Citation Nr: 21042411 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 18-06 959 DATE: July 13, 2021 ORDER Service connection for a left ankle disability has been withdrawn. Service connection for a right ankle disability has been withdrawn. REMANDED Service connection for a left knee disability is remanded. Service connection for a right knee disability is remanded. Service connection for a back disability is remanded is remanded. Service connection for posttraumatic stress disorder (PTSD) is remanded. Service connection for an acquired psychiatric disorder other than PTSD to include anxiety and depression is remanded. FINDINGS OF FACT 1. The Veteran submitted a signed written statement on April 27, 2021 indicating his desire with withdraw a claim for service connection for a left ankle disability. 2. The Veteran submitted a signed written statement on April 27, 2021 indicating his desire with withdraw a claim for service connection for a right ankle disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim for service connection for a left ankle disability by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the claim for service connection for a right ankle disability 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 served honorably in the United States Marines Corps from February 1992 to December 1995. These matters come to the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These matters are being adjudicated under the legacy appellate framework. The Veteran testified at a personal hearing before the Board in April 2021, and a transcript of the hearing is of record. The Board notes that in January 2015 notice of disagreement (NOD) that commenced this appeal, the Veteran also raised the following claims for service connection: bilateral hearing loss; tinnitus; a bilateral hip disability; a neck disability; and a gastric disability. In December 2017, the Veteran was granted service connection for a neck disability, a gastric disability, and tinnitus, and, in August 2018, the Veteran was granted service connection for a bilateral hip disability. This is considered a full grant of the Veteran's requested prayer of relief, and the Board shall not address these issues any further. Additionally, the Board notes that the Veteran did not file a timely substantive appeal perfecting the issue of entitlement to service connection for bilateral hearing loss, and the RO did not certify this issue as being on appeal. Therefore, the Board shall not address this issue any further. The Board also notes that the issue of service connection for an acquired psychiatric disorder other than PTSD to include anxiety and depression was not raised in the January 2015 NOD commencing this appeal. A July 2017 disability benefits questionnaire completed by a private physician indicated that the Veteran has been diagnosed with anxiety and depression in addition to the Veteran's claimed PTSD. Therefore, a claim for service connection for an acquired psychiatric disorder other than PTSD to include anxiety and depression is within the scope of the Veteran's claim for service connection for PTSD. Clemons v. Shinseki, 23 Vet. App. 1 (2009). 1. Service connection for a left ankle disability has been withdrawn. 2. Service connection for a right ankle disability 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. § 19.55. Withdrawal may be made by the Veteran or by his authorized representative. Id. In the present case, the Veteran has withdrawn the issues of entitlement to service connection for a bilateral ankle disability and, hence, there remain no allegations of errors of fact or law for appellate consideration in this regard. Accordingly, the Board does not have jurisdiction to review the appeal, and the Veteran's claims for service connection for a bilateral ankle disability are dismissed REASONS FOR REMAND 1. Service connection for a left knee disability is remanded. 2. Service connection for a right knee disability is remanded. At issue is whether the Veteran is entitled to service connection for a bilateral knee disability. The Veteran was provided a VA examination in May 2018. Once VA undertakes the effort to provide the Veteran with a VA examination, VA must provide the Veteran with an adequate one, and an adequate examination is sufficiently detailed in order to ensure that VA's evaluation of the Veteran's claims is fully formed. Barr v. Nicholson, 21 Vet. App. 303 (2007). In an April 2021 appellate brief, the Veteran's representative argued that the May 2018 VA examination was inadequate, because it did not obtain magnetic resonance imaging (MRI) in order to potentially assess a patellar tendonitis condition; and it did not consider whether or not the Veteran's right knee disabilities were proximately due to the Veteran's previously service-connected bilateral hip disabilities. Therefore, these matters must be remanded for a new VA examination. If the examiner feels that an MRI or other diagnostic testing is necessary to render an opinion on the etiology of any current knee disability, such testing should be performed. 3. Service connection for a back disability is remanded is remanded. At issue is whether the Veteran is entitled to service connection for a back disability. The Veteran testified at a personal hearing before in April 2021 the Board that he had back symptomology, and he attributed this to injuries sustained as a result of hard aircraft landings during his period of service. See Transcript. This suggests a potential link between a potential back disability and an in-service incurrence. This is sufficient to trigger VA's duty to assist, and the Veteran must be provided a VA examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 4. Service connection for PTSD is remanded. At issue is whether the Veteran is entitled to service connection for PTSD. The Veteran submitted a private medical opinion in July 2017 which indicated that the Veteran had a diagnosis of PTSD and that the Veteran's PTSD was related to combat service. Nevertheless, there are a number of problems with the July 2017 medical opinion. First in the diagnosis section of the opinion, the Veteran was diagnosed with PTSD, anxiety, and depression, but, in the differentiation of symptoms section of the opinion, the physician opined that the Veteran did not have multiple mental disorders. The physician also opined, in the differentiation of symptoms section, that the physician could differentiate which symptoms were attributable to which diagnosis (despite being unclear whether the Veteran has one or three mental disorders), and that all of the Veteran's symptoms were attributable to the Veteran's PTSD; raising the question of whether the examiner is suggesting that the Veteran's anxiety and depression have not symptoms and, if so, how were these diagnoses made. The physician also misidentifies where the Veteran served; suggesting that the Veteran served in the South West Asia Theatre of Operations; when the Veteran actually served in Somalia. Finally, the physician does not provide an adequate rationale for his conclusion. For these reasons, the Board cannot afford the opinion any weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Nevertheless, it is sufficient to trigger VA's duty to assist, and this matter must be remanded in order to provide the Veteran with a VA examination. See McLendon. 5. Service connection for an acquired psychiatric disorder other than PTSD to include anxiety and depression is remanded. At issue is whether the Veteran is entitled to service connection for an acquired psychiatric disorder other than PTSD. This matter is inextricably intertwined with the Veteran's claim for service connection for PTSD, and it must be remanded as well in order to avoid piecemeal appellate litigation. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Arrange to provide the Veteran with a VA examination in order to address the following: (a.) Is it at least as likely as not (50 percent or more) that a medical nexus exists between an in-service incurrence and a current diagnosis of a back disability? Why or why not? (b.) Is it at least as likely as not (50 percent or more) that the Veteran's back disability is proximately due to or aggravated by a previously service-connected disability? Why or why not? (c.) If the Veteran's back disability is aggravated by a previously service-connected disability, then please provide a baseline estimate of the severity of the Veteran's back disability absent any aggravating effects? Why? 2. Arrange to provide the Veteran with a VA examination in order to address the following: (a.) Is it at least as likely as not (50 percent or more) that a medical nexus exists between an in-service incurrence and a current diagnosis of a right knee disability? Why or why not? (b.) Is it at least as likely as not (50 percent or more) that a medical nexus exists between an in-service incurrence and a current diagnosis of a left knee disability? Why or why not (c.) Is it at least as likely as not (50 percent or more) that the Veteran's right knee disability is proximately due to or aggravated by a previously service-connected disability? Why or why not? (d.) Is it at least as likely as not (50 percent or more) that the Veteran's left knee disability is proximately due to or aggravated by a previously service-connected disability? Why or why not? (e.) If the Veteran's right knee disability is aggravated by a previously service-connected disability, then please provide a baseline estimate of the severity of the Veteran's right knee disability absent any aggravating effects? Why? (f.) If the Veteran's left knee disability is aggravated by a previously service-connected disability, then please provide a baseline estimate of the severity of the Veteran's left knee disability absent any aggravating effects? Why? 3. Arrange to provide the Veteran with a VA examination in order to address the following: (a.) Does the Veteran have a diagnosis of an acquired psychiatric disorder other than PTSD? Why or why not? If so, please identify what this disorder is. Is it possible to differentiate which psychological symptoms are attributable to each diagnosis? Why or why not? If so, please list which symptoms are associated with which diagnosis. (b.) Is it at least as likely as not (50 percent or more) that a medical nexus exists between an acquired psychiatric disorder other than PTSD and an in-service incurrence? Why or why not? (c.) Is it at least as likely as not (50 percent or more) that an acquired psychiatric disorder other than PTSD is proximately due to or aggravated by a previously service-connected disability? Why or why not? (d.) If the Veteran's an acquired psychiatric disorder other than PTSD is aggravated by a previously service-connected disability, then please provide a baseline estimate of the severity of the Veteran's an acquired psychiatric disorder other than PTSD absent any aggravating effects? Why? (e.) Is it at least as likely as not (50 percent or more) that there is a medical link between a diagnosis of PTSD and an in-service stressor? Why or why not? (f.) Is it at least as likely as not (50 percent or more) that the Veteran's claimed stressors can be considered fear of hostile military or terrorist activity? Why or why not? (g.) Is it at least as likely as not (50 percent or more) that the Veteran's claimed stressors are adequate to support a diagnosis of PTSD? Why or why not? (h.) Is it at least as likely as not (50 percent or more) that the Veteran's symptoms are related to the Veteran's claimed stressors? Why or why not? DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David R. Seaton, 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.