Citation Nr: 21061946 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 18-53 117A DATE: October 5, 2021 ORDER The application to reopen the Veteran's claim for entitlement to service connection for a back disability is granted. Entitlement to service connection for a right knee condition has been withdrawn. Entitlement to service connection for a right shoulder condition has been withdrawn. Entitlement to service connection for left knee arthritis has been withdrawn. Entitlement to a compensable rating for residual, laceration of 4th finger (right hand) has been withdrawn. REMANDED Entitlement to service connection for sleep apnea, to include as due to service-connected disease or injury is remanded. Entitlement to service connection for a sinus condition is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include as due to service-connected disease or injury is remanded. FINDINGS OF FACT 1. A February 1982 rating decision that denied entitlement to service connection for a back disability is final, and subsequent evidence associated with the claims file relates to an unestablished fact necessary to substantiate the claim. 2. During the June 2021 Board hearing, prior to the promulgation of a Board decision, the Veteran through his representative, testified that he wished to withdraw his appeal for entitlement to service connection for a right knee condition. 3. During the June 2021 Board hearing, prior to the promulgation of a Board decision, the Veteran through his representative, testified that he wished to withdraw his appeal for entitlement to service connection for a right shoulder condition. 4. During the June 2021 Board hearing, prior to the promulgation of a Board decision, the Veteran through his representative, testified that he wished to withdraw his appeal for entitlement to service connection for left knee arthritis. 5. During the June 2021 Board hearing, prior to the promulgation of a Board decision, the Veteran through his representative, testified that he wished to withdraw his appeal for entitlement to a compensable rating for residual, laceration of 4th finger (right hand). CONCLUSIONS OF LAW 1. Evidence received since the February 1982 rating decision is new and material and the claim of entitlement to service connection for a back disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2020). 2. The criteria for withdrawal of entitlement to service connection for a right knee condition by the Veteran have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § § 19.55 (2020). 3. The criteria for withdrawal of entitlement to service connection for a right shoulder condition by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for withdrawal of entitlement to service connection for left knee arthritis by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 5. The criteria for withdrawal of entitlement to a compensable rating for residual, laceration of 4th finger (right hand) by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from September 1973 to March 1981. This matter comes before the Board of Veterans' Appeals (Board) from August 2015, June 2016, November 2016, and September 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran attended a Board videoconference hearing in June 2021. A transcript of the hearing is associated with the claims file. New and Material Evidence The Veteran has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.201, and 20.203(b). The Veteran was originally denied entitlement to service connection for a back disability in a February 1982 rating decision. The Veteran was notified of that decision and appeal rights. He did not appeal the decision or submit new and material evidence within one year. The denial of his claim consequently became final. See 38 C.F.R. §§ 20.302, 20.1103. As a result, the claim of service connection for a back disability may now be considered on the merits only if new and material evidence has been received since the time of the last final adjudication. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); Evans v. Brown, 9 Vet. App. 273 (1996). Under 38 C.F.R. § § 3.156(a), evidence is considered "new" if it was not of record at the time of the last final disallowance of the claim. 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. Finally, 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. In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). Additionally, when determining whether the Veteran has submitted new and material evidence to reopen a claim, consideration must be given to all the evidence since the last final denial of the claim. Evans v. Brown, 9 Vet. App. 273 (1996). Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. See Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding that it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). 1. Whether new and material evidence was submitted sufficient to reopen the claim for entitlement to service connection for a back disability At the time of the February 1982 rating decision, the claims file included the Veteran's service treatment records, lay statements, and a January 1982 VA examination. The RO denied service connection in the February 1982 rating decision, concluding that the Veteran's back disability was not caused by service because the episodes of back strain and muscle spasms were found to be acute and resolved and instead were caused by a post-service work injury. Since the time of the last final rating decision, the Veteran submitted VA and private treatment records, and reported that there were outstanding Social Security Administration (SSA) records. He also submitted a September 2017 private opinion from a doctor who determined his current back disability resulted from his military service. The Veteran also provided testimony at a Board hearing regarding his in-service back pain and injury, and continued symptoms from that time. See June 2021 Board Hearing Transcript. Pursuant to the Court's holding in Shade and presuming the credibility of the evidence for the sole purpose of determining whether the claims should be reopened, the Board concludes that the above evidence suggests his current back disability may be related to in-service injuries and pain. At the very least, this new evidence raises a reasonable possibility of substantiating the claim and constitutes new and material evidence sufficient to reopen the Veteran's claims for service connection for a lower back disability. Withdrawal 2. Entitlement to service connection for a right knee condition 3. Entitlement to service connection for a right shoulder condition 4. Entitlement to service connection for left knee arthritis 5. Entitlement to a compensable rating for residual, laceration of 4th finger (right hand) A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision or may be withdrawn on the record at a hearing. 38 C.F.R. §§ 20.202, 20.204(b). Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. During the June 2021 Board hearing, the Veteran through his representative, testified that he wished to withdrawal his service connection claims for right and left knee disorders, a right shoulder condition and an increased rating claim for a laceration on his finger. This testimony expresses clear intent to withdraw the Veteran's increased rating and service connection claims currently on appeal. As the Veteran has properly withdrawn the appeals prior to a final Board decision, the Board no longer has appellate jurisdiction and can take no further action on these matters. 38 C.F.R. §§ 20.202, 20.204(b), 20.1100(b). REASONS FOR REMAND 6. Entitlement to service connection for a back disability As an initial matter, during the June 2021 Board hearing, the Veteran testified that he received Social Security Administration disability benefits. However, no records from the Social Security Administration have been associated with the claim file, and no evidence of an attempt to obtain such records exists in the claim file. In light of this, the record appears to be incomplete, and such evidence may support the Veteran's claim. Furthermore, the Board acknowledges that these records are with a Federal facility and that VA has an increased obligation in regard to obtaining records in the custody of a Federal department or agency. 38 C.F.R. § 3.159 (c)(2). A new VA examination is also warranted. The Veteran submitted a September 2017 private opinion from a doctor who determined the Veteran's current back disability resulted from a "major" injury to his back in 1978 with continuity thereafter. Review of the STRs does not reveal a major back injury, as the Veteran was given a seven-day profile following the referenced 1978 back strain and was then able to continue his military duties. He did have treatment encounters for back muscle strain or spasms in 1977, 1979 and 1981 with a normal X-ray in August 1977, and a post-service X-ray in January 1982 that showed "posterior narrowing of the lumbosacral articulations." Accordingly, an additional opinion is necessary prior to adjudication. 7. Entitlement to service connection for a sinus condition The Veteran contends that his current sinus condition began in service. STRs reveal that the Veteran was treated for "persistent sinusitis" in January 1981. April 2013 private treatment records reflect that the Veteran was treated for "bad" sinus problems. He told the treating physician that he had "always" had these sinus problems. Following a VA examination in August 2015, a VA examiner determined that the Veteran's sinusitis was less likely than not due to his service-connected deviated septum. The examiner did not mention the in-service treatment for sinusitis or provide an opinion regarding direct service connection in his report. Accordingly, an addendum opinion is necessary prior to adjudication. 8. Entitlement to service connection for sleep apnea, to include as due to service-connected disease or injury The Veteran contends that his service-connected deviated septum caused or aggravated his current sleep apnea condition. See June 2021 Board hearing transcript. The Veteran was not afforded a VA examination. It is well established that VA's duty to assist includes the provision of an adequate examination when additional medical evidence is needed to substantiate a claim on appeal. See 38 U.S.C. § 5103A (d); McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Accordingly, a remand is required in order to afford the Veteran a VA examination for his sleep apnea. 9. Entitlement to service connection for an acquired psychiatric disorder, to include as due to service-connected disease or injury The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder because his back pain has caused depression. Because a decision on the remanded issue of entitlement to service connection for a back disability could significantly impact a decision on the issue of entitlement to service connection for an acquired psychiatric disorder, the issues are inextricably intertwined, and a remand is required. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate with the claims file. 2. Contact the Social Security Administration and request all pertinent documentation pertaining to any claim for disability benefits by the Veteran including any medical records that Social Security has regarding the Veteran. These records should be associated with the claim file. All efforts to obtain the records should be associated with the claim file. 3. Schedule the Veteran for a VA examination for his back disability. The examiner must review the claims file. The examiner is asked to provide a response to the following: (a.) Is the back disability at least as likely as not caused by service, including the September 1978 lifting incident or repeat treatments for low back pain from 1977-1981? In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? (b.) Is it at least as likely as not that the any back arthritis (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Review of the entire claims file is required, and the examiner is asked to specifically comment on the September 2017 private opinion. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. Obtain an addendum opinion regarding the etiology of the Veteran's sinus disability. Only schedule the Veteran for a VA examination if deemed necessary. The examiner must review the claims file. The examiner is asked to opine whether the Veteran's sinus disability is at least as likely as not onset during or was caused by service, including the January 1981 in-service treatment for persistent sinusitis. Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. Schedule the Veteran for a VA examination for his sleep apnea. The examiner must review the claims file. The examiner is asked to provide a response to the following: (a.) Is sleep apnea at least as likely as not onset during or was caused by service? (b.) Is sleep apnea at least as likely as not proximately due to his service-connected deviated septum? (c.) Is sleep apnea at least as likely as not aggravated, i.e., worsened, by his service-connected deviated septum? Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 6. After completing the development requested above, and any other development deemed necessary, readjudicate the Veteran's claim, to include entitlement to service connection for an acquired psychiatric disorder to include as due to the Veteran's service-connected disabilities. If any of the benefits sought are not granted in full, the AOJ should furnish the Veteran and his representative with an SSOC and afford an opportunity to respond. The claims file should then be returned to the Board for further appellate review. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Fitzgerald, 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.