Citation Nr: 24001577 Decision Date: 01/10/24 Archive Date: 01/10/24 DOCKET NO. 20-16 197 DATE: January 10, 2024 ORDER Entitlement to service connection for a left shoulder disability is dismissed. Entitlement to service connection for a right shoulder disability is dismissed. Entitlement to service connection for a neck disability (claimed as thoracic outlet syndrome) is dismissed. Entitlement to service connection for asthma is dismissed. Entitlement to service connection for dystonic jerks/tremors is dismissed. Entitlement to service connection for Horner's syndrome is dismissed. Entitlement to service connection for phrenic nerve palsy is dismissed. Entitlement to service connection for vasospasms is dismissed. Entitlement to service connection for recurrent left neurogenic thoracic outlet syndrome/complex regional pain syndrome/recurrent left pectoris minor syndrome is dismissed. Entitlement to service connection for recurrent right neurogenic thoracic outlet syndrome/complex regional pain syndrome/recurrent right pectoris minor syndrome is dismissed. Entitlement to service connection for muscle tension dysphagia is dismissed. Entitlement to service connection for occipital migraines is dismissed. REMANDED Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. FINDING OF FACT At his May 2021 hearing before the Board, the Veteran withdrew the claims for entitlement to service connection for left and right shoulder disabilities; a neck disability (claimed as thoracic outlet syndrome); asthma; dystonic jerks/tremors; Horner's syndrome; phrenic nerve palsy; vasospasms; recurrent left neurogenic thoracic outlet syndrome/complex regional pain syndrome/recurrent left pectoris minor syndrome; recurrent right neurogenic thoracic outlet syndrome/complex regional pain syndrome/recurrent right pectoris minor syndrome; muscle tension dysphagia; and occipital migraines. CONCLUSION OF LAW The criteria for the withdrawal of the claims for entitlement to service connection for left and right shoulder disabilities; a neck disability (claimed as thoracic outlet syndrome); asthma; dystonic jerks/tremors; Horner's syndrome; phrenic nerve palsy; vasospasms; recurrent left neurogenic thoracic outlet syndrome/complex regional pain syndrome/recurrent left pectoris minor syndrome; recurrent right neurogenic thoracic outlet syndrome/complex regional pain syndrome/recurrent right pectoris minor syndrome; muscle tension dysphagia; and occipital migraines have been met.? 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 January 1985 to August 1987 with additional service in the Reserves. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. Withdrawn Claims 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 or her authorized representative.? Id.?? At his May 2021 hearing, the Veteran withdrew the claims for entitlement to service connection for left and right shoulder disabilities; a neck disability (claimed as thoracic outlet syndrome); asthma; dystonic jerks/tremors; Horner's syndrome; phrenic nerve palsy; vasospasms; recurrent left neurogenic thoracic outlet syndrome/complex regional pain syndrome/recurrent left pectoris minor syndrome; recurrent right neurogenic thoracic outlet syndrome/complex regional pain syndrome/recurrent right pectoris minor syndrome; muscle tension dysphagia; and occipital migraines. The Veteran and his representative specifically indicated they wished to withdraw appeals for all issues other than service connection for a bilateral ankle disability and service connection for a bilateral knee disability which are being remanded herein. These withdrawals were explicit and done with a full understanding of the consequences of withdrawing.? There remains no allegations of errors of fact or law for appellate consideration with these issues, and therefore, the Board does not have the ability to review them, and they are dismissed.? REASONS FOR REMAND The Veteran is claiming entitlement to service connection for bilateral knee and bilateral ankle disabilities, which he believes are due to going up and down stairs, being on his feet on a hard concrete floor for eight to ten hours a day and running in boots on hard surfaces. See May 2021 Hearing Transcript, pp. 4, 7. He also reported that prior to service, when he was 15 or 16 years old, he had dislocated his right patella and that two years after separation from service he had surgery on his right knee. Id. at pp. 4-5, 9. He reported he was given heel pads during service for the purpose of cushioning his heel and ankle. Id. at p. 8. The Veteran has not been afforded an examination to determine the etiology of any ankle disability, and based on his testimony outlined above, the Board finds a remand is required for this purpose. In this regard, the Board notes that pain alone, even without an underlying pathology or diagnosis, can constitute a disability for VA purposes where such pain results in functional impairment of earning capacity. Saunders v. Wilkie, 886 F.23d 1356, 1364 (Fed. Cir. 2018); Wait v. Wilkie, 33?Vet. App.?8, 17 (2020). Accordingly, opinions for the ankles are required even if there are no formal medical diagnoses and these claimed conditions are only diagnosed as pain with functional impairment. The Veteran was afforded an August 2018 examination to determine the etiology of his bilateral knee disabilities and opinions were provided which consider whether his knee disabilities are related to his active duty service (to include as due his reports to the provider of being on his feet all day, going up and down stairs, and performing physical training). With respect to the right knee, the Board finds a new examination and opinions are warranted. As noted above, the Veteran reported he dislocated his right patella at age 15 or 16. His January 1985 entrance examination reflects his right knee was normal, and therefore, he is presumed to be in sound condition on entry. Thus, on remand, new opinions must consider whether there is clear and unmistakable (obvious, manifest, undebatable) evidence that the Veteran had a preexisting right knee disability prior to his active duty service, and if so, whether the preexisting right knee disability was clearly and unmistakably not aggravated by his active duty service. Further, at his hearing before the Board, the Veteran testified he stopped working in October 2010 (indicating his doctor took him out of work) and that he has received disability benefits from the Social Security Administration since 2011. See May 2021 Hearing Transcript, p. 7. As these records may assist in substantiating the Veteran's claims, they must be requested in accordance with VA regulation on remand. Finally, the Veteran also testified at his hearing before the Board that he received private treatment for his knees from Dr. L. VA is in possession of several treatment records from Dr. L. and other private medical providers. The Veteran and his representative are informed they may submit additional evidence and argument while this case is in remand status. If the Veteran wishes for VA to attempt to obtain any additional private records on his behalf, he may submit a medical authorization for any relevant providers and VA will attempt to obtain these records in accordance with VA regulation. The matters are REMANDED for the following action: 1. Attempt to obtain the Veteran's Social Security Administration disability benefit records in accordance with VA regulation. All attempts to obtain these records must be documented in the claims file. 2. Following completion of step 1, afford the Veteran the appropriate examinations to determine the nature and etiology of his right knee disability and bilateral ankle disabilities. The examiner must elicit from the Veteran the history of his symptoms and statements as to how his claimed disabilities impact his activities. In other words, identify the functional limitations caused by any right knee, left ankle, and right ankle complaints/pain. The Board notes that the claims folder must be provided to and reviewed by the examiner for all post-remand cases per AOJ policy. See VBA Manual M21-1, Part IV.i.2.A.8.b. Thus, the examiner must specifically note that the claims folder was received and reviewed in the body of the examination report. In addition, a copy of this Remand must be provided to the examiner for review. Following a review of the evidence of record and with consideration of the Veteran's statements, provide the following opinions: (a) Is there clear and unmistakable (obvious, manifest, undebatable) evidence that the Veteran had a right knee disability prior to his active duty service (which began in January 1985). Why or why not? (b) If the answer to (a) is in the affirmative, determine whether there is clear and unmistakable (obvious, manifest, undebatable) evidence that the Veteran's right knee disability was NOT aggravated by his active duty service (from January 1985 to August 1987). Why or why not? (c) Does the Veteran have a left ankle disability which is related to his active duty service, to include as due to standing all day on hard surfaces, going up and down stairs, and performing physical training (such as running) in boots. Why or why not? The Board draws the examiner's attention, but does not limit it, to the Veteran's statements that he was provided heel pads during service for the purpose of cushioning his heels and ankles. (d) Does the Veteran have a right ankle disability which is related to his active duty service, to include as due to standing all day on hard surfaces, going up and down stairs, and performing physical training (such as running) in boots. Why or why not? The Board draws the examiner's attention, but does not limit it, to the Veteran's statements that he was provided heel pads during service for the purpose of cushioning his heels and ankles. The examiner is informed of the following: " Chronicity is not required to find a nexus to active service or for service connection to be granted. " Pain alone, even without an underlying pathology or diagnosis, can constitute a disability for VA purposes where such pain results in functional impairment. " A positive opinion indicating a nexus to service does not require certainty.? Rather, if the weight of the evidence is in approximate balance for and against a nexus to service, the examiner should make a determination favorable to the Veteran. All requested opinions must be supported with a rationale based on generally accepted medical principles and the examiner's medical training and expertise. 3. Readjudicate. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board O'Connell, Jessica L. 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.