Citation Nr: 18123746 Decision Date: 08/02/18 Archive Date: 08/02/18 DOCKET NO. 15-13 107 DATE: August 2, 2018 ORDER The appeal on the issue of entitlement of service connection for left ear hearing loss is dismissed. The application to reopen the claim for service connection for left lower extremity arthritis is granted. The application to reopen the claim for service connection for left lower extremity nerve/neuropathy damage is granted. The application to reopen the claim for service connection for left knee disorder is granted. REMANDED Entitlement to service connection for left lower extremity arthritis is remanded. Entitlement to service connection for left knee disorder is remanded. Entitlement to service connection for left lower extremity nerve/neuropathy damage is remanded. FINDINGS OF FACT 1. At the May 2018 hearing, the Veteran through his representative informed the Board that he wished to withdraw his appeal of service connection for left ear hearing loss. 2. In May 2011, the RO denied service connection for left knee disorder and left lower extremity nerve/neuropathy damage. 3. Evidence received since the May 2011 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for left knee disorder and left lower extremity nerve/neuropathy damage. 4. In a December 2011, the RO denied service connection for left lower extremity arthritis. 5. Evidence received since the May 2011 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for left lower extremity arthritis. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal by the Veteran on the issue of entitlement to service connection for left ear hearing loss. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The May 2011 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 3. Evidence received since the May 2011 rating decision is new and material and the claims for service connection for left knee disorder and left lower extremity neuritis/neuropathy damage are reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 4. The December 2011 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 5. Evidence received since the December 2011 rating decision is new and material and the claim for service connection for left lower extremity arthritis is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1971 to January 1974. The Veteran appeared at a Board hearing in May 2018; a transcript is of record. With respect to the Board hearing, the undersigned VLJ clarified the issues on appeal, identified potential evidentiary deficits, and clarified the type of evidence that would support the Veteran’s claim. These actions complied with any duties owed during a hearing. 38 C.F.R. § 3.103. Withdrawn Appeal Only an appellant, or an appellant’s authorized representative, may withdraw an appeal. An appeal may be withdrawn as to any or all issues involved in the appeal. 38 C.F.R. § 20.204(a). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204 (b)(1). The Board of Veterans’ Appeals may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (d)(5). In May 2018, the Veteran and his representative clarified the issues at a prehearing conference. In the instant case, the Veteran and his representative indicated that the issue of service connection for left ear hearing loss disability was withdrawn. The decision was informed and voluntary. Accordingly, the Board does not have jurisdiction to review this particular issue on appeal, and it is dismissed. New and Material Evidence A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 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). Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. The evidence that is considered in determining whether new and material evidence has been submitted is that evidence received by VA since the last final disallowance of the Veteran’s claim on any basis. See Evans v. Brown, 9 Vet. App. 273 (1996). 1. & 2. Left lower extremity nerve/neuropathy damage & left knee disorder In October 2010, a rating decision denied the Veteran’s claim for left knee disorder and nerve/neuropathy damage. The evidence of record included a medical treatment, lay statements indicating current issues with the lower left extremity, service records, April 2009 and May 2010 VA contractor examinations for residuals of status post left foot fracture, and other miscellaneous letters and correspondence. Regarding the left knee disorder, the evidence of record included a medical record dated in June 2010 showing that the Veteran had a medial meniscus tear. The rating decision found there was no medical evidence that a medial meniscus tear was due to service or due service-connected residuals, status post left foot fracture. The Veteran’s residuals, status post left foot fracture include symptoms of chronic foot pain and tenderness with calcaneal spurring. See April 2009 and May 2010 VA contractor examinations. Regarding neuropathy, the October 2010 rating decision stated there was no evidence of record showing treatment during active duty and no medical evidence showing “that this condition has been clinically diagnosed. Service connection is denied because there is no established diagnosis for left lower extremity nerve/neuropathy damage.” The Veteran submitted additional evidence from October 2010 to May 2012. Specifically, the Veteran submitted additional lay statements, medical records, and an additional VA examination of the left foot in May 2011. A Decision Review Office (DRO) adjudicated the claims in May 2011 and again denied the claims, as there was no nexus for the medial meniscus tear or a knee disability generally and service and no neurological disability. The Regional Office (RO) notified the Veteran of this decision the same month as the decision. In essence, there was no nexus between medial meniscus tear and service and no evidence of a disability associated with neuropathy. The Veteran did not file a notice of disagreement for the denial of service connection for a knee disability or neuropathy and new and material evidence was not received within the one-year appeal period. Thus, the decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 20.1103. The Veteran filed a claim in March 2014, which was denied in a rating decision in December 2014 as a claim requiring new and material evidence. The Veteran submitted VA treatment records dated in May 2016 from a podiatrist. The summary section of this record reports the Veteran stated he had “traumatic injury in the 1970s while performing aircraft maintenance and a heavy object rolled over his left mid/fore foot that reportedly broke multiple bones and was treated conservatively.” The podiatrist noted “intermittent abnormal sensation in his left leg . . . tingling, pins/needles sensation.” Assessment was “post[-]traumatic neuritis,” as well as “post[-]traumatic arthritis.” For neuropathy, this medical record is new and material. As the claim for neuropathy was previously denied based on there being no disability and the Veteran has submitted evidence of neuritis, the claim is reopened. As to the left knee disorder, the Veteran has been found to have had a meniscus tear, VA records indicate current knee pain, and VA records show possible trauma-related injury having caused left lower extremity arthritis. During his May 2018 Board hearing, the Veteran and his agent related his knee problems to his foot, stating “the foot [disability] has caused the knee problem.” As explained in the next section, there is sufficient evidence to satisfy the standard required for reopening for left lower extremity arthritis. The Board will likewise reopen and remand the claim for a knee disorder as possibly secondary to left lower extremity arthritis based on new and material evidence of in-service trauma causing arthritis, as the Veteran contends his knee disorder is secondary to left lower extremity arthritis. 3. Left lower extremity arthritis In October 2010, a rating decision denied the claim for service connection on a direct basis for left lower extremity arthritis as there was “no records following active duty service showing a diagnosis of left lower extremity arthritis. The medical evidence submitted in support of your claim fails to show that this condition has been clinically diagnosed.” In the May 2011 DRO decision, the RO again denied the claim for left lower extremity arthritis secondary to service-connected residuals, status post left foot fracture. The basis of the denial remained the same, that the Veteran’s medical records do “not show that you have been diagnosed with left lower extremity arthritis” and that left lower extremity arthritis has not been found to be “medically related to the service-connected disability of residuals, status post left foot fracture.” The Veteran and his agent submitted additional evidence shortly after the May 2011 DRO decision. Namely, a June 2011 letter from the Veteran’s agent regarding in-service treatment records of the sesamoid peroneus brevis tendon (which the representative described as demonstrating “arthritis secondary to left foot”), a June 2011 statement from the Veteran regarding his foot pain, and an internet printout from foothealthfacts.com discussing sesamoid injuries to the foot, also dated in June 2011. This was treated by the RO as additional evidence solely for the claim for left lower extremity arthritis. A December 2011 rating decision again denied the claim on the same basis is the prior May 2011 DRO decision. A notice letter was sent to the Veteran that same month. The Veteran’s agent submitted a letter regarding the adequacy of the May 2011 VA examination. This examination was limited to the assessment of the residuals of a left foot fracture. There were also statements in support of an Advance On Docket (AOD) motion for a then pending a Board decision regarding the increased rating claim for a residual of a left a foot fracture. None of these documents were relevant to the claim for left lower extremity arthritis. The Veteran did not file a notice of disagreement for the denial of service connection for lower left extremity arthritis and new and material evidence was not received within the one-year appeal period. Thus, the decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 20.1103. The Veteran filed a claim in March 2014, denied in a rating decision in December 2014 as a claim for new and material evidence. The Veteran submitted a May 2016 VA treatment record for left foot pain from a podiatrist noting the Veteran had a traumatic injury in service in the 1970s. A preliminary assessment was “post traumatic arthritis” and “post traumatic neuritis.” There was no other history of trauma listed by the podiatrist. The Veteran also submitted a private treatment record dated in April 2011, received in March 2016, which included an assessment of “[m]ild degenerative changes in the midtarsal joint” and an X-ray examination report for the foot dated in June 2010 of “subtle mild osteoarthrosis.” As the prior denial was based on their being no disability associated with left lower extremity arthritis. As the Veteran submitted medical records showing degenerative changes in the midtarsal joint, new and material evidence has been submitted. As this new evidence bears directly on an element of the Veteran’s claim previously found lacking, reopening the claim is warranted. REASONS FOR REMAND The Veteran’s claims have been reopened. Although the Veteran has had three examinations regarding the existence and severity of residuals of status post left foot fracture, the Veteran has not had a VA examination or examination(s) for the claims currently on appeal. One is necessary in this case. The matters are REMANDED for the following action: 1. Obtain any outstanding VA records. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any lower left extremity arthritis, knee disorder, or left lower extremity neuropathy. Additionally, the examiner   must opine whether any of these disabilities are at least as likely as not proximately due to or aggravated by service-connected disease or injury. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Yoffe, Associate Counsel