Citation Nr: 21002593 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 17-48 826 7DATE: January 14, 2021 ORDER Entitlement to service connection for a left ring finger disability is denied. As new and material evidence has not been received, the previously denied claim of service connection for hives due to an insect bite is not reopened. As new and material evidence has not been received, the previously denied claim of service connection for bilateral foot fungus is not reopened. As new and material evidence has not been received, the previously denied claim of service connection for numbness of the left upper extremity is not reopened. Entitlement to service connection for diabetes mellitus has been withdrawn. Entitlement to service connection for a skin rash has been withdrawn. Entitlement to service connection for obstructive sleep apnea (OSA) has been withdrawn. REMANDED Entitlement to service connection for a prostate disability, to include benign prostatic hypertrophy, is remanded. FINDINGS OF FACT 1. The record evidence shows that the Veteran does not experience any left ring finger disability which is related to active service. 2. In a rating decision dated on March 29, 2004, and issued to the Veteran on March 31, 2004, the Agency of Original Jurisdiction (AOJ) denied, in pertinent part, a claim of service connection for bilateral foot fungus; this decision was not appealed and became final. 3. The evidence received since March 2004 is either cumulative or redundant of evidence previously submitted in support of the Veteran’s claim of service connection for bilateral foot fungus. 4. In a rating decision dated on June 15, 2011, and issued to the Veteran on June 28, 2011, the AOJ denied, in pertinent part, a claim of service connection for a disability manifested by hives due to an insect bite (which was characterized as hives, due to insect bite) and a request to reopen the previously denied claim of service connection for numbness of the left upper extremity (which was characterized as pain in left arm and tingling in hand (previously rated as peripheral neuropathy, upper extremity); this decision was not appealed and became final. 5. The evidence received since June 2011 is either cumulative or redundant of evidence previously submitted in support of the Veteran’s claims of service connection for a disability manifested by hives due to an insect bite and for numbness of the left upper extremity. 6. In statements made on the record at his January 28, 2020, Board hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal for service connection for diabetes mellitus, a skin rash, and for OSA; this withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of such action by the Veteran. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left ring finger disability have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2019). 2. The March 2004 rating decision, which denied the Veteran’s claim of service connection for bilateral foot fungus, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.302 (2019). 3. Evidence received since the March 2004 rating decision in support of the claim of service connection for bilateral foot fungus is not new and material; thus, this claim is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 4. The June 2011 rating decision, which denied the Veteran’s claim of service connection for a disability manifested by hives due to an insect bite and a request to reopen the previously denied claim of service connection for numbness of the left upper extremity, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.302 (2019). 5. Evidence received since the June 2011 rating decision in support of the claim of service connection for a disability manifested by hives due to an insect bite and a request to reopen the previously denied claim of service connection for numbness of the left upper extremity is not new and material; thus, these claims are not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 6. The criteria for withdrawal of service connection for diabetes mellitus, a skin rash, and for OSA by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1968 to October 1969, including in combat in the Republic of Vietnam from August 1968 to October 1969. A videoconference Board hearing was held in January 2020 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. The Board observes that, in a March 2004 rating decision, the Agency of Original Jurisdiction (AOJ) denied the Veteran’s claim of service connection for bilateral foot fungus (which was characterized as feet fungus). The Board also observes that, in a June 2011 rating decision, the AOJ denied the Veteran’s claims of service connection for a disability manifested by hives due to an insect bite (which was characterized as hives, due to insect bite). The AOJ also concluded that new and material evidence had not been received sufficient to reopen a previously denied claim of service connection for numbness of the left upper extremity (which was characterized as pain in left arm and tingling in hand (previously rated as peripheral neuropathy, upper extremity). The Veteran did not appeal either of these decisions and they became final. See 38 U.S.C. § 7104 (2012). He also did not submit any relevant evidence or argument within 1 year of the March 2004 or June 2011 rating decisions which would render either of these rating decisions non-final for VA adjudication purposes. See Buie v Shinseki, 24 Vet. App. 242, 251-52 (2011) (explaining that, when statements are received within one year of a rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156 (b)). The Board does not have jurisdiction to consider a claim that has been adjudicated previously unless new and material evidence is presented. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Therefore, the issues of whether new and material evidence has been received to reopen claims of service connection for a disability manifested by hives due to an insect bite, bilateral foot fungus, and for numbness of the left upper extremity are as stated on the title page. Regardless of the AOJ’s actions, the Board must make its own determination as to whether new and material evidence has been received to reopen these claims. That is, the Board has a jurisdictional responsibility to consider whether a claim should be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Service Connection 1. Entitlement to service connection for a left ring finger disability The Board finds that the preponderance of the evidence is against granting the Veteran’s claim of service connection for a left ring finger disability. The Veteran essentially contends that he incurred a left ring finger disability when he broke his left ring finger while jumping off of a truck in Vietnam. Contrary to his lay assertions, the record evidence shows that he does not experience any current left ring finger disability which is related to active service. It is undisputed that the Veteran had active combat service in the Republic of Vietnam. The available service treatment records show that, at his enlistment physical examination in March 1968, clinical evaluation was within normal limits. Clinical evaluation was unchanged at his separation physical examination in October 1969 when the Veteran denied any relevant in-service medical history. The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). The post-service evidence also does not support granting the Veteran’s claim of service connection for a left ring finger disability. It shows instead that he does not experience any current left ring finger disability which is related to active service. The available post-service VA outpatient treatment records show no complaints of or treatment for a left ring finger disability. A service connection claim must be accompanied by evidence which establishes that the claimant currently has a disability. Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection is not warranted in the absence of proof of current disability. The Board has considered whether the Veteran experienced a left ring finger disability at any time during the pendency of this appeal. Service connection may be granted if there is a disability at some point during the claim even if it later resolves or becomes asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, there is no evidence – other than the Veteran’s unsupported lay assertions – that he experiences any left ring finger disability which is related to active service. He otherwise has not identified any evidence demonstrating his entitlement to service connection for a left ring finger disability. In summary, the Board finds that service connection for a left ring finger disability is not warranted. 2. Whether new and material evidence has been received to reopen claims of service connection for a disability manifested by hives due to an insect bite, bilateral foot fungus, and for numbness of the left upper extremity The Board finds that the preponderance of the evidence is against granting the Veteran’s request to reopen his previously denied claims of service connection for a disability manifested by hives due to an insect bite, bilateral foot fungus, and for numbness of the left upper extremity. The Board notes initially that claims of service connection may be reopened if new and material evidence is received. Manio v. Derwinski, 1 Vet. App. 140 (1991). The Veteran essentially requested that these claims be reopened in statements on a VA Form 21-526b dated on March 27, 2014, and date-stamped as received by the AOJ on April 21, 2014. New and material evidence is defined by regulation. See 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). With respect to the Veteran’s application to reopen the previously denied service connection claim for bilateral foot fungus, the evidence before VA at the time of the prior final AOJ decision in March 2004 consisted of his service treatment records and post-service VA outpatient treatment records. The AOJ concluded that this evidence did not show that the Veteran experienced this disability during or after active service. Thus, this claim was denied. With respect to the Veteran’s application to reopen the previously denied service connection claims for a disability manifested by hives due to an insect bite and for numbness of the left upper extremity, the evidence before VA at the time of the prior final AOJ decision in June 2011 consisted of his service treatment records and post-service VA outpatient treatment records. The AOJ noted that the Veteran’s VA outpatient treatment records showed that he complained of experiencing a bee sting allergy which caused hives when stung by a bee. The AOJ also noted that there was no evidence showing that he experienced disability manifested by hives due to an insect bite which is related to active service. The AOJ next noted that there was no new and material evidence received to reopen the previously denied service connection claim for numbness of the left upper extremity. Thus, both claims were denied. The newly received evidence still does not show that the Veteran experiences any current disability due to his claimed bilateral foot fungus, disability manifested by bilateral foot fungus, or for numbness of the left upper extremity which could be attributed to active service. The evidence received since March 2004 and June 2011, respectively, consists of additional VA outpatient treatment records and examination reports and additional lay statements and Board hearing testimony. This evidence does not show that the Veteran complained or sought treatment for any of these claimed disabilities in recent years. His lay statements asserting an etiological link between any of these claimed disabilities and active service are duplicative of statements that had been before the Board prior to the previous decisions. Critically, there is no new evidence that any of these claimed disabilities is related to active service. The Board notes that the Court held in Shade v. Shinseki, 24 Vet. App. 110 (2010), that the phrase “raises a reasonable possibility of substantiating the claim” found in the post-VCAA version of 38 C.F.R. § 3.156(a) must be viewed as “enabling” reopening of a previously denied claim rather than “precluding” it. All of the newly received evidence is presumed credible solely for the limited purpose of reopening the previously denied claim. See Justus, 3 Vet. App. at 513. With respect to the Veteran’s request to reopen his previously denied service connection claims for a disability manifested by hives due to an insect bite, bilateral foot fungus, and for numbness of the left upper extremity, the Board finds that there is no reasonable possibility that the newly received evidence would enable rather than preclude reopening any of these claims. Unlike in Shade, there is no new evidence in this case either previously considered in the March 2004 or June 2011 AOJ decisions or received since these decisions became final which demonstrates that any of these claimed disabilities is related to active service or any incident of service. Thus, the analysis of new and material evidence claims that the Court discussed in Shade is not applicable to the Veteran’s request to reopen these previously denied service connection claims. In summary, as new and material evidence has not been received, the previously denied claims of service connection for a disability manifested by hives due to an insect bite, bilateral foot fungus, and for numbness of the left upper extremity are not reopened. Dismissed Claims 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 (2019). Withdrawal may be made by the appellant or by his or her authorized representative. Id. In Acree, the United States Court of Appeals for the Federal Circuit held that the withdrawal must be explicit, unambiguous, and done with a full understanding of the consequences of such action by the appellant and the subsequent Board dismissal must include findings as to all three elements. See Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018), 2018 U.S. App. LEXIS 14959, adopting the rule of DeLisio v. Shinseki, 25 Vet. App. 45, 57-58 (2011). As noted in the Introduction, after the Veteran perfected a timely appeal and with a full understanding of the consequences of such action, he requested that the issues of service connection for diabetes mellitus, a skin rash, and for OSA be withdrawn in statements made on the record at his January 2020 Board hearing. See Board hearing transcript dated January 28, 2020, at pp. 2. The Board finds it highly persuasive that the Veteran knew the consequences of this withdrawal because he continued to pursue his appeal with respect to the remaining claims addressed in this decision. The Board also finds it highly persuasive that the Veteran knew the consequences of this withdrawal because he was represented by his service representative at the time when he withdrew his appeal of service connection for diabetes mellitus, a skin rash, and for OSA. Having reviewed the record evidence, the Board finds that withdrawal of these claims was explicit, unambiguous, and done with a full understanding of the consequences of such action by the Veteran. See Acree, 891 F.3d at 1009. Accordingly, the claims of service connection for diabetes mellitus, a skin rash, and for OSA are dismissed. REASONS FOR REMAND Entitlement to service connection for a prostate disability, to include benign prostatic hypertrophy, is remanded. The Veteran finally contends that he incurred a prostate disability (which he characterized as an enlarged prostate) during active service and experienced continuous post-service disability. The record evidence demonstrates ongoing complaints of and treatment for benign prostatic hypertrophy since his service separation. To date, however, the AOJ has not provided the Veteran with an examination or obtained a medical nexus opinion concerning the nature and etiology of his claimed prostate disability, to include benign prostatic hypertrophy. The Board notes in this regard that the duty to assist Veterans by providing an examination or obtaining a medical nexus opinion is a low threshold. Thus, the Board finds that, on remand, the AOJ should obtain a medical nexus opinion from an appropriate clinician concerning the nature and etiology of the Veteran’s claimed prostate disability, to include benign prostatic hypertrophy. The matters are REMANDED for the following action: 1. Forward the claims file to an appropriate clinician for an opinion concerning the nature and etiology of the Veteran’s prostate disability, to include benign prostatic hypertrophy. The Veteran does not need to report for examination. Based on a review of the claims file, the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a prostate disability, to include benign prostatic hypertrophy, if present, is related to active service. A rationale must be provided for any opinion(s) expressed. 3. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael T. Osborne, 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.