Citation Nr: 1617154 Decision Date: 04/29/16 Archive Date: 05/04/16 DOCKET NO. 14-15 001 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for a left knee disability, and if so, whether the reopened claim should be granted. 2. Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for a right knee disability. 3. Entitlement to service connection for bilateral hearing loss disability. 4. Entitlement to service connection for pre-diabetes mellitus, type II. 5. Entitlement to service connection for a skin disability, claimed as psoriasis and eczema. 6. Entitlement to an initial compensable disability rating for a lower lip scar. 7. Entitlement to a compensable disability rating for residuals of a fracture of the second metacarpal of the right hand. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran had active service from October 1966 to July 1969. This appeal comes before the Board of Veterans' Appeals (Board) from a November 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. In July 2015, the Veteran testified at a videoconference hearing before a Veterans Law Judge. A transcript of the hearing is of record. In a November 2015 letter, the Board informed the Veteran that the Veterans Law Judge who presided at the July 2015 hearing was currently unavailable to participate in a decision in his appeal and informed him of his options for another Board hearing. He was also informed that if he did not respond within 30 days from the date of the letter, the Board would assume that he did not want another hearing and proceed accordingly. The Veteran did not respond to the November 2015 letter. Therefore, the Board will proceed to consider the Veteran's case on the evidence of record. The record before the Board consists entirely of the Veteran's electronic records within Virtual VA and the Veterans Benefits Management System. The issues of whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for a right knee disability, entitlement to service connection for a left knee disability, and entitlement to a compensable disability rating for residuals of a fracture of the second metacarpal of the right hand are addressed in the REMAND that follows the below ORDER. FINDINGS OF FACT 1. In July 2015, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he desired to withdraw his appeal for entitlement to an initial compensable disability rating for a lower lip scar and entitlement to service connection for bilateral hearing loss, pre-diabetes mellitus, type II, and a skin disability, claimed as psoriasis and eczema. 2. A September 1969 rating decision denied the claim of entitlement to service connection for a left knee disability; the Veteran did not appeal the decision or submit any pertinent evidence within the appeal period. 3. Evidence received subsequent to the expiration of the appeal period includes evidence that is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for a left knee disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the substantive appeal by the Veteran for the issue of entitlement to service connection for bilateral hearing loss disability have been met. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.202, 20.204 (b), (c) (2015). 2. The criteria for withdrawal of the substantive appeal by the Veteran for the issue of entitlement to service connection for pre-diabetes mellitus, type II, have been met. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.202, 20.204 (b), (c) (2015). 3. The criteria for withdrawal of the substantive appeal by the Veteran for the issue of entitlement to service connection for a skin disability, claimed as psoriasis and eczema, have been met. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.202, 20.204 (b), (c) (2015). 4. The criteria for withdrawal of the substantive appeal by the Veteran for the issue of entitlement to an initial compensable disability rating for lower lip scar have been met. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.202, 20.204 (b), (c) (2015). 5. New and material evidence has been presented to reopen a claim of entitlement to service connection for a left knee disability. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawal 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.A. § 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. § 20.204. Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204. During the July 2015 hearing before the Board, the Veteran informed VA of his desire to withdraw his appeal for entitlement to an initial compensable disability rating for lower lip scar and entitlement to service connection for bilateral hearing loss, pre-diabetes mellitus, type II, and a skin disability, claimed as psoriasis and eczema. As a result, there remains no allegation of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeals and they must be dismissed. II. Claim to Reopen A. Legal Criteria Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c) (West 2014). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). B. Factual Background and Analysis The RO initially denied service connection for a left knee disability on a direct basis in September 1969. The Veteran was notified of the denial by a letter dated in October 1969. He did not appeal the denial or submit any additional pertinent evidence within the appeal period. The Veteran again raised a claim for service connection for a left knee disability in April 2012, and the RO issued the rating decision under appeal and continued the denial of the claim, as no new and material evidence had been presented. Notwithstanding the RO's actions, the Board must make its own determination on this matter. Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). The basis of the RO's September 1969 denial was that there was no evidence of a current left knee disability, to include a left knee strain, as the Veteran's left knee was found to be normal, upon the separation physical examination. The evidence of record in September 1969 consisted of service treatment records. The evidence received after the expiration of the appeal period includes statements and testimony from the Veteran, private treatment records dated from 2005 to 2008, and VA outpatient treatment records dated from November 2011 to April 2012. The aforementioned VA outpatient treatment records do not address the Veteran's left knee. The May 2005 private treatment records reflect that the Veteran reported current left knee pain, as well as a history of an in-service left knee injury that required him to stay in a hospital for a month in traction; left knee arthritis was diagnosed. The July 2015 hearing transcript reflects that the Veteran reported that his left knee had bothered him since active service, to include symptoms of pain, swelling, and giving-way. The Board finds that the July 2015 hearing testimony and May 2005 private treatment records submitted by the Veteran are new and material, as they are not cumulative or redundant of the evidence previously of record and relate to a previously unestablished element of entitlement to service connection for a left knee disability- namely the records and testimony support the existence of a current left knee disability. Accordingly, this evidence is sufficient to reopen the previously denied claim for service connection for a left knee disability. ORDER The appeal with respect to the issue of entitlement to service connection for bilateral hearing loss disability is dismissed. The appeal with respect to the issue of entitlement to service connection for pre-diabetes mellitus, type II, is dismissed. The appeal with respect to the issue of entitlement to service connection for a skin disability, claimed as psoriasis and eczema, is dismissed. The appeal with respect to the issue of entitlement to an initial compensable disability rating for a lower lip scar is dismissed. The Board having determined that new and material evidence has been received, reopening of the claim of entitlement to service connection for a left knee disability is granted. REMAND Additional development is required before the remaining issues on appeal are adjudicated. Regarding the issue of whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for a right knee disability, during the July 2015 hearing before the Board, the Veteran asserted that he has continued to receive treatment from his private physician, M.M., M.D. through 2014, and specifically in 2012. The record contains treatment records from such physician through November 2008. Therefore, the originating agency must undertake appropriate development to obtain all available, pertinent records from M.M, M.D., for the period from November 2008 to the present. With respect to the issue of service connection for a left knee disability, service treatment records include an October 1967 hospitalization report indicating that the Veteran injured his left knee playing basketball, resulting in the immediate onset of pain and swelling. X-rays of the left knee were within normal limits; a strain of the collateral ligament of the left knee was diagnosed. The Veteran was placed on bedrest in traction until the beginning of December 1967, when he was discharged from the hospital to duty with a limited profile for one month. In connection with his July 1969 separation examination, the Veteran reported a history of a trick or locked knee; the examiner noted a normal left knee. Post-service records, as indicated in the decision above, include private treatment records dated from 2005 through November 2008 documenting left knee arthritis and suggesting that such current disorder may be the result of the Veteran's in-service left knee injury. Also discussed above, are the Veteran's statements and July 2015 testimony before the Board, during which he asserted that his left knee had bothered him since active service, to include symptoms of pain, swelling, and giving-way. In light of the Veteran's current left knee arthritis, as well as his history and documentation of hospitalization for a left knee injury during service, the Board finds that the Veteran should be afforded a VA examination to determine whether any left knee disorder present during the period of the claim is related to his active service. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Regarding the increased rating claim, during the aforementioned hearing before the Board, the Veteran stated that in addition to symptoms of constant pain, he had numbness and tingling in his second metacarpal of his right hand. He further asserted that since the most recent VA examination in September 2012, his symptoms had worsened, to include continuous aching; stiffness; and the inability to sleep, as his pain reached a level 10 on a scale of zero to 10 throughout the night. In light of these circumstances, the Board has determined that the Veteran should be afforded a current VA examination to determine the degree of severity of the residuals of a fracture of the second metacarpal of the right hand. Finally, the Board notes that the Veteran appears to be receiving ongoing treatment for his disabilities at the VA Medical Center in Boise, Idaho. Since more recent VA treatment records could be supportive of the Veteran's claims, the originating agency must obtain all available, pertinent records from April 2012 to the present. Accordingly, the case is REMANDED to the RO or the Appeals Management Center (AMC) in Washington, D.C. for the following actions: 1. The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims, to include private treatment records from M.M., M.D. from November 2008 to the present, and VA outpatient treatment records from the VA Medical Center in Boise, Idaho from April 2012 to the present. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159(e). 2. Once the record is developed to the extent possible, the RO or the AMC should arrange for the Veteran to be scheduled for a VA examination by an examiner with sufficient expertise to determine the etiology of all left knee disorders present during the period of the claim. All pertinent evidence of record must be made available to and reviewed by the examiner, and any indicated studies should be performed. Based on the examination results and the review of the medical records and the Veteran's statements, the examiner should state a medical opinion with respect to each left knee disorder present during the period of the claim as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the disorder originated during service or is otherwise etiologically related to service. The supporting rationale for all opinions expressed must be provided. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. The RO or the AMC also should arrange for the Veteran to be scheduled for a VA examination by an examiner with sufficient expertise to determine the current severity of the Veteran's service-connected residuals of a fracture of the second metacarpal of the right hand. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated tests and studies should be accomplished. The RO or the AMC should ensure that the examiner provides all information required for rating purposes. 4. The RO or the AMC should ensure that the Veteran is provided with adequate notice of the date and place of all scheduled examinations. A copy of all notifications, including the address where the notice was sent, must be associated with the record if the Veteran fails to report for any examination. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause may have adverse effects on his claims. 5. The RO or the AMC should also undertake any additional development deemed necessary. 6. Then, the RO or the AMC should readjudicate the Veteran's claims. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the U.S. Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs