Citation Nr: 21062427 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 18-08 997 DATE: October 7, 2021 ORDER Reopening of the claim for service connection for a psychiatric disability is granted; the appeal is granted to this extent only. Reopening of the claim for service connection for a low back disability is granted; the appeal is granted to this extent only. Reopening of the claim for service connection for a throat disability is granted; the appeal is granted to this extent only. Reopening of the claim for service connection for removal of the salivary glands is dismissed. Entitlement to an increased rating in excess of 10 percent for left seventh nerve palsy is dismissed. REMANDED Entitlement to an increased rating in excess of 10 percent for a cervical spine disability is remanded. Entitlement to service connection for a psychiatric disability, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a throat disability, to include as secondary to service-connected disabilities, is remanded. Entitlement to a temporary total rating based on the need for convalescence pursuant to 38 C.F.R. § 4.30 for a right hip disability is remanded. FINDINGS OF FACT 1. A May 2014 rating decision denied reopening of the claim for service connection for a psychiatric disability. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one-year appellate period. 2. The evidence associated with the claims file subsequent to the May 2014 rating decision was not previously of record and relates to a previously unestablished fact necessary to substantiate the claim of service connection for a psychiatric disability. 3. An October 2011 rating decision denied service connection for a low back disability. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one-year appellate period. 4. The evidence associated with the claims file subsequent to the October 2011 rating decision was not previously of record and relates to a previously unestablished fact necessary to substantiate the claim of service connection for a low back disability. 5. A May 2014 rating decision denied service connection for a throat disability. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one-year appellate period. 6. The evidence associated with the claims file subsequent to the May 2014 rating decision was not previously of record and relates to a previously unestablished fact necessary to substantiate the claim of service connection for a throat disability. 7. During his February 2021 hearing and prior to the promulgation of a Board decision, the Veteran and his representative stated the Veteran wished to withdraw his appeal of the issues of reopening a claim for service connection for removal of the salivary glands and entitlement to an increased rating for earlier effective date for the award of an increased rating for left seventh nerve palsy. CONCLUSIONS OF LAW 1. The May 2014 rating decision is final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2014). 2. New and material evidence sufficient to reopen the claim of service connection for a psychiatric disability has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The October 2011 rating decision is final. 38 U.S.C. §§ 7104, 7105 (2006); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2011). 4. New and material evidence sufficient to reopen the claim of service connection for a low back disability has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The May 2014 rating decision is final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2014). 6. New and material evidence sufficient to reopen the claim of service connection for a throat disability has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 7. The criteria for withdrawal of the claim to reopen service connection for removal of the salivary glands by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 8. The criteria for withdrawal of the claim for an increased rating in excess of 10 percent for left seventh nerve palsy 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 from March 1985 to March 1988. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in March 2016 by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in January 2021. A transcript of the hearing is of record. The Board notes that the Veteran initially filed his claim for depression and anxiety. However, the Veteran, as a layperson, is not competent to distinguish between competing psychiatric diagnoses, and so a claim of service connection for one is considered a claim for all. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, the issue has been recharacterized as a claim for service connection for a psychiatric disability generally. In addition, the Veteran initially filed separate claims for service connection for a larynx disability and a pharynx disability. During the period on appeal these two claims were recharacterized as a claim for a throat disability generally. Id. New and Material Evidence Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. New and material evidence received prior to the expiration of the appeal period following a decision, will be considered as having been filled in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). The definitions of the terms "new" and "material" for the purposes of this provision are the same as those discussed above. Voracek v. Nicholson, 421 F.3d 1299, 1304 (Fed. Cir. 2005). If evidence received during the appellate period following a decision is new and material, the claim will remain pending until VA issues another decision re-adjudicating the claim and addressing the new and material evidence. Bond v. Shinseki, 659 F.3d 1362, 136768 (Fed. Cir. 2011). New and material evidence is not required to reopen a claim when, at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim. 38 C.F.R. § 3.156(c). "Relevant" means service records that speak to a matter in issue or in dispute. Kisor v. Wilkie, 969 F.3d 1333, 134143 (Fed. Cir. 2020). In other words, to be relevant the new service department records must pertain to the basis of the prior final denial. Id. For the purposes of reopening a claim, newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Id. at 11718. 1. Reopening service connection for a psychiatric disability. The RO last denied reopening of the claim for service connection for a psychiatric disability in May 2014. The Veteran was notified of the decision but did not submit a notice of disagreement with the decision. Further, no new and material evidence was associated with the file during the appellate period following the decision, as no evidence showing that the psychiatric disability was related to service or caused or aggravated by a service-connected disability was associated with the file. 38 C.F.R. § 3.156(b); see Lang v. Wilkie, 971 F.3d 1348, 135355 (Fed. Cir. 2020). Finally, while additional service records have been associated with the file, none of these records reflect in-service psychiatric treatment or link the disability to service or to another service-connected disability. 38 C.F.R. § 3.156(c). As such, they are not relevant. Kisor, 969 F.3d at 134143. Therefore, the May 2014 decision is final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The evidence of record in May 2014 consisted of service treatment records, Social Security Administration (SSA) records, VA examination reports and treatment records, private treatment records, and the Veteran's lay statements. The evidence of record failed to establish that a psychiatric disability was related to service or secondary to a service connected disability. Evidence received since the rating decision includes additional VA treatment records and examination reports, the Veteran's January 2021 hearing testimony, and an April 2021 private opinion. Of particular note, the April 2021 private opinion indicated that the Veteran's psychiatric disability was either related to service or secondary to his service-connected disabilities. There is no evidence that the private practitioner was not competent, and the evidence is presumed credible for the purposes of reopening. Justus, 3 Vet. App. at 513. The evidence provided by the Veteran is new as it was not previously submitted to agency decision makers and is material as it addresses the previously unestablished fact of a nexus between the current disability and service. It is not redundant and raises a reasonable possibility of substantiating the claim. Therefore, reopening of the claim for service connection for a psychiatric disability is warranted. 2. Reopening service connection for a low back disability. The RO last denied service connection for a low back disability in October 2011. The Veteran was notified of the decision but did not initiate an appeal. No new and material evidence was associated with the file during the appellate period, and none of the newly added service records show an in-service injury or contain a nexus between the disability and service. 38 C.F.R. § 3.156(b), (c); see Lang, 971 F.3d at 135355. Therefore, the October 2011 decision became final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The evidence of record in October 2011 consisted of service treatment records, VA treatment records, and VA examination reports. The evidence of record at the time of the decision did not reflect that the Veteran had a current low back disability. Evidence received since the rating decision includes VA treatment records, additional VA examination reports, and the Veteran's January 2021 testimony. A January 2016 VA treatment record reflects a diagnosis of and treatment for a low back disability, specifically disk bulges and lumbar canal stenosis. The evidence provided by the Veteran is new as it was not previously submitted to agency decision makers and is material as it addresses the previously unestablished fact of a current disability. It is not redundant and raises a reasonable possibility of substantiating the claim. Therefore, reopening of the claim for service connection for a low back disability is warranted. 3. Reopening service connection for a throat disability. The RO last denied service connection for a throat disability, then claimed as separate larynx and pharynx disabilities, in May 2014. The Veteran was notified of the decision but did not submit a notice of disagreement with the decision. Further, no new and material evidence was associated with the file during the appellate period following the decision, as no evidence showing that the claimed larynx or pharynx disability was related to service or secondary to a service-connected disability was added to the file. 38 C.F.R. § 3.156(b); see Lang, 971 F.3d 1348 at 135355. Finally, while additional service records have been associated with the file, none of these records reflect in-service treatment or link the disability to either service or to another service-connected disability. 38 C.F.R. § 3.156(c). As such, they are not relevant. Kisor, 969 F.3d at 134143. Therefore, the May 2014 decision is final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The evidence of record in May 2014 consisted of service treatment records, Social Security Administration (SSA) records, VA examination reports and treatment records, private treatment records, and the Veteran's lay statements. The evidence failed to establish a current throat disability. Evidence received since the rating decision includes additional VA treatment records and examination reports and the Veteran's January 2021 hearing testimony. VA treatment records reflect treatment for voice issues and possible laryngopharyngeal reflux. The evidence provided by the Veteran is new as it was not previously submitted to agency decision makers and is material as it addresses the previously unestablished fact of a current disability. It is not redundant and raises a reasonable possibility of substantiating the claim. Therefore, reopening of the claim for service connection for a throat disability is warranted. Withdrawal A substantive appeal may be withdrawn on the record at a hearing. Acree v. O'Rourke, 891 F.3d 1009, 101314 (Fed. Cir. 2018). A withdrawal on the record at a hearing must be explicit, unambiguous, and done with full knowledge of the consequences. Id.; see also DeLisio v. Shinseki, 25 Vet. App. 45, 54 (2011). 4. Entitlement to service connection for removal of the salivary glands and an increased rating for left seventh nerve palsy. In this case, at the January 2021 hearing the Veteran's attorney stated on the record that they wished to withdraw the issues of reopening a claim for service connection for removal of the salivary glands and an increased rating for left seventh nerve palsy. The VLJ acknowledged the withdraw and explained that by withdrawing the issues they would no longer be part of the appeal before the Board. Both the Veteran and the Veteran's attorney then stated they understood the consequences of the withdrawal. Acree, 891 F.3d at 101314. As the Veteran has withdrawn his appeal of those two issues prior to the issuance of a decision, the Board no longer has appellate jurisdiction and can take no further action on the issues of reopening a claim for service connection for removal of the salivary glands and an increased rating for left seventh nerve palsy. Id.; see also DeLisio, 25 Vet. App. at 54. REASONS FOR REMAND 1. Entitlement to an increased rating a cervical spine disability. The Veteran was last provided with a VA cervical spine examination in February 2016. In pertinent part, the Veteran endorsed having flare-ups of the disability, but the examiner stated that an estimate concerning range of motion loss during such flare-ups could not be provided as the Veteran was not being examined during a flare-up. While opinions stating that an opinion cannot be given without resorting to speculation may be adequate, an examiner must provide an adequate rationale explaining why that is the case. Jones v. Shinseki, 23 Vet. App. 382 (2010). Here, the provided rationale is inadequate. Sharp v. Shulkin, 29 Vet. App. 26, 3436 (2017). As such, a remand is necessary so that a new cervical spine examination may be provided. 2. Entitlement to service connection for a psychiatric disability. During his January 2021 hearing testimony, the Veteran reported on-going VA treatment for his psychiatric disability. However, the most recent VA records associated with the file are from February 2016. Sullivan v. McDonald, 815 F.3d 786, 79092 (Fed. Cir. 2016). As such, a remand is necessary so that appropriate efforts may be made to obtain any outstanding records. 38 C.F.R. § 3.159(c)(2). The Veteran was provided with a VA examination concerning the etiology of the claimed psychiatric disability in June 2011. The examiner stated that it was less likely than not that the psychiatric disability was caused or aggravated by the Veteran's service-connected disabilities. However, the Veteran has since submitted private opinions indicating that the psychiatric disabilities are secondary to the service-connected disabilities, and further that the psychiatric disabilities are directly related to his period of service. As such, the Board finds that a remand for a new examination and an addendum opinion is warranted in this case. 3. Entitlement to service connection for a low back disability and a right hip disability. As noted above, the Veteran has indicated that there are outstanding VA treatment records, which must be obtained regardless of relevance. Sullivan, 815 F.3d at 79092. As such, the issues must be remanded so that any outstanding records may be obtained. In addition, the Veteran has a current diagnosis of a low back disability and a right hip disability. Further, the Veteran has asserted that his back and hip pain started in service due to overuse of the joints during physical training, and that the pain has continued since service. Based on the foregoing, the Board finds that on remand VA examinations and opinions should be obtained to determine the nature and etiology of the claimed low back and right hip disabilities. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 4. Entitlement to service connection for a throat disability. VA examinations and opinions were obtained concerning the claimed throat disability in May 2014 and February 2016. In May 2015, the examiner stated that the Veteran's reported speech problems were not likely related to his service-connected left seventh nerve palsy, but did not address the question of aggravation. El-Amin v. Shinseki, 26 Vet. App. 136, 14041 (2013); see also Allen v. Brown, 7 Vet. App. 439 (1995). The February 2016 examination reports stated that the Veteran did not have any larynx or pharynx disabilities, but did not address the notation in the Veteran's treatment records concerning possible laryngopharyngeal reflux. As such, the Board finds that a remand is warranted so that a new examination can be provided to clarify the nature of the claimed throat disability, and so that an opinion concerning the etiology of any claimed condition may be obtained. 5. Entitlement to a temporary total rating for a right hip disability. Concerning entitlement to a temporary total rating for a right hip disability, the Board finds that any determinations with respect to the remanded claim for service connection for the right hip would materially affect a determination concerning the temporary total rating. As such, it is inextricably intertwined with the service connection claim being remanded and must therefore be remanded as well. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. Contact the Veteran and request that he submit or authorize for release all private treatment records relevant to his claimed disability. For all records authorized for release, if the search for these records is negative the Veteran must be informed of this in writing in accordance with 38 C.F.R. § 3.159(e). 3. Contact the Social Security Administration and request all records associated for a claim for disability benefits, to include medical records considered in any disability determinations. 4. Schedule the Veteran for a VA examination with an appropriate medical professional to determine the current severity of his cervical spine disability. The examiner is asked to provide the following: (a) Test for pain on active motion, passive motion, weightbearing, and non-weightbearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, an explanation must be provided. (b) State whether the examination is taking place during a flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, severity, and/or extent of functional impairment he experiences during a flare-up of his symptoms. Based on this information, the examiner should then provide an estimate concerning the average additional loss of motion during a flare-up. (c) Identify and evaluate the severity of all neurologic abnormalities or bowel or bladder impairments associated with the cervical spine disability. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's psychiatric disability. The examiner should answer the following: a) Identify all current psychiatric disabilities. All diagnoses should be rendered in accordance with the DSM-5. b) If a diagnosis of posttraumatic stress disorder (PTSD) is warranted under the DSM-5, is it at least as likely as not (a fifty percent probability or greater) that the PTSD is causally related to an in-service stressor? c) For all other diagnosed psychiatric disabilities, is it at least as likely as not (a fifty percent probability or greater) that the psychiatric disability was caused by the Veteran's service-connected disabilities? d) If not, is it at least as likely as not (a fifty percent probability or greater) that the psychiatric disability was aggravated (worsened) by the Veteran's service-connected disabilities? In answering (c) and (d), the Veteran is service connected for a left sub mandibular scar, left seventh nerve palsy, a cervical strain, left testicle atrophy, and scrotal varicocele. e) If not, is it at least as likely as not (a fifty percent probability or greater) that the psychiatric disability is causally related to the Veteran's active service? In answering (b) through (e) above, attention is invited to April 2021 and May 2021 private medical opinions indicating that the Veteran's psychiatric disabilities are due to assignment to a remote area in service or were caused or aggravated by his service connected disabilities, specifically his left testicle disability and seventh cranial nerve palsy (labelled "Medical Treatment Record - Non-Government Facility" uploaded 4/30/21; labelled "Medical Treatment Record - Government Facility" uploaded 5/18/21). A detailed rationale for the opinion must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 6. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's claimed low back disability. The examiner should answer the following: a) Identify all current low back disabilities. b) For each identified disability, is it at least as likely as not (a fifty percent probability or greater) that the low back disability was caused by the service-connected neck disability? c) If not, is it at least as likely as not (a fifty percent probability or greater) that the low back disability was aggravated (worsened) by the neck disability? d) If not, is it at least as likely as not (a fifty percent probability or greater) that the low back disability is causally related to the Veteran's active service? In answering question (d), attention is invited to the Veteran's reports of overuse in service and a vehicle accident (labelled "Hearing Transcript" pgs. 8 to 10 uploaded 2/10/21). A detailed rationale for the opinion must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 7. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's claimed right hip disability. The examiner should answer the following: a) Identify all current right hip disabilities. b) For each identified disability, is it at least as likely as not (a fifty percent probability or greater) that the right hip disability is causally related to the Veteran's active service? In answering question (b), attention is invited to the Veteran's reports of overuse in service and a vehicle accident (labelled "Hearing Transcript" pgs. 10 to 11 uploaded 2/10/21). A detailed rationale for the opinion must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 8. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's claimed throat disability. The examiner should answer the following: a) Identify all current all current throat disabilities, to include any laryngeal or pharyngeal disabilities. b) For all identified disabilities, is it at least as likely as not (a fifty percent probability or greater) that the throat disability was caused by the service-connected left seventh nerve palsy disability? c) If not, is it at least as likely as not (a fifty percent probability or greater) that the throat disability was aggravated (worsened) by the left seventh nerve palsy disability? d) If not, is it at least as likely as not (a fifty percent probability or greater) that the throat disability is causally related to the Veteran's active service, to include the cystectomy in service? (Continued on the next page) A detailed rationale for the opinion must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Wendell, 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.