Citation Nr: 1821055 Decision Date: 04/11/18 Archive Date: 04/19/18 DOCKET NO. 14-24 802A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a rating in excess of 20 percent for lumbosacral strain. 2. Entitlement to a rating in excess of 10 percent for deviated nasal septum. 3. Entitlement to service connection for numbness of the left upper extremity. 4. Entitlement to service connection for neck disability. 5. Entitlement to service connection for migraines. 6. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for status postoperative patellofemoral pain syndrome, right knee. 7. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for medial collateral ligament strain, left knee. 8. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for left ankle sprain. 9. Entitlement to special monthly compensation based on the need for aid and attendance of another person. REPRESENTATION Appellant represented by: Ralph J. Bratch, Attorney ATTORNEY FOR THE BOARD S. An, Associate Counsel INTRODUCTION The Veteran had active duty from September 1994 to August 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision issued by the Department of Veterans Affairs (VA), Regional Office (RO) in Montgomery, Alabama. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. The issue(s) of entitlement to service connection for status postoperative patellofemoral pain syndrome, right knee; service connection for medial collateral ligament strain, left knee; and service connection for left ankle sprain are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. In February 2018, the Board received a statement from the Appellant's representative stating the Veteran's desire to withdraw claims on appeal. Specifically, increased rating claims for lumbosacral strain and deviated nasal septum, and service connection claims for neck disability and migraines. 2. An April 1998 rating decision denied service connection for status postoperative patellofemoral pain syndrome, right knee; the Veteran did not appeal or submit new and material evidence within the one year period thereafter; evidence added to the record since raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for status postoperative patellofemoral pain syndrome, right knee. 3. An April 1998 rating decision denied service connection for medial collateral ligament strain, left knee; the Veteran did not appeal or submit new and material evidence within the one year period thereafter; evidence added to the record since raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for medial collateral ligament strain, left knee. 4. An April 1998 rating decision denied service connection for left ankle sprain; the Veteran did not appeal or submit new and material evidence within the one year period thereafter; evidence added to the record since raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for left ankle sprain. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal of the issues of entitlement to increased ratings for lumbosacral strain and deviated nasal septum have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 2. The criteria for withdrawal of an appeal of the issues of entitlement to service connection for neck disability and service connection for migraines have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 3. The April 1998 rating decision which denied service connection for status postoperative patellofemoral pain syndrome, right knee, is final. 38 U.S.C. §7105(c) (2012); 38 C.F.R. §20.1103 (2017). 4. New and material evidence has been received to reopen the claim of entitlement to service connection for status postoperative patellofemoral pain syndrome, right knee. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 5. The April 1998 rating decision which denied service connection for medial collateral ligament strain, left knee, is final. 38 U.S.C. §7105(c) (2012); 38 C.F.R. §20.1103 (2017). 6. New and material evidence has been received to reopen the claim of entitlement to service connection for medial collateral ligament strain, left knee. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 7. The April 1998 rating decision which denied service connection for left ankle sprain is final. 38 U.S.C. §7105(c) (2012); 38 C.F.R. §20.1103 (2017). 8. New and material evidence has been received to reopen the claim of entitlement to service connection for left ankle sprain. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawal of Appeal The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 20.202 (2016). A substantive appeal may be withdrawn in writing and is effective when received by the RO prior to the appeal being transferred to the Board, or when received by the Board before it issues a final decision. 38 C.F.R. § 20.204(b) (2016). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204(a) (2016). In this case, by a statement submitted in February 2018, prior to the issuance of a decision by the Board, the Veteran, through his representative, stated he wished to withdraw the appeals as to the issues of entitlement to an increased rating for lumbosacral strain and deviated nasal septum, and entitlement to service connection for neck disability and migraines. This was done in writing and clearly identified the issues withdrawn from the appeal. See Correspondence dated February 22, 2018. Thus, there remain no allegations of errors of fact or law for appellate consideration with respect to this specific matter. Accordingly, the Board does not have jurisdiction to review the appeal of those issues and it is therefore dismissed. II. Petition to Reopen Claims Neither the Veteran, nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). New evidence means 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). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered new if it has not been previously submitted to agency decision makers, and it is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The Court interprets the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Right Knee, Left Knee, and Left Ankle The Veteran's claims of entitlement to service connection for status postoperative patellofemoral pain syndrome, right knee; medial collateral ligament strain, left knee; and left ankle sprain were originally denied in April 1998. The Veteran did not appeal the April 1998 rating decision, nor submit any new and material evidence within a year of the rating decision. See 38 C.F.R. §3.156(b). The April 1998 rating decision thereby became final. At the time of the April 1998 rating decision, the record consisted of the Veteran's military personnel records and service treatment records. It was noted that the Veteran failed to show for a scheduled VA examination. Evidence received since the April 1998 rating decision includes private treatment records, Social Security Administration records, VA treatment records, and additional written statements submitted by the Veteran's representative. This information is both new and material and is therefore sufficient to reopen the previously-denied claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). In this regard, for the purpose of determining whether a claim should be reopened, the credibility of any newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claims for service connection for status postoperative patellofemoral pain syndrome, right knee; medial collateral ligament strain, left knee; and left ankle sprain are reopened. ORDER The appeal of the issue of entitlement to a disability rating in excess of 20 percent for lumbosacral strain is dismissed. The appeal of the issue of entitlement to a disability rating in excess of 10 percent for deviated nasal septum is dismissed. The appeal of the issue of entitlement to service connection for neck disability is dismissed. The appeal of the issue of entitlement to service connection for migraines is dismissed. New and material evidence has been presented, and the claim for service connection for status postoperative patellofemoral pain syndrome, right knee is reopened. New and material evidence has been presented, and the claim for service connection for medial collateral ligament strain, left knee is reopened. New and material evidence has been presented, and the claim for service connection for left ankle sprain is reopened. REMAND In the above decision, the Board reopened the Veteran's claim for service connection for status postoperative patellofemoral pain syndrome, right knee; medial collateral ligament strain, left knee; and left ankle sprain. However, upon review of the evidence, the Board finds further evidentiary development is necessary before the Board can adjudicate the Veteran's claims for service connection. According to the April 1998 rating decision, the Veteran failed to report for scheduled examinations which were noted to be necessary to formulate better opinions, and the examinations were therefore not completed at that time. The record is absent for any reason for his failure to appear for the scheduled examinations. However, the Board observes that the record shows mail was returned in 1998 as undeliverable. It is therefore not clear from the record if the Veteran received notification of the scheduled VA examination or whether a notification indicating the date and time for the examination was even mailed to the Veteran. Accordingly, since there is some evidence of good cause for the Veteran's inability to report for a VA examination, that he was not properly notified, the Board finds that he should be given an opportunity for another examination. Furthermore, as there are no VA examinations of record and because the Board finds insufficient medical evidence to make a decision on the Veteran's claims for service connection, such examinations are warranted. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In particular, new examinations are needed to determine the etiology of his claimed right knee disability, left knee disability, and left ankle disability. Additionally, the record contains objective medical evidence that indicate right knee condition which existed prior to the Veteran's entrance on active service. The Veteran's service treatment records reflect a history of knee surgery related to right knee patellofemoral syndrome, which was "noted" on his entrance examination. See Report of Medical Examination and Report of Medical History dated June 1993. Service treatment records also reflect complaitns of and treatment for both the right knee and left knee in service. The Board notes that in cases where the disease or injury at issue is "noted" on the entrance examination, such as the instant case, a very specific standard is for application. For compensation purposes, a veteran will be presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time or where clear and unmistakable evidence demonstrates that the injury or disease preexisted and was not aggravated by such service. 38 U.S.C. §1111; 38 C.F.R. §3.306(b). In order to rebut the presumption of sound condition under 38 U.S.C. §1111, the government must demonstrate by clear and unmistakable evidence both that the disease or injury existed prior to service, and that the disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). To satisfy the second requirement for rebutting the presumption of soundness, the government must rebut a statutory presumption of aggravation by showing, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). The Board observes that clear and unmistakable is a high standard. Clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (citing Vanerson v. West, 12 Vet. App. 254, 258-59 (1999)). The clear-and-unmistakable evidence standard is an "onerous" one. Laposky v. Brown, 4 Vet. App. 331, 334 (1993). Given the foregoing, on remand, an opinion must be obtained addressing whether the Veteran's right knee patellofemoral syndrome that existed prior to service was not aggravated by his service. "VA may not rest on the notion that the record contains insufficient evidence of aggravation. Instead, in order to fully rebut the presumption of soundness, VA must rely on affirmative evidence to prove that there was no aggravation." Horn v. Shinseki, 25 Vet. App. 231, 236 (2012). With respect to his claim for special monthly compensation based on the aid and attendance by another person, the Board finds that the issue is inextricably intertwined with the development ordered above, and therefore must also be remanded. Harris v. Derwinski, 1 Vet.App. 180, 183 (1991). As a final matter, the Veteran should also be notified that it is his responsibility to keep VA apprised of his current address. In this regard, notice means written notice sent to a claimant at his latest address of record. 38 C.F.R. §3.1 (q). When a veteran has been notified of an examination, and fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(b). Therefore, it is to the Veteran's benefit to keep VA provided with the information necessary to contact him. He must keep VA apprised of his current contact information, or designate a reliable informant, either his representative or someone in his household, to pass his contact information. Accordingly, the case is REMANDED for the following action: 1. Inform the Veteran and his representative that the Veteran must keep VA informed of the best way to contact him to schedule a VA examination. He should keep VA apprised of his current contact information, or designate a reliable informant, either his representative or someone in his household, to pass his contact information on to VA. Also, inform him that if notice of an examination is sent to his last address of record, and he fails to report for said examination, without good cause, his claim may be denied. 2. Arrange for an appropriate VA examination with an appropriate medical professional to determine the nature and etiology of the Veteran's right knee and left knee disability. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. Right Knee After reviewing claims file, the examiner should provide an opinion addressing the following: a) Is there clear and unmistakable evidence that the Veteran's status postoperative patellofemoral pain syndrome, right knee, pre-existed his active duty service? b) If so, is there clear and unmistakable evidence that the Veteran's preexisting right knee disorder was not permanently worsened beyond the natural progress of the disability during his service? Clear and unmistakable evidence means evidence that cannot be misinterpreted and misunderstood, i.e., it is undebatable. Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). Left Knee The examiner should also provide an opinion for the Veteran's claimed left knee disability. c) The examiner should provide an opinion as to whether the Veteran has a current diagnosed disability of medial collateral ligament strain of the left knee. d) For each such diagnosed condition, the examiner must provide an opinion as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that the disorder had onset in service or is directly linked to the Veteran's time on active duty. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. The examination opinion must reflect consideration of the Veteran's lay statements setting forth a complete rationale for all findings and conclusions. Left Ankle 3. Arrange for an appropriate VA examination with an appropriate medical professional to determine the nature and etiology of the Veteran's left ankle sprain. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. After reviewing claims file, the examiner should provide an opinion addressing the following: a) The examiner should provide an opinion as to whether the Veteran has a current diagnosed disability of left ankle sprain. b) For each such diagnosed condition, the examiner must provide an opinion as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that the disorder had onset in service or is directly linked to the Veteran's time on active duty. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. The examination opinion must reflect consideration of the Veteran's lay statements setting forth a complete rationale for all findings and conclusions. 4. After completing the above action and any other development deemed necessary, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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). ______________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs