Citation Nr: 20004085 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 16-27 306 DATE: January 16, 2020 ORDER The application to reopen the claim for entitlement to service connection for a left testicle disability is dismissed. The application to reopen the claim for entitlement to service connection for a left thumb disability is granted. REMANDED Entitlement to service connection for a left thumb disability is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder is remanded. Entitlement to service connection for left foot bunion is remanded. Entitlement to service connection for right foot bunion is remanded. FINDINGS OF FACT 1. At a December 2019 hearing before the undersigned, the Veteran withdrew his appeal regarding his application to reopen the claim for entitlement to service connection for a left testicle disability. 2. By a decision entered in January 2011, a VA regional office (RO) denied a claim for service connection for a left thumb disability; the Veteran was advised of the RO’s decision and of his appellate rights. 3. The Veteran did not initiate an appeal of the RO’s January 2011 decision during the one-year period following the mailing of notice of that decision; nor was any new and material evidence received within a year. 4. The evidence received since the time of the RO’s January 2011 decision includes medical evidence of polyarthralgia and hyperextension of the left thumb. CONCLUSIONS OF LAW 1. The application to reopen the claim for entitlement to service connection for a left testicle disability is dismissed. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2019). 2. The January 2011 rating decision denying service connection for left thumb disability is final. 38 U.S.C. § 7105 (2002); 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1003 (2010). 3. New and material evidence has been received to reopen the Veteran’s claim for service connection for a left thumb disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1984 to September 2010. 1. The application to reopen the claim for entitlement to service connection for a left testicle disability is dismissed. 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). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204(a). Withdrawal may be made by the appellant or by his authorized representative in writing or on the record at a hearing. 38 C.F.R. § 20.204(a), 38 C.F.R. § 20.204(b)(1). The Veteran perfected an appeal regarding an application to reopen a claim for entitlement to service connection for a left testicle disability. At his December 2019 videoconference hearing, the Veteran withdrew this appeal on the record. Because the Veteran explicitly withdrew this appeal, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. 2. The application to reopen the claim for entitlement to service connection for a left thumb disability is granted. In general, rating decisions and Board decisions that are not timely appealed are final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.1103. If new and material evidence is presented or secured with respect to a claim that has been finally disallowed, the claim shall be reopened and reviewed. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Under 38 C.F.R. § 3.156, a claimant may reopen a finally adjudicated claim by submitting new and material evidence. “New” evidence is defined as 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). If it is determined that new and material evidence has been submitted, the claim must be reopened. The evidence is presumed credible for the purposes of reopening a claim, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510 (1992). The Veteran’s claim for service connection for a left thumb disability was previously denied in January 2011. The Veteran did not file a notice of disagreement, nor was any new evidence received within a year. As such, the decision became final. 38 U.S.C. § 7105 (2002); 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1003 (2010). The evidence before VA at the time of the January 2011 decision consisted of the Veteran’s service treatment records, post-service treatment records, the report of an October 2010 VA examination, and lay statements from the Veteran. Service records show the Veteran reported a history of locking left thumb on separation. The October 2010 VA examination showed no diagnosis of thumb disability and the RO denied the claim finding the Veteran did not manifest a thumb disability. Since that final decision, VA has received medical records dated March 2019 showing findings of polyarthralgia and hyperextension of the bilateral thumbs. See March 2019 Record. The United States Court of Appeals for Veterans Claims has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and has characterized the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 11 (2010). Here, the newly received evidence relates to unestablished fact necessary to substantiate the claim, specifically, evidence that relates to the presence of a thumb disability. The application to reopen the claim for service connection for a thumb disability is granted. REASONS FOR REMAND 3. Entitlement to service connection for a left thumb disability is remanded. Although the Board regrets the delay, remand is necessary to ensure that there is a complete and adequate record upon which to decide the Veteran’s claims. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran has provided competent and credible evidence of a current disability, in-service symptomatology, and symptoms continuing since service, but there is insufficient competent medical evidence to adjudicate this claim. McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Given the recently received evidence showing left thumb disability, the Board finds an additional VA examination is necessary to address the Veteran’s claim. 4. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder is remanded. The Board interprets the Veteran’s claim for service connection for posttraumatic stress disorder (PTSD) as a claim for any acquired psychiatric disability. See Clemmons v. West, 206 F.3d 1401, 1403 (Fed. Cir. 2000). The Veteran contends he has an acquired psychiatric disorder, to include anxiety, that his due to his service. As to in-service injury, he has specifically testified that his fellow service-member’s death in November 1988 significantly affected him. The Board notes a November 2014 VA examination found no diagnosed psychiatric disability, however, the Veteran testified he has been diagnosed with anxiety disorder. VA medical records show an assessment of anxiety and the Veteran’s reports he has previously been treated for depression. See February 2014 Medical Record. Here, the Board finds an additional VA examination and opinion are warranted to ascertain the etiology of the Veteran’s claimed psychiatric disability. 5. Entitlement to service connection for a bilateral bunion disability is remanded. The Veteran contends he has a bilateral bunion disability that is due to service. As to in-service injury, service records dated 2006 and 2010 show he reported symptoms of left foot calluses. The Veteran testified before the undersigned he experienced calluses from running in boots while as a drill sergeant. A November 2014 VA examiner diagnosed the Veteran with bilateral bunions. The examiner determined that the Veteran’s bunions were due to his foot anatomy, but the examiner did not address the Veteran’s reports or the in-service evidence of foot calluses. The Board finds this reasoning inadequate for rating purposes. The Veteran has also submitted an examination from July 2019 that includes pertinent information regarding his claimed left foot bunion disability and a notation, “aggravated by boots.” This report does not contain a full opinion with rationale regarding the Veteran’s claimed bunion disability. See July 2019 Report. The Board finds the Veteran’s testimony to be credible and probative and finds an additional VA medical opinion is needed. Once VA undertakes the effort to provide an examination when developing a service connection claim, an adequate examination must be provided. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matters are REMANDED for the following action: 1. Obtain any updated VA treatment records to the present. 2. Schedule the Veteran for a VA examination by a qualified examiner to determine the nature and etiology of any left thumb hyperextension and polyarthralgia. All clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner should answer the following questions: Is it at least as likely as not (50 percent or greater possibility) that left thumb hyperextension and polyarthralgia had its onset in service or is etiologically related to or aggravated by the Veteran’s period of service? In answering this question, the examiner must address the Veteran’s in-service complaints of locking of the thumb credible testimony of symptoms since service. All opinions expressed must be supported by complete rationale. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, he or she should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts), by a deficiency in the record (i.e., additional facts are required), or by the examiner himself or herself (because he or she does not have the needed knowledge or training). 3. Provide the Veteran with an examination to determine the current extent and etiology of his claimed psychiatric disability. Based upon a review of the relevant evidence, history provided by the Veteran, and sound medical principles, the VA examiner should provide an opinion as to: (a.) Please identify the Veteran's mental health condition(s) by diagnosis(es). (b.) For EACH of the diagnosed mental health condition(s) other than PTSD, is it at least as likely as not (defined as a 50% or better probability) that the Veteran's current disability was incurred in active military service? In so deciding, the examiner should note the Veteran’s credible testimony about symptoms of anxiety and depression in service and following service. (c.) If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to any of the Veteran's reported in-service stressors, including the confirmed stressor involving the death of a friend during service. (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 conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) 4. Schedule the Veteran for a VA examination by a qualified examiner to determine the nature and etiology of bilateral bunions. All clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner should answer the following questions: (Continued on the next page)   Is it at least as likely as not (50 percent or greater possibility) that bilateral bunions had an onset in service or is etiologically related to or aggravated by the Veteran’s period of service? In answering this question, the examiner must address the Veteran’s in-service complaints of developing calluses in service from boots, his credible testimony of symptoms since service, and the DBQ appearing in the record in July 2019 noting that the Veteran’s condition is aggravated by boots. All opinions expressed must be supported by complete rationale. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, he or she should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts), by a deficiency in the record (i.e., additional facts are required), or by the examiner himself or herself (because he or she does not have the needed knowledge or training). A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jonathan Trickey 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.