Citation Nr: 22016019 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 17-45 575 DATE: March 21, 2022 ORDER Entitlement to a rating in excess of 10 percent for hypertension is dismissed since withdrawn. REMANDED Entitlement to service connection for a right foot disability, including as secondary to service-connected right achilles tendon rupture repair, is remanded. FINDING OF FACT On his August 2017 VA Form 9, the Veteran, through his representative, withdrew his claim for a rating higher than 10 percent for his hypertension. CONCLUSION OF LAW The criteria are met for withdrawal of this claim. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1978 to October 1992. This appeal to the Board of Veterans' Appeals (Board) is from a January 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). On his August 2017 VA Form 9, Substantive Appeal to this Board, the Veteran requested a hearing before a Veterans Law Judge of this Board. The Veteran's hearing was postponed twice, and he then failed to appear for his rescheduled hearing without providing any justifiable reason or explanation ("good cause"). As such, his hearing request is considered withdrawn. 38 C.F.R. § 20.704(d). Also on that VA Form 9, the Veteran withdrew his appeal for a higher rating for his hypertension, so the Board is summarily dismissing this claim. Withdrawn Claim 1. Entitlement to a rating in excess of 10 percent for hypertension The Board may dismiss any appeal that 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55.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 by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. Here, the Veteran, through his representative, withdrew the appeal for an increased rating for the hypertension on the August 2017 VA Form 9, Substantive Appeal to this Board. Hence, there remains no allegation of error of fact or law for appellate consideration concerning this claim. Accordingly, the Board does not have jurisdiction to review the appeal of this claim, and it is summarily dismissed. REASONS FOR REMAND 2. Entitlement to service connection for a right foot disability, including as secondary to service-connected right achilles tendon rupture repair, is remanded. In March 2017, the Veteran underwent a VA foot examination in response to this claim. During this examination, the examiner determined there was no then current diagnosis of any right foot disability, however, also noted that X-ray imaging of the Veteran's right foot had revealed arthritis. Further, the Veteran complained of exertional foot pain. This means that March 2017 VA examination is inadequate since internally inconsistent as the examiner performed that examination as if the Veteran had no right foot disability, despite the documented radiographic confirmation of arthritis in this foot and exertional pain that potentially could qualify as a ratable disability even absent the indication of arthritis to explain or account for it, if the pain is severe enough to cause functional impairment of earning capacity. See Sanders v. Wilkie, 886 F.3d 1356, 1363-68 (Fed. Cir. 2018). Further, because the examiner found no right foot disability, he did not provide any opinion on either direct or secondary service connection for the Veteran's right foot disability. The Board consequently must obtain this still needed medical comment before deciding the appeal of this claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (whenever VA endeavors to provide an examination for a medical opinion, it must ensure they are adequate); Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007). Accordingly, this remaining claim is REMANDED for the following additional development and consideration: Schedule the Veteran for another VA examination for additional medical comment concerning the origins or etiology of his claimed right foot disability. To assist in making this important determination, the examiner must consider the relevant evidence and be provided a complete copy of this decision and remand. The examiner is first asked to clarify the Veteran's right foot diagnosis and, in doing that, specifically address the July 2015 X-ray showing right foot arthritis and the Veteran's complaint of exertional pain. These findings must be reconciled with those during his March 2017 VA compensation examination contrarily concluding there is no right foot disability. The examiner is then asked to opine on the following: A) Is any right foot disability at least as likely as not related or attributable to the Veteran's military service, including his right ankle injury during service? B) Is any right foot disability at least as likely as not proximately due to the service-connected right achilles tendon rupture repair? C) Is any right foot disability at least as likely as not aggravated by the service-connected right achilles tendon rupture repair? D) Is it at least as likely as not that the right foot arthritis (1) onset during the Veteran's active military service from October 1978 to October 1992, (2) initially manifested within one year after his discharge from service so by October 1993, or (3) was noted during his service with continuity of the same symptomatology since his service? KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Pak 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.