Citation Nr: 21040688 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 17-64 183 DATE: July 6, 2021 ORDER The appeal as to the claim for a disability rating in excess of 10 percent for tinnitus is dismissed. REMANDED Entitlement to service connection for bilateral foot disability is remanded. Entitlement to an initial disability rating in excess 30 percent for coronary artery disease, status post myocardial infarction, is remanded. Entitlement to a compensable disability rating for bilateral hearing loss is remanded. FINDING OF FACT At the April 2021 hearing, where the Veteran was present, his attorney stated that he wished to withdraw his claim for a higher initial rating for tinnitus. CONCLUSION OF LAW The criteria for withdrawal of a substantive appeal on the issue of entitlement to an increased rating for tinnitus by the Veteran's authorized representative have been met. 38 U.S.C. § 7105 (b)(2); 38 C.F.R. §§ 20.202, 20.204. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1968 to January 1971 with additional periods of service with the Army National Guard from October 1981 to September 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2016 and March 2018 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a virtual hearing before the undersigned in April 2021. A transcript is of record. 1. Entitlement to a disability rating in excess of 10 percent for tinnitus has been withdrawn. 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.205. The Veteran's withdrawal, with his attorney present, and with explanation by the Undersigned, was explicit, unambiguous, and done with a full understanding of the consequence of his actions as evidenced by the record indicating he wanted to withdraw his claim. Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). In the present case, the Veteran, through his authorized representative, has withdrawn the appeal for the increased rating claim for tinnitus and, hence, there remain no allegations of errors of fact or law for appellate consideration for this issue. Accordingly, the Board does not have jurisdiction to review the appeal for this issue and it is dismissed. REASONS FOR REMAND 1. Entitlement to service connection for bilateral foot disability is remanded. During the April 2021, the Veteran identified relevant outstanding private treatment records, specifically that he had seen a podiatrist for many years. A remand is required to allow VA to obtain authorization and request these records. A March 2021 private treatment record shows that the Veteran has a history of bilateral midfoot pain secondary to arthritis and a September 2017 VA treatment record shows that he was diagnosed with bilateral plantar fasciitis. In a February 2021 private treatment record, it was noted that the Veteran had spent several years in the Army as a helicopter pilot and was told by that some of his foot issues were secondary to wearing combat boots. At the April 2021 hearing, the Veteran reported that he first noticed problems with his feet during basic training and that he had to run in combat boots. He was told by his podiatrist that this was possibly the cause of his foot problems. However, the evidence is insufficient for the Board to make a decision on the claim. Therefore, a remand is warranted to obtain a VA medical opinion to determine whether the Veteran's bilateral foot disability was due to his service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, this examination and opinion must also assess whether the Veteran's symptoms of bilateral foot pain reach the level of functional impairment under Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Recently, in Wait v. Wilkie, 33 Vet. App. 8 (2020),¬ the Court held that to establish the presence of a disability pursuant to Saunders, there must be competent evidence specific to the claimant tending to show that his or her impairment rises to a level to affect earning capacity, which may include showing manifestations of a similar severity, frequency, and duration as those VA has determined by regulation would cause impaired earning capacity in an average person. 2. Entitlement to an initial disability rating in excess 30 percent for coronary artery disease, status post myocardial infarction, is remanded. During the April 2021, the Veteran identified relevant outstanding private treatment records from Greensboro Cardiology and Dr. Long. A remand is required to allow VA to obtain authorization and request these records. The Board finds that the September 2016 VA examination is inadequate to rate the Veteran's coronary artery disease as the examiner did not provide a reason as to why an interview-based METs test was conducted instead of an exercise stress test. Further, the last diagnostic test was a 2006 angiogram that showed normal results. As such, the Board finds that a new VA examination is warranted. 3. Entitlement to a compensable disability rating for bilateral hearing loss is remanded. The record indicates that the Veteran's bilateral hearing loss has worsened since his last VA examination. The Board notes that the Veteran last underwent a VA examination for his bilateral hearing loss in February 2018, over three years ago. Therefore, a more contemporaneous medical examination is warranted. Green v. Derwinski, 1 Vet. App. 121 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the rating of the disability will be a fully informed one); Caffrey v. Brown, 6 Vet. App. 377 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Greensboro Cardiology, Dr. Long, and the podiatrist referred to at the April 2021 hearing. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 2. After completing the above, schedule a VA examination to determine the nature and etiology of the Veteran's bilateral foot disabilities. Provide the claims file, including a copy of this REMAND, to the examiner for review. After reviewing the claims file, the examiner should address whether it is at least as likely as not (approximately 50 percent probability or greater) that any bilateral foot disability is related to or had its onset in any period of active military service. In the alternative, the examiner should address whether the Veteran's reported bilateral foot symptoms cause functional impairment that impacts earning capacity; and if so, Whether the Veteran's bilateral foot symptoms are at least as likely as not (50 percent probability or greater) proximately due to or the result of the Veteran's service. The examiner should note that "pain need not be diagnosed as connected to a current underlying condition to function as an impairment." Saunders v. Wilkie, 886 F.3d 1356, 1364 (Fed. Cir. 2018). Rather, "[t]o establish the presence of a disability, a veteran will need to show that [their] pain reaches the level of a functional impairment of earning capacity." Id. at 1367-68. This definition of "disability" does not "require that pain must affect some aspect of the normal working movements of the body" or that "pain must be tied to physical evidence of a lack of functionality and/or physical evidence of a current disease or injury." Id. at 1366-67. All opinions expressed must be accompanied by a complete rationale. 3. Schedule a VA examination to determine the current nature and severity of the Veteran's coronary artery disease, status post myocardial infarction. Provide the claims file, including a copy of this REMAND, to the examiner for review. All findings should be fully documented in the examination report. If the examiner conducts an interview-based METs test instead of an exercise stress test, then the examiner must provide the reason for this decision. Further, the examiner should conduct all tests s/he deems necessary to determine the current nature and severity of the Veteran's coronary artery disease, to include an angiogram. The examiner should obtain a full history of the Veteran's coronary artery disease, status post myocardial infarction. 4. Schedule a VA examination to determine the current nature and severity of the Veteran's bilateral hearing loss. Provide the claims file, including a copy of this REMAND, to the examiner for review. All findings should be fully documented in the examination report. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Ko, 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.