Citation Nr: 22014374 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 17-33 449 DATE: March 12, 2022 ORDER Entitlement to an increased rating excess of 70 percent for posttraumatic stress disorder (PTSD) has been withdrawn. REMANDED Entitlement to an increased rating excess of 10 percent for lumbosacral strain is remanded. Entitlement to an increased rating excess of 10 percent for right ankle strain is remanded. Entitlement to a compensable rating for left ankle strain is remanded. Entitlement to a compensable rating for right foot strain is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for left foot strain is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for high blood pressure is remanded. Entitlement to service connection for stomach cancer is remanded. FINDING OF FACT 1. At the October 2021 Board hearing, the Veteran withdrew his claim for entitlement to an increased rating excess of 70 percent for PTSD. CONCLUSION OF LAW 1. The criteria for withdrawal of entitlement to an increased rating excess of 70 percent for posttraumatic stress disorder (PTSD) by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1983 to March 1994. Increased Rating 1. Entitlement to an increased rating excess of 70 percent for posttraumatic stress disorder (PTSD) 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55.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 In the present case, the Veteran has withdrawn his appeal for an increased rating for PTSD at the October 2021 Board hearing and, hence, there remain no allegations of errors of fact or law for appellate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 1. Entitlement to an increased rating excess of 10 percent for lumbosacral strain is remanded. 2. Entitlement to an increased rating excess of 10 percent for right ankle strain is remanded. 3. Entitlement to a compensable rating for left ankle strain is remanded. 4. Entitlement to a compensable rating for right foot strain is remanded. Regarding the Veteran's claims for increased ratings for his service-connection lumbosacral strain, right ankle strain, and right foot strain, a VA examination is necessary to ascertain the current nature and severity of his disorders. The Veteran's most recent VA examination was in 2014. Chiropractic records from September 2021 show a worsening of the Veteran's symptoms. Additionally, at the October 2021 Board hearing, the Veteran reported that his symptoms had worsened. Therefore, remand is necessary to afford the Veteran VA examinations to assess the current severity of his disorders. 5. Entitlement to service connection for a right knee disorder is remanded. 6. Entitlement to service connection for a left knee disorder is remanded. Regarding the Veteran's claims of service connection for bilateral knee disorder, remand is necessary. The Veteran underwent a VA examination in May 2014. The examiner opined as follows: "He has not been diagnosed for any specific knee conditions other than non-specific knee pain (arthralgia). However, he had these symptoms during active military duty. Therefore, it is at least as likely as not that his right knee arthralgia is related to symptoms." The Veteran submitted private chiropractic records dated in September 2021 that show a relationship between his knee disorders and his service-connected orthopedic disorders. The Veteran testified at the October 2021 Board hearing that his knee pain has increased and that he received treatment for his lower extremities. A VA examination is necessary to determine if he has current diagnoses or functional loss of the bilateral knees for which service connection is warranted. 7. Entitlement to service connection for left foot strain is remanded. Remand is necessary to afford the Veteran a VA examination to determine the nature and etiology of any left foot disorder. At the May 2014 VA examination, the examiner did not provide a diagnosis of a left foot disorder but did not that the Veteran could not bear weight on his left foot during flare ups. The Veteran has continued to report symptoms of both right and left foot pain. The Veteran submitted private chiropractic records dated in September 2021 that show a relationship between his foot disorder and his service-connected orthopedic disorders. Therefore, a VA examination must be conducted to ascertain whether the Veteran has a left foot disorder as a result of service or secondary to or aggravated by his service-connected disorders, including his service-connected right foot strain. 8. Entitlement to service connection for erectile dysfunction is remanded. Remand is necessary prior to adjudication of these claims. For all claims, the Veteran testified at his October 2021 Board hearing that he was in receipt of treatment for his disabilities through the VA, as well as a chiropractor. To date, those records have not been associated with the claims file. Therefore, remand is necessary to obtain those records. Regarding the Veteran's claim of service connection for erectile dysfunction, the Veteran has stated that it is secondary to his service-connection PTSD. To date, the Veteran has not been afforded a VA examination and opinion on this matter. Therefore, remand is necessary prior to adjudication. 9. Entitlement to service connection for high blood pressure is remanded. Remand is necessary for additional development of this claim. The Veteran contends that he has hypertension as a result of service. The Veteran was afforded a VA examination in May 2014. The examiner noted a diagnosis of hypertension and opined: "The veteran did have headaches at time of diagnosis, but there is no documentation in military record that these headaches are believed to be related to the HTN. Additionally, he continued to report headaches during exams when BP was not elevated. Therefore, it is less likely than not that the veteran's chronic HTN is related to the symptoms shown during military duty." In a September 2014 VA examination, the examiner provided the following opinion based on the Veteran's blood pressure readings from September 1993: "In order to establish a diagnosis of hypertension one must have elevated blood pressure demonstrated consistently on more than 2 occasions. If only two measurements are available (on different days) that is acceptable, but not ideal. This veteran does have more than 2 measurements. In fact, he has measurements from 4 different days. On two consecutive days (day 1 and day 2) he has elevated blood pressure (although barely elevated), but on the following days his blood pressure is in the normal range. He has 4 days' worth of consecutive BP readings, and only half of them show elevated blood pressure. That is not a consistent enough pattern to establish a diagnosis of hypertension. Even if he did have a diagnosis of hypertension at that time, I was not able to find a single academic article showing a statistically significant causal relation Gulf War inhalational hazards and hypertension. Therefore: 1.) Those 5 day BP readings do not establish a diagnosis of hypertension. And 2.) It is less likely than not that this veteran has a diagnosis of hypertension which was caused by gulf war environmental hazards." At the October 2021 Board hearing, the Veteran testified that he was diagnosed with hypertension in service and that he experienced severe headaches, fatigue, dizziness, and feeling ill. He presently is treated at the VA Medical Center in Columbia for his hypertension. To date, those records have not been associated with the claims file. Remand is necessary to obtain all outstanding treatment records. 10. Entitlement to service connection for bilateral hearing loss is remanded. Remand is necessary so updated VA treatment records may be associated with the file. 11. Entitlement to service connection for stomach cancer is remanded. Remand is necessary to obtain an addendum VA opinion regarding the Veteran's stomach cancer. The Veteran was afforded a VA examination in May 2014. The examiner noted a diagnosis of a gastric polyp and opined: "The veteran did have one STR from 1987 showing that he sought medical care for GI discomfort, but there is no evidence that it was related to his gastric polyps diagnosed in 2011. Therefore, it is less likely than not that this veteran's gastric polyps are related to symptoms shown during active duty." The Veteran underwent a Gulf War VA examination in November 2014. Regarding his colon polyps, the examiner opined: "c-file reviewed and noted multiple polyps. [The] Veteran has a clear and specific diagnosis and etiology, and this is less likely than not to be connected to his Gulf War service." At the October 2021 Board hearing, the Veteran testified that he experienced stomach pains during and since service. He also reported that he was exposed to environmental hazards. The Board finds the May 2014 VA opinion to be inadequate and it does not provide a rationale for the opinion and does not consider the Veteran's lay statements of continuity of symptomatology since service. Therefore, remand is warranted to afford the Veteran a VA examination and an adequate addendum opinion that assesses the nature and etiology of his stomach cancer and polyps. The matters are REMANDED for the following action: 1. Obtain and associate all outstand, relevant VA and private treatment records with the claims file. The Veteran's assistance in identifying and obtaining pertinent records should be requested as needed. All attempts to obtain records should be set forth in the claims folder. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected spine, bilateral ankle, and right foot disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Moreover, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Schedule the Veteran for VA examination(s) with the appropriate clinicians to determine the nature and etiology of the Veteran's bilateral knee disorders and left foot disorder. The examiner(s) must review the claims file and indicate in the report that it was reviewed. All indicated tests must be performed. Examiners should identify the presence of the various disabilities and confirm the existence of the claimed disorders. Thereafter, opinions as to etiology should be set out to include whether it is as likely as not that any of the claimed disorders was due to service, secondary to a service-connected disorder, or aggravated by a service-connected disorder. A complete rationale based on a review of the evidence and the application of medical principles must be provided in support of all opinions. 4. Schedule the Veteran for VA examinations with the appropriate clinicians to determine the nature and etiology of the Veteran's erectile dysfunction, hypertension, and stomach cancer (or gastric polyps). The examiners must review the claims file and indicate in the report that it was reviewed. All indicated tests must be performed. The examiners should identify the presence of the various disabilities and confirm the existence of the claimed disorders. Thereafter, opinions as to etiology should be set out to include whether it is as likely as not that any of the claimed disorders was due to service including exposure to environmental exposures, secondary to a service-connected disorder, or aggravated by a service-connected disorder. A complete rationale based on a review of the evidence and the application of medical principles must be provided in support of all opinions. 5. After the development requested has been completed, the Agency of Original Jurisdiction (AOJ) should review any examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures at once. 6. Readjudicate the issues on appeal. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shana Z. Siesser, 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.