Citation Nr: 1808728 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 11-15 165 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for headaches. 2. Whether new and material evidence has been received to reopen a claim for service connection for numbness of the fingertips. 3. Whether new and material evidence has been received to reopen a claim for service connection for erectile dysfunction (previously claimed as decreased sex drive, and loss of use of creative organ). 4. Whether new and material evidence has been received to reopen a claim for gastroesophageal reflux disease (GERD) (previously claimed as gastrointestinal symptoms, and stomach problems). 5. Entitlement to service connection for headaches. 6. Entitlement to service connection for numbness of the fingertips. 7. Entitlement to service connection for erectile dysfunction (previously claimed as decreased sex drive, and loss of use of creative organ). 8. Entitlement to service connection for gastroesophageal reflux disease (GERD) (previously claimed as gastrointestinal symptoms, and stomach problems). 9. Entitlement to service connection for a back disability, as secondary to service-connected knee disabilities. 10. Entitlement to service connection for joint pain, to include as due to an undiagnosed illness. 11. Entitlement to service connection for muscle pain, to include as due to an undiagnosed illness. 12. Entitlement to an increase evaluation in excess of 10 percent for a right knee disability. 13. Entitlement to an increase evaluation in excess of 10 percent for left knee disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD I. Cannaday, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from February 1976 to February 1979; November 1979 to September 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. Although a May 1993 rating decision denied the Veteran's claim of entitlement to service connection for numbness of the fingertips, the Board finds that new and material evidence has been submitted sufficient to reopen the claim. See Bd. Hrg. Tr. at 27. Similarly, a November 1997 rating decision denied the Veteran's claim of entitlement to service connection for decreased sex drive, stomach problems and denied a reopening of the Veteran's headache claim. As reflected on the title page, it appears as if the Veteran's claim for a decreased sex drive is the same issue as his erectile dysfunction claim, and that his GERD claim is the same as his stomach problems claim. Upon review, the Board finds that new and material evidence has been submitted sufficient to reopen the claims denied by the November 1997 rating decision. See Bd. Hrg. Tr. at 17, 21, 22. A hearing was held before the undersigned Veterans Law Judge in October 2017. A transcript of the hearing is of record. The undersigned Veterans Law Judge held the record open for a 30-day period following the hearing to allow for the submission of additional evidence. To date, the Veteran has not submitted additional documentation. The issues of an increased evaluation for service-connected left and right knee disabilities, and entitlement to service connection for headaches, numbness of the fingertips, erectile dysfunction, GERD, joint pain, and a back disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In October 2017, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he has requested a withdrawal of his appeal for his entitlement to service connection for muscle pain claim. 2. In a May 1993 rating decision, the AOJ denied the Veteran's entitlement to service connection claim for numbness of the fingertips. The Veteran was notified of his appellate rights, but did not file a Notice of Disagreement within one year of the rating decision, or submit new and material evidence within the one-year period thereafter. 3. The evidence received since the May 1993 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate entitlement to service connection for numbness of the fingertips. 4. In a November 1997 rating decision, the AOJ denied the Veteran's entitlement to service connection claim for decreased sex drive, stomach problems a denied a reopening of an entitlement to service connection for headaches claim. The Veteran was notified of his appellate rights, but did not file a Notice of Disagreement within one year of the rating decision, or submit new and material evidence within the one-year period thereafter. 5. The evidence received since the November 1997 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate entitlement to service connection for erectile dysfunction GERD, and headaches. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the denial of service connection for muscle pain claim have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The May 1993 rating decision denying service connection for numbness of the fingertips is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1992). 3. New and material evidence has been received sufficient to reopen the claim for service connection for numbness of the fingertips. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a) (2017). 4. The November 1997 rating decision denying the reopening of a service connection claim for headaches is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1998). 5. New and material evidence has been received sufficient to reopen the claim for service connection for headaches. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a) (2017). 6. The November 1997 rating decision denying service connection for erectile dysfunction is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1998). 7. New and material evidence has been received sufficient to reopen the claim for service connection for erectile dysfunction. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a) (2017). 8. The November 1997 rating decision denying service connection for GERD is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1998). 9. New and material evidence has been received sufficient to reopen the claim for service connection for GERD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 (2012). 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 (2017). Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204. Withdrawal of an appeal will be deemed a withdrawal of the Notice of Disagreement and, if filed, the Substantive Appeal, as to all issues to which the withdrawal applies. 38 C.F.R. § 20.204 (c). In the present case, at the October 2017 Board hearing, the Veteran and his representative indicated that the Veteran would like to withdraw the issue of entitlement to service connection for muscle pain. Subsequently, the undersigned confirmed the Veteran's intent to withdraw the issue, and stated on record that the issue was withdrawn. Id. at 3. Given the Veteran's withdrawal of this issue, there remain no allegations of errors of fact or law for appellate consideration regarding the evaluation of the Veteran's muscle pain. Accordingly, the Board does not have jurisdiction, and the claim is dismissed. ORDER Entitlement to service connection for muscle pain is dismissed. New and material evidence having been submitted, the claim for headaches is reopened. New and material evidence having been submitted, the claim for numbness of the fingertips is reopened. New and material evidence having been submitted, the claim for GERD is reopened. New and material evidence having been submitted, the claim for erectile dysfunction is reopened. REMAND The Veteran was last afforded an examination for his service-connected left and right knee disabilities in March 2015. The Board finds that the record indicates a possible worsening of his condition since that examination, such that a new VA examination is warranted. See Snuffer v. Gober, 10 Vet.App. 400, 403 (1997). Specifically, the Veteran testified that his disabilities have worsened since his last examination. See Bd. Hrg. Tr. at 5. The Veteran was last afforded a VA examination for his back disability in March 2009. At that examination, the examiner noted diagnosed conditions of facet syndrome, thoracic pain, myofasciitis, cervicalgia, and lumbalgia. He then diagnosed the Veteran with low back pain. The examiner then opined that the Veteran's service-connected bilateral knee condition did not cause or aggravate the Veteran's low back disability. In so finding, the examiner stated that the Veteran's knee disability is not a recognized cause for low back discomfort, pain or disability. However, subsequent to the examination the Veteran testified that his back injury occurred because he compensated for his service-connected knee injury while he ambulated. See Bd. Hrg. Tr. at 32. Further, while the examiner stated that the Veteran's knee disability is not a recognized cause for low back discomfort, he did not fully explain how he came to that conclusion. Moreover, the examiner appeared to only opine on the Veteran's low back. However, the record does not reflect that the Veteran's back claim should be limited to a low back disability. Thus, the Board finds this opinion is inadequate to decide the claim and a new opinion that addressed the above should be obtained. To date, the Veteran has not been afforded a VA examination to determine the nature and likely etiology of the claimed erectile dysfunction, joint pain, or numbness in his fingertips. An examination or medical opinion is warranted when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability; the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A (d) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, evidence shows that the Veteran has erectile dysfunction, chronic pain in his finger and forearm, and has complained of joint pain. See July 2014 VA treatment record; March 2016 VA treatment record. Additionally, the Veteran testified that he believed that he had erectile dysfunction while in service or shortly after separation. See Bd. Hrg. Tr. at 19. He testified that his fingers began to tingle and go numb in service. Id. at 25. Further, the record reflects that the Veteran's joint pain may be due to an undiagnosed illness. See Bd. Hrg. Tr. at 13. Indeed, the Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War. Thus, on remand, a VA examination should be provided for the Veteran's erectile dysfunction, and numbness of the fingertips. Moreover an opinion regarding whether the Veteran's joint pain is due to an undiagnosed illness is necessary. The Veteran was afforded a VA examination for his headaches and stomach problems in August 1996. At that examination, the examiner noted that the Veteran has had headaches since 1994. The examiner stated that the Veteran's headaches were daily, but occurred about every two weeks. He noted that the headaches lasted about thirty to sixty minutes. Regarding the stomach issue, the examiner stated that the Veteran developed intolerance to milk products, and that he would develop cramping and epigastric pain and excess gas. The examiner diagnosed the Veteran with headaches, and intolerance to milk but did not provide a nexus opinion. Since that examination, evidence shows that the Veteran has been diagnosed with GERD. See March 2016 VA treatment record. The Board notes that the Veteran testified that medication given to him while in service may have been the cause of his GERD. See Bd. Hrg. Tr. at 15. It is unclear from the record, if the Veteran's intolerance to milk diagnosis is related to his diagnosed GERD. Hence, the Board lacks sufficient medical evidence to render a decision on these issues. See McClendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). Thus, a VA opinion should be obtained. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his left and right knee disabilities, headaches, GERD, erectile dysfunction, joint pain, back disability, and numbness of the fingertips. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA treatment records. 2. The AOJ should obtain an opinion to determine the nature and etiology of any current joint pain. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following review of the record, the examiner should opine as to whether it is at least as likely as not (a 50 percent probability or more) that the Veteran currently has joint pain that manifested in service or is otherwise causally or etiologically related to his military service. It should be noted that the Veteran is competent to attest to factual matters of which he had 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. If any symptomatology cannot be attributed to a known clinical diagnosis, the examiner should describe pertinent objective findings related to such symptomatology. If the Veteran has any symptomatology that is not attributable to a known clinical diagnosis, the examiner should opine as to whether it is at least as likely as not that there are symptoms due to any undiagnosed illness, or a medically unexplained chronic multi-symptoms illness resulting service in Southwest Asia during the Gulf War. If so, the examiner should also comment on the severity of the symptomatology and report all signs and symptoms necessary for evaluating the illness under the rating criteria. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. The Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected left and right knee disabilities. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service-connected left and right knee disabilities. After examining the Veteran and reviewing the record, the examiner should report all signs and symptoms necessary for rating the Veteran's disability. In particular, the examiner should provide the range of motion in degrees and indicate whether there is any ankylosis. In so doing, the examiner should test the Veteran's range of motion in both knees 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. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors, including additional limitation of motion. 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. As 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 Veterans' claims file, or, in the alternative, the entire claims file, must be made available to the examiner for review. 4. The AOJ should obtain a VA opinion to determine the nature and etiology of the Veteran's claimed erectile dysfunction, numbness of the fingertips, GERD, headaches, and back disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Specifically, the examiner should opine as to whether it is at least as likely as not that the Veteran's disabilities manifested in service or are otherwise causally or etiologically related to his military service. Regarding the GERD, the examiner should note that the Veteran testified that medication given to him while in service may have been the cause of his GERD. See Bd. Hrg. Tr. at 15. Additionally, the examiner should discuss whether the Veteran's previously diagnosed intolerance to milk is related to his currently diagnosed GERD. The examiner should also provide an opinion as to whether it is at least likely as not (a 50 percent probability or more) that any diagnosed back disability was caused or aggravated by the Veteran's service-connected knee disabilities. The examiner should address the Veteran's contention that he compensates for his service-connected knee injury when he ambulates, which he feels contributes to his back disability. See Bd. Hrg. Tr. at 32. Additionally, the examiner should note a January 2008 private treatment record which reflects that the Veteran was diagnosed with facet syndrome, thoracic pain, cervicalgia, lumbalgia, and myofaciitis. The examiner is requested to review all pertinent records associated with the claims file, to include the Veteran's, post-service medical records, and lay assertions. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. 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 term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. In the event that the Veteran does not report for any scheduled examinations, documentation should be obtained which shows that notice scheduling the examination was sent to his last known address. It should also be indicated whether any notice sent was returned as undeliverable. 6. The AOJ should review the claims file and ensure that the foregoing development actions have been conducted and completed. 7. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 8. When the development has been completed, the case should be reviewed by the AOJ on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs