Citation Nr: 1647324 Decision Date: 12/20/16 Archive Date: 12/30/16 DOCKET NO. 14-42 334 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for the residuals of a left great toe injury and bunionectomy. 2. Entitlement to a disability rating in excess of 10 percent for right hallux valgus. 3. Entitlement to a disability rating in excess of 20 percent for right knee strain. 4. Whether new and material evidence has been received to reopen a claim for service connection for a low back disorder, previously claimed as lumbago and misalignment of spine, and if so whether the reopened claim should be granted. 5. Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from March 1988 to March 1990. This case is before the Board of Veterans' Appeals (Board) on appeal from February 2008 and March 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge (VLJ) in May 2015. A transcript of the hearing is associated with the record. The record before the Board consists of electronic records within Virtual VA and the Veterans Benefits Management System. The issues involving an increased rating for the Veteran's right knee disorder as well as those involving entitlement to service connection for a low back disorder and hypertension are addressed in the REMAND that follows the ORDER section of this decision. FINDINGS OF FACT 1. At the May 2015 hearing, the Veteran withdrew his appeal for entitlement to disability ratings in excess of: 10 percent for the residuals of a left great toe injury and bunionectomy and in excess of 10 percent for right hallux valgus. 2. A March 2006 rating decision denied the Veteran's claim for service connection for a low back disorder which was claimed as lumbago and misalignment of spine; the Veteran did not appeal the decision or submit any pertinent evidence within the appeal period. 3. The evidence received after 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. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for entitlement to a disability rating in excess of 10 percent for the residuals of a left great toe injury and bunionectomy by the Veteran have been met. 38 U.S.C.A. § 7105 (b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2016). 2. The criteria for withdrawal of the appeal for entitlement to a disability rating in excess of 10 percent for right hallux valgus by the Veteran have been met. 38 U.S.C.A. § 7105 (b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2016). 3. New and material evidence has been received to reopen the claim of entitlement to service connection for low back disorder, previously claimed as lumbago and misalignment of spine. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. 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.A. § 7105 (West 2014). 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 (2016). Withdrawal may be made by the veteran or by his or her authorized representative. 38 C.F.R. § 20.204 (a). The withdrawal must be in writing except when the appeal is withdrawn on the record at a hearing. 38 C.F.R. § 20.204 (b). At the May 2015 hearing the Veteran stated that he was withdrawing his appeal with respect to the issues of entitlement to disability ratings in excess of: 10 percent for the residuals of a left great toe injury and bunionectomy and in excess of 10 percent for right hallux valgus. Thus, there remains no allegation of error of fact or law for appellate consideration as to these two issues. Accordingly, the Board does not have jurisdiction to review these issues on appeal, and they must be dismissed. II. Low Back Disorder Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104 (b), 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 decision makers. 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 U. S. 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). The Veteran has been claiming entitlement to service connection for a low back disorder under various theories of entitlement since shortly after his separation from service. Despite the fact that the certification of appeal, VA Form 8, indicates that a May 2011 rating decision is at issue, review of the record reveals that a February 2008 confirmed and continued a prior denial of service connection for "lumbago" and the record shows that an appeal was perfected for this issue by way of a November 2010 substantive appeal. Accordingly, it is the February 2008 rating decision which is on appeal; prior to that service connection for lumbago was denied by way of an March 2006 rating decision on the basis that there was diagnosis of a low back disorder. The Veteran did not appeal the decision or submit any additional evidence within the appeal period. The evidence of record at the time of the March 2006 rating decision included service treatment records from the Veteran's period of active duty, along with post-service VA treatment records. The evidence received after the expiration of the appeal period includes additional VA medical treatment records, and VA examination reports. This evidence contains a diagnosis of a current low back disorder which was previously missing. This evidence is not cumulative or redundant of the evidence previously of record, and relates to an unestablished fact necessary to substantiate the claim. Accordingly, reopening of the claim for service connection for a low back disorder is warranted. ORDER The appeal for entitlement to a disability rating in excess of 10 percent for the residuals of a left great toe injury and bunionectomy is dismissed. The appeal for entitlement to a disability rating in excess of 10 percent for right hallux valgus is dismissed. The Board having determined that new and material evidence has been received, reopening of the claim of entitlement to service connection for low back disorder, previously claimed as lumbago and misalignment of spine, is granted. REMAND The Veteran claims entitlement to an increased rating for his service-connected right knee strain. In September 2014, the most recent Compensation and Pension examination of the Veteran was conducted. At the May 2015 hearing the Veteran reported symptoms of decreased range of motion and giving way of the knee which are more severe than reported in the last examination report. Accordingly another examination is warranted. See Snuffer v. Gober, 10 Vet. App. 400, 408 (1997) (requiring a new examination where the claimant asserts that a disability has increased in severity since the time of the last VA examination). Throughout the record, the Veteran has asserted his claim for service connection for a back disability on two bases. He has at times claimed direct service connection, claiming that lifting injury during service as the cause of his back pain. His other assertion is for secondary service connection, that his other service-connected disabilities are the cause of his back disorder. With respect to his hypertension claim, he has again claimed that secondary service connection is warranted, that pain from his service-connected orthopedic disabilities has caused his hypertension. While VA examination reports document etiology opinions with regard to these two disabilities, the opinions are inadequate. They do not address whether the Veteran's service-connected disabilities have aggravate the claimed hypertension and back disorder, nor do they address the variety of medications he is prescribed for other service-connected disabilities and whether these medications can cause or aggravate the Veteran's hypertension. An opinion with respect to direct service connection for the claimed back disability from reported lifting injury inservice has also not been obtained. When VA undertakes to provide an examination or obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). When the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991) and Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Accordingly, this 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, pertinent treatment records, to include records pertaining to the Veteran's treatment for his claimed disorders since the most recent VA treatment records were obtained in May 2016. If any requested records are not available, such should be reflected in the record and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Once the record is developed to the extent possible, the Veteran should be afforded a VA examination by a physician with sufficient expertise, to determine the nature and etiology of the Veteran's low back disorder. All pertinent evidence of record must be made available to and reviewed by the examiner, and any indicated studies should be performed. The examiner is reminded that the Veteran asserted a claim for service connection for low back pain shortly after separating from service in March 1990 and he reports that he had a lifting injury of his back during service. Based on the review of the Veteran's pertinent history and the examination of the Veteran, the examiner should state a medical opinion with respect to each low back 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 or is otherwise etiologically related to the Veteran's period of active service. If the examiner believes that the current low back disorder is unrelated to the period of active service, the examiner should state an opinion as to whether there is a 50 percent or better probability that the Veteran's service-connected disabilities caused or permanently worsened the low back disorder(s). For purposes of the opinions, the examiner should assume that the Veteran is credible. The supporting rationale for each opinion 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. Once the record is developed to the extent possible, the Veteran should be afforded a VA examination by a physician with sufficient expertise, to determine the nature and etiology of the Veteran's hypertension. All pertinent evidence of record must be made available to and reviewed by the examiner, and any indicated studies should be performed. The examiner should state a medical opinion as to whether there is a 50 percent or better probability that the Veteran's hypertension was caused or permanently worsened by any of the Veteran's service-connected disabilties, alone or in combination, to include any medications prescribed to treat his service-connected disabilities The supporting rationale for each opinion 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. 4. Afford the Veteran a VA orthopedic examination by an examiner with the sufficient expertise to ascertain the current severity and manifestations of his service-connected right knee disability. All pertinent evidence of record should be made available to and reviewed by the examiner, and any indicated studies should be performed. The RO or the AMC should ensure that all information required for rating purposes is provided by the examiner. 5. The RO or the AMC should undertake any additional development it determines to be warranted. 6. Then, the RO or the AMC should adjudicate the Veteran's claim for service connection for a low back disorder on a de novo basis and readjudicate his claim for service connection for hypertension. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be provided 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). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States 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