Citation Nr: 18158539 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 11-14 979A DATE: December 18, 2018 ORDER New and material evidence has been received to reopen a claim for service connection for periodontal disease. Entitlement to a compensable rating for a chin scar is dismissed. Entitlement to a total rating based on individual unemployability (TDIU) based on service-connected disabilities is dismissed. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include depression, insomnia and nightmares is remanded. Entitlement to service connection for skin irritations, to include due to an undiagnosed illness under 38 C F R § 3.317, is remanded. Entitlement to service connection for night sweats, to include due to an undiagnosed illness under 38 C F R § 3.317, is remanded. Entitlement to service connection for a disability manifested by nightmares, to include due to an undiagnosed illness under 38 C F R § 3.317, is remanded. Entitlement to an increased rating for a left knee disability is remanded. Entitlement to an increased rating for a left shoulder disability is remanded. Entitlement to an increased rating for hypertension is remanded. Entitlement to service connection for periodontal disease, to include for treatment purposes only pursuant to 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381 (a), 17.161 is remanded. FINDINGS OF FACT 1. A rating decision of February 1999 denied the Veteran’s claims of entitlement to service connection for periodontal disease. The Veteran was notified of the decision, but did not initiate an appeal and new and material evidence was not received within a year of that rating decision. 2. Since the February 1999 rating decision for entitlement to service connection for periodontal disease there has been new and material evidence produced which raises a reasonable possibility of substantiating the claim of service connection. 3. At his February 2018 hearing, the Veteran withdrew his claim of entitlement to a compensable rating for a chin scar. 4. At his February 2018 hearing, the Veteran withdrew his claim of entitlement to a disability rating due to individual unemployability. CONCLUSIONS OF LAW 1. The February 1999 rating decision, which denied the Veteran’s claims of entitlement to service connection for periodontal disease, is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103. 2. The evidence received since the February 1999 rating decision is new and material, and the claim of entitlement to service connection for periodontal disease is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for withdrawal of the appeal regarding the issue of entitlement to a compensable rating for a chin scar have been met. 38 U.S.C. § 7105; 38 C.F.R. §20.204. 4. The criteria for withdrawal of the appeal regarding the issue of entitlement to a total disability rating due to individual unemployability have been met. 38 U.S.C. § 7105; 38 C.F.R. §20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1978 to August 1980 and from August 1980 to August 1998. These matters come to the Board of Veteran’s Appeals (Board) from March 2009 and May 2011 rating decisions of a Regional Office (RO) of the Department of Veterans’ Affairs(VA). The March 2009 denial was previously remanded by the Board in April 2016 to schedule a hearing. The Veteran testified before the undersigned Veterans Law Judge during a February 2018 hearing and a copy of the transcript has been associated with the file. The March 2009 rating decision denied service connection for the Veteran’s claim for an acquired psychiatric disorder. The Veteran filed a substantive appeal in August 2014 on this issue and it was initially certified to the Board in December 2015. The Veteran also filed an August 2014 substantive appeal to the May 2011 rating decision for the following claims: entitlement to service connection for a disability manifested by nightmares, a disability manifested by night sweats, and a disability manifested by skin irritations, all to include as due to an undiagnosed illness; entitlement to service connection for periodontal disease; entitlement to increased ratings for degenerative arthritis of the left knee, arthritic changes of the left shoulder, hypertension, and a chin scar; and entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). These issues have not been certified to the Board, however, certification by the RO is an administrative procedure, not jurisdictional. A failure to certify an issue does not deprive the Board of jurisdiction of an issue properly appealed. See 38 C.F.R. § 19.35. Accordingly, the Veteran’s August 2014 appeal with respect to the May 2011 rating decision is before the Board. 1. Whether new and material evidence has been received to reopen a claim for service connection for periodontal disease. In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. See 38 U.S.C. § 5108. 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. 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, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the “credibility” of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The February 1999 rating decision that denied service connection cited the well-grounded claim standard as it was not a disability for which compensation could be established. The Veteran did have a history of periodontal disease while in service, however, it did not meet the requirements under 38 C.F.R. § 4.150 to be compensable. The Veteran failed to submit a notice of disagreement within one year of the February 1999 rating decision and no new and material evidence was received within one year of that rating decision. Therefore, this rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103 The Board notes that the Veteran’s initial claim and reopened claim were submitted prior to the February 29, 2012, and based upon new regulations, the Veteran may be entitled to service connection for the sole purposes of receiving VA outpatient dental services and treatment if certain criteria are met. See 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381 (a), 17.161. This is the effective date requiring the Veteran’s Benefits Administration to adjudicate a claim after the Veterans Health Administration has made a basic eligibility determination under the requirements of 38 C.F.R § 17.161 for the purposes of obtaining service connection for treatment purposes only. The record does not indicate that such a determination was made. The matter will be reopened to have the RO make a determination as to service connection for outpatient treatment due to in-service occurrences of periodontal disease. While it appears the Veteran’s disability still does not meet the standards regarding a compensable disability under current VA regulations there is a material possibility of service connection for treatment purposes. 2. Entitlement to a compensable rating for a chin scar. 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 appellant or by his or her authorized representative. 38 C.F.R. §20.204. During his February 2018 Board hearing, the Veteran and his representative withdrew the appeals regarding the issues of entitlement to compensable rating for the Veteran’s service connected chin scar. Hence, with respect to this issue, there remains no allegation of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeals and they are dismissed. 3. Entitlement to a total rating based on individual unemployability (TDIU) based on service-connected disabilities. 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 appellant or by his or her authorized representative. 38 C.F.R. §20.204. During his February 2018 Board hearing, the Veteran and his representative withdrew the appeals regarding the issues of entitlement to TDIU. Hence, with respect to this issue, there remains no allegation of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeals and they are dismissed. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include depression, insomnia, memory problems, nightmares, and night sweats is remanded. During his February 2018 hearing, the Veteran testified that he suffers from depression, insomnia, and nightmares that began while he was in service. See hearing transcript at 10-11. Specifically, being in the desert during the Gulf War and exposed to missiles and other enemy weapons. Id at 8. Service treatment records show that in September 1997 the Veteran experienced mental distress including depression and frequent trouble sleeping. See STRs at 3 and 6. The Veteran was afforded a VA mental health examination in January 2011. The examiner diagnosed the Veteran with moderate depression. He also noted the Veteran’s complaints of insomnia, memory problems, and nightmares, however he was unable to opine if the Veteran’s disabilities were related to military service, including service in SW Asia, without resorting to speculation. See January 2011 VA Examination at 8-9. The Board finds that a further opinion is needed to properly adjudicate this appeal, as it has been 8 years since the last examination was conducted. A new examination is required. See 38 C.F.R. § 3.327 (a) (“Generally, reexaminations will be required if it is likely that... there been a material change in a disability....”). When VA undertakes the effort to provide an examination, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303 (2007). 2. Entitlement to service connection for skin irritations, to include as an undiagnosed illness due to environmental hazards in Southwest Asia under 38 C F R § 3.317is remanded. The 2011 denial indicated there was no treatment for unexplained skin conditions in the Veteran’s record, but there is a notation of a skin rash in January 2009 with a possibility it was caused by a medication. See Medical Treatment Record- Government Facility at 62. The Veteran’s records also include numerous medications prescribed for skin conditions. The Compensation and Pension (C&P) examination the Veteran underwent in November 2010 reported no skin irritations at the time of the exam, and therefore no diagnosis was given. The Veteran testified to having many lesions on his head when he was released from service that have since resolved. See hearing transcript at 13. His testimony indicated he did not have his current rash during service and has never been given a diagnosis. His service treatment records note a rash on the inside of his thigh in December of 1997 and the lesions he complained of in this testimony in February 1997. See STR at 3 and 54. When VA undertakes the effort to provide an examination, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303 (2007). 3. Entitlement to service connection for night sweats, to include as an undiagnosed illness due to environmental hazards in Southwest Asia under 38 C F R § 3.317, is remanded. The Veteran testified that he believes the sweating that he experiences may be connected to his nightmares and that these may be part of his psychiatric disorder. The Veteran is unsure as to whether his night sweats are due to a physical or mental condition and therefore a physical examination will be requested in addition to the night sweats being considered as part of his psychiatric disorder. A new examination is required, as it has been 8 years since the last examination was conducted regarding the Veteran’s night sweats. See 38 C.F.R. § 3.327 (a) (“Generally, reexaminations will be required if it is likely that... there been a material change in a disability....”). 4. Entitlement to service connection for a disability manifested by nightmares to include as an undiagnosed illness due to environmental hazards in Southwest Asia under 38 C F R § 3.317, is remanded. The Veteran testified that he believes the nightmares that he experiences may be part of his psychiatric disorder. The Veteran is unsure as to whether his nightmares are due to a physical or mental condition and therefore a physical examination will be requested in addition to the nightmares being considered as part of his psychiatric disorder A new examination is required, as it has been 8 years since the last examination was conducted regarding the Veteran’s night mares. See 38 C.F.R. § 3.327 (a) (“Generally, reexaminations will be required if it is likely that... there been a material change in a disability....”). 5. Entitlement to an increased rating for a left knee disability is remanded. The Veteran was provided with a Statement of the Case (SOC) regarding his left knee disability on July 29, 2014 which continued the Veteran’s condition at a 10 percent rating. The Veteran subsequently filed a Supplemental Claim (VA Form 21-526b) in March 2015 regarding his left knee disability, which was treated as a new filing. The Veteran was provided with a C&P examination in July 2015 regarding his left knee. A rating decision from August 2015 continued the 10 percent evaluation regarding left knee degenerative arthritis with meniscus strain and granted service connection for the Veteran’s left knee arthritis extension. A Supplemental Statement of the Case (SSOC) has not been issued at this time regarding the Veteran’s initial claim for an increased evaluation of his left knee disability. When there has been additional evidence received after the issuance of a statement of the case the Veteran is entitled to a supplemental statement of the case. See 38 C.F.R. § 19.31. Thus, remand for issuance of a supplemental statement of the case on this issue is necessary. Manlincon v. West, 12 Vet. App. 238 (1999). 6. Entitlement to an increased rating for a left shoulder disability is remanded. The Veteran was provided with a Statement of the Case (SOC) regarding his left shoulder disability on July 29, 2014 which continued the Veteran’s condition at a 10 percent rating. The Veteran subsequently filed a Supplemental Claim (VA Form 21-526b) in March 2015 regarding his left shoulder disability. The Veteran was provided with a C&P examination in July 2015. A rating decision from August 2015 increased the evaluation of the Veteran’s service connected left shoulder disability to 20 percent. When there has been additional evidence received after the issuance of a statement of the case the Veteran is entitled to a supplemental statement of the case. See 38 C.F.R. § 19.31. Thus, remand for issuance of a supplemental statement of the case on this issue is necessary. Manlincon v. West, 12 Vet. App. 238 (1999). 7. Entitlement to an increased rating for hypertension is remanded. The Veteran underwent a C&P examination in 2010 for his service-connected hypertension. He was denied a higher evaluation at that time due to his blood pressure readings not meeting the criteria for a higher evaluation under the rating schedule. The Veteran’s blood pressure has since been reduced substantially through medications, however, the Veteran testified that he has side effects as a result of these medications. See hearing transcript at 27. The Veteran also testified that he believes he has dizzy spells, black outs, headaches, and is light headed as a result of his hypertension. The Veteran testified at his hearing that he has been given no formal diagnosis for these symptoms, but was sent for a heart monitoring study and neurological study regarding these symptoms. The Veteran’s treatment records reflect these tests in November 2016 and show no abnormalities. The Veteran was also provided with an ultrasound in November 2011 and stress test in December 2011 which yielded no explanation for the dizziness he experiences. See VA treatment records at 359-360. Based on the evidence provided by the Veteran of his condition worsening since the initial VA examination a new VA examination is necessary to determine the severity of his condition and any additional conditions related to his hypertension. 8. Entitlement to service connection for periodontal disease, to include for treatment purposes only pursuant to 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381 (a), 17.161 is remanded. As noted in the new and material evidence section above, the Board has recharacterized the dental issue on appeal to include a claim of entitlement to service connection for purposes of dental treatment. Effective February 29, 2012, the regulations provide that the Veterans Benefits Administration (VBA) will adjudicate a claim for service connection of a dental condition for dental treatment purposes after the Veterans Health Administration (VHA) has made a determination regarding basic eligibility under the requirements of 38 C.F.R. § 17.161. 38 C.F.R. § 3.381(a) (2017). At this point, the electronic claims file does not contain any determination by VHA regarding the Veteran’s eligibility for dental treatment. Therefore, the Board finds that a remand is necessary so that the VHA may adjudicate the issue of entitlement to service connection for dental treatment purposes in the first instance. The matters are REMANDED for the following action: 1. Provide the Veteran with an opportunity to identify any outstanding private or VA treatment records relevant to his claims. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. The last VA treatment records are from October 2017. 2. Schedule the Veteran for VA examinations by appropriate physician to address his claimed skin irritations, night sweats, and nightmares. The contents of the entire claims file, to include a complete copy of this REMAND as well as any new evidence subsequently added to the claims file, must be made available to the designated physician, and the examination report should include discussion of the Veteran’s documented medical history and assertions. Any indicated evaluations, studies, and tests should be conducted. Following a review of the claims file, the reviewing examiner is requested to furnish an opinion with respect to the following questions: (A) The examiner should identify all current diagnoses pertinent to the claimed skin irritations, night sweats, and nightmares since the date of the claim (B) For each currently diagnosis, the examiner should render an opinion as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such disability had its onset or is otherwise medically related to service. (C) For each diagnosis, the examiner should also opine as to whether such was at least as likely as not (i.e. a 50 percent or greater probability) caused OR aggravated (beyond natural progression) by the Veteran’s service-connected conditions.   3. After the above development is complete, schedule the Veteran for VA examination regarding his acquired psychiatric disability. The electronic claims file should be made available to and be reviewed by the examiner. All appropriate testing should be conducted. The examiner should identify any current acquired psychiatric disability the Veteran has presented during the claim from September 2008 forward For each diagnosis, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the disorder: (a) had an onset in service: (b) is otherwise related to an in-service injury, event, or diseases; or (c) was caused by or aggravated by the Veteran’s service connected disabilities. For any psychosis diagnosis, the examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the disorder manifested within a year of separation from service. The examiner should consider all medical and lay evidence of record. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide reasons as to why such speculation would be required. A complete rationale for all opinions expressed must be provided.   4. After undertaking the foregoing actions, schedule the Veteran for a VA examination by an appropriate medical professional to address his hypertension. The contents of the entire claims file, to include a complete copy of this REMAND as well as any new evidence subsequently added to the claims file, must be made available to the designated physician, and the examination report should include discussion of the Veteran’s documented medical history and assertions. Any indicated evaluations, studies, and tests should be conducted. Following a review of the claims file, the reviewing examiner is requested to furnish an opinion with respect to the following questions: (A) The examiner should determine the current severity of the Veteran’s hypertension and identify all current diagnoses connected to the Veteran’s hypertension and the Veteran’s reports of dizziness, light headedness, migraines, and black outs which he attributes to his hypertension. The examiner’s opinion should also address the side effects of any medications the Veteran is prescribed for his hypertension. (B) For each diagnosis, the examiner should render an opinion as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such disability had its onset or is otherwise medically related to service.   (C) For each diagnosis, the examiner should also opine as to whether such was at least as likely as not (i.e. a 50 percent or greater probability) caused OR aggravated (beyond natural progression) by the Veteran’s service-connected hypertension. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation (specifying the baseline level of disability and current level of severity, based on consideration of VA’s rating schedule). 5. Schedule the Veteran for an appropriate VA examination(s) to determine the severity of service-connected left shoulder disability. All necessary tests should be conducted, and the claims file should be provided to and reviewed by the examiner for the pertinent medical and other history. The examiner must determine the Veteran’s range of motion, including whether there is additional functional or other impairment on account of pain, weakness, premature or excess fatigability, and incoordination; whether there is ankylosis; and whether there is any associated instability. The testing must include range of motion testing for the following areas: active motion, passive motion, weight-bearing and nonweight-bearing. If the Veteran claims flare-ups, the examiner must offer an opinion on the level of severity of the Veteran’s claimed flare-ups based on estimates derived from information procured from relevant sources, including lay statements of the Veteran.   6. Schedule the Veteran for an appropriate VA examination(s) to determine the severity of service-connected left knee disabilities. All necessary tests should be conducted, and the claims file should be provided to and reviewed by the examiner for the pertinent medical and other history. The examiner must determine the Veteran’s range of motion, including whether there is additional functional or other impairment on account of pain, weakness, premature or excess fatigability, and incoordination; whether there is ankylosis; and whether there is any associated instability. The testing must include range of motion testing for the following areas: active motion, passive motion, weight-bearing and nonweight-bearing. If the Veteran claims flare-ups, the examiner must offer an opinion on the level of severity of the Veteran’s claimed flare-ups based on estimates derived from information procured from relevant sources, including lay statements of the Veteran. 7. After obtaining any additional evidence pertinent to the periodontal claim as well as developing the claim in any matter deemed appropriate, refer the Veteran’s claim of entitlement to service connection for periodontal disease for dental treatment purposes to VHA for adjudication of Class eligibility in the first instance under 38 C.F.R. § 3.381 & 38 C.F.R. § 17.161 and after any such determination readjudicate the matter regarding service connection for treatment purposes and as a compensable disability.   8. Provide the Veteran with a supplemental statement of the case regarding the issues remanded in this opinion. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Middleton, Associate Counsel