Citation Nr: 20003454 Decision Date: 01/15/20 Archive Date: 01/14/20 DOCKET NO. 17-40 917 DATE: January 15, 2020 ORDER Entitlement to service connection for hearing loss has been withdrawn. Entitlement to service connection for knee condition, right, has been withdrawn. Entitlement to service connection for knee condition, left, has been withdrawn. Entitlement to service connection for chronic obstructive pulmonary disease has been withdrawn. Entitlement to service connection for arthritis, right hand, has been withdrawn. Entitlement to service connection for arthritis, left hand, has been withdrawn. The petition to reopen the previously denied claim for entitlement to service connection for a lumbar spine disability is granted. The petition to reopen the previously denied claim for entitlement to service connection for gastroesophageal reflux disease GERD is granted. Entitlement to service connection for lumbar disc disease is granted. REMANDED Entitlement to service connection for GERD is remanded. Entitlement to a rating in excess of 20 percent for right acromioclavicular joint, residuals dislocation, is remanded. FINDINGS OF FACT 1. At a September 2019 Board hearing, prior to promulgation of a decision in the appeal, the Veteran requested on the record a withdrawal of the claims for entitlement to service connection for hearing loss; knee condition, right; knee condition, left; chronic obstructive pulmonary disease; arthritis, right hand; and arthritis, left hand. 2. A May 1979 rating decision denied the Veteran’s original claim for entitlement to service connection for a lumbar spine disability; the Veteran did not timely appeal that decision; and new and material evidence was not received within the one-year appeal period for that decision. 3. A May 1986 rating decision denied the Veteran’s petition to reopen the claim for entitlement to service connection for a lumbar spine disability; the Veteran did not timely appeal that decision; and new and material evidence was not received within the one-year appeal period for that decision. 4. A December 1992 Board decision denied the Veteran’s petition to reopen the claim for entitlement to service connection for a lumbar spine disability; the Veteran did not timely appeal that decision and has not submitted a motion for reconsideration of that decision. 5. A June 2002 rating decision denied the Veteran’s petition to reopen the claim for entitlement to service connection for a lumbar spine disability; the Veteran did not timely appeal that decision; and new and material evidence was not received within the one-year appeal period for that decision. 6. Evidence received since the June 2002 rating decision is new and material as to the issue of entitlement to service connection for a lumbar spine disability. 7. An August 2002 rating decision denied the Veteran’s original claim for entitlement to service connection for stomach trouble, ulcers; the Veteran did not timely appeal that decision; and new and material evidence was not received within the one-year appeal period for that decision. 8. Evidence received since the August 2002 rating decision is new and material as to the issue of entitlement to service connection for GERD. 9. The Veteran’s lumbar disc disease is related to an in-service low back injury. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claims for entitlement to service connection for hearing loss; knee condition, right; knee condition, left; chronic obstructive pulmonary disease; arthritis, right hand; and arthritis, left hand, have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.205. 2. The May 1979 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.202, 20.1103. 3. The May 1986 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.202, 20.1103. 4. The December 1992 Board decision is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. 5. The June 2002 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.202, 20.1103. 6. The criteria for reopening the previously denied claim for entitlement to service connection for a lumbar spine disability have been met. 38 U.S.C. §§ 1110, 1131, 5108; 38 C.F.R. § 3.303. 7. The August 2002 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.202, 20.1103. 8. The criteria for reopening the previously denied claim for entitlement to service connection for GERD have been met. 38 U.S.C. §§ 1110, 1131, 5108; 38 C.F.R. § 3.303. 9. The criteria for entitlement to service connection for lumbar disc disease have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1971 to March 1979. In September 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. Withdrawn Issues 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. § 20.205. In this case, at the September 2019 Board hearing, the Veteran requested to withdraw the appeal as to the issues of entitlement to service connection for hearing loss; knee condition, right; knee condition, left; chronic obstructive pulmonary disease; arthritis, right hand; and arthritis, left hand. The withdrawal was explicit and unambiguous, as the Veteran specifically expressed agreement with the withdrawal of each issue as individually identified. It was also done with a full understanding of the consequences of such action, as the Veteran continued an appeal of the remaining issues and presented relevant testimony as to those issues but not as to the withdrawn issues. The Veteran was also represented at the hearing by his accredited representative. See Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Therefore, the Board finds that the Veteran has withdrawn the appeal as to those issues and that there remain no allegations of errors of fact or law for appellate consideration as to the issues. 38 C.F.R. § 20.205. Accordingly, the Board does not have jurisdiction to review the appeal as to those issues, and the issues are dismissed. Reopening Issues The Veteran seeks to reopen the previously denied claims for entitlement to service connection for a lumbar spine disability and for entitlement to service connection for GERD, also claimed as acid reflux, stomach trouble, and ulcers. In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In addition, a Board decision is final unless the Chairman of the Board orders reconsideration. See 38 U.S.C. §§ 7103(a), 7104; 38 C.F.R. § 20.1100. However, under 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is existing evidence not previously considered by VA. Material evidence is 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). In general, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 1. Whether new and material evidence has been received to reopen the previously denied claim for entitlement to service connection for a lumbar spine disability VA received the Veteran’s original claim for entitlement to service connection for bilateral L5-S1 spondylolysis in March 1979. The Regional Office denied the Veteran’s claim in the May 1979 rating decision, explaining that the spondylolysis of the lumbar spine shown in the Veteran’s service treatment records is considered a constitutional or developmental abnormality and not a disability for which service connection may be granted. The Veteran did not submit a timely notice of disagreement as to the decision, and new and material evidence was not received as to the issue within the one-year appeal period following notice of the decision. As such, the Veteran did not timely appeal the May 1979 rating decision’s denial of entitlement to service connection for spondylolysis. See 38 C.F.R. §§ 3.156(b), 20.201, 20.202. The May 1979 rating decision is therefore final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. VA received the Veteran’s petition to reopen the previously denied claim for entitlement to service connection for a lumbar spine disability in February 1986. The Regional Office denied the Veteran’s petition in the May 1986 rating decision, explaining that new and material evidence had not been received to controvert the previous finding that his lumbar spine disability was constitutional or developmental in nature. The Veteran did not submit a timely notice of disagreement as to the decision, and new and material evidence was not received as to the issue within the one-year appeal period following notice of the decision. As such, the Veteran did not timely appeal the May 1986 rating decision’s denial of the petition to reopen the previously denied claim for entitlement to service connection for a lumbar spine disability. See 38 C.F.R. §§ 3.156(b), 20.201, 20.202. The May 1986 rating decision is therefore final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. VA received the Veteran’s next petition to reopen the previously denied claim for entitlement to service connection for a lumbar spine disability in March 1990. The Regional Office denied the Veteran’s petition in the July 1990 rating decision. The Veteran submitted a timely notice of disagreement as to the issue in July 1991. Following the Regional Office’s issuance of a statement of the case in July 1991, the Veteran also submitted a timely substantive appeal as to the issue in September 1991. In December 1992, the Board issued a decision denying the Veteran’s petition. In the decision, the Board found that evidence received since the May 1986 rating decision was cumulative or otherwise did not further the prospects of the Veteran prevailing on his claim when considered in conjunction with the other evidence of record. The Board therefore concluded that new and material evidence had not been received to reopen the previously denied claim and denied the Veteran’s petition. The Veteran has not filed a motion for reconsideration of the December 1992 Board decision, nor has such reconsideration been ordered by the Chairman of the Board. The Veteran also did not appeal the decision to the Court of Appeals for Veterans Claims within the prescribed period of time. Accordingly, the December 1992 Board decision is final. See 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. VA received the Veteran’s next petition to reopen the previously denied claim for entitlement to service connection for a lumbar spine disability in November 2001. The Regional Office denied the Veteran’s petition in the June 2002 rating decision, explaining that the Veteran had not submitted medical evidence showing his claimed condition is related to his military service. The Veteran did not submit a timely notice of disagreement as to the decision, and new and material evidence was not received as to the issue within the one-year appeal period following notice of the decision. As such, the Veteran did not timely appeal the June 2002 rating decision’s denial of petition to reopen the previously denied claim for entitlement to service connection for a lumbar spine disability. See 38 C.F.R. §§ 3.156(b), 20.201, 20.202. The June 2002 rating decision is therefore final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Evidence associated with the record since issuance of the final June 2002 rating decision includes a November 2019 medical examination report from J. Ellis, M.D., that includes an opinion that it is more likely than not that the Veteran’s current lumbar disc disease is related to his active service. The Board finds that this evidence is new because it was not previously considered by VA. It is also material because it tends to show that the Veteran has a current lumbar spine disability that is related to his active service. Therefore, the Board concludes that new and material evidence has been received to reopen the previously denied claim for entitlement to service connection for a lumbar spine disability, and the claim is reopened. 38 C.F.R. § 3.156(a). 2. Whether new and material evidence has been received to reopen the previously denied claim for entitlement to service connection for GERD, also claimed as acid reflux, stomach trouble, and ulcers VA received the Veteran’s original claim for entitlement to service connection for stomach troubles and a gastric ulcer in November 2001. The Regional Office denied the Veteran’s claim in the August 2002 rating decision, explaining that the evidence did not show that the Veteran’s reported stomach trouble and ulcers were related to the medications he took for his service-connected right shoulder disability or that he had such conditions during his active service. The Veteran did not submit a timely notice of disagreement as to the decision, and new and material evidence was not received as to the issue within the one-year appeal period following notice of the decision. As such, the Veteran did not timely appeal the August 2002 rating decision’s denial of entitlement to service connection for stomach trouble, ulcers. See 38 C.F.R. §§ 3.156(b), 20.201, 20.202. The August 2002 rating decision is therefore final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Evidence associated with the record since issuance of the final August 2002 rating decision includes a November 2019 medical examination from J. Ellis, M.D., that includes an opinion that it is more likely than not that the Veteran’s GERD is related to his active service. The Board finds that this evidence is new because it was not previously considered by VA. It is also material because it tends to show that the Veteran’s GERD is related to his active service. Therefore, the Board concludes that new and material evidence has been received to reopen the previously denied claim for entitlement to service connection for a lumbar spine disability, and the claim is reopened. 38 C.F.R. § 3.156(a). Service Connection Issue 1. Entitlement to service connection for a lumbar spine disability The Veteran seeks entitlement to service connection for a lumbar spine disability that he asserts is related to an injury he sustained in service while lifting heavy household appliances. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). An October 2016 lumbar spine X-ray showed advanced multilevel disc and facet degenerative changes with multilevel neural foraminal narrowing. In addition, the Veteran’s service treatment records show that he reported low back pain and was diagnosed with muscle strain in April 1972. In August 1976, he was assessed with back sprain. In September 1978, he was diagnosed with L5 spondylolysis and placed on a physical profile. During the course of a Medical Evaluation Board proceeding in December 1978, he reported that he began experiencing low back pain after picking up a kitchen appliance in 1972. The Veteran was eventually discharged for medical reasons, to include as due to bilateral L5-S1 spondylolysis. Thus, the evidence shows an in-service injury and a current disability, and the question becomes whether the current disability is related to the in-service injury. In November 2019, J. Ellis, M.D, opined., based on an examination of the Veteran and a review of at least some of the relevant records, that it is more likely than not that the Veteran’s lumbar disc disease is related to the in-service injury. As a rationale for that opinion, Dr. Ellis explained that, during his active service, the Veteran strained his muscles, tendons, and other structures of his vertebrae and sprained the ligaments that support the lumbar spine when he lifted the kitchen appliance. The mechanical injury caused damage to the intervertebral disc, resulting in compression of the nerve roots and improper movement of the spinal joints, which contributed to lumbosacral strain, degenerative arthritis, and subsequent deranged discs. The Board finds Dr. Ellis’s opinion probative because it is based on an accurate understanding of the Veteran’s relevant medical history and is support by appropriate rationale. The rationale provided offers insight into the medical aspects of the Veteran’s in-service injury, which is documented in the service treatment records; the progression of such an injury; and the etiological link between such an injury and the current lumbar spine disability. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444 (2000). Therefore, the Board affords probative value to Dr. Ellis’s November 2019 opinion. The Board finds that there is no other probative evidence of record that outweighs Dr. Ellis’s positive opinion. Therefore, upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current lumbar disc disease is related to the documented in-service injury. Accordingly, after resolving remaining doubt in the Veteran’s favor, the Board finds that service connection for lumbar disc disease is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for GERD is remanded. The Board finds that the issue of entitlement to service connection for GERD, to include as secondary to the medications taken for the service-connected right shoulder disability and lumbar disc disease, must be remanded so that the Veteran may be provided a VA examination as to the issue. See 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 2. Entitlement to a rating in excess of 20 percent for right acromioclavicular joint, residuals dislocation, is remanded. The Veteran’s testimony at the September 2019 Board hearing indicates that his service-connected right shoulder disability has increased in severity since he was last examined by VA, such that reexamination is required. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his residuals of right acromioclavicular joint dislocation. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his diagnosed GERD. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the GERD is related to an in-service injury, event, or disease, including the upper gastrointestinal symptoms the Veteran has reported experiencing during his active service. In that regard, the clinician must note that a lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). If not, the clinician should also provide an opinion as to whether it is at least as likely as not that the Veteran’s GERD is (1) proximately due to, or (2) aggravated beyond its natural progression by service-connected disability, to include the medications the Veteran takes to treat pain and other symptoms from his service-connected residuals of right acromioclavicular joint dislocation and lumbar disc disease. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected residuals of right acromioclavicular joint dislocation. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge, a deficiency in the record, or the examiner. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. J. Anthony, 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.