995. In addition, the Veteran also served with the Ohio National Guard and U.S. Army Reserve. In May 2011, the Veteran and his spouse testified before the Board. A transcript of the hearing is of record. The Veterans Law Judge who conducted the hearing is no longer employed by the Board. In November 2017, the Board sent the Veteran a letter informing him that he had the right to request another optional Board hearing. In November 2017, the Veteran's representative submitted correspondence indicating that the Veteran declined an additional hearing. In addition, the Board sent the Veteran correspondence as recently as July 2020, asking if he would like an optional hearing. The Veteran did not respond. Accordingly, the Board assumes that the Veteran does not want a hearing, and proceeds with development of the appeal. In March 2018, Board increased the initial evaluation of the Veteran's service-connected residuals of low back injury with compression fracture of T11 and mild degenerative changes to 20 percent disabling for the period from December 26, 2007, to April 4, 2017. This was implemented in a February 2019 Rating Decision. While the Board increased the evaluation for that period, the Board found its determination to be limited, and the issue of entitlement to an initial evaluation in excess of 20 percent for the service-connected residuals of a low back injury with compression fracture of T11 and mild degenerative changes for the period from December 26, 2007 to April 4, 2017, and in excess of 40 percent beginning April 4, 2017, remains on appeal. The Board, therefore, remanded the issue, as well as the others on appeal for additional development. For the reasons outlined below, the Board finds that remand is again needed. Following the March 2018 Board remand, the issue of entitlement to a TDIU was granted, effective June 1, 2011. See Rating Decision, November 2019. The issue on appeal has been recharacterized to reflect this grant. The Board has also expanded and recharacterized the issue of entitlement to service connection for a bilateral foot disability, to include bilateral flat feet, pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009). Finally, the Board notes that the Veteran's representative wrote in an April 2017 VA Form 9: "I have not received a complete copy of the claims file on the above-mentioned Veteran." The Board notes that this is not an explicit request for records. In addition, the Board notes that the Veteran was provided records by VA in December 2017, and January 2019. In both letters, VA provided the Veteran with contact information if he had questions or concerns regarding his records request. Given the ambiguity of the representative's statement, and the fact that the Veteran has been provided with documents and an opportunity to respond, the Board will not delay development of this appeal. Accordingly, the Board proceeds as outlined below. Entitlement to service connection for bilateral lower extremity radiculopathy. 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, the Veteran, through his authorized representative, has withdrawn the appeal as to the issue of entitlement to service connection for bilateral lower extremity radiculopathy and, hence, there remain no allegations of errors of fact or law for appellate consideration. The Board notes that the withdrawal is in writing and includes: (1) the name of the Veteran; (2) the applicable VA file number; and (3) a statement that the issue is withdrawn. The Board acknowledges that this appeal involves multiple issues, and the withdrawal specifies that the appeal is withdrawn only as to the issue listed. 38 C.F.R. § 19.55(b)(1). Accordingly, the Board does not have jurisdiction to review the appeal of the issue of entitlement to service connection for bilateral lower extremity radiculopathy and it is dismissed without prejudice. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral foot disability, to include bilateral flat feet. 2. Entitlement to an initial evaluation in excess of 20 percent disabling for the period prior to April 4, 2017, and in excess of 40 percent disabling for the period thereafter, for service-connected residuals of low back injury with compression fracture of T11 and mild degenerative changes. 3. Entitlement to a TDIU for the period prior to June 1, 2011. The Board finds that additional development is needed prior to final adjudication of the remaining issues on appeal. First, the Board finds that there may be outstanding records from the Social Security Administration (SSA) to obtain and associate with the claim file. See Email correspondence, April 2015 (noting "an appeal for an SSDI claim"). Accordingly, upon remand, the Board asks that any relevant records be obtained. In addition, the Board finds that a new VA examination is needed regarding the Veteran's service-connected low back disability. The Board acknowledges the April 2017 VA examination, but finds it to be inadequate. See Correia v. McDonald, 28 Vet. App. 158 (2016). For example, the regarding passive range of motion testing, the examination report states "not doing back passive ROM" without providing an explanation or rationale as to why this testing was omitted. Accordingly, a new VA examination is needed in order for the Board to adequately assess the current severity of the Veteran's service-connected disability. Regarding the Veteran's claimed foot disability, the Board finds that a new VA opinion is needed. The Board acknowledges the October 2019 VA opinion; however, the rationale for this opinion is based, in part, on a finding that: "There were no service treatment notes for any foot injuries, aggravations or treatments for the feet during active service." The Board has reviewed the Veteran's service treatment records and notes a July 1993 record, which indicates that the Veteran sought treatment for pain in both feet (duration: two days). Accordingly, the Board finds that a new VA opinion is needed that considers the Veteran's in-service treatment. In addition, the Board finds that further clarification is needed regarding the Veteran's disability. At the outset, the Board notes that the Veteran's claim has been expanded, pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009). Accordingly, the Board seeks clarification regarding the Veteran's statement at the May 2011 hearing, where he mentioned that he had "trench foot" while in service. He stated that he "had wet feet for about three weeks. By the time that I went to finally went on sick call, they told me if I'd have waited any longer, I'd have lost a couple of my toes." As mentioned above, the Board has reviewed the Veteran's service treatment records, and they include a July 1993 treatment record for foot pain of two days. This record notes, inter alia, odor, burning, infection, and discoloration. The Board asks that the Veteran be examined regarding potential disability related to these symptoms. 4. Entitlement to service connection for sleep apnea. 5. Entitlement to service connection for migraines. 6. Entitlement to service connection for sinusitis. 7. Entitlement to service connection for GERD. 8. Entitlement to service connection for bilateral athlete's foot. In a November 2017 rating decision, the issues of entitlement to service connection for sleep apnea, migraines, sinusitis, GERD, and bilateral athlete's foot were denied. In May 2018, a Notice of Disagreement (NOD) was received as to these issues. As a Statement of the Case (SOC) has not been provided, the Board is required to remand, rather than refer the issues to the attention of the Agency of Original Jurisdiction (AOJ). See 38 C.F.R. § 19.9 (c); Manlicon v. West, 12 Vet. App. 238 (1999). Accordingly, they are remanded for the purpose of issuing an SOC. The matters are REMANDED for the following action: 1. Furnish a SOC as to the issues of entitlement to service connection for sleep apnea, migraines, sinusitis, GERD, and bilateral athlete's foot. Only if the Veteran perfects an appeal should these issues be certified to the Board following completion of any necessary development. 2. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any VA and/or private treatment records, pertaining to the issues on appeal. In addition, obtain relevant records from the SSA pertaining to any application or award of disability benefits to the Veteran. All efforts to obtain these records should be documented in the claim file. If any records could not be obtained, this should be noted in the claim file. 3. Upon completion of the above, schedule the Veteran for the following VA examinations. Back Disability Schedule the Veteran for a VA examination to evaluate the current level of severity of his back disability. The claim folder and all pertinent treatment records should be made available to the examiner for review, and review of such records should be noted in any subsequent report. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner is asked specifically to provide range of motion testing (ROM) for active motion, passive motion, weight-bearing, and nonweight-bearing. In addition, the examiner must discuss pain for ROM movements on active, passive, and repetitive use testing. The examiner is asked to address the following questions: (a) Are any ROM movements painful on active, passive, and repetitive use testing? If yes, identify whether active, passive, and repetitive use. (b) If yes (there are painful movements), does the pain contribute to functional loss or additional limitation of ROM? Please further describe the functional loss or additional limitation of ROM. (c) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. In addition, the examiner must discuss pain when used in weight-bearing or in nonweight-bearing. The examiner is asked to address the following questions: (a) Is there pain when the joint is used in weight-bearing or nonweight-bearing? If yes, identify whether weight-bearing or nonweight-bearing. (b) If yes (there is pain when used in weight-bearing or nonweight-bearing), does the pain contribute to functional loss or additional limitation of ROM? Please further describe these limitations. (c) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. For all ranges and planes of motion where pain is noted, the exact point at which pain starts must be clearly noted. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups, as expressed in range of motion. To the extent possible, the examiner should identify any symptoms and functional impairments due to the back disability and discuss the effect of the Veteran's back disability on any occupational functioning and activities of daily living. The examiner should state whether or not there is any neurologic disability. Finally, the examiner is asked to address the impact of the Veteran's service-connected disabilities on his employability. Bilateral Foot Disability Schedule the Veteran for a VA examination to clarify the diagnosis of his claimed bilateral foot disability. The AOJ shall provide the examiner with the Veteran's verified periods of active duty (from June to October 1989, and from April 1992 to May 1995), and ACDUTRA and INACDUTRA. The Board notes that the Veteran's claim has been expanded, pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009). For each disability diagnosed (that is not pes planus), the examiner is asked to address whether it is at least as likely as not (i.e., a 50 percent or greater probability) that it was caused by the Veteran's active duty service. The examiner is asked to specifically address: (a) The Veteran's statement at the May 2011 hearing, where he mentioned that he had "trench foot" while in service. He stated that he "had wet feet for about three weeks. By the time that I went to finally went on sick call, they told me if I'd have waited any longer, I'd have lost a couple of my toes." (b) A July 1993 service treatment record for foot pain of two days that notes, inter alia, odor, burning, infection, and discoloration. Regarding the Veteran's diagnosed pes planus, the examiner is asked to address the following: (a) Whether there is any evidence that symptoms of flat feet were manifested during the Veteran's period of active duty. (b) If so, were these manifestations clearly and unmistakably (obvious or manifest evidence) the natural progression of the disease? (c) If not, then whether it is at least as likely as not (50 percent probability or greater) that the Veteran incurred a disease or injury during a specific period of ACDUTRA or INACDUTRA that caused an increase in his symptoms of flat feet. (d) If it is at least as likely as not that the Veteran incurred a disease or injury during a specific period of ACDUTRA or INACDUTRA that caused an increase in his symptoms of flat feet, then opine whether there is clear and unmistakable evidence (obvious or manifest evidence) that such disease or injury during that specific period of ACDUTRA or INACDUTRA and was not beyond the natural progression of that disease or injury during that specific period of ACDUTRA or INACDUTRA and did not represent a permanent increase or aggravation of his preexisting flat foot disability. The examiner is asked to consider the Veteran's lay statements, including aggravation due to running in boots. See Hearing, May 2011. In addition, the examiner should address the Veteran's service treatment records, including the July 1993 record, which indicates that the Veteran sought treatment for pain in both feet (duration: two days). The VA examiner should be given access to the claim file. The examiner should state that a review of the claim file was completed. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. A detailed rationale is requested for all opinions provided. 4. If upon completion of the above action the issues are denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Foster, 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.