Citation Nr: 24010409 Decision Date: 03/04/24 Archive Date: 03/04/24 DOCKET NO. 19-34 954 DATE: March 4, 2024 ORDER The appeal as to the issue of entitlement to service connection for residuals of deviated septum surgery is dismissed. The appeal as to the issue of entitlement to service connection for a sinus disability is dismissed. The appeal as to the issue of entitlement to a compensable disability rating for service-connected voiding dysfunction with chronic prostatitis (previously rated as a urinary condition) prior to February 15, 2021, and greater than 20 percent, thereafter, is dismissed. The appeal as to the issue of entitlement to a compensable disability rating for service-connected residuals of right testicular torsion with bilateral orchiopexy is dismissed. The appeal as to the issue of entitlement to a compensable disability rating for service-connected ankylosis of the middle finger is dismissed. REMANDED Entitlement to service connection for a right shoulder disability is remanded. FINDINGS OF FACT 1. In correspondence received from the Veteran's representative in March 2021 and October 2023, the appellant withdrew his claim of service connection for residuals of deviated septum surgery. 2. In correspondence received from the Veteran's representative in March 2021 and October 2023, the appellant withdrew his claim of service connection for a sinus disability. 3. In correspondence received from the Veteran's representative in March 2021 and October 2023, the appellant withdrew his claim for a compensable disability rating for service-connected voiding dysfunction with chronic prostatitis (previously rated as a urinary condition) prior to February 15, 2021, and greater than 20 percent, thereafter. 4. In correspondence received from the Veteran's representative in March 2021 and October 2023, the appellant withdrew his claim for a compensable disability rating for service-connected residuals of right testicular torsion with bilateral orchiopexy. 5. In correspondence received from the Veteran's representative in March 2021 and October 2023, the appellant withdrew his claim for a compensable disability rating for service-connected ankylosis of the middle finger. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal by the Veteran have been met as to the issue of entitlement to service connection for residuals of deviated septum surgery. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of a substantive appeal by the Veteran have been met as to the issue of entitlement to service connection for a sinus disability. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of a substantive appeal by the Veteran have been met as to the issue of entitlement to a compensable disability rating for service-connected voiding dysfunction with chronic prostatitis (previously rated as a urinary condition) prior to February 15, 2021, and greater than 20 percent, thereafter. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for withdrawal of a substantive appeal by the Veteran have been met as to the issue of entitlement to a compensable disability rating for service-connected residuals of right testicular torsion with bilateral orchiopexy. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 5. The criteria for withdrawal of a substantive appeal by the Veteran have been met as to the issue of entitlement to a compensable disability rating for service-connected ankylosis of the middle finger. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1991 to July 1995. This matter is before the Board of Veterans Appeals (Board) on appeal from a November 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Withdrawn Claims 1. Entitlement to service connection for residuals of deviated septum surgery. 2. Entitlement to service connection for a sinus disability. 3. Entitlement to a compensable disability rating for service-connected voiding dysfunction with chronic prostatitis (previously rated as a urinary condition) prior to February 15, 2021, and greater than 20 percent, thereafter. 4. Entitlement to a compensable disability rating for service-connected residuals of right testicular torsion with bilateral orchiopexy. 5. Entitlement to a compensable disability rating for service-connected ankylosis of the middle finger. 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 authorized representative. 38 C.F.R. § 19.55. In the present case, the Veteran filed his initial Appeal To Board Of Veterans' Appeals (VA Form 9) in November 2019, in pertinent part, indicating that he wished to appeal all of the issues identified in his October 2019 Statement of the Case. Thereafter, in March 2021, he submitted a VA Form 9 indicating that he only wished to appeal the issue of entitlement to service connection for a right shoulder disability. In September 2023, the Board sent the Veteran correspondence requesting that he clarify whether he wished to proceed with all of the issues on his initial appeal. In October 2023, the Veteran responded that he was satisfied with the majority of his appeals, and that the one remaining issue was the only one that he wished to pursue. As such, the Veteran has explicitly and unambiguously withdrawn the foregoing claims. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board may not review the withdrawn appeals, and they are dismissed. REASONS FOR REMAND 1. Entitlement to service connection for a right shoulder disability. The Veteran asserts that he has a right shoulder disability that is manifested as a result of his period of active service. In an October 2019 Application For Disability Compensation And Related Compensation Benefits (VA Form 21-526EZ) the Veteran described that he injured his right shoulder in 1993 as a result of heavy lifting of flight chains on the deck of the ship on which he was serving. VA Memoranda dated in December 2017 and April 2018 indicate the Veteran's service treatment records could not be located. While some of the Veteran's service treatment records have since been associated with the claims file, those records do now show treatment for right shoulder symptoms during his period of active service. In cases where a Veteran's service treatment records are unavailable, there is a heightened obligation to assist the Veteran in the development of his case and a heightened obligation to explain findings and conclusions in considering the benefit of the doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). As the Veteran's Certificate of Release or Discharge From Active Duty (DD Form 214) confirms that he served aboard an aircraft carrier during his period of active service, the asserted injury would be consistent with the circumstances of his service as an aviation boatswain's mate. The Veteran has not been afforded a VA examination to determine whether his reported right shoulder disability is etiologically related to the reported in-service injury sustained as a result of heavy lifting of flight chains on the deck of his ship. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A (d)(2); and 38 C.F.R. § 3.159 (c)(4). The Board finds that the low threshold of the McLendon standard has been met, and that the Veteran should be afforded an initial VA examination prior to adjudication of the claim. Additionally, in a Centralized Intake Coversheet submitted by the Veteran's representative in March 2021, it was indicated that a VA Form 9 was being submitted along with a lay statement. A review of the claims file does not reveal that a Lay Statement was received along with this submission. As such, on remand, the Veteran and his representative should be afforded the opportunity to resubmit the Lay Statement identified in this correspondence. The matters are REMANDED for the following action: 1. Notify the Veteran and his representative that a Lay Statement identified in the March 2021 Centralized Intake Coversheet is not of record, and that have the opportunity to resubmit any such evidence to be considered in support of his claim. 2. Schedule the Veteran for a VA examination for his asserted right shoulder disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is requested to opine as to whether the Veteran's reported right shoulder disability is at least as likely as not (the likelihood is at least approximately balanced or nearly equal, if not higher) related to the asserted in-service right shoulder injury that was said to have been the result of heavy lifting of flight chains on the deck of the ship on which he was serving. The examiner is advised that the Veteran served aboard an aircraft carrier as an aviation boatswain's mate. The examiner must consider the Veteran's statements as to his symptoms and history in formulating any opinions. If the examiner rejects the Veteran's reports of history or symptomatology, a reason for doing so must be provided. The absence of evidence of treatment for right shoulder symptoms in the available service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Orfanoudis, 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.