Citation Nr: 20021390 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 19-01 513 DATE: March 25, 2020 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for kidney failure has been withdrawn and is dismissed. Entitlement to compensation under 38 U.S.C. § 1151 for liver disease has been withdrawn and is dismissed. Entitlement to compensation under 38 U.S.C. § 1151 for a left upper extremity disability has been withdrawn and is dismissed. New and material evidence having not been received, the application to reopen the claim of entitlement to service connection for a neck disability is denied. New and material evidence having not been received, the application to reopen the claim of entitlement to service connection for a low back disability is denied. New and material evidence having not been received, the application to reopen the claim of entitlement to service connection for a shortened left leg disability is denied. New and material evidence having not been received, the application to reopen the claim of entitlement to service connection for right ankle and foot disability is denied. New and material evidence having not been received, the application to reopen the claim of entitlement to service connection for a right wrist and hand disability is denied. New and material evidence having been received, the application to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is granted. New and material evidence having been received, the application to reopen the claim of entitlement to service connection for a traumatic brain injury (TBI) is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for a TBI is remanded. Entitlement to a total disability based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. During his January 2020 Board hearing, the Veteran withdrew his appeal for entitlement to compensation under 38 U.S.C. § 1151 for kidney failure. 2. During his January 2020 Board hearing, the Veteran withdrew his appeal for entitlement to compensation under 38 U.S.C. § 1151 for liver disease. 3. During his January 2020 Board hearing, the Veteran withdrew his appeal for entitlement to compensation under 38 U.S.C. § 1151 for a left upper extremity disability. 4. The claim for entitlement to service connection for a neck disability was most recently denied in an October 2007 rating decision. The Veteran did not submit new and material evidence within one year of that decision or initiate an appeal. The decision became final. 5. Evidence submitted since the October 2007 rating decision, by itself or when considered with previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim for service connection for a neck disability, and therefore does not raise a reasonable possibility of substantiating the claim. 6. The claim for entitlement to service connection for a low back disability was most recently denied in an October 2007 rating decision. The Veteran did not submit new and material evidence within one year of that decision or initiate an appeal. The decision became final. 7. Evidence submitted since the October 2007 rating decision, by itself or when considered with previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim for service connection for a low back disability, and therefore does not raise a reasonable possibility of substantiating the claim. 8. The claim for entitlement to service connection for a shortened left leg disability was most recently denied in an October 2007 rating decision. The Veteran did not submit new and material evidence within one year of that decision or initiate an appeal. The decision became final. 9. Evidence submitted since the October 2007 rating decision, by itself or when considered with previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim for service connection for a shortened left leg disability, and therefore does not raise a reasonable possibility of substantiating the claim. 10. The claim for entitlement to service connection for a right ankle and foot disability was most recently denied in an October 2007 rating decision. The Veteran did not submit new and material evidence within one year of that decision or initiate an appeal. The decision became final. 11. Evidence submitted since the October 2007 rating decision, by itself or when considered with previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim for service connection or a right ankle and foot disability, and therefore does not raise a reasonable possibility of substantiating the claim. 12. The claim for entitlement to service connection for a right wrist and hand disability was most recently denied in an October 2007 rating decision. The Veteran did not submit new and material evidence within one year of that decision or initiate an appeal. The decision became final. 13. Evidence submitted since the October 2007 rating decision, by itself or when considered with previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim for service connection for a right wrist and hand disability, and therefore does not raise a reasonable possibility of substantiating the claim. 14. The claim for entitlement to service connection for an acquired psychiatric disorder, to PTSD was denied in an October 2007 rating decision. The Veteran did not submit new and material evidence within one year of that decision or initiate an appeal. The decision became final. 15. Evidence submitted since the October 2007 rating decision, by itself or when considered with previous evidence of record, is new and relates to an unestablished fact necessary to substantiate the claim for an acquired psychiatric disorder, to include PTSD. 16. The claim for entitlement to service connection for TBI was denied in an October 2007 rating decision. The Veteran did not submit new and material evidence within one year of that decision or initiate an appeal. The decision became final. 17. Evidence submitted since the October 2007 rating decision, by itself or when considered with previous evidence of record, is new and relates to an unestablished fact necessary to substantiate the claim for TBI. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to compensation under 38 U.S.C. § 1151 for kidney failure by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for withdrawal of entitlement to compensation under 38 U.S.C. § 1151 for liver disease by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 3. The criteria for withdrawal of entitlement to compensation under 38 U.S.C. § 1151 for a left upper extremity disability by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 4. New and material evidence has not been received to reopen the claim of entitlement to service connection for a neck disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 5. New and material evidence has not been received to reopen the claim of entitlement to service connection for a low back disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 6. New and material evidence has not been received to reopen the claim of entitlement to service connection for a shortened left leg. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 7. New and material evidence has not been received to reopen the claim of entitlement to service connection for a right ankle and foot disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 8. New and material evidence has not been received to reopen the claim of entitlement to service connection for a right wrist and hand disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 9. New and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 10. New and material evidence has been received to reopen the claim of entitlement to service connection for TBI. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1963 to April 1965. During the Veteran’s January 2020 Board hearing on the issue of entitlement to compensation under 38 U.S.C. § 1151 for a left upper extremity, the undersigned Veterans Law Judge also took testimony on the issues perfected on April 20, 2016 The perfected issues added to this decision are claims for compensation under 38 U.S.C. § 1151 for kidney disease, liver failure, whether new and material evidence has been received for a claim for service connection for neck, low back, shortened left leg, right ankle and foot, and right wrist and hand disabilities and TDIU. 1. Entitlement to compensation under 38 U.S.C. § 1151 for kidney failure 2. Entitlement to compensation under 38 U.S.C. § 1151 for liver disease 3. Entitlement to compensation under 38 U.S.C. § 1151 for a left upper extremity disability During his January 2020 Board hearing, and prior to the promulgation of a decision in the appeal, the Veteran requested to withdraw his appeals for the claims of entitlement to compensation under 38 U.S.C. § 1151 for kidney failure, liver disease and a left upper extremity disability. He specifically stated his intention to withdraw the claims and that he understood the consequences of doing so. There is no remaining disagreement with any determination of fact or law as to those claims, and thus no case in controversy for appellate consideration. 38 C.F.R. § 20.101. The appeals of entitlement to compensation under 38 U.S.C. § 1151 for kidney failure, liver disease and a left upper extremity disability must be dismissed. NEW AND MATERIAL EVIDENCE 1. Whether new and material evidence was received to reopen a claim service connection for a neck disability 2. Whether new and material evidence was received to reopen a claim service connection for a low back disability 3. Whether new and material evidence was received to reopen a claim service connection for a shortened left leg disability 4. Whether new and material evidence was received to reopen a claim service connection for right ankle and foot disability 5. Whether new and material evidence was received to reopen a claim service connection for a right wrist and hand disability The Veteran’s original claims service connection for neck, low back, shortened left leg, right ankle and foot, and right wrist and hand disabilities were denied in October 2001 because the record did not support that he complained of, sought treatment for or was diagnosed with for neck, low back, shortened left leg, right ankle and foot, and right wrist and hand disabilities during service or within one year of leaving service. 38 C.F.R. § 3.307. The Veteran did not initiate an appeal or submit new and material evidence during the appeal period and that decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (b); 20.302, 20.1103. The Veteran filed a claim to reopen in June 2007 and June 2012. In October 2007 and the May 2013 rating decision on appeal, the Agency of Original Jurisdiction (AOJ) declined to reopen the claim and continued the denial issued in the final prior rating decision. The question before the Board is whether new and material evidence has been submitted to reopen the claim. Evidence added to the record since the October 2001 rating decision include treatment records and the Veteran’s testimony at the January 2020 hearing. The medical records show the Veteran has a neck, low back, shortened left leg, right ankle and foot, and right wrist and hand disabilities, but none of the records provide any nexus or connection to the Veteran’s military service. The Veteran contends that his claimed disabilities were all caused from boxing while in the military. The Board finds that evidence submitted since the October 2001 decision is not material because it does not bear directly or substantially upon the matter of service connection by itself or in connection with evidence previously assembled, and is not so significant that it must be considered to decide the claim fairly. Additionally, the Veteran’s contention that these disabilities were caused from boxing during active service is not new evidence as it was already considered by the AOJ in the prior decisions. The claims were initially denied because there was no evidence relating the Veteran’s neck, low back, shortened left leg, right ankle and foot, and right wrist and hand disabilities to service; none of the recently submitted evidence establishes that fact. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). The claims to reopen are denied. 6. Whether new and material evidence was received to reopen a claim service connection for an acquired psychiatric disorder, to include PTSD 7. Whether new and material evidence was received to reopen a claim service connection for TBI The Veteran’s original claims of service connection for PTSD and TBI were denied in October 2007 because the record did not support that he complained of, sought treatment for or was diagnosed with for any head injuries, TBI or PTSD during service. The claims were also denied because there was no evidence that the Veteran has a current diagnosis for a head injury, TBI or PTSD. 38 C.F.R. § 3.307. The Veteran did not initiate an appeal or submit new and material evidence during the appeal period and that decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (b); 20.302, 20.1103. The Veteran filed a claim to reopen in June 2012. In the May 2013 and March 2014 rating decision on appeal, the AOJ declined to reopen the claim and continued the denial issued in the final prior rating decision. The question before the Board is whether new and material evidence has been submitted to reopen the claim. Evidence added to the record since the October 2007 rating decision include treatment records added August 2013 and the Veteran’s testimony at the January 2020 hearing. The medical records show that the Veteran may have a diagnosis of dementia pugilistica (punch drunk syndrome) from boxing. The Veteran was also diagnosed with alcohol, cocaine and opioid dependence, but no etiology was established. The Board finds this evidence is “new” in that it had not been previously submitted. Moreover, the evidence is “material” because it relates to an unestablished fact necessary to substantiate the Veteran’s claim; current diagnoses of the claimed disabilities. The private treatment records submitted in August 2013 provide unestablished facts in the prior denials under 38 C.F.R. § 3.309(a). Both claims are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). De novo consideration of the claims is addressed in the remand section below. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder is remanded. 2. Entitlement to service connection for a TBI is remanded. The Board is unable to make a fully informed decision on the claims for service connection for an acquired psychiatric disorder and TBI because no VA examiner has opined as to whether the Veteran has a diagnosis of an acquired psychiatric disorder or TBI and whether a nexus between any psychological or TBI diagnosis and military service exists. On remand the Veteran should be scheduled for a VA examination for both an acquired psychiatric disorder and TBI. 3. Entitlement to TDIU is remanded. The TDIU claim is inextricably intertwined with the service connection claims and adjudication of that issue will be deferred until the issues of service connection are decided. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate VA examiner, to determine service connection for his TBI condition. Copies of all pertinent records must be made available to the examiner. After reviewing the claims file, the examiner is asked to answer the following questions: Is it at least as likely as not (50 percent probability) that any currently diagnosed TBI condition was incurred in or is otherwise related to service? The examiner is also asked to review and discuss the Veteran’s private treatment records (received on August 12, 2013) where the provider discusses that the Veteran may have dementia pugilistica from boxing in service. A complete rationale must be provided for all opinions, citing to supporting factual data and medical literature, as appropriate. If the examiner cannot provide an opinion without resort to 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) and note what, if any, additional evidence would permit such an opinion to be made. 2. After completion of the foregoing or contemporaneously with the foregoing, forward copies of all pertinent records to an appropriate VA examiner to obtain a medical opinion for the Veteran’s acquired psychiatric disorder claim. After reviewing the claims file, the examiner is asked to answer the following questions: (a) Is it at least as likely as not (50 percent probability) that any currently diagnosed acquired psychiatric disorder was incurred in or is otherwise related to service? (b) If (a) is answered no, is it at least as likely as not (probability of at least 50 percent) that any currently diagnosed acquired psychiatric disorder was caused or aggravated by the Veteran’s service or TBI? The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. A complete rationale must be provided for all opinions, citing to supporting factual data and medical literature, as appropriate. If the examiner cannot provide an opinion without resort to 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) and note what, if any, additional evidence would permit such an opinion to be made. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement TDIU M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Perkins, 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.