Citation Nr: 22017577 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 17-47 104 DATE: March 25, 2022 ORDER Entitlement to service connection for traumatic brain injury (TBI) is dismissed. Entitlement to service connection for a vision disability is dismissed. Entitlement to service connection for sleep apnea is dismissed. Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for hearing loss disability is remanded. Entitlement to service connection for bilateral knee disability is remanded. Entitlement to service connection for asthma is remanded. FINDINGS OF FACT 1. At the March 2021 Board hearing, the Veteran made a voluntary and informed choice to withdraw his claim of entitlement to service connection for TBI. 2. At the March 2021 Board hearing, the Veteran made a voluntary and informed choice to withdraw his claim of entitlement to service connection for a vision disability. 3. At the March 2021 Board hearing, the Veteran made a voluntary and informed choice to withdraw his claim of entitlement to service connection for sleep apnea. 4. On examination, the Veteran's symptoms did not meet the criteria for a diagnosis of PTSD; no other evidence of record establishes a valid diagnosis. CONCLUSIONS OF LAW 1. The criteria for dismissal of the claim of entitlement to service connection for TBI have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for dismissal of the claim of entitlement to service connection for a vision disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for dismissal of the claim of entitlement to service connection for sleep apnea have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty military service from July 1999 to July 2002. Claims Withdrawn Entitlement service connection for TBI Entitlement to service connection for a vision disability Entitlement to service connection for sleep apnea Under applicable criteria, 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by an appellant or by his authorized representative. Id. In the present case, at the Board hearing in March 2021, the Veteran's representative indicated that the Veteran wished to withdraw his claims with respect to service connection for TBI, for a vision disability, and for sleep apnea. The Veteran's Law Judge inquired and ascertained that the Veteran's decision to withdraw the claims was voluntary and that he was fully informed of the impact of that decision. There remain no allegations of errors of fact or law for appellate consideration with respect to these claims. Under these circumstances, these issues are no longer within the Board's jurisdiction. See Hamilton v. Brown, 4 Vet. App. 528 (1993) (en banc), aff'd, 39 F.3d 1574 (Fed. Cir. 1994) (holding that the Board is without the authority to proceed on an issue if the claimant indicates that consideration of that issue should cease). Accordingly, the Board does not have jurisdiction to review the appeal of these issues, and they are dismissed. Service Connection Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All three elements must be established by competent and credible evidence in order that service connection may be granted. Entitlement to service connection for PTSD The Veteran seeks service connection for PTSD, which he asserts is the result of his military service. There are particular requirements for establishing PTSD in 38 C.F.R. § 3.304(f) in addition to those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Establishing service connection for PTSD requires: (1) medical evidence diagnosing PTSD in conformance with established criteria; (2) a link, established by medical evidence, between a veteran's present symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor actually occurred. See 38 C.F.R. §§ 3.304(f), 4.125. In this instance, the Veteran has been provided VA examinations in August 2019 which diagnosed the Veteran with Generalized Anxiety Disorder which was related to the anxiety suffered while on active duty. (See C&P Exam, 08/27/2019 (2 documents).) A private opinion in a Disability Benefits Questionnaire (DBQ) submitted in August 2019 diagnosed the Veteran with Generalized Anxiety Disorder and Somatic Symptom Disorder with depressed and anxious features. (See DBQ, 08/11/2019.) A subsequent VA examination in March 2021 diagnosed Chronic Adjustment Disorder with depressed and anxious mood. (See C&P Exam, 03/12/2021.) At the Board hearing in March 2021, the Veteran testified that he felt he had PTSD because of his reactivity to loud noises and his general level of anxiety. (See Hearing Transcript, 03/17/2021.) He had difficulty sleeping and found it difficult to be in large gatherings of people, even among family, preferring to isolate himself. He reported that he had recently undergone a VA examination which diagnosed him with anxiety and depression at the 50 percent disability level. After considering all of the evidence of record, with special attention to the documents discussed above, the Board finds that service connection for PTSD cannot be granted. In this instance, while the Veteran feels his symptoms are those of PTSD, more than one mental health professional has assigned an alternative diagnosis which accounts for his symptoms of anxiety and depression. Where PTSD has not been shown on multiple examinations, service connection cannot be granted for PTSD. The Board notes that the Veteran has been granted service connection, with a 50 percent disability rating assigned, for chronic adjustment disorder with depressed and anxious mood, effective February 2021. (See Rating Decision, 4/12/2021.) The Board is uncertain as to why the Agency of Original Jurisdiction (AOJ) selected this effective date, as it appears that the Veteran's symptoms have been present throughout the entirety of the appeal for PTSD and, under Clemons v. Shinseki, 23 Vet. App. 1, 4-6 (2009), would have been incorporated in the claim. However, because service connection for chronic adjustment disorder has been granted by the AOJ, and the claim before the Board is for PTSD, the question of the assigned effective date is not one the Board has the authority to address at this time. The Board advises that, if the Veteran believes service connection for his chronic adjustment disorder symptoms was warranted prior to February 2021, an appeal of the assigned effective date by filed within one year of the date of the April 13, 2021 notice of the rating decision. REASONS FOR REMAND Entitlement to service connection for hearing loss disability The Veteran seeks service connection for a hearing loss disability, which he asserts had its onset in service. The Board notes that hazardous noise exposure in service has been conceded and that service connection has been granted for tinnitus based on this exposure. The Veteran was provided a VA examination in July 2011 which found that the Veteran's hearing loss did not meet the standard of 38 C.F.R. § 3.385 for recognition as a disability for VA purposes. (See VA Examination, 07/15/2011.) However, the audiologist did record that the Veteran had hearing loss in his left ear. At the March 2021 Board hearing, the Veteran testified that he had an audiometric evaluation at VA in 2020. (See Hearing Transcript, 03/17/2021). The record shows that the Veteran underwent an audiometric hearing test in February 2020 at the VA Medical Center, but the audiologist found that the results of the test were not valid and that additional testing was required. (See CAPRI, 04/14/2021.) It does not appear that such additional testing has been performed. In light of the conceded hazardous noise exposure in service and the more than 10 years which have elapsed since the most recent VA examination and audiometric testing, the Veteran's hearing loss may now meet the threshold for a hearing loss disability under 38 C.F.R. § 3.385. For this reason, the Board finds that a remand for a current VA examination is warranted. Entitlement to service connection for bilateral knee disability The Veteran seeks service connection for disabilities affecting the right and left knees. Service treatment records show that in April 2004, while serving in the Army National Guard, he sustained an injury to his right knee that eventually resulted in a permanent physical profile. (See STR, 06/08/2010.) The right knee disability was diagnosed as a torn anterior cruciate ligament and surgery was required. (See CAPRI, 02/05/2020.) At the Board hearing in March 2021, the Veteran testified that during active duty his knees bothered him because of wear and tear due to jumping on an off tanks. (See Hearing Transcript, 03/17/2021.) He recalled the injury to his right knee during National Guard service but reported no specific injury to his left knee. VA treatment records show his complaints of pain in both knees, as well as specific attention to right knee issues. In McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), the United States Court of Appeals for Veterans Claims (Court) made clear that VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. This low threshold standard for an examination has been met, but no VA examination was afforded the Veteran. An examination and opinion must be obtained on remand. In addition, the Board notes that the injury to the Veteran's right knee occurred while in the National Guard. The law provides that if the Veteran was on active duty for training or inactive duty training at the time of an injury, service connection is warranted. Every effort should be made to ascertain the nature of the service being performed at the time of the injury and the precise dates of the Veteran's National Guard service. Entitlement to service connection for asthma The Veteran seeks service connection for asthma. Service treatment records show that he was treated for symptoms of an upper respiratory infection in June 2001, at which time he was reported to have wheezing. (See STR, 08/05/2010.) At the Board hearing in March 2021, the Veteran testified he did not have asthma when he entered military service. (See Hearing Transcript, 03/17/2021.) He first noticed problems breathing while exercising, playing sports, or running on the treadmill. He sought treatment at VA but is unsure if this was within the first year after service separation. He has been treated for asthma at VA since service separation and currently uses an inhaler to manage his symptoms. (See CAPRI, 12/08/2020.) Some references in the VA treatment records refer to the Veteran's condition as exercise-induced asthma. In McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), the United States Court of Appeals for Veterans Claims (Court) made clear that VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. This low threshold standard for an examination has been met, but no VA examination was afforded the Veteran. An examination and opinion must be obtained on remand. The matters are REMANDED for the following action: 1. Request and obtain from the appropriate federal records custodian or other appropriate sources all records pertaining to the dates of the Veteran's service in the Arizona National Guard. Special attention should be paid to the dates of any active duty for training or inactive duty training performed and any relevant medical records which may pertain to those time periods. In the event that, after multiple attempts have been made, it is determined that further efforts would be futile, the Veteran and his representative should be duly notified in accordance with the provisions of 38 C.F.R. § 3.359 (e). 2. Then provide the Veteran with an appropriate VA examination to ascertain the current nature and severity of any hearing loss. The examiner should perform an audiometric evaluation of the Veteran's hearing loss to include a second attempt if a valid test cannot be obtained as well as his speech recognition. The examiner should provide an opinion as to whether it is at least as likely as not (probability 50 percent or greater) the Veteran has a hearing loss disability which meets the standard of 38 C.F.R. § 3.385 and is, at least in part, the result of hazardous noise exposure in service. The examiner is reminded that hazardous noise exposure in service has been conceded. The examiner should cite to any specific documents in the record and to any medical treatise or research which informs the opinions offered. The examiner is asked to provide a statement of the reasons or rationale for the opinions offered. 3. Provide the Veteran with an appropriate VA examination of his knees. The examiner is asked to opine whether it is at least as likely as not (probability 50 percent or greater) that the Veteran has a disability of either knee which is the result of his duties in service. The examiner is asked to differentiate, to the extent possible, the effects of the Veteran's knee injury in April 2005 as opposed to the wear and tear involved in jumping on and off tanks while carrying heavy military gear. The examiner should perform any imaging testing necessary to render a fully informed opinion. The examiner is also asked to comment on the impact, if any, of the right knee injury and repair on the Veteran's left knee, to include as due to an altered gait or a shift in weight-bearing. The examiner should cite to any specific documents in the record and to any medical treatise or research which informs the opinions offered. The examiner is asked to provide a statement of the reasons or rationale for the opinions offered. 4. Provide the Veteran with an appropriate VA examination to address the claim of service connection for asthma, to include exercise-induced asthma. The examiner is asked to provide an opinion as to whether the Veteran's asthma was at least as likely as not (probability 50 percent or greater) incurred in or otherwise the result of his military service or was manifested to a compensable degree within the first year following service separation. The examiner should, to the extent possible, ascertain from the Veteran any symptoms suffered, treatment received, or diagnosis given regarding asthma during his National Guard service, to include dates if known. The examiner should cite to any specific documents in the record and to any medical treatise or research which informs the opinions offered. The examiner is asked to provide a statement of the reasons or rationale for the opinions offered. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Cheryl E. Handy 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.