Citation Nr: 21032011 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 17-01 551 DATE: May 25, 2021 ORDER Entitlement to service connection for a left foot disability is dismissed. Entitlement to service connection for a right foot disability is dismissed. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for an acquired psychiatric disability, to include on a secondary basis, is remanded. Entitlement to service connection for hypertension, to include on a secondary basis, is remanded. FINDINGS OF FACT 1. On the record at the March 2021 Board hearing, prior to promulgation of a decision in the appeal, the Veteran requested withdrawal of his appeal for entitlement to service connection for a left foot disability. 2. On the record at the March 2021 Board hearing, prior to promulgation of a decision in the appeal, the Veteran requested withdrawal of his appeal for entitlement to service connection for a right foot disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal and dismissal of the appeal for entitlement to service connection for a left foot disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal and dismissal of the appeal for entitlement to service connection for a right foot disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. Introduction The Veteran served honorably on active duty in the United States Army during the Vietnam Era and Peacetime, from August 1973 to August 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2015 Rating Decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing. A transcript of the hearing is of record. Based upon the evidence of record discussed below, the Board finds it appropriate to recharacterize the Veteran's claims for entitlement to service connection for anxiety and depression as one for an acquired psychiatric disability, to include on a secondary basis. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Likewise, the Board has recharacterized the Veteran's claim for entitlement to service connection for hypertension to reflect his assertions more accurately. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Entitlement to service connection for a left foot disability is dismissed. Entitlement to service connection for a right foot disability is dismissed. 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 Veteran or by his or her authorized representative. Id. For the Veteran to withdraw an issue that is on appeal on the record during a Board hearing, the withdrawal must be: (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action by the Veteran. See Acree v. O'Rourke, 891 F.3d 1009, 1012-13 (Fed. Cir. 2018). In the present case, the Veteran, through his appearance at the March 2021 hearing, expressed desire to withdraw his appeals as to the issues of entitlement to service connection for left and right foot conditions. The undersigned VLJ clearly identified the withdrawn issues, and the Veteran affirmed that he was requesting a withdrawal as to those issues. The Veteran was informed that no decision would be made, and the issues would be dismissed. Based upon the undersigned VLJ's observations at the hearing, the Board finds that such withdrawals were explicit, unambiguous, and done with a full understanding of the consequences. Indeed, the Veteran and his representative showed no desire to continue the appeal for these issues. As such, the Board finds that there remains no allegations of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. REASONS FOR REMAND Entitlement to service connection for a low back disability is remanded. The Veteran underwent a VA examination in June 2015 regarding his claim for service connection for a low back disability (i.e., degenerative disc disease, spondylolisthesis, spondylosis, spinal stenosis). For the following reasons, the Board finds the VA examiner's opinion inadequate for purposes of determining service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). First, the VA examiner noted that, "[t]here was a hiatus of back symptoms until the 1990's when he underwent a nerve decompression at L5 on the left." However, the examiner's report does not specifically address the Veteran's symptoms, or lack thereof, for the period immediately following active duty service and continuing "until the 1990's." As such, it is unclear whether the Veteran was asked about any continuity of symptomology. Next, the VA examiner noted, "[t]here is no record of chronic back pain during service or for several years after active service." Notwithstanding the September 1975 and April 1976 notations of back pain in the service treatment records (STRs), the VA examiner relied heavily upon a perceived lack of treatment evidence, as well as, lack of a formal in-service diagnosis to support his negative nexus opinion. Finally, VA treatment records as early as May 2014 report the Veteran sought treatment from a neurosurgeon twice annually for a "'workers comp' injury," as he was noted to have low back pain with radicular symptoms. The VA examiner's report does not address these notations. Thereafter, the Veteran raised a new theory of causation during his March 2021 hearing, specifically, that his low back disability is etiologically associated with an injury sustained on an obstacle course during basic training. According to the Veteran, "when I hit the ground, my left side just went totally numb ... just pain" and, "later on that evening they took me to the infirmary." Prior to the hearing, the Veteran attributed his low back disability to carrying a rucksack and rifle during physical training. The Veteran's spouse, Mrs. C.J., also provided testimony at the hearing in this matter. According to Mrs. C.J., she met the Veteran in about 1981 or 1982 when she was in the process of moving, at which time he indicated being unable to do any lifting "because he had hurt his back in the service." Based upon the foregoing, the Board finds that remand is required to afford the Veteran another VA examination and obtain an opinion adequate for purposes of determining service connection for a low back disability, and that properly considers all pertinent lay and medical evidence currently of record. Entitlement to service connection for an acquired psychiatric disability, to include on a secondary basis, is remanded. The Veteran contends his acquired psychiatric disability began with sleep problems during active duty and has continued ever since. He testified at the Board hearing that his low back condition also negatively affected his sleep which, in turn, caused or contributed to his acquired psychiatric disability. As such, the Veteran's claim for service connection for an acquired psychiatric disability is inextricably intertwined with the remanded claim for service connection for a low back disability. When a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Therefore, a final decision on the issue of entitlement to service connection for an acquired psychiatric disability cannot be rendered until a decision on the remanded issue of entitlement to service connection for a low back disability is adjudicated. Id. Entitlement to service connection for hypertension, to include on a secondary basis, is remanded. The Veteran contends his hypertension is proximately due to, related to, or otherwise etiologically associated with his low back disability and/or acquired psychiatric disability. As noted above, he testified at the Board hearing that his low back condition and associated poor sleep caused or contributed to his acquired psychiatric disability. Further, the Veteran expressed that mental/emotional "pressure" and low back pain with associated poor sleep caused or contributed to his hypertension. As such, the Veteran's claim for service connection for hypertension is inextricably intertwined with the remanded claims for service connection for a low back disability and acquired psychiatric disability. When a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter. See Harris, 1 Vet. App. at 183. Therefore, a final decision on the issue of entitlement to service connection for hypertension cannot be rendered until a decision on the remanded issues of entitlement to service connection for a low back disability and acquired psychiatric disability are adjudicated. Id. Accordingly, these matters are REMANDED for the following action: 1. Schedule the Veteran for an in-person VA examination with a physician possessing the necessary expertise to fully assess and provide an opinion regarding the nature, severity, and likely etiology of the Veteran's low back condition(s). The examiner must obtain a full history from the Veteran. It should be noted the Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as events during military service and observable symptomology. All pertinent symptomology, including any continuity of symptomology since military discharge, and progression must be reported in detail. Based upon a review of all pertinent documents in the Veteran's claims file including medical treatment and examination records, lay statements, and the examination results, the examiner must offer an opinion based upon an accurate medical history, with clear conclusions and supporting data, as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's low back condition(s) is due to, related to, or otherwise etiologically associated with his active duty service. In offering the above opinion, the examiner must consider and discuss as necessary all pertinent lay and medical evidence of record including, but not limited to, the following: (a.) STRs dated September 1975 and April 1976 noting back pain; and (b.) the Veteran's and his wife's March 2021 testimony regarding injuring his back during active duty and low back symptomology and functional limitations. The examiner should note that, while the lack of evidence in the STRs and immediately after military discharge are relevant factors, the mere absence of evidence does not equate to unfavorable evidence. The Veteran's lay statements and reports of onset and symptomology must be considered and discussed. A complete and thorough rationale for any opinion(s) expressed, with references to pertinent evidence of record, must be provided. 2. Thereafter, schedule the Veteran for an in-person VA examination with a physician (preferably a psychiatrist or psychologist) possessing the necessary expertise to fully assess and provide an opinion regarding the nature, severity, and likely etiology of the Veteran's acquired psychiatric condition(s). The examiner must obtain a full history from the Veteran. It should be noted the Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as events during military service and observable symptomology. All pertinent symptomology and progression must be reported in detail. Based upon a review of all pertinent documents in the Veteran's claims file including medical treatment and examination records, lay statements, and the examination results, the examiner must offer an opinion based upon an accurate medical history, with clear conclusions and supporting data, as to: (a.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's acquired psychiatric condition(s) is due to, related to, or otherwise etiologically associated with his active duty service. (b.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's acquired psychiatric condition(s) is proximately due to, related to, or otherwise etiologically associated with or aggravated by his low back condition(s). In offering the above opinion, the examiner must consider and discuss as necessary all pertinent lay and medical evidence of record including, but not limited to, the Veteran's March 2021 testimony regarding when his psychiatric symptoms manifested. The examiner should note that, while the lack of evidence in the STRs and immediately after military discharge are relevant factors, the mere absence of evidence does not equate to unfavorable evidence. The Veteran's lay statements and reports of onset and symptomology must be considered and discussed. A complete and thorough rationale for any opinion(s) expressed, with references to pertinent evidence of record, must be provided. 3. Thereafter, schedule the Veteran for an in-person VA examination with a physician possessing the necessary expertise to fully assess and provide an opinion regarding the nature, severity, and likely etiology of the Veteran's hypertension. The examiner must obtain a full history from the Veteran. It should be noted the Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as events during military service and observable symptomology. All pertinent symptomology, including any continuity of symptomology since military discharge, and progression must be reported in detail. Based upon a review of all pertinent documents in the Veteran's claims file including medical treatment and examination records, lay statements, and the examination results, the examiner must offer an opinion based upon an accurate medical history, with clear conclusions and supporting data, as to: (a.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's hypertension is due to, related to, or otherwise etiologically associated with his active duty service. (b.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's hypertension is proximately due to, related to, or otherwise etiologically associated with or aggravated by his low back condition(s) and/or acquired psychiatric condition(s). In offering the above opinion, the examiner must consider and discuss as necessary all pertinent lay and medical evidence of record including, but not limited to, the Veteran's March 2021 testimony regarding when his hypertension manifested. The examiner should note that, while the lack of evidence in the STRs and immediately after military discharge are relevant factors, the mere absence of evidence does not equate to unfavorable evidence. The Veteran's lay statements and reports of onset and symptomology must be considered and discussed. A complete and thorough rationale for any opinion(s) expressed, with references to pertinent evidence of record, must be provided. (Continued on next page) T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Worsham, Attorney Advisor 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.