Citation Nr: 24015697 Decision Date: 04/11/24 Archive Date: 04/11/24 DOCKET NO. 20-23 877 DATE: April 11, 2024 ORDER Entitlement to service connection for bilateral carpal tunnel syndrome has been withdrawn and is dismissed. REMANDED Entitlement to service connection for bilateral pes planus is remanded. Entitlement to service connection for bilateral tinnitus is remanded. FINDINGS OF FACT At the July 2022 Board hearing, the Veteran withdrew the appeal on the issue of entitlement to service connection for bilateral carpal tunnel syndrome. CONCLUSION OF LAW The criteria for withdrawal of entitlement to service connection for bilateral carpal tunnel syndrome have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1970 to February 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from June 2015 and February 2019 rating decisions issued by Regional Office (RO) of the Department of Veterans Affairs (VA) which is the Agency of Original Jurisdiction (AOJ). In July 2022, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. During the pendency of this appeal, an August 2020 rating decision established service connection for bipolar disorder. Because the August 2020 rating decision constituted a full grant of the benefits sought, the issue of entitlement to service connection for bipolar disorder is no longer part of this appeal. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Entitlement to service connection for bilateral carpal tunnel syndrome The Board may dismiss any appeal which does not 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55.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 Veteran or the authorized representative. 38 C.F.R. § 19.55. At the July 2022 Board hearing, the Veteran stated the intent to withdraw the claim for entitlement to service connection for bilateral carpal tunnel syndrome. The withdrawal was acknowledged on the record and was explicit, unambiguous, and done with a full understanding of the consequences. DeLisio v. Shinseki, 25 Vet. App. 45 (2011); Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Thus, there remain no allegations of errors of fact or law for appellate consideration regarding the issue of service connection for bilateral carpal tunnel syndrome. Accordingly, the Board does not have jurisdiction to review the appeal for service connection for bilateral carpal tunnel syndrome and it is dismissed. REASONS FOR REMAND 1. Entitlement to service connection for bilateral pes planus is remanded. The Veteran asserts that a bilateral foot disability is the result of active service or a service-connected disability. Specifically, at the July 2022 Board hearing, the Veteran testified that foot problems began shortly after basic training and have worsened since. The Veteran testified that while on active duty, she was given arch supports and special shoes for foot complaints. The Veteran stated that she had left foot surgery for bone spurs at a non-VA facility in approximately 2019 or 2020. The Veteran testified that service-connected bilateral shin splints caused an abnormal gait which in turn caused pes planus. In September 1985, the Veteran reported that the veins in back of the legs expanded after running. In July 1988, the Veteran reported pain in the right and left tibia. The Veteran had a normal clinical foot examination in August 1988. In March 1989, the Veteran reported pain in the left foot at the base of the fifth metatarsal. The doctor diagnosed peroneal tendonitis of the left foot. The Veteran had a normal clinical foot examination in December 1996. In several June 2000 medical records, the Veteran reported that following a May 2000 Army Physical Fitness Test, she began to have pain and swelling in the feet, ankles, and shins. The Veteran was advised not to wear boots for up to four days. In a July 2000 medical record showed that the Veteran had several hard areas of ecchymosis on the lower extremities below the knees. It was noted that the Veteran had been on profile several times for shin splints. Also, the doctor noted that the Veteran had a history of trauma to the lower extremities in a motor vehicle accident many years ago. Swelling around the ankles was noted in August 2000. At an April 2002 examination, the Veteran indicated that she had foot trouble. The doctor noted that the Veteran had had foot pain for two years which was associated with running or walking long distances. The doctor noted the Veteran had been diagnosed with tendonitis, erythema nodosum, and shin splints. The Veteran's arches were noted as normal. The doctor recommended follow up with an orthopedic provider for "chronic intermittent stress reaction bilateral tibia and plantar fasciitis." The Veteran was placed on a temporary profile for running. August 2002 medical records show that the Veteran placed on a temporary profile for running and walking, given shoe inserts, and told to follow up with an orthopedic doctor due to shin splints. A January 2019 VA examiner diagnosed pes planus. The Veteran reported that she started having pain on the bottom of her feet with certain exercises and that at the time of separation in 1988, she was told that she had flat feet. She stated that since then, VA had provided shoe inserts. The examiner opined that the pes planus was not the result of service because the Veteran was noted to have normal arches in April 2002. The examiner noted that pes planus was diagnosed after the Veteran's separation from service. The Board finds the January 2019 VA examination report incomplete because the examiner did not discuss the Veteran's complaints of foot pain while in service, and whether any foot diagnoses or complaints in service contributed to the Veteran's current foot disability. Additionally, the examiner did not explain the significance of the finding of normal arches in April 2002. In order to be entitled to probative weight, a medical opinion must contain not only clear conclusions with supporting data, but also a reasoned explanation connecting the two. Nieves-Rodrigues v. Peake, 22 Vet. App. 295 (2008). Therefore, the Board finds that remand is necessary for a VA examination to determine the etiology of the Veteran's bilateral pes planus. The Board notes that the claims file is incomplete. Specifically, the records dated from August 2001 to at least February 2020, show that the Veteran received care, to include primary care, from non-VA physicians. The Veteran also testified to having recent foot surgery by a non-VA provider. In June 2020, the Veteran, through the representative, submitted 20 pages of private medical records dated from 2016 to 2019. However, the Board finds that a complete record is necessary in order to adjudicate the claim. Therefore, on remand, the AOJ should obtain all outstanding relevant VA and non-VA medical records. Additionally, the Board is unclear as to the Veteran's periods of ACDUTRA and INACDUTRA. Therefore, on remand, the AOJ should contact any appropriate entity to verify the exact dates of the Veteran's ACDUTRA and INACDUTRA service in the Reserves and National Guard. The AOJ should ensure that the claims file contains all personnel and medical records for all periods of National Guard service related to the Veteran. 2. Entitlement to service connection for bilateral tinnitus is remanded. The Veteran asserts that bilateral tinnitus is the result of service. At the July 2022 Board hearing, the Veteran stated that on one occasion, she was operating the switchboard during a thunderstorm, and she heard a loud pop through the headphones. She stated that she had some ringing in the ears at that time. The Veteran also testified that she used firearms during service. The service medical records do not show any complaints of or treatment for tinnitus. Post-service medical records show that in December 2004, the Veteran denied hearing difficulty and tinnitus. In January 2020, the Veteran reported that she had tinnitus sometimes. She stated that she had an incident in service in which lightning struck the radio system she was using, causing a loud pop. At a December 2018 VA examination, the Veteran reported the onset of tinnitus four to five years after service. The examiner opined that the Veteran's tinnitus was not the result of service because the onset was years after separation from service. At a November 2020 VA examination, the Veteran reported the onset of tinnitus as five or six years prior, therefore in approximately 2014 or 2015. The Veteran reported that tinnitus came on gradually in the right ear and then in the left ear. She reported that it had not gotten any louder and had stayed at about the same level and was at about the same level as five to six years previously. The examiner did not provide an etiology opinion. The Board finds the December 2018 VA examination report incomplete because the VA examiner did not explain why tinnitus with an onset after separation from service was not related to service. When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, remand is necessary for a VA examination to determine the etiology of tinnitus. The matters are REMANDED for the following action: 1. Contact the NPRC, United States Army Reserve Personnel Center, and Georgia Army National Guard as appropriate to request personnel and medical records for the Veteran. All attempts to obtain the records and responses should be fully documented. 2. Take the necessary steps to verify the exact dates and locations of the Veteran's ACDUTRA and INACDUTRA. All attempts to obtain the records and responses should be fully documented. 3. After obtaining any necessary releases, obtain all relevant VA and private medical records, to include records from the Veteran's podiatrist at Thomasville Foot and Ankle Center, not already associated with the claims file. All attempts to obtain the records should be fully documented, and a negative response should be requested if no records are available. 4. After records development is completed, schedule the Veteran for a VA examination to determine the etiology of any diagnosed foot disability. The examiner must review the claims file, to include a copy of this Remand, and consider the Veteran's lay statements. A clearly stated rationale with references to the record, and medical literature should be provided for each opinion. The examiner should: (a.) Diagnose all foot disabilities found and noted in the record during or contemporary to the pendency of the claim. (b.) Opine whether it is at least as likely as not that each diagnosed foot disability had its onset, or is otherwise related to service or any event, injury, or disease in service. If any foot disability is attributed to another etiology, the examiner should explain why the other etiology is more likely. The examiner should discuss: (1) the Veteran's complaints of foot pain while in service; (2) the March 1989 diagnosis of peroneal tendonitis of the left foot; (3) the April 2002 diagnosis of plantar fasciitis; and (4) the April 2002 record showing that the Veteran's arches were noted as normal. The examiner is advised that an opinion solely based on the lack of medical evidence is inadequate. The examiner should discuss affirmative medical evidence rather than a mere absence of treatment or documentation. The examiner should state whether: (1) any incidents of service, complaint of foot pain, or in-service diagnoses would have been medically expected to present as pes planus years after separation from service; and (2) any foot disability noted in service was of such severity or chronicity as to result in a diagnosis of slight degenerative joint disease in toe in 2011. The examiner must consider the Veteran's lay statements regarding symptoms during and since service in formulating the opinion. (c.) Opine whether it is at least as likely as not that any foot disability is caused by, due to, or the result of the service-connected disabilities, to include bilateral shin splints. The examiner should discuss the Veteran's July 2022 testimony regarding an abnormal gait. (d.) Opine whether it is at least as likely as not that any foot disability has been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities, to include bilateral shin splints. The examiner should discuss the Veteran's July 2022 testimony regarding an abnormal gait. 5. After records development is completed, schedule the Veteran for a VA examination to determine the etiology of tinnitus. The examiner must review the claims file, to include a copy of this Remand, and consider the Veteran's lay statements. A clearly stated rationale with references to the record, and medical literature should be provided for each opinion. The examiner should opine whether it is at least as likely as not that bilateral tinnitus had its onset during or is otherwise related to service or any event, injury, or disease during service, to include noise exposure during service. The examiner should discuss: (1) the Veteran's lay statements and July 2022 testimony as to symptoms during and since service, and (2) the Veteran's reports to in the December 2018 and November 2020 VA examination reports. If the examiner opines that another etiology is more likely for tinnitus, the examiner should explain why the other etiology is more likely. A negative opinion cannot be based solely on the lack of documentation of tinnitus during service. The examiner must specifically consider the Veteran's lay statements regarding symptoms during and since service in formulating the opinion. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.O., Associate 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.