Citation Nr: 21001947 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 16-51 974 DATE: January 12, 2021 ORDER 1. Entitlement to a rating in excess of 10 percent for residuals of a right mandibular fracture has been withdrawn and is dismissed. 2. Entitlement to compensation under 38 U.S.C. § 1151 for a right hand disability has been withdrawn and is dismissed. 3. The application to reopen the claim for service connection for a left shoulder pinched nerve (left shoulder disability) has been withdrawn and is dismissed. 4. The application to reopen the claim for service connection for a right knee disability is denied. 5. The application to reopen the claim for service connection for a left knee disability is denied. REMANDED 6. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is remanded. 7. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. At the May 2020 hearing with assistance from his agent and in a May 2020 statement, the Veteran, through his representative, explicitly and unambiguously expressed his intent to withdraw his appeal in connection with his claim for entitlement to a rating in excess of 10 percent for residuals of a right mandibular fracture. 2. At the May 2020 hearing with assistance from his agent and in a May 2020 statement, the Veteran, through his representative, explicitly and unambiguously expressed his intent to withdraw his appeal in connection with his claim for entitlement to compensation under 38 U.S.C. § 1151 for a right hand disability. 3. At the May 2020 hearing with assistance from his agent and in a May 2020 statement, the Veteran, through his representative, explicitly and unambiguously expressed his intent to withdraw his appeal in connection with his claim for entitlement to service connection for a left shoulder disability. 4. In a March 2005 rating decision, the application to reopen the claim for service connection for a right knee disability was denied based on a finding that new and material evidence had not been received. 5. Evidence submitted since the March 2005 rating decision does not relate to an unestablished fact necessary to substantiate the claim for service connection for a right knee disability. 6. In a March 2005 rating decision, the application to reopen the claim for service connection for a left knee disability was denied based on a finding that new and material evidence had not been received. 7. Evidence submitted since the March 2005 rating decision does not relate to an unestablished fact necessary to substantiate the claim for service connection for a left knee disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim for entitlement to a rating in excess of 10 percent for residuals of a right mandibular fracture have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2019). 2. The criteria for withdrawal of the claim for entitlement to compensation under 38 U.S.C. § 1151 for a right hand disability have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2019). 3. The criteria for withdrawal of the application to reopen the claim for service connection for a left shoulder disability have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2019). 4. The March 2005 rating decision denying the application to reopen the claim for service connection for a right knee disability is final. New and material evidence has not been received to reopen the claim. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.156(a), 20.1103 (2019). 5. The March 2005 rating decision denying the application to reopen the claim for service connection for a left knee disability is final. New and material evidence has not been received to reopen the claim. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.156(a), 20.1103 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1975 to May 1976. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in May 2020. A transcript of the hearing was prepared and associated with the claims file. The record was left open for 90 days to allow the Veteran to submit a private psychiatric examination, which was received in August 2020. Withdrawn Claims 1. – 3. Entitlement to a rating in excess of 10 percent for residuals of a right mandibular fracture, entitlement to compensation under 38 U.S.C. § 1151 for a right hand disability, and the application to reopen the claim for service connection for a left shoulder disability 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 (2012). 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 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, during the May 2020 hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew the claims for (1) entitlement to a rating in excess of 10 percent for residuals of a right mandibular fracture; (2) entitlement to compensation under 38 U.S.C. § 1151 for a right hand disability; and (3) the application to reopen the claim for service connection for a left shoulder disability. The withdrawal of these claims was discussed prior to going on the record, which withdrawal was raised by the Veteran’s agent. While on the record, the undersigned identified the withdrawn issues, and the Veteran confirmed that he was requesting a withdrawal as to these three claims. The undersigned informed the Veteran that she would not be making a favorable or unfavorable decision as to these three claims, and, instead, would be dismissing the claims within the decision. She added that if the Veteran wanted to file subsequent claims for any of these disabilities, the decision would be based upon his claim at that time versus the current pending claim. The Veteran stated he understood these facts. Additionally, on May 11, 2020, the Veteran, through his representative, submitted a statement in writing documenting he wanted to withdraw his appeal as to these three claims. Thus, the Veteran has withdrawn the appeal as it relates to these claims. Accordingly, the Board does not have jurisdiction to review the aforementioned claims, and they are dismissed. New and Material Evidence 4. – 5. The application to reopen the claim for service connection for a bilateral knee disability Prior unappealed decisions of the RO are final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. The Board does not have jurisdiction to consider a claim that has become final before it determines that new and material evidence has been presented, irrespective of what the regional office may have determined with respect to new and material evidence. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). If, however, new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. Manio v. Derwinski, 1 Vet. App. 145 (1991). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence means existing evidence that, by itself or 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. Id. New and material evidence need not be received as to each previously unproven element of a claim in order 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, 117–20 (2010). The claim for service connection for a bilateral knee disability was initially considered and denied by the RO in a December 2002 rating decision. The left knee disability was initially denied based on a finding that a left knee injury in service existed prior to service and was not aggravated by active duty. The right knee disability was initially denied based on a finding there was no onset of a right knee disability in service. The Veteran was notified of that decision and of his appellate rights. The Veteran filed a Notice of Disagreement and a Statement of the Case was issued. However, the Veteran did not file a VA Form 9, Appeal to the Board, or a substantive appeal with the time period to perfect the appeal regarding these two claims following the December 2002 rating decision. Thus, December 2002 rating decision is final. A March 2005 rating decision denied the application to reopen the claim for service connection for a bilateral knee disability based on a finding that the Veteran had not submitted new and material evidence, and the Veteran did not file a notice of disagreement. Thus, the March 2005 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. At the time of the March 2005 rating decision, the relevant evidence consisted of service treatment records (STRs), private medical records, VA treatment records, statements from the Veteran’s mother and friends in support of his claim, and the application for compensation benefits. In June 2012, the Veteran filed an application to reopen the claim for service connection for a bilateral knee disability. Relevant evidence added to the file consists of VA treatment records, statements from the Veteran, a VA examination, hearing testimony, and the application to reopen the claim. Since the March 2005 rating decision, the Veteran continued to report, in June 2012 and October 2012 statements, that he began having pain in his knees during basic training and that his knee pain had continued to get worse over the years. At the May 2020 hearing, the Veteran testified that prior to service he had his left knee drained related to an injury sustained while playing football. He reiterated that he had no issues with his knees when he entered service but that he had knee pain in service. He testified he was treated in service, but that he was told to return to training without treatment. He further testified that he continued to have pain in his knees after leaving service, even prior to a work injury causing him to need surgery to his right knee. The Board notes that the Veteran’s statements to treatment providers, statements to the VA, and statements submitted by his mother and friends that were associated with the file prior to the March 2005 rating decision are consistent with these newly-received statements and testimony. Thus, this evidence is duplicative of evidence already associated with the claims file at the time of the March 2005 denial and are not new and material evidence. In a March 2015 VA examination report, it shows the Veteran was diagnosed with degenerative arthritis of both knees. The examiner documented that the Veteran had a football injury to his left knee prior to service and opined that the bilateral knee injury was less likely than not caused by service and the development of arthritis was more likely than not related to age or the work injury and associated surgery in 1996. The Board finds this evidence, while new, is not material. The December 2002 rating decision noted the left knee injury existed prior to service, with no evidence that the left knee was aggravated by active duty. As for the right knee, the rating was denied as there was no onset of a current disability in service, and the March 2015 VA examination does not include evidence to support a finding that the Veteran’s right knee disability had an onset in service. Thus, the evidence documented in the March 2015 VA examination is not material. Finally, VA treatment records received since the March 2005 rating decision, including the March 2015 VA examination report, document that the Veteran now has a diagnosis of osteoarthritis of the bilateral knees, which is a specific diagnosis which did not exist prior to the March 2005 rating decision. However, while this is new evidence, it is not material evidence as the December 2002 rating decision did not dispute that the Veteran had a current diagnosis of a bilateral knee disability. Accordingly, the Board finds that new and material evidence has not been received to reopen the claim for service connection for a bilateral knee disability. Therefore, the application to reopen the previously-denied claim is denied. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS FOR REMAND 6. Entitlement to a rating in excess of 30 percent for PTSD The Board finds that additional development is necessary prior to determining entitlement to a rating in excess of 30 percent for PTSD. In thoroughly reviewing the claims file, the Board notes that VA treatment records from 2014 document that the Veteran was seeing Claudia Williams on an outpatient basis for therapy every week as part of his PTSD treatment. The treatment records from Ms. Williams are not in the claims file. Additionally, the claims file documents the Veteran regularly attended psychiatric treatment at various VA facilities throughout the period on appeal. However, VA treatment records from May to December 2016 have not been associated with the claims file, and, to the extent the Veteran was being treated at a VA facility during that time, they would likely contain treatment related to his PTSD claim. A remand is necessary to attempt to obtain these treatment records. 7. Entitlement to a TDIU rating The issue of entitlement to TDIU is inextricably intertwined in the issue of entitlement to a rating in excess of 30 percent for PTSD. Thus, this issue must also be remanded. The matters are REMANDED for the following action: 1. Obtain the VA treatment records for the period from May 2016 to December 2016 and from August 2020 to the present. 2. Ask the Veteran to complete a VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs (VA), or VA Form 21-4142a General Release for Medical Provider Information to the Department of Veterans Affairs, for PTSD therapy records related to treatment by Claudia Williams beginning in October 2014. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Keninger, 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.