Citation Nr: 18147653 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 13-14 074 DATE: November 5, 2018 ORDER Entitlement to service connection for creatine phosphokinase is withdrawn. New and material evidence having not been submitted, the petition to reopen a claim of entitlement to service connection for a left ankle disorder is denied. REMANDED Entitlement to service connection for a left foot disorder is remanded. Entitlement to a rating in excess of 20 percent for a left shoulder disability is remanded. Entitlement to a rating in excess of 20 percent for a right shoulder disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) as a result of service connected disabilities. FINDINGS OF FACT 1. During the June 5, 2018 Board hearing and prior to the promulgation of a decision in the appeal, the Veteran and his representative notified the undersigned Veterans Law Judge that the Veteran wished to withdraw his appeal as to the claim of entitlement to service connection for creatine phosphokinase. 2. In a final decision issued in August 2010, the RO denied service connection for a left ankle disorder. 3. Evidence obtained since the August 2010 rating decision is either cumulative or redundant of evidence previously considered, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim of service connection for a left ankle disorder. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal on the issue of entitlement to service connection for creatine phosphokinase have been met. 38 U.S.C. § 7105(b)(2) (West 2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 2. The August 2010 RO decision that denied the claim of entitlement to service connection for a left ankle disorder is final. 38 U.S.C. § 7105(c) (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 3. New and material evidence has not been received to reopen the claim for service connection for a left ankle disorder. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1993 to May 1997. In June 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board. A copy of the transcript has been associated with the claims file. During the hearing, the Veteran presented testimony regarding service connection for a bilateral foot disorder. However, the Board notes a December 2015 rating decision granted service connection for a right foot disability. As such, only entitlement to service connection for a left foot disorder remains in appellate status. Withdrawal of Appeal A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b) (2017). Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204 (c) (2017). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing and meet certain requirements set forth by regulation. They must include the name of the appellant, the applicable file number, and a statement that the appeal is being withdrawn. 38 C.F.R. § 20.204 (b)(1) (2017). Here, during the June 5, 2018 Board videoconference hearing, the Veteran and his representative stated on the record that the Veteran wished to withdraw his appeal as to the claim of entitlement to service connection for creatine phosphokinase. Specifically, the Veteran was informed that by withdrawing his appeal with respect to the claim of entitlement to service connection for creatine phosphokinase the Board will no longer consider the merits of his claim. Further, if the Veteran would like to file for the claim at a later date, he was informed that he would have to begin the process over at the Regional Office. The Veteran was asked if he understood the consequences of the withdrawal and he answered affirmatively. The undersigned Veterans Law Judge again asked if they Veteran had any questions regarding the withdrawal and the Veteran stated he did not. As such, the Board finds that the Veteran’s withdrawal was explicit, unambiguous, and done with the full understanding of the consequences of withdrawing his claim. See Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018); see also DeLisio v. Shinseki, 25 Vet. App. 45, 57-58 (2011). The Board finds that the Veteran’s statement as described above satisfies the requirements for the withdrawal of a substantive appeal. See 38 C.F.R. § 20.204 (2017). As the Veteran has withdrawn his appeal with respect to the claim of entitlement to service connection for creatine phosphokinase, there remains no allegation of error of fact or law for appellate consideration, thus, the Board does not have jurisdiction to review the appeal as to this issue, and it is dismissed. New and Material Evidence 1. Left ankle disorder Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 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). The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). By way of background, the RO previously considered and denied the Veteran’s claim for service connection for a left ankle disorder in an August 2010 rating decision. The Veteran filed a notice of disagreement with this determination but did not perfect his appeal to the Board. As no further action was pursued, the August 2010 decision is final. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). The Veteran filed a petition to reopen this claim in May 2013 and the RO continued the previous denial in a June 2015 decision. The Veteran filed another petition to reopen this claim that same month, June 2015, which was again denied in a December 2015 decision. However, the Board finds that the June 2015 rating decision is not final as additional evidence was received within the one-year period following the issuance of the rating decision in the form of VA treatment records and a September 2015 VA examination. 38 C.F.R. § 3.156(b). In previously denying the Veteran’s claim for service connection for a left ankle disorder in the August 2010 decision, the RO considered the available service treatment records that failed to show an in-service injury or disease; a VA examination dated in August 2009; VA treatment records dated through 2010; and, the Veteran’s lay statements in support of his claim. However, as there was no evidence of an in-service disease or injury to the left ankle, and no evidence of a currently diagnosed left ankle disorder, the RO claim on the basis that his current complaints of pain were not due to or the result of his miliary service. The evidence of record since the last prior final denial includes VA treatment records dated through 2018; the report of a September 2015 VA examination; and, the Veteran’s June 2018 hearing testimony. The VA treatment records dated since August 2010 and the September 2015 VA examination fail to show a currently diagnosed left ankle disorder, only the Veteran’s complaints of pain. Further, the Veteran testified during his June 2018 Board hearing that he experiences pain in his left ankle. The Board notes that the Veteran previously reported pain associated with his initial claim for a left ankle disorder, denied in the final August 2010 rating decision. As such, the Veteran’s testimony is cumulative of his previously reported symptoms. Consequently, there is no evidence of record indicating the Veteran suffers from a diagnosed left ankle disorder that is due to his military service. As there are no new contentions or evidence to support the claim, the evidence added to the record is either cumulative, or unrelated to the claim. As new and material evidence has not been submitted, the claim is not reopened, and the appeal as to this issue is denied. REASONS FOR REMAND 1. Left and right shoulder disabilities The Veteran testified during his June 2018 Board hearing that it was his belief his right and left shoulder disabilities have worsened since he was last examined in March 2018. Specifically, he stated that he was recently diagnosed with arthritis in the left shoulder during a VA appointment that occurred earlier in June 2018. The Veteran also stated that he was unable to lift his arms to 90 degrees, despite the March 2018 VA examiner’s findings to the contrary. Based on the Veteran’s competent and credible hearing testimony, the Board finds that a VA examination is needed to ascertain the current severity and manifestations of the Veteran’s right and left shoulder disabilities. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Additionally, the Veteran has also testified that he was treated by VA for his right and left shoulder disabilities as recently as June 2018; however, these records are not associated with the claims file. These records are relevant to the Veteran’s claim for increased ratings for his right and left shoulder disabilities and must be obtained prior to a decision on these matters. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). 2. Left foot disorder The Veteran is seeking entitlement to service connection for a left foot disorder that he believes is either directly attributable to his military service or, alternatively, due to or aggravated by his service-connected right ankle disability. Specifically, he described a burning sensation in the heel and ball of his foot when he runs. As an initial matter, the Board notes the RO certified the issue to the Board as one of new and material evidence due to the determination of a prior final rating decision in August 2010. However, the Veteran filed a notice of disagreement and ultimately perfected his appeal to the Board by filing a VA Form 9 thereby precluding finality of the August 2010 decision. The Veteran was afforded an examination in August 2015. At that time, the VA examiner provided a diagnosis of left foot plantar callous. Later in the same examination, however, the VA examiner stated the Veteran’s left foot is within normal limits and that he is unable to render a diagnosis based on the available objective evidence. Therefore, in light of the conflicting statements rendered by the VA examiner, the Board finds a new examination is warranted. 3. Entitlement to a TDIU During his June 2018 hearing, the Veteran reported that due to his service-connected right and left shoulder disabilities he is unable to work; thereby making his claim for entitlement TDIU part and parcel of the increased rating claims on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As the issue of TDIU is inextricably intertwined with the increased rating claims on appeal, it must also be remanded. The matter is REMANDED for the following action: 1. Associate all outstanding VA medical records with the claims file dating from March 2018 to the present. 2. Send a VCAA notice letter to the Veteran for his TDIU claim. This notice letter must include (1) a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability); and (2) a VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits). The RO should request that the Veteran fill out these forms and submit them to the RO, to determine the Veteran’s employment history. The purpose of this request is to clarify conflicting evidence of record on the issue of the Veteran’s employability. 3. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any diagnosed left foot disorder. (a.) The VA examiner is asked to identify any currently diagnosed left foot disorders. In so doing, the examiner must address and clarify the findings of the August 2015 VA examination who noted a diagnosis of plantar callous of the left foot but then indicated there was no currently diagnosed left foot disorder. (b.) For any diagnosed left foot disorder, the examiner is asked to provide an opinion as to whether it is at least as likely as not that any currently diagnosed left foot disorder is due to or the result of the Veteran’s military service. (c.) The examiner is also asked to provide an opinion as to whether it is at least as likely as not that any diagnosed left foot disorder is due to or aggravated by the service-connected right ankle disability. 4. Schedule the Veteran for a VA examination to ascertain the severity and manifestations of his service-connected left and right shoulder disabilities. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is instructed to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including 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. The examiner should report all signs and symptoms necessary for evaluating the Veteran’s service-connected left and right shoulder disabilities under the rating criteria. (a.) The examiner should provide the range of motion in degrees for each the left and right shoulder. In so doing, the examiner should test the Veteran’s range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report. (b.) The examiner shall inquire as to periods of flare- up, and note the frequency and duration of any such flare-ups for each the right and left shoulder. (c.) Any additional impairment on use or in connection with flare-ups should be described in terms of the degree of additional range of motion loss. The examiner should specifically describe the severity, frequency, and duration of flare-ups; name the precipitating and alleviating factors; and estimate, per the veteran, to what extent, if any, such flare-ups affect functional impairment. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (d.) The presence of objective evidence of pain, excess fatigability, incoordination and weakness should also be noted, as should any additional disability (including additional limitation of motion) due to these factors. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” (38 C.F.R. § 4.1), copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. Then, schedule the Veteran for a VA examination with an appropriate medical professional to determine if it is at least as likely as not (a degree of probability of 50 percent or higher) that the Veteran is precluded from substantially gainful employment on account of his service-connected disabilities alone and in combination. In making this determination, the person should take into account the Veteran’s education and work history, but may NOT consider the Veteran’s age or any impairment caused by nonservice-connected disabilities. 6. The Veteran should be informed that failure to appear for these examinations, without good cause, may cause his claim to be denied. See 38 C.F.R. § 3.655. All efforts to schedule the examination should be documented in the file. 7. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Berry, Counsel