Citation Nr: 21042715 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 18-37 158 DATE: July 13, 2021 ORDER Service connection for Dupuytren's contracture of the hands is dismissed. Service connection for Dupuytren's contracture of the feet is dismissed. REMANDED Service connection for ankylosing spondylitis is remanded. Service connection for iridocyclitis is remanded. Service connection for eczema and seborrhea is remanded. FINDINGS OF FACT 1. On February 17, 2021, prior to the promulgation of a decision in the appeal, the Veteran indicated during his hearing before the Board that a withdrawal of this appeal is requested as to the issue of entitlement to service connection for Dupuytren's contracture of the hands. 2. On February 17, 2021, prior to the promulgation of a decision in the appeal, the Veteran indicated during his hearing before the Board that a withdrawal of this appeal is requested as to the issue of entitlement to service connection for Dupuytren's contracture of the feet. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran's authorized representative have been met for the issue of entitlement to a service connection for Dupuytren's contracture of the hands. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 19.55 (2020). 2. The criteria for withdrawal of an appeal by the Veteran's authorized representative have been met for the issue of entitlement to a service connection for Dupuytren's contracture of the feet. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from December 1990 to June 1991, including service in the Persian Gulf War, with additional service in the National Guard. The Veteran testified before the undersigned Veterans Law Judge during a February 2021 hearing and a transcript is of record. These matters are on appeal from a May 2016 rating decision. Service Connection 1. Dupuytren's Contracture of the Hands 2. Dupuytren's Contracture of the Feet 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55.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. Withdrawal is only effective if it is explicit, unambiguous, and done with the Veteran's full understanding of the consequences. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Withdrawal of an appeal will be deemed a withdrawal of the notice of disagreement and, if filed, the substantive appeal, as to all issues to which the withdrawal applies. 38 C.F.R. § 19.55. On February 17, 2021, during his hearing before the Board, the Veteran indicated that he wished to withdraw this appeal for the issues of service connection for Dupuytren's contracture of the hands and feet. Once transcribed as a part of the record of his hearing, this satisfies the requirements for the withdrawal of a substantive appeal. See Tomlin v. Brown, 5 Vet. App. 355 (1993). At the hearing, the undersigned explained that the merits of these claims would not be addressed, and that should the Veteran wish to seek service connection for the withdrawn issues, a new claim would need to be filed, and that this could impact the effective date assigned for any benefits that were eventually granted. The Veteran has clearly expressed unambiguous intent to withdraw the appeal for these issues. The Board therefore finds that the Veteran's statement meets the criteria for withdrawal of the appeal for these issues. Because the Veteran has withdrawn this appeal for these issues, there remain no allegations of errors of fact or law for appellate consideration with regard to these issues. Accordingly, the Board does not have jurisdiction to review these issues, and the claims are dismissed. REASONS FOR REMAND 1. Service connection for ankylosing spondylitis is remanded. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran was afforded a VA examination in March 2016. The clinician's opinion that it was less likely than not that the Veteran's ankylosing spondylitis was less likely than not incurred in or caused by active duty service was based on a finding that the Veteran was not diagnosed with ankylosing spondylitis until 1994, three years after his separation from active duty service. This opinion does not address numerous treatment records between the Veteran's separation from active duty service and 1994 noting his reports of low back pain since 1991. In addition, service connection may be granted for diseases, but not defects, of congenital, developmental, or familial origin. VAOPGCPREC 82-90 (July 18, 1990); VAOPGCPREC 67-90 (July 18, 1990). In differentiating the two categories, VA's Office of General Counsel has stated that, when viewed in the context of 38 C.F.R. § 3.303 (c), the term "defects" would be definable "as structural or inherent abnormalities or conditions which are more or less stationary in nature." VAOPGCPREC 82-90. In contrast, a "disease" refers to a condition considered capable of improving or deteriorating. Id. Additionally, a congenital defect can still be subject to superimposed disease or injury. VAOPGCPREC 82-90. If such superimposed disease or injury does occur during service, service connection may be warranted for the resulting disability. Id. In sum, service connection is available for congenital diseases that first manifest in service or are aggravated in service. Service connection is not available for congenital defects, but service connection may be awarded for disease or injury that is superimposed upon the congenital defect during service. Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009); Monroe v. Brown, 4 Vet. App. 513, 515 (1993); VAOPGCPREC 82-90. During the February 2021 hearing, the Veteran testified that his diagnosis of ankylosing spondylitis was based in part on the presence of genetic markers. The March 2016 VA medical opinion did not address the questions pertinent to service connection for congenital disabilities. For these reasons, a remand is warranted to obtain an additional medical opinion. 2. Service connection for iridocyclitis is remanded. A VA clinician in April 2016 opined that the Veteran's iridocyclitis is at least as likely as not associated with and caused by his ankylosing spondylitis. For this reason, the Veteran's claim of service connection for iridocyclitis is inextricably intertwined with this remand and the Board cannot fairly proceed in adjudicating the iridocyclitis claim until the ankylosing spondylitis claim has been resolved. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 178 (2009). 3. Service connection for eczema and seborrhea is remanded. The Veteran was afforded a VA examination in March 2016. The clinician's opinion that it was less likely than not that the Veteran's eczema or seborrhea was incurred in or caused by active duty service was based on a finding that the Veteran was not diagnosed with a skin disability "until years after military service." The Veteran testified during the February 2021 hearing that his skin symptoms had their onset shortly after his separation from active duty service. A remand is therefore warranted to obtain an additional medical opinion. The matters are REMANDED for the following action: 1. Arrange for an opinion by an appropriate clinician for the purpose of determining the etiology of the Veteran's ankylosing spondylitis. The entire claims file and a copy of this remand must be made available to the clinician for review. A new examination is only required if deemed necessary by the clinician. The clinician must provide opinions as to the following: a. As a threshold question, whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's ankylosing spondylitis is congenital. The Board must ask this question because the Veteran testified during the February 2021 hearing that the diagnosis of ankylosing spondylitis was based in part on the presence of genetic markers. If, and only if, the clinician finds that the Veteran's ankylosing spondylitis is congenital, the clinician should also provide opinions as to the following: i) Whether the Veteran's ankylosing spondylitis is a developmental defect or a developmental disease. For VA purposes, a defect differs from a disease in that a defect is "more or less stationary in nature," while a disease is "capable of improving or deteriorating." ii) If the clinician finds that the Veteran's ankylosing spondylitis is a developmental or congenital defect, the clinician must provide an opinion as to whether it is at least as likely as not that the Veteran sustained any superimposed disease or injury on such defect during his active duty service. iii) If the clinician finds that the Veteran's ankylosing spondylitis is a developmental or congenital disease, the clinician must provide an opinion as to whether it is at least as likely as not that it was incurred in or aggravated beyond the normal course of the condition by active duty service. b. Whether it is as likely as not (a probability of 50 percent or greater) that any current ankylosing spondylitis had its origin in service or is related to the Veteran's active service. Although an independent review of the claims file is required, the Board calls the clinician's attention to the following: a. Multiple treatment records noting the Veteran's reports of low back symptoms between his separation from active duty service and the May 1994 diagnosis of ankylosing spondylitis, including in June 1992, December 1992, January 1993, November 1993, and April 1994. b. The Veteran's contention in his July 2018 substantive appeal (VA Form 9) that his ankylosing spondylitis may have been initially misdiagnosed as gallstones. c. The Veteran's November 2019 statement detailing the history of his low back symptoms. d. The Veteran's testimony during the February 2021 hearing regarding the onset and continuity of his symptoms. The rationale for any opinion expressed should be provided. Note that the fact that a disability is not mentioned in treatment records cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the clinician should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 2. Arrange for an opinion by an appropriate clinician for the purpose of determining the etiology of the Veteran's eczema and seborrhea. The entire claims file and a copy of this remand must be made available to the clinician for review. A new examination is only required if deemed necessary by the clinician. The clinician must provide an opinion as to whether it is as likely as not (a probability of 50 percent or greater) that any current eczema or seborrhea had its origin in service or is related to the Veteran's active service. Although an independent review of the claims file is required, the Board calls the clinician's attention to the following: a. The Veteran's contentions in his July 2018 substantive appeal (VA Form 9) regarding his environmental exposure during active duty service. b. The Veteran's testimony during the February 2021 hearing regarding the onset and continuity of his symptoms. The rationale for any opinion expressed should be provided. Note that the fact that a disability is not mentioned in treatment records cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the clinician should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 3. Ensure that the directives specified in this remand have been implemented. If they have not, appropriate corrective action must be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998) 4. Then, readjudicate the claims, including the iridocyclitis claim. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ryan Frank, 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.