Citation Nr: 1752222 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 14-01 853 DATE THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for residuals of a shell fragment wound (SFW). 2. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a bilateral foot disability, previously claimed as bilateral calcaneus spurs. 3. Entitlement to service connection for residuals of a SFW. 4. Entitlement to service connection for a bilateral foot disability. 5. Entitlement to service connection for post-traumatic stress disorder (PTSD). 6. Entitlement to an initial compensable rating for hemorrhoids. 7. Entitlement to an initial rating in excess of 10 percent for left knee chronic knee strain to include patellofemoral pain syndrome. 8. Entitlement to an initial rating in excess of 10 percent for right knee chondromalacia patellae to include patellofemoral pain syndrome. 9. Entitlement to an initial rating in excess of 20 percent for lumbar spine osteoarthritis. ORDER The appeal of an initial compensable rating for hemorrhoids is dismissed. New and material evidence having been received, the appeal to reopen service connection for residuals of a SFW is granted. New and material evidence having been received, the appeal to reopen service connection for a bilateral foot disability is granted. FINDINGS OF FACT 1. During the November 2016 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran testified that he wished to withdraw the appeal of an initial compensable rating for hemorrhoids. 2. Service connection for bilateral heel spurs and residuals of a shrapnel wound was denied in a June 1994 rating decision. The Veteran was notified of this decision and his appellate rights on June 29, 1994, and the Veteran did not perfect an appeal of the decision. 3. Evidence received since the June 1994 rating decision is new in that it is not cumulative and was not previously considered by decision makers. The evidence is also material because it raises a reasonable possibility of substantiating the claims for service connection for a bilateral foot disability and residuals of a SFW. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of an initial compensable rating for hemorrhoids have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. New and material evidence has been received to reopen the claim for service connection for residuals of a SFW. 38 U.S.C. §§ 5103, 5103A, 5108, 7105 (2012); 38 C.F.R. §§ 3.156, 3.159, 20.1103 (2017). 3. New and material evidence has been received to reopen the claim for service connection for a bilateral foot disability. 38 U.S.C. §§ 5103, 5103A, 5108, 7105 (2012); 38 C.F.R. §§ 3.156, 3.159, 20.1103 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1967 to November 1970, and from May to October 1980. These matters come before the Board of Veterans' Appeals (Board) on appeal from October 2012, March 2013, and April 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The October 2012 rating decision granted service connection for the bilateral knees, assigning 10 percent ratings effective April 30, 2012; found that new and material evidence had not been received to reopen a claim for service connection for bilateral calcaneus spurs (previously claimed as a bilateral foot condition); and denied service connection for PTSD. The March 2013 rating decision granted service connection for hemorrhoids, assigning a noncompensable (zero percent) rating effective December 31, 2012; and found that new and material evidence had not been received to reopen the claim for service connection for residuals of a SFW. The April 2013 rating decision granted service connection for lumbar spine osteoarthritis, assigning a 20 percent rating effective April 30, 2012. In November 2016, the Veteran testified at a videoconference hearing before the undersigned, and a transcript of that hearing is of record. The Veteran was denied service connection for heel spurs and residuals of a shrapnel wound in a June 1994 rating decision. As such, the Board must initially determine whether new and material evidence has been submitted to reopen these claims for service connection prior to addressing the claims on their merits. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); see also Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The issues of service connection for residuals of a SFW, bilateral foot disability, and PTSD, and increased initial ratings for the bilateral knee and lumbar spine disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). 1. Dismissal of hemorrhoids issue 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. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran indicated in his November 2016 Board hearing that he wished to withdraw the claim for an initial compensable rating for service-connected hemorrhoids. The Veteran's representative was with him in the hearing, and the Veteran stated that he understand that nothing further was going to happen on the claim once he withdrew it. In light of this, the Veteran has withdrawn this appeal; hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this issue on appeal and it is dismissed. 2. New and material evidence Prior unappealed RO decisions are final. 38 U.S.C. §§ 7105(b); 38 C.F.R. §§ 3.1600(d), 20.302(a), 20.1103. If, however, new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. Manio v. Derwinski, 1 Vet. App. 145 (1991). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence means existing 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 of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. New and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof; the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117-120 (2010). In determining whether newly received evidence is new and material, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran's claims for service connection for heel spurs and residuals of shrapnel wound on back were previously considered and denied in a June 1994 rating decision. The claim for heel spurs was denied because service treatment records (STRs) were silent for mention of complaints, treatment, or hospitalizations for heel spurs and the earliest post-service evidence of heel spurs was in the February 1994 VA examination. The claim for service connection for residuals of a shrapnel wound was denied because STRs were silent for mention of complaints, treatment, or hospitalizations for a shrapnel wound, and although the Veteran had two non-tender scars on his upper back, there was no evidence that the scars were incurred in or aggravated by active duty. The Veteran was notified of the decision in a letter sent in June 1994. Although he filed a timely notice of disagreement, a Statement of the Case was issued in October 1994, and he did not perfect the appeal. The decision is therefore final. The evidence of record at the time of the June 1994 rating decision consisted of the Veteran's STRs, the application for compensation received in January 1994, and February 1994 VA examinations. Since the June 1994 rating decision, additional evidence has been added to the claims file, including the Veteran's November 2016 Board hearing testimony. The Veteran testified that he had jungle rot on his feet, which he got in Puerto Rico in service, and it had gotten worse as he had gotten older. Presumed credible, the Veteran's testimony is evidence of a current disability that has been continuous since service. The Veteran also testified in the Board hearing that he had two cysts removed from his upper back since the 1994 claim, which were caused by wood or other things "raining down" on him during a live fire incident on the demolition range at Fort Devens. Presumed credible, this testimony is evidence of a current disability that was incurred in or caused by the Veteran's active service. Accordingly, new and material evidence has been received to reopen the claims for service connection for a bilateral foot disability and residuals of a SFW. REMAND A review of the record reflects that further development is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. First, outstanding VA treatment records are necessary before adjudication of the claims. The Veteran testified in the November 2016 Board hearing that he had been treated at the VA in Causeway, Boston, since approximately 1995. He indicated that he was seen at VA for his back, knees, other joint problems, PTSD, and yearly physicals. The claims file current contains only VA examination reports, VA treatment records dated in 2000 and 2001, one treatment record from 2010, and two treatment records from 2012. As such, the outstanding relevant VA treatment records should be associated with the claims file. VA has a duty to seek these records. 38 U.S.C. § 5103A(b)(1). Next, with regard to the claim for service connection for PTSD, the Veteran testified in the Board hearing that sometime between the fall of 1969 and spring of 1970, he was temporarily put in charge of the motor pool when someone from another unit arrived having mechanical problems with a Jeep. That man and a mechanic took the Jeep for a drive to determine the problem and 10 minutes later the Jeep rolled off the road and the man who had the Jeep was killed. The Veteran indicated that the incident was recorded in the log book and that there was a criminal investigation by JAG. As such, these records should be obtained. In addition, the VA treatment record dated in July 2010 indicates that the Veteran had a diagnosis of PTSD. The Veteran has not been afforded a VA mental disorders examination. The Board finds that the Veteran's statements and evidence of record meet the standard of McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), and a VA examination and medical opinion should be obtained. Finally, the Board finds that the Veteran's Board hearing testimony regarding his bilateral foot disability and SFW residuals meets the low threshold standard of McLendon and VA examinations should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain from the VA healthcare system all records of evaluation and/or treatment of the Veteran related to mental health, residuals of a SFW or shrapnel wound, and/or any foot disability. All records/responses received should be associated with the claims file. If any records sought are not obtained, a written statement to that effect should be incorporated into the record. 2. Obtain from the VA healthcare system all records of evaluation and/or treatment of the Veteran related to his back and/or knees from April 2012 to present. All records/responses received should be associated with the claims file. If any records sought are not obtained, a written statement to that effect should be incorporated into the record. 3. Contact the appropriate government records repositories to attempt to verify the incident as described by the Veteran in the November 2016 Board hearing. Specifically, attempt to obtain daily unit logs, JAG investigation reports, or other verification of the incident described by the Veteran that occurred at or near Fort Bragg in which a soldier was killed in a car or Jeep accident. Conduct the search from fall of 1969 through spring of 1970. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 4. After the above records have been obtained, schedule the Veteran for appropriate VA examinations to determine the nature and etiology of any diagnosed residuals of a SFW; bilateral foot disability, to include heel spurs and jungle rot; and acquired psychiatric disorder, to include PTSD. The entire claims file, including a copy of this REMAND, must be reviewed by the examiners in conjunction with the examinations. All indicated clinical studies, tests, and evaluations deemed necessary should be performed. a. For any diagnosed SFW residual, the examiner should opine on whether it is at least as likely as not (a 50 percent or greater probability) that the condition had its onset in service or is causally related to is related to incident, injury, or event in active service, to include the Veteran's report of the live fire incident at Fort Devens. b. For any diagnosed foot disability, to include heel spurs and jungle rot, the examiner should opine on whether it is at least as likely as not (a 50 percent or greater probability) that the condition had its onset in service or is causally related to incident, injury, or event in active service. c. For any acquired psychiatric disorder, to include PTSD, the examiner should opine on whether it is at least as likely as not (a 50 percent or greater probability) that the disorder was incurred in or aggravated by military service. A thorough rationale should be provided for all opinions expressed. If any requested medical opinion cannot be given, the examiner(s) should state the reason(s) why. 5. After completing the above, and any additional development deemed necessary, readjudicate the claims. If any benefit sought on appeal remains denied, then a fully responsive supplemental statement of the case should be furnished to the Veteran and his representative, and they should be afforded a reasonable opportunity for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by 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. §§ 5109B, 7112 (2012). ______________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD N. Nelson, Associate Counsel Copy mailed to: Michael Kelley, Attorney at Law Department of Veterans Affairs