Citation Nr: 18157744 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 15-39 498 DATE: December 13, 2018 ORDER Whether new and material evidence has been submitted to reopen a claim for service connection for a right knee disability is dismissed. Whether new and material evidence has been submitted to reopen a claim for service connection for chronic obstructive pulmonary disease (COPD) is dismissed. New and material evidence has been submitted to reopen a claim for service connection for a back disability and to that extent only the claim is granted. Entitlement to service connection for sleep apnea is dismissed. Entitlement to service connection for fibromyalgia is dismissed. Entitlement to an increased rating for paroxysmal atrial fibrillation is dismissed. Entitlement to increased ratings for a psychiatric disability is dismissed. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to a totally disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. In January 2017, prior to the promulgation of a decision in the appeal, the Veteran withdrew the claims related to service connection for a right knee disability, fibromyalgia, COPD, and sleep apnea, and for increased ratings for a psychiatric disability and atrial fibrillation. 2. A final unappealed June 1998 Board decision denied service connection for a back disability. Since that decision, the Veteran has provided new and material evidence regarding the possible etiology of the claimed back disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for service connection for a right knee disability have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for withdrawal of the appeal for service connection for COPD have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 3. The criteria for withdrawal of the appeal for service connection for sleep apnea have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 4. The criteria for withdrawal of the appeal for service connection for fibromyalgia have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 5. The criteria for withdrawal of the appeal for an increased rating for atrial fibrillation have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 6. The criteria for withdrawal of the appeal for increased ratings for a psychiatric disability have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 7. New and material evidence having been submitted, the claim for service connection for a back disability is reopened. 38 U.S.C. §§ 5108, 7104(b), 7105. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1976 to April 1995. 1. Entitlement to service connection for a right knee disability, fibromyalgia, COPD, and sleep apnea, and increased ratings for a psychiatric disability and atrial fibrillation. The Board may dismiss any appeal which does not 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 the authorized representative. 38 C.F.R. § 20.204. The Veteran, at his January 2017 Board hearing, before the undersigned, requested to withdraw the claims for service connection for a right knee disability, fibromyalgia, COPD, and sleep apnea, and claims for increased ratings for a psychiatric disability and atrial fibrillation. Therefore, there remain no allegations of errors of fact or law for appellate consideration regarding those issues. Accordingly, the Board does not have jurisdiction to review those issues and they are dismissed. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for a back disability An August 1995 rating decision denied service connection for a back disability based on no evidence of a current disability. The Veteran appealed that decision to the Board, and a June 1998 Board decision denied the claim. Therefore, that decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In August 2013, the Veteran applied to reopen that claim, based on a current diagnosis of arthritis, and additional claims of inaccurate reporting at his separation examination due to the use of pain medications and continuity of symptoms since service. A November 2013 rating decision found that, while there was evidence of a back disability, that evidence was not material as it did not plausibly substantiate the claim for service connection. The RO found that no new and material evidence had been received, declined to reopen the claim for service connection for a back disability. The new evidence submitted by the Veteran includes a letter from his fellow soldiers and his ex-wife, claiming his continued struggle with back pain and symptoms since service, medical records demonstrating a chronic back disability, and further lay statements and testimony, asserting that his separation examinations from service was not accurate due to his heavy pain medication for a left knee disability. The Board finds that evidence is both new and material, as the evidence was submitted after his last denial in 1998, and suggests a causal link between a back disability and service. Specifically, both the lay statements from his friends and family, demonstrate plausible evidence, albeit not dispositive, of continuity of symptoms. The Veteran’s own assertions that his pain medication for a left knee injury during service at or around the time of separation, affected his ability to feel and report back pain, presents as plausible, and previously un-asserted evidence of a nexus. Accordingly, the Board finds that new and material evidence sufficient to reopen the claim has been submitted, and the claim is reopened. 38 C.F.R. § 3.156. REASONS FOR REMAND 1. Entitlement to service connection for a back disability is remanded. The Veteran was most recently provided a VA examination in August 2015. The Board notes that the examiner concluded that the Veteran’s back disability was not etiologically related to, or aggravated by, active service. However, upon further review, the Board finds that nexus opinion to be incomplete. Specifically, the Board finds that the VA examiner, who comprehensively recited and noted the Veteran’s entire medical history, did not provide an adequate rationale with for the negative conclusion. The opinion simply noted the contentions of the Veteran, his friends, and ex-wife, reported that it was reviewed and considered, and concluded no finding of any plausible nexus between any inservice injury and a current disability. The Board finds that the VA examiner’s failure to explicitly address the Veteran’s contention that he did not report any back issues during separation as a result of his pain medication for a left knee injury makes the opinion incomplete. Again, while the VA examiner noted review and consideration of the lay statements, the examiner ultimately did not provide any analysis of that assertion, or produce any medical findings, studies, treatise, or literature, that would discount that assertion. The examiner simply restated facts from the medical evidence of no symptoms of a back condition other than those acute injuries during service, and therefore, no etiological connection between the current back disability and service could be found. However, throughout the claims period, to include during the Veteran’s Board hearing, the Veteran testified that his back pain and back disability had been ongoing since service. The Veteran claimed that not only had his back injury been ongoing since service, as corroborated by his ex-wife statements, but also provided a plausible reason why he did not report the pain and disability in his back on examination at separation from service. While the lay statements are not considered dispositive, they must be addressed to by any examination opinion speaking to etiology. Therefore, based on the Veteran’s statements and that of his friends and family, the Board finds that the August 2015 VA examination did not consider a complete evidentiary record. The Board notes when a medical examination is provided, VA must ensure the adequacy of the examination. Barr v. Nicholson, 21 Vet. App. 303 (2007). When the medical evidence is incomplete or inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Accordingly, the Board finds that an examination and opinion should be obtained to determine the etiology of his back condition. 2. Entitlement to a totally disability rating based on individual unemployability (TDIU) is remanded. Remand is also required regarding the claim of entitlement to TDIU. Since the claim for service connection for a back disability is being remanded, the Board finds that it would be potentially prejudicial to the Veteran for the Board to consider this derivative claim prior to the determination of such other claims. Bernard v. Brown, 4 Vet. App. 384 (1993). Therefore, the claim for TDIU is inextricably intertwined and must also be remanded. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain all VA treatment medical records not already of record. 2. After obtaining appropriate authorization, obtain any private treatment records identified by the Veteran, to include any records from any private physicians that are not already of record. 3. Then, schedule the Veteran for a VA examination with a medical doctor. The examiner must review the claims file and should note that review in the report. When providing the opinions, the examiner should consider and discuss the Veteran’s service records, VA medical records, and any other relevant information. Additionally, the examiner should also discuss the Veteran’s and other lay statements regarding the onset and duration of his back pain and symptoms since service. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any current back disability is related to service or any incident of service, to include complaints of back pain during and at separation from service. The examiner is asked to explicitly discuss and consider the Veteran’s assertion that when he separated from service, his examination and report of medical history did not show a back disability because the Veteran was taking heavy pain medication for another disability at the time, which has since been service-connected. State what impact, if any, the Veteran’s low back disability has on his activities of daily living, including his ability to obtain and maintain employment. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that any back disability is due to or the result of a service-connected left knee disability. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that any back disability has been aggravated (permanently increased in severity beyond the natural progress of the disorder) by a service-connected left knee disability. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Zi-Heng Zhu, Associate Counsel