Citation Nr: 18141707 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 15-24 603 DATE: October 11, 2018 ORDER The appeal seeking to reopen the claim for service connection for a left leg disorder is dismissed. New and material evidence having been received, the application to reopen the claim of entitlement to service connection for a right leg disorder with nerve damage is reopened. New and material evidence having been received, the application to reopen the claim of entitlement to service connection for a back disorder is reopened. REMANDED Service connection for a right leg disorder with nerve damage. Service connection for a back disorder. FINDINGS OF FACT 1. The Veteran served on active duty from July 1980 to May 1989. 2. In July 2018, prior to the promulgation of a decision with respect to this matter, the Veteran withdrew his appeal seeking to reopen the claim for service connection for a left leg disorder. 3. A final July 2009 rating decision declined to reopen service connection claims for right leg and back disorders; evidence since that time is new and raises a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. The criteria for the withdrawal of the issue of entitlement to reopen the claim seeking service connection for a left leg disorder have been met. 38 U.S.C. §§ 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. Evidence submitted to reopen the claim of entitlement to service connection for a right leg disorder with nerve damage is new and material, and the claim is reopened. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 3. Evidence submitted to reopen the claim of entitlement to service connection for a back disorder is new and material, and the claim is reopened. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Procedurally, the Veteran offered testimony during a July 2018 travel board hearing. A transcript of this proceeding has been associated with the record. Withdrawal The Board has jurisdiction where there is a question of fact or law in any matter which under 38 U.S.C. § 511(a) is subject to a decision by the Secretary. 38 U.S.C. § 7104. 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 An appeal may be withdrawn by the appellant or by his or her authorized representative, in writing or on the record at a hearing, at any time before the Board promulgates a decision in the matter. 38 C.F.R. § 20.204. A withdrawal of an appeal is effective when received. 38 C.F.R. § 20.204(b)(3). During the July 2018 travel board hearing, the Veteran withdrew his appeal seeking to reopen a service connection claim for a left leg disorder. No adjudicatory actions have been taken since that time with respect to this appeal. Further, this withdrawal was requested prior to the promulgation of a Board decision, such that there are no allegations of error of fact or law remaining for appellate consideration. Thus, the Board does not have jurisdiction to further consider this appeal and it is hereby dismissed. Reopening Claims Based on New and Material Evidence VA may reopen a claim for service connection which has been previously and finally disallowed when new and material evidence has been presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996). In this regard, “new evidence” means existing evidence not previously submitted to VA. “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. Taken in combination, 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). New evidence may be sufficient to reopen a claim if it can contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998); Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Thus, the Board must first determine whether new and material evidence has been submitted under 38 C.F.R. § 3.156(a) to have a claim reopened under 38 U.S.C. § 5108. Elkins v. West, 12 Vet. App. 209 (1999). Then the Board may proceed to evaluate the merits of the claim after ensuring that VA’s duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). To determine whether new and material evidence has been submitted, it is necessary to consider all evidence added to the record since the last time the claim was denied on any basis in conjunction with the evidence already of record. Historically, a July 2009 rating decision declined to reopen these claims on the basis that new and material evidence had not been received. The Veteran did not appeal this decision or submit documentation constituting new and material evidence within the one-year appeal period. Accordingly, the July 2009 rating decision became final. The Veteran requested to reopen the claims in September 2011. Thus, the Board must now determine whether new and material evidence has been submitted since the July 2009 decision sufficient to reopen the claims. In this respect, the Veteran submitted no new evidence between the initial April 2007 denial and the final July 2009 rating decision. Thus, evidence still for consideration at the time of the July 2009 rating decision included: service treatment records (STRs) and VA treatment records spanning March 2001 to August 2006. Evidence added to the claims file since that time includes VA treatment records through December 2016, the Veteran’s Social Security Administration (SSA) file, private treatment records including a July 2018 nexus letter, and the July 2018 hearing testimony. This evidence is new because it was not of record at the time of the final July 2009 rating decision. This evidence is also material because it raises a reasonable possibility of substantiating the claims. In this respect, these claims were initially denied on the basis that the claimed disorders were not causally related to an in-service injury or event. However, the Veteran presented a new theory of entitlement during the July 2018 hearing by arguing that the claimed disorders were causally related to in-service physical exertion and exercise. Further, the July 2018 private treatment letter asserts a nexus between the claimed back disorder and military service. Thus, new and material evidence having been received, the applications to reopen the claims for service connection for right leg and back disorders are granted. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND To date, the Veteran has not yet undergone VA examination for either of the claimed disorders. However, the record contains competent evidence of these disorders and possible etiological links to service, including the Veteran’s own testimony and a July 2018 private treatment letter indicative of a nexus for the back appeal but absent an accompanying rationale. As such, examinations are now warranted such that nexus opinions may be obtained. The matters are REMANDED for the following actions: 1. Schedule the Veteran for examinations to assess the nature and etiology of the right leg and back disorders. The claims file and a copy of this remand must be made available for review. Each examiner is asked to address the following: a. Identify any right leg with nerve damage and/or back disorders shown during the pendency of this appeal; b. Indicate whether it is at least as likely as not (50 percent probability or more) that the disorder began in service, was caused by service, or is otherwise related to service, to include in-service physical exertion and the onset of leg and back pain at that time. The back examiner is also asked to explicitly address a July 2018 private treatment letter indicating a nexus in this case. In formulating the opinions, the examiners are advised that the term “at least as likely as not” does not mean “within the realm of possibility.” Rather, it means that the weight of the medical evidence for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. A complete rationale should be provided for all opinions or conclusions expressed. It should be noted that the Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 2. Readjudicate the right leg and back appeals. If the benefits sought remain denied, issue a supplemental statement of the case to the Veteran and provide an appropriate period for response. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kovarovic, Associate Counsel