Citation Nr: 18139969 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 15-45 890 DATE: October 1, 2018 ORDER New and material evidence having been received, the claim for service connection for a bilateral knee disability is reopened. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a thoracolumbar disability is dismissed. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for dermatitis is dismissed. Service connection for gastroenteritis is dismissed. Service connection for bilateral tinea pedis is dismissed. Service connection for tinea versicolor is dismissed. REMANDED The claim for service connection for a bilateral knee disability is remanded. FINDINGS OF FACT 1. A June 1979 rating decision denied service connection for a bilateral knee disability; the Veteran was notified of the rating action and of his appellate rights. The Veteran did not perfect an appeal on this issue, and new and material evidence was not submitted within one year of the decision. 2. The evidence received since the June 1979 denial relates to an unestablished fact necessary to substantiate the claim for service connection for a bilateral knee disability, and raises a reasonable possibility of substantiating the claim. 3. At the January 2017 hearing, and before the promulgation of a decision in the appeal, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, notified the Board that he wished to withdraw his claim to reopen the previously denied claims for service connection claim a thoracolumbar disability and for dermatitis, as well as his claims for service connection for gastroenteritis, bilateral tinea pedis and tinea versicolor. CONCLUSIONS OF LAW 1. The June 1979 rating decision that denied service connection for a bilateral knee disability is final. 38 U.S.C. § 4005(c) (1976); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1978). 2. New and material evidence has been received to reopen the previously denied claim for service connection for a bilateral knee disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. The criteria for withdrawal of the claim to reopen the previously denied claims for service connection for a thoracolumbar disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 4. The criteria for withdrawal of the claim to reopen the previously denied claim for service connection for dermatitis have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 5. The criteria for withdrawal of the claim for service connection for gastroenteritis have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 6. The criteria for withdrawal of the claim for service connection for bilateral tinea pedis have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 7. The criteria for withdrawal of the claim for service connection for tinea versicolor have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from July 1974 to July 1978. In January 2017, the Veteran appeared and provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. A motion to advance this appeal on the Board’s docket has been raised by the Veteran. The undersigned is granting the motion and advancing the appeal on the docket based upon a finding that the Veteran is homeless and is under severe financial hardship. 38 C.F.R. § 20.900 (c). As such, this appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Dismissal 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 Veteran or by his authorized representative. 38 C.F.R. § 20.204. In the present case, during the January 2017 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew the issues of whether new and material evidence has been received to reopen a claim of entitlement to service connection for a thoracolumbar disability; whether new and material evidence has been received to reopen a claim of entitlement to service connection for dermatitis; entitlement to service connection for gastroenteritis; entitlement to service connection for bilateral tinea pedis; and entitlement to service connection for tinea versicolor. The undersigned clearly identified the withdrawn issues, and the Veteran affirmed that he was requesting a withdrawal as to those appeals. As the Veteran has withdrawn these appeals, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeals and they are dismissed. New and Material Evidence Generally, a final decision issued by the agency of original jurisdiction may not thereafter be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105 (c), (d)(3). However, if evidence is presented or secured with respect to a claim that has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. “New evidence” is evidence that has not previously been reviewed by VA adjudicators. “Material evidence” is 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 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). In determining whether evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The Board must review all the evidence submitted since the last final disallowance of the claim on any basis in order to determine whether the claim may be reopened. Hickson v. West, 12 Vet. App. 247 (1999). The claim for service connection for a bilateral knee disability is based on the same factual basis as the previously denied claim for service connection for a bilateral knee disability. That claim was denied in a June 1979 rating decision on the basis that the RO determined that the Veteran’s bilateral knee condition preexisted his active service and was not shown to have been aggravated during service. The Veteran did not perfect an appeal on this issue, nor did he submit new and material evidence within one year following the decision. Thus, the decision became final. Accordingly, new and material evidence must be received to reopen the claim of entitlement to service connection for a bilateral knee disability. 38 U.S.C. § 4005(c); 38 C.F.R. §§ 3.104, 19.118, 19.153. The pertinent evidence received since the June 1979 denial includes the Veteran’s testimony before the Board in January 2017, wherein he testified that the knee problems he has experienced since active service predominantly began in service, indicating that the conditions were onset or increased in severity to some degree during active service. Moreover, his representative argued at the January 2017 Board hearing that the caselaw on preexisting conditions changed in 2004, and would likely change the outcome of a determination on the preexisting nature of the Veteran’s condition. Although claims made pursuant to changes in law can be considered new claims, rather than claims to reopen, thereby negating the need for new and material evidence, the Board finds that new and material evidence has been received in this case, and the claim for service connection for a bilateral knee disability is reopened. Thus, an explicit Board determination as to whether the Veteran’s claim constitutes a new claim under a change in a law or a claim to reopen is not necessary here, as the Veteran’s claim for service connection is allowed to proceed. REASONS FOR REMAND The Veteran’s claim for service connection for a bilateral knee disability has been denied as the RO determined the condition preexisted the Veteran’s service and was not aggravated therein. However, despite the Veteran having disclosed left knee problems on his enlistment report of medical history, a physical examination and imaging studies performed at that time revealed that the Veteran’s knees were found to be normal. A Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Only conditions that are recorded in physical examination reports are to be considered as noted. Paulson v. Brown, 7 Vet. App. 466 (1995). Veteran underwent an orthopedic evaluation of his knees in service in October 1976, more than two years after enlisting into active service. The provider concluded that the Veteran’s bilateral knee condition was “congenital in nature most likely.” However, this provider’s opinion was not articulated under the “clear and unmistakable” standard, and no VA opinions have been obtained in this matter. Furthermore, the Veteran’s service treatment records contain extensive evidence of treatment for knee issues throughout service, including injuries stemming from physical activities like basketball and hurdle-jumping. No opinion has been obtained to address whether these injuries could have affected any preexisting condition or could have independently been the onset of other knee conditions. Accordingly, a remand is necessary in order to obtain a VA examination to address the etiology of the Veteran’s bilateral knee disorder(s). The Veteran also testified before the Board that he sought VA medical treatment for his knees shortly after separating from service in the summer of 1978. The claims file contains some VA treatment records dating back to the early 1990s, but no earlier. More recent VA treatment records have also been obtained, but not as a continuous record. For example, VA treatment records are associated with the claims file for the following periods: November 2007 through August 2008; March 2013 through October 2015; and April 2016 through December 2016. The Veteran’s entire VA treatment record should also be obtained, dating back to his separation from service through the present, to ensure that all relevant medical evidence will be considered by the Board in deciding the Veteran’s claim. The matter is REMANDED for the following action: 1. Obtain VA treatment records from July 1978, when the Veteran separated from active service, through the present. 2. Schedule the Veteran for a VA knees examination. The examiner should diagnose any knee disability that the Veteran currently has or has had at any time during the appeal period and respond to the following for each disability diagnosed: (a.) Did the Veteran’s knee condition clearly and unmistakably pre-exist his active service? Why or why not? (b.) If the answer to the above question is “yes,” was the condition clearly and unmistakably not aggravated by the Veteran’s active service (meaning that it was not permanently aggravated beyond the natural progression of the condition)? Why or why not? (c.) If the answer to either of the above questions is “no,” is it at least as likely as not (50 percent or greater) that a current knee disability either began during or was otherwise caused the Veteran’s military service? Why or why not? (d.) If a diagnosis of arthritis is made, the examiner should also discuss whether it is at least as likely as not (i.e., a likelihood of 50 percent or greater) that arthritis of the Veteran’s knee(s) was manifested to a compensable degree within one year of separation from active service? Why or why not? In answering these questions, the examiner should specifically consider the Veteran’s statements made about his condition while in service, the Veteran’s statements made in support of his claim, and the Veteran’s January 2017 Board hearing testimony. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Davidoski, Associate Counsel