Citation Nr: 18161184 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 14-43 524 DATE: December 28, 2018 ORDER The petition to reopen a claim of entitlement to service connection for a back disability, to include degenerative disc disease, is granted. The claim of entitlement to service connection for right knee degenerative joint disease is dismissed. The claim of entitlement to service connection for a disability manifested by sleep disturbances is dismissed. The claim of entitlement to service connection for irritable bowel syndrome (IBS) is dismissed. The claim of entitlement to restoration of a 10 percent rating for left ankle fracture residuals, following reduction of the rating to 0 percent, is dismissed. REMANDED The claim of entitlement to service connection for a back disability, to include degenerative disc disease, is remanded. The claim of entitlement to service connection for hypertension, to include as secondary to posttraumatic stress disorder (PTSD) with substance abuse disorder, is remanded. The claim of entitlement to service connection for type II diabetes mellitus / hyperglycemia, to include as secondary to PTSD with substance abuse disorder, is remanded. The claim of entitlement to a rating in excess of 10 percent for left knee degenerative changes is remanded. The claim of entitlement to a compensable rating for hemorrhoids is remanded. The claim of entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance (A&A) of another person or at the housebound rate is remanded. FINDINGS OF FACT 1. The Veteran’s claim of entitlement to service connection for a back disability was denied by a May 1998 RO rating decision. The appellant was notified of the decision, but did not appeal the denial. No new and material evidence on the matter was received by VA within one year following the rating decision. 2. Evidence submitted since the May 1998 RO rating decision pertaining to the back disability issue includes evidence that is not cumulative and redundant of prior evidence, and the evidence relates to an unestablished fact necessary to substantiate the claim. 3. Prior to promulgation of a decision by the Board, the Veteran withdrew his appeal seeking to establish entitlement to service connection for right knee degenerative joint disease. 4. Prior to promulgation of a decision by the Board, the Veteran withdrew his appeal seeking to establish entitlement to service connection for a disability manifested by sleep disturbances. 5. Prior to promulgation of a decision by the Board, the Veteran withdrew his appeal seeking to establish entitlement to service connection for IBS. 6. Prior to promulgation of a decision by the Board, the Veteran withdrew his appeal seeking to establish entitlement to restoration of a 10 percent rating for left ankle fracture residuals, following reduction of the rating to 0 percent. CONCLUSIONS OF LAW 1. The criteria for reopening the claim of entitlement to service connection for a back disability have been satisfied. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104(a), 3.156. 2. The criteria for withdrawal of the Veteran’s Substantive Appeal have been met with regard to the claim of entitlement to service connection for right knee degenerative joint disease. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.202, 20.204. 3. The criteria for withdrawal of the Veteran’s Substantive Appeal have been met with regard to the claim of entitlement to service connection for a disability manifested by sleep disturbances. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.202, 20.204. 4. The criteria for withdrawal of the Veteran’s Substantive Appeal have been met with regard to the claim of entitlement to service connection for IBS. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.202, 20.204. 5. The criteria for withdrawal of the Veteran’s Substantive Appeal have been met with regard to the claim of entitlement to restoration of a 10 percent rating for left ankle fracture residuals, following reduction of the rating to 0 percent. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.202, 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1976 to August 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, dated in August 2012, January 2013, September 2013, and November 2014. The Veteran testified before the undersigned at a Board videoconference hearing in July 2018. The Board briefly notes that there has been some uncertainty regarding whether the Veteran perfected an appeal on the matter concerning a reduction of his left ankle disability rating. The Board finds that the Veteran’s pertinent December 2014 VA Form 9 included his mark in the box to appeal “ALL OF THE ISSUES LISTED ON THE STATEMENT OF THE CASE.” The Board finds that this formally perfected an appeal on the left ankle issue that was listed in the pertinent November 2014 statement of the case. Notably, as discussed below, the Veteran has since clearly informed VA (in a July 2018 signed written statement) that he now wishes to withdraw the appeal on the left ankle issue (amongst other issues withdrawn). The Board has accordingly recognized the perfected appeal on the left ankle issue, and the Board has also recognized the Veteran’s subsequent request to withdraw that issue from appeal. 1. The petition to reopen a claim of entitlement to service connection for a back disability is granted. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 United States Court of Appeals for Veterans Claims (Court) has held that the phrase ‘raises a reasonable possibility of establishing the claim’ must be viewed as enabling rather than precluding reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. A claimant may submit an application or claim to reopen a disallowed claim, when VA must provide some limited assistance. See Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334, 1341 (Fed. Cir. 2003) (VA will perform document gathering assistance even before claim is reopened); see 38 C.F.R. § 3.159(c)(1)-(3). Absent the submission of evidence that is sufficient to reopen the claim, the Board’s analysis must cease. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). The Board may not then proceed to review the issue of whether the duty to assist has been fulfilled, or undertake an examination of the merits of the claim. Regardless of whether the RO found new and material evidence to reopen a claim, the Board is not bound by such a determination and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Board will therefore undertake a de novo review of the new and material evidence determinations required to resolve the Veteran’s petitions to reopen the claims of entitlement to service connection. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Disorders diagnosed after discharge may still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection for the claimed disorder, there must be evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Board notes that it has reviewed all of the evidence in the Veteran’s claims file, including in VA’s electronic data storage system, with an emphasis on the evidence relevant to this appeal. Under 38 C.F.R. § 3.310, service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury, or for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every piece of evidence of record in detail. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. A May 1998 RO rating decision denied service connection for a back disability claimed as lumbar strain. The basis of the denial of service connection for the back disability featured the RO’s finding that “[t]he evidence regarding low back pain fails to show a disability for which compensation may be established.” The Veteran did not timely appeal the May 1998 denial, as no notice of disagreement was filed within a year of the decision’s issuance. See 38 C.F.R. § 20.302(a). No new and material evidence pertinent to this issue was submitted within a year following the May 1998 denial of the claim. 38 C.F.R. § 3.156(b). The May 1998 RO denial is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104(a), 20.302. In October 2008, the Veteran filed a petition to reopen the claim for service connection for a back disability. An August 2009 RO rating decision denied the petition to reopen. As explained in the November 2014 statement of the case, the RO later determined that the August 2009 RO rating decision did not become a final decision because the Veteran made a request for reconsideration of that decision in August 2010, and that request for reconsideration remained pending at the time of the August 2012 readjudication of the issue leading to the appeal currently before the Board. The Board finds no reason to disturb the RO’s finding in this regard, and the May 1998 RO rating decision is the prior final decision regarding entitlement to service connection for a back disability. The Board finds that new and material evidence has been received to reopen the claim of entitlement to service connection for a back disability. Specifically, the new and material evidence features an October 2014 Disability Benefits Questionnaire which diagnosed degenerative disc disease of the lumbar spine (included among a set of VA medical records added to the claims-file in October 2015, citing an August 2009 X-ray study as supporting the diagnosis). The prior final denial of the Veteran’s claim found no showing of such a disability, thus the new evidence medically demonstrating the diagnosis of the pertinent back disability is evidence material to the matter. The Board finds that new and material evidence has been submitted on the issue of entitlement to service connection for a back disability following the prior final denial of the claim. Accordingly, the Board has reopened the claim of entitlement to service connection for a back disability for consideration on the merits at this time. 2. The claim of entitlement to service connection for right knee degenerative joint disease is dismissed. 3. The claim of entitlement to service connection for a disability manifested by sleep disturbances is dismissed. 4. The claim of entitlement to service connection for IBS is dismissed. 5. The claim of entitlement to restoration of a 10 percent rating for left ankle fracture residuals, following reduction of the rating to 0 percent, is dismissed. In a July 2018 signed written statement, the Veteran notified VA that he wished to “withdraw the following issues from my pending appeal: S/C De-generative R knee, S/C IBS, and S/C for sleep disturbances, Propriety of reduction L ankle condition.” Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege a specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing or at a Board hearing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. With regard to the issues of entitlement to (1) service connection for right knee degenerative joint disease, (2) service connection for disability manifested by sleep disturbances, (3) service connection for IBS, and (4) restoration of a 10 percent rating for left ankle fracture residuals, the Veteran has properly withdrawn his appeal before the Board. Therefore, there remain no allegations of errors of fact or law for appellate consideration regarding these issues. Accordingly, the Board does not have jurisdiction to review these issues on appeal, and the appeal is dismissed to this extent. REASONS FOR REMAND Preliminarily, the Board notes that discussion on the record during the July 2018 Board hearing identified that the Veteran has received pertinent VA medical treatment more recently than is documented in the claims-file. The most recent update of the set of VA medical records associated with the Veteran’s claims-file added records from no more recently than October 2015. During the July 2018 Board hearing, the Veteran and his representative expressed an intention to have pertinent VA medical records from after October 2015 considered in the adjudication of his claims; the Veteran and his representative expressed an intention to request that VA update his claims-file with the set of the Veteran’s VA treatment records from October 2015 to the present. However, it appears that the Veteran was unable to initiate a new VA update of the set of VA medical records in his claims-file, and the updated reports have not been added to the claims-file. Although the Veteran submitted 25 pages of various medical records from multiple sources, including some small quantity of VA medical records (some of which are from prior to October 2015), it is clear that the complete set of potentially pertinent VA medical records from October 2015 onward has not yet been associated with the claims-file. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. Such records must be obtained and made available for review in the claims-file. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Additional development is also needed to support adequately informed appellate review of each issue remaining on appeal. 1. The claim of entitlement to service connection for a back disability, to include degenerative disc disease, is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a back disability because no VA examiner has offered an opinion addressing the pertinent question of whether the Veteran’s current back disability is etiologically / causally linked to his significant history of in-service parachute jumps and injuries suffered in some of those jumps, including an injury resulting in a broken leg. The Veteran’s presentation on this matter during the July 2018 Board hearing made clear the significance of the in-service parachute jump experiences to his contentions for this claim. The Board finds that the VA examination reports of record, including the August 2009 and October 2014 VA examination reports, do not acknowledge the Veteran’s significant parachute jump experience and injury history in connection with considering the etiology of his back disability. A new medical opinion (with a new examination if medically necessary) is needed to support informed review of the Veteran’s contentions in this case. 2. The claim of entitlement to service connection for hypertension, to include as secondary to PTSD with substance abuse disorder, is remanded. The Veteran has not been afforded a VA examination with medical opinion addressing the critical medical questions raised in this case. The Board notes that the Veteran’s service treatment records document the Veteran’s apparent report of a history of high blood pressure in his June 1997 service separation examination report, and an accompanying medical note in the “Physician’s Summary” also refers to “high blood pressure.” A remand is warranted for the purpose of arranging a VA examination with medical opinion to address the question of whether the documented concerns of high blood pressure in the Veteran’s service treatment records, in the context of the other evidence of record, may support a medical finding that it is at least as likely as not (a 50 percent or greater probability) that the Veteran has a hypertension disability that had onset or causation during his military service. Additionally, the Board notes that the Veteran has raised a secondary theory of service connection in his contention that his service-connected PTSD with substance abuse disorder has caused or aggravated his claimed hypertension, directing attention in particular to his unhealthy dietary and substance abuse behaviors. The forthcoming development shall further support informed appellate review by obtaining a medical opinion addressing the Veteran’s contentions in this regard. A medical opinion should address the question of whether the features of the Veteran’s service-connected PTSD with substance abuse disorder may support a medical finding that it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s claimed hypertension has been caused or aggravated by the service-connected disability. 3. The claim of entitlement to service connection for type II diabetes mellitus / hyperglycemia, to include as secondary to PTSD with substance abuse disorder, is remanded. The Veteran has raised a secondary theory of service connection in his contention that his service-connected PTSD with substance abuse disorder has caused or aggravated his claimed type-II diabetes mellitus / hyperglycemia, directing attention in particular to his unhealthy dietary and substance abuse behaviors. The Board finds that a remand is warranted for the purpose of arranging a VA examination with medical opinion to address the question of whether the features of the Veteran’s service-connected PTSD with substance abuse disorder may support a medical finding that it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s claimed type-II diabetes mellitus / hyperglycemia has been caused or aggravated by the service-connected disability. 4. The claim of entitlement to a rating in excess of 10 percent for left knee degenerative changes is remanded. 5. The claim of entitlement to a compensable rating for hemorrhoids is remanded. At his July 2018 Board hearing, the Veteran specifically testified that he has experienced an increase in the severity of his left knee and IBS symptoms since the time of his most recent pertinent VA rating examinations in May 2011 (more than 7 years ago). The Veteran should be provided an opportunity to report for new VA examinations to ascertain the current severity and manifestations of the service-connected left knee and IBS disabilities. With regard the left knee issue in particular, the Board notes that a new VA examination shall have the opportunity to provide the findings necessary to satisfy the requirements of the holdings of the United States Court of Appeals for Veterans Claims (Court) in Correia v. McDonald, 28 Vet. App. 158 (2016) and in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). 6. The claim of entitlement to SMC based on the need for regular aid and attendance A&A of another person or at the housebound rate is remanded. The Court has held that two issues are inextricably intertwined when they are so closely tied together that a final decision cannot be rendered unless both issues have been considered. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Thus, the Board must defer final adjudication of the claim seeking SMC until the separate appeals regarding the Veteran’s claimed entitlements to increased ratings for his service-connected disabilities and claimed entitlements to service connection for additional disabilities have been fully developed and prepared for informed appellate review. A remand of the claim for SMC is required. The matters are REMANDED for the following action: 1. Associate with the claims-file any outstanding pertinent treatment records, including additional VA treatment records (such as those that may have been created since October 2015). 2. After the record is determined to be complete, obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s back disability is at least as likely as not causally / etiologically related to his history of numerous parachute jumps during military service, to include consideration of impact injuries suffered during landings (including an incident in which he suffered a broken leg). A new examination of the Veteran should be arranged if deemed medically necessary to preparation of the opinion. The Veteran’s claims-file should be made available for review by the examiner. The examiner should review the file, and this fact should be noted in the accompanying medical report. The examiner should diagnose any current disability and must opine as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any such disability began during or is otherwise related to his military service. The examiner must discuss, as necessary, documentation of pertinent incidents and/or symptom complaints in the Veteran’s service treatment records. Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 3. After the record is determined to be complete, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his claimed hypertension. The Veteran’s claims-file should be made available for review by the examiner. The examiner should review the file, and this fact should be noted in the accompanying medical report. The examiner should diagnose any current disability and must opine as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any such disability began during or is otherwise etiologically related to his military service. The examiner must discuss, as necessary, documentation of pertinent symptom complaints in the Veteran’s service treatment records. The examiner should discuss the significance, if any, of the in-service notations of “high blood pressure” in the Veteran’s June 1997 service separation examination report. The examiner must also opine as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any hypertension has been caused by any service-connected disability, specifically including substance abuse and dietary habits attributable to the Veteran’s service-connected PTSD with substance abuse disorder. The examiner must also opine as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any hypertension has been aggravated (increased in severity) by any service-connected disability, specifically including substance abuse and dietary habits attributable to the Veteran’s service-connected PTSD with substance abuse disorder. Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 4. After the record is determined to be complete, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his claimed type-II diabetes mellitus / hyperglycemia. The Veteran’s claims-file should be made available for review by the examiner. The examiner should review the file, and this fact should be noted in the accompanying medical report. The examiner should diagnose any current disability and must opine as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any such disability began during or is otherwise etiologically related to his military service. The examiner must discuss, as necessary, documentation of pertinent symptom complaints in the Veteran’s service treatment records. The examiner must also opine as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any type-II diabetes mellitus / hyperglycemia has been caused by any service-connected disability, specifically including substance abuse and dietary habits attributable to the Veteran’s service-connected PTSD with substance abuse disorder. The examiner must also opine as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any type-II diabetes mellitus / hyperglycemia has been aggravated (increased in severity) by any service-connected disability, specifically including substance abuse and dietary habits attributable to the Veteran’s service-connected PTSD with substance abuse disorder. Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 5. After the record is determined to be complete, schedule the Veteran for an examination of the severity of his service-connected left knee disability. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should identify and completely describe all current symptomatology. (a) The examiner must test the Veteran’s ranges of motion on active motion, passive motion, and with weight-bearing and without weight-bearing (including testing for pain), as well as in comparison to the opposite joint (right knee). 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. (b) The examiner should also render, if possible to do so without resorting to mere speculation, a retrospective opinion that identifies active motion, passive motion, pain with weight-bearing and without weight-bearing (to the extent medically appropriate) at each time the left knee disability was previously examined with documented range of motion testing for VA rating purposes. (c) The VA examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups, and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. The VA examiner should assess or estimate the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If an opinion cannot be provided without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. A rationale should be provided for each medical opinion presented. 6. Schedule the Veteran for a VA examination to determine the current severity of his hemorrhoids. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The Veteran’s claims folder must be reviewed by the examiner in conjunction with the examination. The examiner should identify and completely describe all current symptomatology. 7. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to SMC. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental   Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Barone, Counsel