Citation Nr: 22040135 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 19-24 002 DATE: July 13, 2022 ORDER Entitlement to service connection for a right ankle disorder is dismissed. REMANDED Entitlement to an increased disability evaluation for right wrist fracture, healed, with severe posttraumatic degenerative joint disease, currently rated as 10 percent disabling, is remanded. Entitlement to service connection for a back disorder is remanded. Entitlement to service connection for numbness of the feet, including as secondary to herbicide exposure, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a right knee disorder is remanded. FINDING OF FACT On February 28, 2022, prior to the promulgation of a decision in the appeal, the Board received written notification from the appellant that withdrawal of the appeal of the claim of entitlement to service connection for a right ankle disorder was requested. CONCLUSIONS OF LAW The criteria for withdrawal of the claim of entitlement to service connection for a right ankle disorder, by the appellant, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1976 to April 1980. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision issued by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). Dismissal 1. Entitlement to service connection for a right ankle disorder 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55 (2021). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. §§ 19.55, 20.205. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. Withdrawal may be made by a veteran or by an authorized representative and must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action by the appellant. Acree v. O'Rourke, 891 F.3d 1009, 1012 (Fed. Cir. 2018); DeLisio v. Shinseki, 25 Vet. App. 45, 5758 (2011). Pursuant to 38 C.F.R. § 19.55, written appeal withdrawals must include the name of the veteran, the name of the claimant or appellant if other than the veteran, the applicable VA file number, and a statement that the appeal is withdrawn. If the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirety, or list the issue(s) withdrawn from the appeal. See 38 C.F.R. § 19.55(b); see also Hembree v. Wilkie, 33 Vet. App. 1, 2 (2020). In the present case, the Veteran, indicated on the record at his February 2022 Board hearing that he would like to withdraw the claim of entitlement to service connection for a right ankle disorder. The undersigned Veterans Law Judge confirmed with the Veteran during the February 2022 hearing that he wished to withdraw from appeal the claim for service connection of a right ankle disorder. The Veterans Law Judge also explained to the Veteran that if he wished to reapply for service connection for a right ankle disorder, he would have to start the claims process over from the beginning and that the effective date of any award of benefits would be the date of the new claim. Given the discussion during the Board hearing, the Board finds that the Veteran understood the consequences of withdrawing from appeal the issue of entitlement to service connection for a right ankle disorder. As the Veteran's request was clear, unambiguous, and made with full understanding of the consequences, the Board finds that the prerequisites for the withdrawal have been met, and the Veteran's claim of entitlement to service connection for a right ankle disorder is withdrawn. See Hembree v. Wilkie, 33 Vet. App. 1, 7 (2020). Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this claim and this claim is dismissed. REASONS FOR REMAND 1. Entitlement to an increased disability evaluation for right wrist fracture, healed, with severe posttraumatic degenerative joint disease, currently rated as 10 percent disabling, is remanded. The Veteran asserts that the symptoms of his service-connected residuals of a right wrist fracture are more severe than presently evaluated. The Board observes that Veteran was provided with a VA wrist examination in March 2015, in connection with his claim for service connection of a right wrist fracture. However, the Veteran contends that the Veteran's symptoms and manifestations have worsened since that time. As such, the Veteran must be provided with a VA examination which consider the current severity of his service-connected residuals of a right wrist disorder, on appeal. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). See also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that the Veteran was entitled to a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). 2. Entitlement to service connection for a back disorder is remanded. 3. Entitlement to service connection for numbness of the feet, including as secondary to herbicide exposure, is remanded. 4. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. 5. Entitlement to service connection for a left knee disorder is remanded. 6. Entitlement to service connection for a right knee disorder is remanded. The Board acknowledges that the Veteran was afforded a VA examination in connection with his claim for service connection of a back disorder in March 2015, but finds that this VA examination is inadequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In this regard, the Board observes that the VA examiner did not address the Veteran's credible assertions that his back pain started in service and continued since that time. The Board notes that the Veteran's service treatment records reflect that the Veteran was treated on multiple occasions for back pain, and that he reported a history of back weakness at separation; VA treatment records reflect that he has been treated for back pain in the years since service. The Board notes that the Veteran has been diagnosed with degenerative arthritis of the spine, but nonetheless points out that the United States Court of Appeals (Court) has held that pain in the absence of a presently diagnosed condition can cause functional impairment, which may qualify as a disability for VA purpose. See Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). Additionally, the Board observes that the Veteran has not yet been afforded VA examinations in connection with his claims for service connection of right and left knee disorders, and an acquired psychiatric disorder to include PTSD. The Board notes that the Veteran asserts that he has chronic back and knee pain related to his duties during service and that he has PTSD due to an assault during service. The Board notes that the Veteran credibly testified that his right wrist fracture was the result of that assault; the Board also acknowledges that there is no evidence of treatment for PTSD in the record. Additionally, the Veteran has been treated for and diagnosed with osteoarthritis of the knees; VA treatment records reflect a lengthy history of knee pain, although service treatment records do not reflect any related complaints. Nevertheless, the Board points out that the absence of complaints in service, standing alone, is not dispositive. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); 38 C.F.R. § 3.303(d) (service connection warranted in some circumstances where disease is first diagnosed after service). The Board also observes that the Veteran has not been afforded a VA examination in connection with his claim for numbness of the feet; the Veteran asserts that his numbness of the feet is related to herbicide exposure in service. The Board observes that the Veteran's service personnel records reflect that he served in Korea from approximately February 1978 to March 1979, and that the AOJ conceded that the Veteran served in an area that, as determined by the Department of Defense, operated in or near the Korean demilitarized zone (DMZ), where herbicides were used. However, the Veteran did not serve within the time period in which the presumption of exposure would be applicable (April 1968 to August 1971). Thus, there is no evidence to support the claim that the Veteran was exposed to Agent Orange during his service in Korea. See Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008) (holding that, even though the veteran did not serve in Vietnam, he remains "free to pursue his claim that he was actually exposed to herbicides while" on active service). Nevertheless, the fact that a Veteran cannot establish entitlement to service connection on a presumptive basis does not preclude him from establishing entitlement on a direct incurrence or other basis. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.304(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a veteran from establishing service connection with proof of actual direct causation). Accordingly, the Board finds that the Veteran should be afforded VA examinations regarding his claims for service connection. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4). VA adjudicators may consider only independent medical evidence to support their findings; they may not rely on their own unsubstantiated medical conclusions. If the medical evidence of record is insufficient, VA is always free to supplement the record by seeking an advisory opinion, or ordering a medical examination to support its ultimate conclusions. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). A probative medical opinion must be based on an accurate factual premise. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). The Board observes that additional relevant medical evidence was received and uploaded into the Veteran's claims file subsequent to the issuance of the June 2019 statement of the case. A review of the electronic claims folder reflects that the Veteran did not waive consideration of evidence by the AOJ in the first instance. See 38 C.F.R. §§ 19.37(a), 20.1305(c). As a result, the Veteran's claims must be remanded so that the AOJ can consider all evidence pertaining to the Veteran's claims on appeal in the first instance. See 38 C.F.R. § 19.31(b) (the agency of original jurisdiction is to issue a supplemental statement of the case when additional pertinent evidence is received after a statement of the case has been issued). Furthermore, VA must make all necessary efforts to obtain relevant records in the possession of a federal agency. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Because VA is presumed to have constructive possession of the records, VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992); Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). All available VA treatment records for the claims on appeal for the rating period since December 2021 should be associated with the Veteran's claims file. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his disabilities on appeal. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. If the records are unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159. 2. The AOJ should schedule the Veteran for a VA wrist examination to ascertain the current severity and manifestations of the Veteran's service-connected right wrist fracture, healed, with severe post-traumatic degenerative joint disease. The claims file should be made available to the examiner for review in connection with the examination. The examination reports should include a statement as to the effect of the service-connected right wrist fracture, healed, with severe post-traumatic degenerative joint disease, on his occupational functioning and daily activities. Specifically, the examiner is advised that it is necessary to consider, along with the schedular criteria, functional loss due to pain, fatigability, incoordination, pain on movement, and weakness. In particular, the VA examination must include range of motion testing for the right and left wrists in the following areas: Active motion; Passive motion; Weight-bearing; and Nonweight-bearing If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. In so doing, 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). The VA examiner should provide a complete rationale for any opinions provided. 3. After any additional records are associated with the claims file, the RO should schedule a VA examination to determine the nature and etiology of the Veteran's back disorder, right knee disorder, and left knee disorder. The examiner is requested to review all pertinent records associated with the claims file. The examiner should indicate whether it is at least as likely as not (an approximate balance of positive and negative evidence) that the Veteran's back disorder, right knee disorder, and left knee disorder were caused or aggravated by his service and explain why or why not. The VA examiner must discuss with specificity the assertions of the Veteran that his symptoms had onset during service and continued throughout the years. The VA examiner is advised that the Veteran is competent to report symptoms, treatment, events, and injuries in service, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinion. A complete rationale, with specific reference to the relevant evidence of record, should accompany each opinion provided. 4. After any additional records are associated with the claims file, the RO should schedule a VA examination to determine the presence and etiology of an acquired psychiatric disorder, to include PTSD. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should indicate whether it is at least as likely as not (an approximate balance of positive and negative evidence) that the Veteran has PTSD which is caused or aggravated by his service. The examiner is requested to identify the stressor that serves as the basis for any PTSD diagnosis and note the diagnostic criteria utilized to support the diagnosis under DSM-V. If the VA examiner finds the diagnostic criteria is not met, the VA examiner should provide an explanation for such a finding. If the Veteran does not have PTSD, the VA examiner is requested to provide any opinion as whether it is at least as likely as not (an approximate balance of positive and negative evidence) that the Veteran has an acquired psychiatric disorder (i.e., depression) which was caused or aggravated by his service and explain why or why not. The requested determination should consider the Veteran's medical history prior to, during, and since his military service. The VA examiner is advised that the Veteran is competent to report symptoms, treatment, events, and injuries in service, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinion. A complete rationale, with specific reference to the relevant evidence of record, should accompany each opinion provided. 5. After completion of the above, schedule the Veteran for a VA neuropathy examination to assess the nature and etiology of his numbness of the feet. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed (if indicated). The examiner is requested to review all pertinent records associated with the claims file, and include discussion of the Veteran's documented medical history and assertions. The VA examiner should indicate whether it is as least as likely as not (50 percent probability or more) that any current numbness of the feet, is related to any event, illness, or injury during service, to include exposure to any environmental toxins consistent with the circumstances of the Veteran's service as a wire systems installer and explain why or why not. The VA examiner must discuss the significance, if any, of the Veteran's nonservice-connected diabetes mellitus. The examiner is advised that the Veteran is competent to report symptoms, treatment, and diagnoses and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinion. The examiner(s) must provide a complete rationale on which his/her opinion is based, and must include a discussion of the medical principles as applied to the medical evidence and facts used in establishing his or her opinion. 6. The AOJ should ensure that the examinations are in compliance with the terms of this remand, and if not, should return them for corrective action. 7. After completing all indicated development, the AOJ should readjudicate the remaining claims on appeal, in light of all of the evidence of record. If any claim remains denied, the Veteran must be furnished with a supplemental statement of the case and afforded a reasonable opportunity for response. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Brokowsky, 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.