Citation Nr: 20008176 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 16-26 594 DATE: January 30, 2020 ORDER Entitlement to service connection for left eye condition is dismissed. Entitlement to service connection for gastrointestinal bleeding is dismissed. Entitlement to a higher disability rating for service-connected tinnitus is dismissed. New and material evidence has been received to reopen a claim for entitlement to service connection for chronic headaches. To that extent only, the claim is granted. New and material evidence has been received to reopen a claim for entitlement to service connection for chronic nose bleeding. To that extent only, the claim is granted. New and material evidence has been received to reopen a claim for entitlement to service connection for lower back injury. To that extent only, the claim is granted. REMANDED Entitlement to service connection for chronic headaches is remanded. Entitlement to service connection for chronic nose bleeding is remanded. Entitlement to service connection for lower back injury is remanded. Entitlement to a compensable rating for service-connected bilateral flat feet is remanded. FINDINGS OF FACT 1. On the record during a July 2019 Board hearing, and prior to the promulgation of a decision in this appeal, the Veteran expressly stated that he wished to withdraw his appeals for entitlement to service connection for left eye condition and for gastrointestinal bleeding, as well as that for a higher disability rating for service-connected tinnitus. 2. A July 2008 rating decision, which denied service connection for chronic headaches, chronic nose bleeding, and a lower back condition, is final. The Veteran did not file a notice of disagreement with this rating decision and no relevant evidence related to these claims was received within a year of this rating decision. 3. New and material evidence has been received since the July 2008 rating decision that is neither cumulative nor redundant of the evidence previously of record, and relates to an unestablished fact necessary to reopen the claims for service connection for chronic headaches, chronic nose bleeding, and a lower back injury. CONCLUSIONS OF LAW 1. The criteria for dismissal of entitlement to service connection for a left eye condition have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204 (2018). 2. The criteria for dismissal of entitlement to service connection for gastrointestinal bleeding have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204 (2018). 3. The criteria for dismissal of an entitlement to a higher disability rating for service-connected tinnitus have been met. 38 U.S.C. § 7105 (b)(2) (West 2014); 38 C.F.R. § 20.204 (2018). 4. The July 2008 rating decision, which denied service connection for chronic headaches, chronic nose bleeding, and a lower back condition, is a final and binding determination based on the evidence then of record. 38 U.S.C. § 5108, 7103, 7104, 7105 (West 2014); 38 C.F.R. §§ 20.1100, 20.1104 (2018). 5. Since the July 2008 rating decision, new and material evidence has been received, and the claims for service connection for chronic headaches, chronic nose bleeding, and lower back injury, are reopened. 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1975 to September 1993. This appeal comes before the Board of Veterans’ Appeals (Board) from an April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In pertinent part, this rating decision denied reopening the previously denied claims for service connection for chronic headaches, chronic nose bleeding, and a lower back injury. Pursuant to a March 2016 Statement of Case (SOC), the RO reopened and ruled on the merits the former two claims, but did not reopen the third claim. Notwithstanding this previous determination by the RO, the Board must address whether new and material evidence has been received to reopen these claims. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In July 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ), and a transcript of that hearing has been associated with the Veteran’s claims file.   Dismissed Claims 1. Entitlement to service connection for left eye condition is dismissed. 2. Entitlement to service connection for gastrointestinal bleeding is dismissed. 3. Entitlement to a higher disability rating for service-connected tinnitus is dismissed. 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. Here, during the July 2019 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew these claims. The undersigned clearly identified the withdrawn issues, and the Veteran affirmed that he was requesting a withdrawal as to these issues. In addition, the undersigned discussed the consequences of withdrawing an appeal, and the Veteran expressed that he fully understood those consequences. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). As there remain no allegations of errors of fact or law for appellate consideration as to this issue, the Board does not have jurisdiction to review these claims, and they are dismissed. New and Material Evidence The preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1, 4 (1995), aff’d, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). The initial question before the Board, therefore, is whether new and material evidence has been received, regardless of how the AOJ characterized the issue. New and material evidence need not be received as to each previously unproven element of a claim to justify reopening thereof; the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117-120 (2010). In determining whether newly-received evidence is new and material, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Newly submitted evidence may be material if it provides a more complete picture of the circumstances surrounding the origin of the Veteran’s disability. See Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Claims to Reopen 4. New and material evidence has been received to reopen a claim for entitlement to service connection for chronic headaches. 5. New and material evidence has been received to reopen a claim for entitlement to service connection for chronic nose bleeding. Service connection claims for chronic headaches and chronic nose bleeding were originally denied in July 2008. The July 2008 rating decision denied these claims as there was no evidence showing his chronic headaches and chronic nose bleeding began in or were caused by his military service. The Veteran did not file a notice of disagreement with this rating decision, and no relevant evidence related to these claims was received within a year of this rating decision. Therefore, this rating decision is final. 38 C.F.R. § § 20.1103. The evidence associated with the claims file since the July 2008 rating decision includes the Veteran’s lay statement that he was frequently exposed to malathion as a dog handler in service and that he has had nose bleeds and headaches as due to such exposure. See October 2011 lay statement. This evidence is new, as it was not received by the RO at the time the July 2008 rating decision was rendered. This evidence is also material for it provides evidence suggesting that his chronic headaches and chronic nose bleeding began in service. As the Board finds that new and material evidence sufficient to reopen the Veteran’s claim has been received, these claims are reopened. See 38 C.F.R. § § 3.156.   6. New and material evidence has been received to reopen a claim for entitlement to service connection for lower back injury. The service connection for a lower back injury was originally denied in July 2008. The July 2008 rating decision denied this claim because there was no evidence showing that this injury occurred in or was caused by service. The Veteran did not file a notice of disagreement with this rating decision or submit any relevant evidence related to this claim within a year of this rating decision. Therefore, this rating decision is final. 38 C.F.R. § § 20.1103. The evidence associated with the claims file since the July 2008 rating decision includes a private medical nexus opinion. This evidence is new, as it was not received by the RO at the time the July 2008 rating decision was rendered. This evidence is also material for it provides a medical etiology opinion that addresses a plausible nexus between his alleged in-service car accident/military service and his current lower back condition. As the Board finds that new and material evidence sufficient to reopen the Veteran’s claim has been received, this claim is reopened. See 38 C.F.R. § § 3.156. REASONS FOR REMAND 1. Entitlement to service connection for chronic headaches is remanded. As discussed above, the claim of entitlement to service connection for chronic headaches is reopened. The Veteran testified that he sustained a head injury when he got into a car accident in service. He claims that he has experienced chronic headaches (ie. tight tension ache, constant pain on a weekly basis) since that accident. Alternatively, he contends that his chronic headaches are related to his in-service exposure to malathion, which was used to delouse the military working dogs that he worked with in service. The Board acknowledges the Veteran’s complaints of “headaches” in his service treatment records, but notes they were either associated with no diagnosis or unrelated acute, isolated viral illnesses, to include upper respiratory infection, influenza, rhinitis, viral upper respiratory infection, and acute gastroenteritis. See August 1976, September 1978, November 1978, April 1981, and April 1978 service treatment records. The Veteran also underwent a VA examination in March 2016, and the VA examiner concluded that there is no objective evidence of current diagnosis or treatment for chronic disability regarding his headaches. The examiner explained that his service treatment records only show acute and transitory episodes of viral illnesses, for which he was treated and have resolved; the examiner also added that his service treatment records are otherwise silent as to continued, chronic treatment for headaches. See March 2016 VA examination. Despite the findings noted in the March 2016 VA examination, the Board finds it necessary to remand for a new VA examination/medical opinion, especially in light of the Veteran’s testimony that his VA physician (Dr. Cecilia Pineda from VA) (1) once related his current headaches to his in-service injury and (2) also suggested a possibility of him having developed a traumatic brain injury (TBI) as the result of his in-service car accident. It is unclear whether he has a current disability related to his alleged chronic headaches condition; and if so, whether it is at least as likely as not that his current headaches condition is related to in-service injury, event, or duty, to include his in-service car accident and his alleged exposure to malathion. Additionally, while the Veteran testified that he has been receiving post-service treatment from the Viera VA outpatient clinic (from around 2010), and also from the Patrick Air Force Base’s 45th Medical Group (since around 1997/1998), it appears that only part of those records have been obtained and associated with his claims file: from the former, from January 2012 to April 2016, and from the latter, from November 2009 to May 2010. Thus, the Board must remand to obtain outstanding treatment records from the specifically aforementioned medical facilities (to the extent possible), and thereafter, obtain a new VA examination to ascertain whether he has a current disability related to his chronic headaches (to include TBI) and obtain a medical nexus opinion. 2. Entitlement to service connection for chronic nose bleeding is remanded. As discussed above, the claim of entitlement to service connection for chronic nose bleeding is reopened. The Veteran claims that he has had chronic nose bleeding condition since separation. He testified that he suddenly began experiencing nose bleeds in service, for which he was treated with a jar of pills. Alternatively, he claims that this condition is related to his frequent exposure to malathion in service. He also testified that he has been receiving post-service treatment for this condition from the 45th medical group in the Patrick Air Force Base from 1997/1998 and from the Viera VA outpatient clinic from 2010. The Board notes that his service treatment records reveal complaints of nosebleeds and an evaluation for possible rhinitis. See April 1981 service treatment records. However, there are no other complaints, diagnosis, or treatment related to his nose bleeding condition throughout his active duty period. The Veteran was afforded a VA examination in March 2016, but the examiner at the time found no objective evidence of diagnosis of or treatment for chronic disability with regard to the nasopharynx, either during active military service or since separation. The VA examiner further stated that the episode of “nosebleeds/rhinitis” documented in his service treatment records was a treatment for acute upper respiratory infection in April 1981, which resolved without residual. However, as noted earlier, only some of the treatment records from the aforementioned facilities (45th medical group in the Patrick Air Force Base and from the Viera VA outpatient clinic) have been associated with his claims file. Thus, it is necessary to obtain those specifically identified treatment records. Furthermore, if those treatment records reveal any pertinent information relating to the presence of his current disability (ie. that he has a current chronic nose bleeding condition), the RO should make further development for this claim accordingly (ie. schedule a VA examination and a medical nexus opinion, and in doing so, consider the Veteran’s in-service car accident and his statement that he was frequently exposed to malathion as a dog handler in service). 3. Entitlement to service connection for lower back injury is remanded. As discussed above, the claim of entitlement to service connection for lower back injury is reopened. However, when the Board reopens a previously denied claim, but the RO has not previously reopened and adjudicated the claim on the merits, the claim must generally be returned to the RO so that it may readjudicate the claim on the merits. Hickson v. Shinseki, 23 Vet. App. 394 (2010). As such, the Board must remand the issue so that the RO may adjudicate it. Since the claim is reopened, VA has a duty to assist in developing it. While the Veteran was never afforded for a VA examination for this condition, there is evidence of a current lower back disability, as evidenced by his August 2016 private examination (“advanced degenerative joint disease and osteoarthritis of the lumbar spine emphasis lumbosacral region”). There is also a positive private nexus opinion, in which the August 2016 private diagnostic consultant concluded that it is more likely than not that this lower back condition is related to his in-service car accident. However, the Board finds this private medical opinion not entirely persuasive, as the sole rationale for this opinion was a mere conclusory remark that “this is a permanent and progressive condition,” without substantiating it with any concrete factual findings. Thus, the medical nexus opinion is speculative in nature. This opinion is enough, however, to trigger VA’s duty to seek an etiology opinion. The Board must also obtain the outstanding treatment records from the 45th medical group in the Patrick Air Force Base from 1997/1998 and from the Viera VA outpatient clinic from 2010. Additionally, while the Veteran noted that he had been referred to Dr. P.B. (from the Physical Med and Rehab) and to Health First Rehab by the Patrick Air Force Base’s 45th Medical Group for his back condition, and while treatment records from Dr. P.B. and from the Health First Rehab (up until October 2011) have been associated with the claims file, it is unclear whether he has received any further treatments from these private facilities thereafter. Thus, the Board must remand to obtain potentially outstanding treatment records from all of the specifically identified facilities and thereafter, also obtain a new examination/medical nexus opinion. 4. Entitlement to a compensable rating for service-connected bilateral flat feet is remanded. The Veteran alleged during the Board hearing that his bilateral flat feet condition has worsened (ie. continuous ache, daily swelling, pain on motion, difficulty walking or standing for prolonged periods) since he was last examined in 2012. While passage of time does not automatically warrant a remand for a new examination, the Board finds that seven years is a significant period of time and concludes that a new examination is necessary to determine the current severity of his bilateral flat feet condition. He has also testified that he has been receiving treatment from the Patrick Air Force Base (45th medical group) since around 1997/1998 and from the Viera VA outpatient clinic from around 2010. Thus, the Board must remand to obtain potentially outstanding records from the aforementioned private medical providers and also to obtain a VA examination/medical nexus opinion. These matters are REMANDED for the following action: 1. Obtain and associate with the claims file VA treatment records, to include from Viera VA outpatient clinic records prior to January 2012, and also from April 2016 to present. 2. Ask the Veteran to complete a release authorizing VA to obtain his records for any private treatment he has received. If any records are requested but not received, advise the Veteran of that fact. • From the 45th medical group from the Patrick Air Force Base (ie. Patrick 45th Medical Group) from around 1998/1999 to November 2009, and also from May 2010 to present. • From the Physical Med and Rehab and from the Health First Rehab, since October 2011. 3. DO NOT SCHEDULE THE FOLLOWING until all the records identified above have been obtained to the extent they exist. 4. Schedule the Veteran for a VA examination to assess the current severity of his service-connected bilateral flat feet condition. 5. Schedule a VA examination and opinion. The examiner must review the complete claims file, including this remand. Then, the examiner must address the following, with full supporting rationales: (a) Determine whether the Veteran has a current disability, to include chronic headaches and lower back conditions. (b) The examiner should opine whether the Veteran’s chronic headaches and lower back conditions are at least as likely as not related to in-service injury, event, or disease, to include his in-service car accident. For the chronic headaches condition, the examiner should also consider the Veteran’s report that he was frequently exposed to malathion as a dog handler in service. For the lower back condition, the examiner should also consider an August 2016 private nexus opinion. **Upon obtaining the aforementioned treatment records, the RO should further develop, to the extent necessary, the Veteran’s claim for service connection for chronic nose bleeding accordingly if the additional records show a current disability (ie. schedule a VA examination to ascertain whether any chronic nose bleeding condition is at least as likely as not related to in-service injury, event, or disease, to include his in-service car accident and his frequent exposure to malathion). MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lee 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.