Citation Nr: 18132212
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 15-41 018A
DATE:	September 6, 2018
ORDER
Entitlement to service connection for a lower lip scar is dismissed.
REMANDED
Entitlement to service connection for bilateral pes planus is remanded.
Entitlement to service connection for a bladder disorder, to include cystitis is remanded.
Entitlement to a compensable rating for service-connected pseudofolliculitis barbae is remanded.
FINDING OF FACT
During the May 2017 hearing, prior to the promulgation of a decision in the matter, the Veteran withdrew his appeal for entitlement to service connection for a lower lip scar.

CONCLUSION OF LAW
The criteria for withdrawal of a substantive appeal on the issue of service connection for a lower lip scar, have been met.  38 U.S.C. §§ 7105 (b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty in the United States Army from June 1975 to June 1978. 
In May 2017, the Veteran testified before the undersigned Veterans Law Judge.  A transcript of the hearing has been associated with the record. 
After the issuance of the October 2015 statement of the case, in March and May 2017, the Veteran submitted additional evidence.  While the Veteran did not submit a waiver of Agency of Original Jurisdiction (AOJ) initial review, as the Veteran withdrew his claim for a lower lip scar and the Board is remanding the remaining claims, no prejudice will befall the Veteran by the Board reviewing the newly received evidence in the interests of a thorough remand.  Furthermore, this new evidence is subject to initial review by the Board because the Veteran filed his substantive appeal in November 2015, which was after February 2, 2013, when the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012 became effective, and he has not requested in writing that the AOJ initially review such evidence.  See 38 U.S.C. § 7105 (e)(1); Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165.
Entitlement to service connection for a lower lip scar.
The Board has jurisdiction where there is a question of fact or law in any matter which under 38 U.S.C. § 511 (a) is subject to a decision by the Secretary.  38 U.S.C. § 7104.  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  An appeal may be withdrawn by the appellant or by his authorized representative at any time before the Board promulgates a decision in the matter.  38 C.F.R. § 20.204.  A withdrawal of an appeal is effective when received.  38 C.F.R. § 20.204 (b)(3).
During the May 2017 hearing, prior to the promulgation of a decision in this appeal, the Veteran (through his representative) expressly withdrew his appeal seeking service connection for a lower lip scar.  The transcript has been reduced to writing and is of record.  See Tomlin v. Brown, 5 Vet. App. 355, 357-58 (1993).  Therefore, the Board finds that there remains no allegation of error of fact or law remaining for appellate consideration, and it has no jurisdiction to review the matter.  Accordingly, it is dismissed.
REASONS FOR REMAND
Although the Board regrets the delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s remaining claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159.
Entitlement to service connection for bilateral pes planus and to service connection for a bladder disorder, to include cystitis are remanded.
VA’s duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69 (1995); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  In addition, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  For below noted reasons, the Board finds that, while the Veteran underwent a VA foot conditions examination in August 2014, an additional examination to determine the nature and etiology is required to decide the claim.  Furthermore, the Board notes that no examination has been conducted in regard to the Veteran’s claimed bladder disorder. 
With regard to the Veteran’s claim for service connection for bilateral pes planus, the Veteran alleges that his active duty service aggravated his condition.  The Veteran’s entrance examination noted pes planus and the Veteran was treated for aching subtarsal during service.  The Veteran’s separation examination again confirmed pes planus, however there was no definitive evidence that the Veteran’s pre-existing pes planus had permanently worsened during service.  Post-service treatment records note pes planus.  
In August 2014, the Veteran underwent a VA foot conditions examination. The examiner diagnosed pes planus and opined that such at least as likely as not was incurred in or was caused by his in-service pes planus.  The examiner provided the rationale that the Veteran’s separation examination noted pes planus and therefore as the Veteran was noted to have pes planus at service discharge, his current pes planus was at least as likely as not caused by or related to or the result of his pes planus in service.  The Board finds that the August 2014 opinion is inadequate for adjudication purposes, because while the examiner noted the pes planus at separation, he did not discuss the Veteran’s pes planus noted at service entrance.  Furthermore, while the examiner opined that the Veteran’s pes planus was incurred in or caused by service, he failed to note that such pre-existed service and therefore could not begin in or be caused by service.  Finally, the examiner did not discuss aggravation, specifically if the Veteran’s pre-existing pes planus was aggravated beyond its natural progression by the Veteran’s active duty service.  Therefore, on remand an examination and opinion which considers that the Veteran’s pes planus pre-existed service should be obtained and discuss whether such was aggravated by service.     
With regard to the Veteran’s claim for service connection for a bladder disorder, to include cystitis, the Veteran alleges that he suffers from recurrent UTIs and that he also suffered from such during service.  The Veteran’s service treatment records reflect treatment for UTIs as well as a discussion of possible cystitis.  Post-service treatment records are silent for any diagnosis of cystitis; however, the Veteran again reports recurrent UTIs.  The Board notes that the Veteran has not undergone a VA examination in regard to his claim for a bladder disorder to include cystitis.  Therefore, on remand an examination should be conducted. 
Entitlement to a compensable rating for service-connected pseudofolliculitis barbae is remanded.
Relevant to the Veteran’s claim for a compensable rating the Court has held that, where the record does not adequately reveal the current state of a claimant’s disabilities, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the last examination.  Allday v. Brown, 7 Vet. App. 517, 526 (1995).
The record reflects that the Veteran was most recently afforded a VA skin conditions examination in July 2010.  The Board finds that a contemporaneous examination is necessary as so much time has passed and the Veteran has alleged significantly worsening symptoms. 
Specifically, the Veteran alleged that his pseudofolliculitis barbae is far worse than is represented by his current rating.  Therefore, the Board finds that in light of the Veteran’s allegations and the progressive nature of the Veteran’s disability, a remand is required in order to determine the Veteran’s current level of impairment with regard to his service-connected pseudofolliculitis barbae.  See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95(1995).  
Furthermore, the Board notes that the Veteran submitted a private examination from March 2017.  While such examination would be considered contemporaneous, the Board finds it is insufficient for rating purposes.  Initially, the examiner failed to note whether the Veteran’s records had been reviewed or if the examination was based on an in-person examination.  In addition, the examiner did not discuss the Veteran’s allegations of flare-ups or increased symptoms during the summer.  Finally, the examiner found no visible skin irritation, however the Veteran has alleged that his disability afflicts his face and neck.  Therefore, the Board finds that the March 2017 private examination is inadequate for rating purposes.  On remand a contemporaneous examination, conducted preferably during the summer to account for any flare-ups, and which considers the Veteran’s allegations, should be obtained. 
Due to the amount of time which will pass on remand, updated treatment records should be obtained and associated with the record. 
The matters are REMANDED for the following action:
1.  Obtain updated treatment records. 
2.  Return the claims file to the August 2014 VA examiner for an addendum opinion.  If the examiner who drafted the August 2014 opinion is unavailable, the opinion should be rendered by another appropriate medical professional. The need for another examination is left to the discretion of the medical professional offering the addendum opinion.
Following a review of the claims file, the examiner is asked to furnish an opinion with respect to the following question:
Is it at least as likely as not (i.e., a 50 percent or greater probability) that the pre-existing pes planus permanently increased in severity beyond the natural progression during his period of active duty?
The examiner is asked to provide a rationale for all opinions and conclusions reached.
3.  The Veteran should be afforded a VA examination to determine the nature and etiology of his claimed bladder disorder, to include cystitis.  The examiner should review the record.
The examiner is asked to furnish an opinion with respect to the following questions:
A) Identify all current bladder disorders.
B) For each currently diagnosed bladder disorder, is it at least as likely as not (a 50 percent or higher probability) that such disorder is related to or had its onset during any period of service, to include his reserve service?
(Continued on the next page)
 
The examiner is asked to provide a rationale for all opinions and conclusions reached.
4.  The Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his service-connected pseudofolliculitis barbae.  All efforts should be made to schedule the examination during the summer months.  If the Veteran is not currently experiencing manifestations of his PFB, information regarding the frequency and severity of these manifestations should be solicited from the Veteran.
 
R. FEINBERG
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. Unger, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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