Citation Nr: 21064519 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 18-30 805 DATE: October 20, 2021 ORDER The appeal seeking to reopen a claim for entitlement to service connection for a low back condition is granted. The appeal seeking to reopen a claim for entitlement to service connection for a head and seizure disorder is granted. The appeal seeking to reopen a claim for entitlement to service connection for a left leg condition is denied. REMANDED Entitlement to service connection for an acquired psychiatric condition is remanded. Entitlement to service connection for a low back condition is remanded. Entitlement to service connection for a head and seizure disorder is remanded. FINDINGS OF FACT 1. In a September 1976 rating decision, the claim of entitlement to service connection for a back disability was denied because there was no evidence of medical records showing treatment for the condition in service; the denial was confirmed in a July 1999 Board decision. 2. The Veteran perfected an appeal of a July 2008 rating decision which denied his petition to reopen his service connection claim for a low back disability that has remained pending. 3. The evidence added to the record since the July 1999 Board decision relates to an unestablished fact that is necessary to substantiate the claim of entitlement to service connection for a low back disability. 4. In a July 1994 rating decision, the claim of entitlement to service connection for a head and seizure disorder was denied because there was no evidence of medical records showing treatment for the condition in service. The Veteran perfected an appeal which was denied in a July 1999 Board decision. 5. The Veteran perfected an appeal of a July 2008 rating decision which denied his petition to reopen his service connection claim for a head and seizure disorder that has remained pending. 6. The evidence added to the record since the July 1999 Board decision relates to an unestablished fact that is necessary to substantiate the claim of entitlement to service connection for a head and seizure disorder. 7. In a September 1976 rating decision, the claim of entitlement to service connection for a left leg condition was denied because there was no evidence of medical records showing treatment for the condition in service. That decision was confirmed in a July 1999 Board decision and most recently in an April 2011 rating decision. The Veteran did not appeal that decision or submit new and material evidence within one year; it became final. 8. The evidence added to the record since the April 2011 rating decision does not relate to an unestablished fact that is necessary to substantiate the claim of entitlement to service connection for a left leg condition. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for a low back condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a head injury/seizure disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. New and material evidence has not been received to reopen the claim of entitlement to service connection for a left leg condition. 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 March 1976 to April 1976. In March 2021, he testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is in the record. The Veteran contends that he is unemployable due to the service connection claims on appeal. See July 2021 attorney memorandum. The potential for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) based on the service connection claims being remanded is a downstream issue. Thus, a TDIU claim is not intertwined with the remanded claims. A TDIU claim is an element of an appeal for increased ratings. Rice v. Shinseki, 22 Vet. App. 447 (2009). Should any disabilities become service connected in the future, the Veteran may pursue a TDIU if and when the corresponding ratings are assigned. 1. The appeal seeking to reopen a claim for entitlement to service connection for a low back condition The Veteran seeks to reopen a previously denied claim seeking entitlement to service connection. The question before the Board is whether new and material evidence has been submitted to reopen the claim. The Board finds that it has and will reopen his claim. The claim was initially denied in a September 1976 rating decision because there was no evidence of medical records showing treatment for the condition in service. A July 1999 Board decision denied the Veteran's petition to reopen his service connection claim. Most recently, in a July 2008 rating decision, the petition to reopen his claim was again denied. The Veteran perfected his appeal in March 2009 through submission of a VA Form 9. While the Veteran later submitted a statement in September 2012 indicating that he did not wish the Board "to decide my case," the Veteran's statement failed to indicate which of his pending appeals he wished to cease. As such, the September 2012 statement is not a valid withdrawal under 38 C.F.R. § 20.205. His appeal of the July 2008 rating decision has therefore remained pending. Further, the July 1999 Board decision was the last final denial concerning the issue of reopening his service connection claim for a low back disability. Evidence received since the last final July 1999 Board decision includes a March 2021 opinion from a private medical examiner concluding it was more likely than not that service connection for the Veteran's claimed low back disability was warranted. As service connection for the Veteran's claim was initially denied, in part, because of a lack of a nexus of his claimed back disability to military service, this new medical evidence directly relates to the basis of the prior final denial and satisfies the low threshold requirement for new and material evidence. Accordingly, the Board finds that new and material evidence sufficient to reopen service connection for a low back disability has been received, and the claim is reopened. 2. The appeal seeking to reopen a claim for entitlement to service connection for a head and seizure disorder The Veteran seeks to reopen a previously denied claim seeking entitlement to service connection. The question before the Board is whether new and material evidence has been submitted to reopen the claim. The Board finds that it has and will reopen his claim. The claim was initially denied in a July 1994 rating decision because there was no evidence of medical records showing treatment for the condition in service. The Veteran perfected his appeal, which was denied in a July 1999 Board decision. In a July 2008 rating decision, the petition to reopen his claim was again denied. The Veteran perfected his appeal in March 2009 through submission of a VA Form 9. While the Veteran later submitted a statement in September 2012 indicating that he did not wish the Board "to decide my case," the Veteran's statement failed to indicate which of his pending appeals he wished to cease. As such, the September 2012 statement is not a valid withdrawal under 38 C.F.R. § 20.205. His appeal of the July 2008 rating decision has therefore remained pending. As such, the July 1999 Board decision was the last final denial concerning the issue of entitlement to service connection for a head and seizure disorder. Evidence received since the last final July 1999 Board decision includes a March 2021 opinion from a private medical examiner concluding it was more likely than not that the Veteran suffered from a seizure disorder that was related to in-service trauma. As service connection for the Veteran's claim was initially denied, in part, because of a lack of a nexus of his claimed head and seizure disorder to military service, this new medical evidence directly relates to the basis of the prior final denial and satisfies the low threshold requirement for new and material evidence. Accordingly, the Board finds that new and material evidence sufficient to reopen service connection for a head and seizure disorder has been received, and the claim is reopened. 3. The appeal seeking to reopen a claim for entitlement to service connection for a left leg condition The Veteran seeks to reopen a previously denied claim seeking entitlement to service connection. The question before the Board is whether new and material evidence has been submitted to reopen the claim. The Board finds that it has and will reopen his claim. The claim was initially denied in a September 1976 rating decision because there was no evidence of medical records showing treatment for the condition in service. A July 1999 Board decision denied the Veteran's petition to reopen his service connection claim. In a July 2008 rating decision, the petition to reopen his claim was again denied. The Veteran did not appeal this decision and it became final. An April 2011 rating decision again declined to reopen the Veteran's service connection claim. He did not submit new and material evidence or appeal the decision, and it became final. In December 2015, the Veteran filed his current petition to reopen the claim seeking service connection. Evidence received since the last final April 2011 rating decision includes numerous VA and private medical records, as well as the Veteran's lay statements that he is entitled to this benefit. The Veteran's statements generally maintaining he is entitled to this benefit are essentially the same ones he made at the time of the April 2011 rating decision. As such, his statements are not new. The medical records were not in his claims file at the time of the April 2011 rating decision, and therefore, the VA and private treatment records are new. However, none of this recently submitted evidence relates a diagnosed left leg condition to his active duty service. As such, the Board finds that these medical records are not material. Accordingly, the Board finds that new and material evidence has not been received to reopen the Veteran's service connection claim for a left leg condition, and the appeal is denied. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Shade v. Shinseki, 24 Vet. App. 110 (2010). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric condition is remanded. The Veteran's claim seeking entitlement to service connection was initially denied in a December 2008 rating decision. The Veteran perfected his appeal in August 2009 through submission of a VA Form 9. While the Veteran later submitted a statement in September 2012 indicating that he did not wish the Board "to decide my case," the Veteran's statement failed to indicate which of his pending appeals he wished to cease. As such, the September 2012 statement is not a valid withdrawal under 38 C.F.R. § 20.205. His appeal of the December 2008 rating decision has therefore remained pending. In support of his claim, the Veteran submitted a May 2021 private examination report diagnosing him with schizophrenia and opining that the condition likely began during his military service. The opinion, however, provided no rationale to explain the basis for the conclusion reached. Remand is therefore needed to afford the Veteran a VA examination with an opinion that includes an explanatory rationale on the etiology of any diagnosed psychiatric condition. 2. Entitlement to service connection for a low back condition is remanded. 3. Entitlement to service connection for a head and seizure disorder is remanded. Having reopened the above two claims, remand is needed to afford the Veteran VA examinations with opinions on the respective issues. 38 C.F.R. § 3.159 (c)(4). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records dated from April 2018 to the present and associate those documents with the Veteran's claims file. 2. Thereafter, schedule the Veteran for examinations (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by appropriate clinicians to determine the nature and etiology of any diagnosed psychiatric, low back, or head/seizure disorder found to be present. The examiner must opine whether any diagnosed disability at least as likely as not either had its onset in or is related to an in-service injury, event, or disease. A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner must state why this is so. M. E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Komperda, 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.