Citation Nr: 19166300 Decision Date: 08/27/19 Archive Date: 08/27/19 DOCKET NO. 17-34 628 DATE: August 27, 2019 ORDER The appeal for service connection for diabetes mellitus, to include as secondary to the service-connected acute rheumatic fever with migratory polyarthritis or as due to exposure to contaminants at Camp Lejeune, is dismissed. The appeal for service connection for a liver disorder, to include as secondary to the service-connected acute rheumatic fever with migratory polyarthritis or as due to exposure to contaminants at Camp Lejeune, is dismissed. The appeal for a compensable rating for the service-connected acute rheumatic fever with migratory polyarthritis is dismissed. New and material evidence having been received, the application to reopen the previously denied claim for service connection for low back pain is granted. New and material evidence having been received, the application to reopen the previously denied claim for service connection for a chronic kidney condition manifested by hematuria in service is granted. Service connection for a right knee disability (claimed as right leg pain) is granted. Service connection for a left knee disability (claimed as left leg pain) is granted. Service connection for a lumbar spine disability is granted. REMANDED Service connection for a chest disability (claimed as severe pain in chest), to include as secondary to the service-connected acute rheumatic fever with migratory polyarthritis, is remanded. Service connection for a left shoulder disability, to include as secondary to the acute service-connected rheumatic fever with migratory polyarthritis, is remanded. Service connection for a right shoulder disability, to include as secondary to the acute service-connected rheumatic fever with migratory polyarthritis, is remanded. Service connection for a cervical spine disability, to include as secondary to the acute service-connected rheumatic fever with migratory polyarthritis, is remanded. Service connection for a kidney condition manifested by hematuria in service, to include as secondary to the service-connected acute rheumatic fever with migratory polyarthritis or as due exposure to contaminants at Camp Lejeune, is remanded. FINDINGS OF FACT 1. At the June 2019 hearing, and before the promulgation of a decision in the appeal, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, notified the Board that he wished to withdraw his appeals for service connection for diabetes mellitus, for service connection for a liver disorder, and for a compensable rating for the service-connected acute rheumatic fever with migratory polyarthritis. 2. An unappealed May 1979 rating decision denied service connection for low back pain of unknown etiology and for a chronic kidney condition manifested by hematuria in service. Although the Veteran submitted new and material evidence within one year of the decision, he did not perfect appeals on the claims either before or after the March 1981 supplemental statement of the case was issued addressing the new and material evidence. 3. The evidence associated with the file since the May 1979 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claims, is neither cumulative nor redundant of evidence already of record and raises a reasonable possibility of substantiating the claims for service connection for a lumbar spine disability and for a kidney condition. 4. Resolving reasonable doubt in the Veteran’s favor, his right knee disability is at least as likely as not related to his active service 5. Resolving reasonable doubt in the Veteran’s favor, his left knee disability is at least as likely as not related to his active service. 6. Resolving reasonable doubt in the Veteran’s favor, his lumbar spine disability is at least as likely as not related to his active service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeals for service connection for service connection for diabetes mellitus, for service connection for a liver disorder, and for a compensable rating for the service-connected acute rheumatic fever with migratory polyarthritis have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 2. The May 1979 rating decision that denied service connection for low back pain and for a chronic kidney condition manifested by hematuria in service is final. 38 U.S.C. § 4005(c) (1976); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1979). 3. The evidence received since the May 1979 rating decision is new and material evidence and serves to reopen the Veteran’s claims for service connection for a lumbar spine disability and a chronic kidney condition manifested by hematuria in service. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 4. The criteria for service connection for a right knee disability have been met. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. 5. The criteria for service connection for a left knee disability have been met. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. 6. The criteria for service connection for a lumbar spine disability have been met. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1960 to August 1964, to include service at Camp Lejeune from November 1960 to August 1964. In June 2019, the Veteran appeared and provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ). The Board has recharacterized the issues on appeal as above to better reflect the allegations made by the Veteran. Dismissal 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 Veteran or by his authorized representative. 38 C.F.R. § 20.204. In the present case, at the June 2019 Board hearing, the Veteran explicitly and unambiguously, and with a full understanding of the consequences, withdrew his appeals for service connection for diabetes mellitus, for service connection for a liver disorder, and for a compensable rating for the service-connected acute rheumatic fever with migratory polyarthritis. The undersigned clearly identified the withdrawn issues, and the Veteran affirmed that he was requesting a withdrawal as to these appeals. As the Veteran has withdrawn these appeals, there remain no allegations of errors of fact or law for appellate consideration with regard to these issues. Thus, the Board does not have jurisdiction to review these appeals, and they are dismissed. New and Material Evidence—Lumbar Spine & Kidney Disorders A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Regardless of how the Regional Office (RO) ruled on the question of reopening, the Board must decide the matter on appeal, because reopening is a threshold jurisdictional question for the Board. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The United States Court of Appeals for Veterans Claims (Court) has held that the credibility of evidence must be presumed for the purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for the Federal Circuit has held, however, that 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). When making a decision as to whether received evidence meets the definition of new and material evidence, the Board should be cognizant of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). Here, in the May 1979 rating decision, the RO denied service connection for low back pain of unknown etiology and for a chronic kidney condition, as there was no evidence of a current disabilities etiologically related to active service for either claim. The Veteran did not perfect appeals on these adverse determinations, nor did he submit new and material evidence as to these claims prior to the expiration of the appeal period. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). Thus, the May 1979 rating decision became final as to these issues, based on the evidence then of record. 38 U.S.C. § 4005(c) (1976); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1979). The evidence added to the record since the May 1979 rating decision includes current private treatment records showing that the Veteran has a current diagnosis of lumbar spine arthritis and a current diagnosis of stage 3 chronic kidney disease. This evidence is neither cumulative nor redundant of the evidence of record and raises a reasonable possibility of substantiating the claims for service connection for a lumbar spine disability and for a kidney condition, as it provides evidence of a new current lumbar spine condition and new kidney condition which could be related to active service. Thus, the claims for service connection for a lumbar spine disability and for a kidney condition are reopened. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Additionally, service connection can also be established through application of a statutory presumption for chronic diseases, like arthritis, when manifested to a compensable degree within a year of separation from service. 38 C.F.R. §§ 3.307, 3.309. If a chronic disease is not manifested to a compensable degree within a year of separation of service, then, generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303 (b). Right and left knee disabilities The Veteran seeks service connection for right and left knee disabilities. His private treatment records show that he has a current diagnosis of bilateral knee osteoarthritis, which he has had throughout the entire appeal period. Thus, the current disability prong of these claims for service connection has been met. Further, the Veteran testified before the Board that his bilateral knee symptoms began while he was in service. His service treatment records also confirm that he complained of his knees aching. Knee pain is a well-known symptom of knee arthritis, and the Veteran has consistently reported that his bilateral knee pain symptoms have persisted since active service. Thus, the evidence supports a finding that the Veteran’s bilateral arthritis symptomatology began in service. He is competent to report what he has experienced through his senses, and the Board has no reason to question the credibility of his reports regarding the timeline of his symptomatology onset. Affording the benefit of the doubt to the Veteran, the Board finds that he has been experiencing symptoms of bilateral knee arthritis since service. Thus, service connection is presumed for his bilateral knee arthritis, as it is a current chronic disability for which he has continued to suffer symptoms since active service. Lumbar spine disability The Veteran also seeks service connection for a lumbar spine disability. His private treatment records show that he has a current diagnosis of diffuse idiopathic skeletal hyperostosis (DISH), a form of arthritis, which he has had throughout the entire appeal period. Thus, the current disability prong of this claim for service connection has been met. Further, the Veteran testified before the Board that his lumbar spine symptoms of pain began while he was in service, and his service treatment records confirm that he sought treatment for back pain in service. Although he first attributed the onset of his back pain to a kidney injury in service, he has consistently stated that his back pain started during active service and have continued since then. Regardless of what caused the back pain to begin, as arthritis is a condition for which a presumptive service connection may be awarded, the mechanism of injury is not important when one can show that he continued to suffer symptoms of the condition since service. Back pain is a well-known symptom of back arthritis, and the Veteran has never contradicted his reports of the in-service onset of this pain. Thus, the evidence supports a finding that the Veteran’s lumbar spine arthritis symptomatology began in service. He is competent to report what he has experienced through his senses, and the Board has no reason to question the credibility of his reports regarding the timeline of his symptomatology onset. Affording the benefit of the doubt to the Veteran, the Board finds that he has been experiencing symptoms of lumbar spine arthritis since service. Thus, service connection is presumed for his lumbar spine disability, as it is a current chronic disability for which he has continued to suffer symptoms since active service. REASONS FOR REMAND The Veteran indicated in his June 2019 Board testimony that there may be relevant private treatment records relating to the claims on appeal that have not been obtained. These records should be sought, as they could contain information which could help substantiate the Veteran’s claims. Service connection for a chest disability (claimed as severe pain in chest), bilateral shoulder disabilities (claimed as severe pain in shoulders), and a cervical spine disability (claimed as severe neck pain), to include as secondary to the service-connected acute rheumatic fever with migratory polyarthritis The Veteran seeks service connection for pain in his chest, shoulders, and neck. He asserts that the pains are a continuation of the service-connected acute rheumatic fever with migratory polyarthritis, for which he has been service-connected throughout the appeal period. He has not been afforded VA examinations for these conditions. However, clarification is needed as to what the current conditions are, and whether they are related to active service or to the service-connected acute rheumatic fever with migratory polyarthritis. As such, VA examinations are needed before the Board can decide these claims. Service connection for a kidney disability manifested by hematuria in service, to include as secondary to the service-connected acute rheumatic fever with migratory polyarthritis or as due exposure to contaminants at Camp Lejeune The Veteran asserts that his kidney condition was caused by the contaminated water he drank at Camp Lejeune, or, alternatively, by having previously taken NSAIDs for his service-connected polyarthritis. He also suggested that it is related to an in-service incident where he was punched in the kidney. A veteran who had no less than 30 days (consecutive or nonconsecutive) of service at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987, shall be presumed to have been exposed during such service to the contaminants in the water supply unless there is affirmative evidence to establish that the individual was not exposed to contaminants in the water supply during that service. 38 C.F.R. § 3.307(a)(7). Here, the Veteran’s Camp Lejeune service, as previously discussed, affords him a presumption of such contaminant exposure. As such, he was afforded a December 2016 VA examination where a medical examiner provided an opinion on the relationship between his presumed Camp Lejeune contaminant exposure and his kidney condition. The Veteran also underwent a VA kidney conditions examination in February 2017. At that time, the examiner was asked to opine on both the relationship between the Veteran’s in-service reported blow he received to his right back and his kidney condition, and the relationship between NSAID use for his service-connected polyarthritis (seemingly incorrectly termed “rheumatic arthritis” in the February 2017 VA examination report) and his kidney condition. The examiner did not address the latter. Further, the Veteran had submitted a letter from his private provider, Dr. A.G., MD, dated June 23, 2016, who wrote that the medication the Veteran took to keep his arthritis under control could cause damage to his kidneys. Because a sufficient medical opinion has not been provided to address the suggested relationship between the Veteran’s kidney condition and medication use, including NSAID use, for his service-connected polyarthritis, a new VA examination is needed for an examiner to ascertain the Veteran’s history of such medication use and to provide an opinion on the relationship between medications taken for the Veteran’s service-connected polyarthritis and current kidney condition before the Board can decide this claim. The matters are REMANDED for the following action: 1. After obtaining authorization forms where necessary, procure and associate with the claims folder, complete copies of records of VA and/or private treatment, to include specifically treatment by Dr. M. Miller. 2. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any current or previously-diagnosed chest, left shoulder, right shoulder, and cervical spine disorder that the Veteran may have. The examiner should review the entire claims file, conduct all necessary tests and studies, and provide the requested opinions: (a.) Does the Veteran have a diagnosable chest, right shoulder, left shoulder, or cervical spine disability on current examination or at any time since he filed his claims on January 12, 2012? (b.) If the Veteran does not have a diagnosed chest, right shoulder, left shoulder, or cervical spine disability on current examination or at any time during the current appeal, is the Veteran’s condition characterized by pain that reaches the level of functional impairment of earning capacity? (c.) If the answer to either (a) or (b) above is “yes,” is it at least as likely as not (i.e., 50 percent probability or greater) that any such disorder onset in, or is otherwise related to, the Veteran’s service or any incident therein? (d.) If the answer to either (a) or (b) above is “yes,” is it at least as likely as not (i.e., 50 percent probability or greater) that the condition was caused by the Veteran’s service-connected acute rheumatic fever with migratory polyarthritis? (e.) If the answer to either (a) or (b) above is “yes,” is it at least as likely as not (i.e., 50 percent probability or greater) that the condition was aggravated (i.e., made worse) by his service-connected acute rheumatic fever with migratory polyarthritis? If so, the examiner should identify the degree of impairment that is due to such aggravation. (f.) If the answer to either (a) or (b) above is “yes,” is it at least as likely as not (i.e., 50 percent probability or greater) that the condition is a progression of the already service-connected acute rheumatic fever with migratory polyarthritis? The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Also, schedule the Veteran for a VA examination to determine the nature and etiology of his kidney disability. The examiner should ascertain from the Veteran’s medical records and from an interview with him his history of NSAID use (and any other medications taken) for his service-connected polyarthritis. The examiner is asked to respond to the following questions: (a.) Is it at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s kidney condition was caused by his service-connected polyarthritis or medication taken therefor? (b.) Is it at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s kidney condition was aggravated (i.e., made worse) by his service-connected polyarthritis or medication taken therefor? If so, the examiner should identify the degree of impairment that is due to such aggravation. The examiner should address the written statement dated June 23, 2016, from Dr. A.G., MD, who suggests that medication the Veteran takes for his service-connected polyarthritis could cause kidney damage. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Davidoski, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.