Citation Nr: 1803826	
Decision Date: 01/22/18    Archive Date: 01/31/18

DOCKET NO.  11-06 439	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1. Whether new and material evidence has been received to reopen a claim of service connection for lipoma of the neck.

2. Entitlement to service connection for lipoma of the neck, status post-excision.

3. Entitlement to service connection for an abdominal hernia.

4. Entitlement to a total temporary disability rating for an abdominal hernia based on surgical or other treatment necessitating convalescence.

5. Entitlement to an increased rating in excess of 30 percent disabling for traumatic retinopathy of left eye.

6. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to February 20, 2014.



REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. Sandler, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1969 to May 1971. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Houston, Texas Department of Veterans Affairs (VA) Regional Office (RO) in July 2012 and September 2013. 

In September 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is in the record. 

Although the RO reopened the Veteran's claim of service connection for lipoma of the neck by deciding the issue on the merits, the question of whether new and material evidence has been received to reopen such claim must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. The Board has characterized the claim accordingly.

The Veteran's service-connected posttraumatic stress disorder (PTSD) has been assigned a 100 percent schedular rating from February 20, 2014. Consequently, no additional benefit is available to the Veteran and the TDIU claim from that date is moot. The claim has been characterized to reflect that the relevant time period is prior to February 20, 2014. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008); Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding request for TDIU post-July 1989 moot where 100 percent schedular rating was awarded in July 1989).

The issue of entitlement to a right eye disability as secondary to the Veteran's service-connected traumatic retinopathy of the left eye has been raised by the record in an April 2011 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2010). 

The issues of entitlement to service connection for a lipoma of the neck and an abdominal hernia; entitlement to a temporary total disability rating for an abdominal hernia; and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. VA will notify the Veteran if further action is required.


FINDINGS OF FACT

1. A September 1984 rating decision service connection for lipoma of the neck (originally claimed as tumors).  The Veteran was informed of the decision and he did not appeal nor was new and material evidence received within a year of the decision.  As such, the decision became final.

2. Evidence received since the September 1984 rating decision is relevant and probative to the issue at hand..

3. The Veteran withdrew his appeal of an increased rating for traumatic retinopathy of left eye during his September 2017 Board hearing.


CONCLUSIONS OF LAW

1. The September 1984 rating decision, which denied service connection for lipoma of the neck (originally claimed as tumors), is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017).

2. New and material evidence has been received, and the claim of service connection for lipoma of the neck is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017).

3. The criteria for withdrawal of a substantive appeal are met; the Board has no further jurisdiction to the claim of an increased rating for traumatic retinopathy of left eye. 38 U.S.C. §§ 7104, 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. New and Material Evidence

Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. "New" evidence means existing evidence not previously submitted to agency decision-makers. "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. 38 C.F.R. § 3.156(a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003).

The requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. Specifically, 38 C.F.R. § 3.156(a) creates a low threshold, and the phrase "raises a reasonable possibility of substantiating the claim" enables, rather than precludes, reopening. See Shade v. Shinseki, 24 Vet. App. 110 (2010).

In a September 1984 rating decision, the AOJ determined that the evidence of record did not reflect a causal relationship between the Veteran's lipoma and Agent Orange; the Veteran was informed of that decision, which was not appealed, and new and material evidence was not submitted within one year. 

Since that time, the Veteran testified during his September 2017 Board hearing that he read a "VA book" that herbicide agents (specifically, Agent Orange) caused "bumps," such as his lipomas. This evidence is "new," because it postdates the September 1984 rating decision, and is also "material," because it tends to represent a nexus between the Veteran's lipoma and his military service, relates to previously unestablished elements of service connection, and raises a reasonable possibility of substantiating the underlying claim. Consequently, the claim of service connection for lipoma of the neck may be reopened. 

II. Withdrawal

The Board has jurisdiction where there is a question of law or fact in a matter on appeal to the Secretary. 38 U.S.C. § 7104. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 C.F.R. § 20.202. The withdrawal of an appeal must be either in writing or on the record at a hearing. 38 C.F.R. § 20.204. Withdrawal can be by the Veteran or by his representative. Id. 

On the record during his September 2017 hearing, the Veteran withdrew his appeal seeking an increased rating for traumatic retinopathy of left eye. Accordingly, the Board finds that there remain no allegations of errors of fact or law for appellate consideration with respect to this issue. Accordingly, because the Board has no further jurisdiction to review the appeal on this matter, it is dismissed.


ORDER

The request to reopen the claim of service connection for lipoma of the neck is granted.

The appeal seeking an increased rating for traumatic retinopathy of left eye is dismissed.


REMAND

The Board finds that further development of the record is necessary to comply with VA's duty to assist the Veteran in the development of facts pertinent to his claims.

Lipoma

Although the Veteran originally reported that he began having lipomas (reported as "tumors") in 1974, his STRs reflect treatment for and a diagnosis of a lipoma. See November 1971 STRs. The Veteran's current treatment records consistently note treatment for lipomas. See, e.g., December 2014 VA treatment records. As a result, medical questions remain as to whether the Veteran's lipoma of the neck is related to his military service and remand for a VA examination is necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006).




Hernia

The Veteran states that his hernia is a result of a basic training injury that manifested in a swollen right testicle during service. See September 2017 Board testimony. While the Veteran's STRs are negative for treatment and a diagnosis of a hernia (in fact, November 1969 STRs explicitly state that no hernia was noted), there are numerous complaints of right testicle pain. VA treatment records reflect a diagnosis of a right inguinal hernia. See February 2013 VA treatment records. Accordingly, remand for a VA examination is necessary to resolve remaining medical questions. See McLendon, 20 Vet. App. at 81.

Rating based on Surgery and TDIU

These matters are inextricably intertwined with the matters being remanded, and thus must be remanded as well. The Board notes that the Veteran's TDIU is primarily predicated upon his service-connected PTSD, which is not part of the current appeal; however, at this time the Board finds it necessary to remand the claim to ensure that all service-connected disabilities (including potential service-connected disabilities) can be considered in a final determination.

Accordingly, the case is REMANDED for the following action:

1. The AOJ should obtain copies of VA treatment records for the Veteran's disabilities from April 2017 to the present. The AOJ should ensure that the complete records of all VA evaluations and treatment the Veteran has received for his disabilities are associated with the record.

2. After the above development has been completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of his lipoma of the neck. The examiner should review the claim file (including this remand) and the examination report should state that a review of the file was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion that responds to the following:

Is it at least as likely as not (50% or greater probability) that the Veteran's inguinal hernia was caused by or is otherwise related to his military service, to include exposure to herbicide agents? Please explain why. The examiner should discuss the presence of a lipoma during service.

The examiner is reminded that he or she cannot simply state that lipomas are not presumptively service-connected when rendering an opinion relating to direct service connection.

A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the matter and may also result in a clarification being requested.)

3. After the development in the first instruction has been completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of his inguinal hernia. The examiner should review the claim file (including this remand) and the examination report should state that a review of the file was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion that responds to the following:

Is it at least as likely as not (50% or greater probability) that the Veteran's inguinal hernia was caused by or is otherwise related to his military service? Please explain why. The examiner should discuss the Veteran's basic training injury that manifested in a swollen right testicle during service.

A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the matter and may also result in a clarification being requested.)

If upon completion of the above action the claim remains denied, the case should be returned to the Board after compliance with appellate procedures. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This appeal must be afforded expeditious treatment. The law requires that all matters that are remanded by the Board 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).



_________________________________________________
E. I. VELEZ
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs