Citation Nr: 21066664 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 17-36 472 DATE: November 1, 2021 ORDER Entitlement to an increased rating for lumbosacral strain with degenerative disc disease, in excess of 20 percent prior to October 6, 2014 and in excess of 40 percent from October 6, 2014 and from April 1, 2018 is dismissed. New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for a seizure disorder, and to this extent only, the appeal is granted. REMANDED Entitlement to service connection for seizures. Entitlement to service connection for a penile condition with loss of erectile power as secondary to service-connected right lower extremity nerve disabilities. Entitlement to service connection for a right ankle disability. Entitlement to service connection for obstructive sleep apnea (OSA). Entitlement to an increased rating for right sciatic nerve disability, currently rated 20 percent disabling. Entitlement to an increased rating for left sciatic nerve disability, currently rated 10 percent disabling. Entitlement to an increased rating for right femoral nerve and anterior crural nerve disability, currently rated 20 percent disabling. Entitlement to an increased rating for left femoral nerve disability, in excess of 10 percent prior to September 18, 2020 and in excess of zero or noncompensable from that date. FINDINGS OF FACT 1. On March 2, 2021, at his hearing before the Board of Veterans' Appeals (Board) and, prior to the promulgation of a decision in the appeal, the Veteran stated that he wished to withdraw the appeal as to the issue of entitlement to a rating for lumbosacral strain with degenerative disc disease, in excess of 20 percent prior to October 6, 2014 and in excess of 40 percent from October 6, 2014 and from April 1, 2018. 2. A January 2006 rating decision denied service connection for seizures secondary to head injury and the Veteran did not appeal. 3. An October 2010 rating decision determined that service connection for seizures remained denied and the Veteran did not appeal. 4. Additional evidence submitted into the record relates to a previously unestablished fact necessary to substantiate the claim for service connection for seizures, and therefore raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a Substantive Appeal by the Veteran as to the issue of entitlement to an increased rating for lumbosacral strain with degenerative disc disease, in excess of 20 percent prior to October 6, 2014 and in excess of 40 percent from October 6, 2014 and from April 1, 2018, are met. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.55, 20.202, 20.204. 2. The January 2006 rating decision which denied service connection for seizures secondary to head injury is final. 38 U.S.C. § 7105. 3. The October 2010 rating decision which determined that service connection for seizures remained denied is final. 38 U.S.C. § 7105. 4. New and material evidence has been received since the October 2010 rating decision and the claim of entitlement to service connection for a seizure disorder is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1991 to August 1998. This matter comes to the Board on appeal from rating decisions of the Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). 1. Lumbosacral strain with degenerative disc disease Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. On March 2, 2021, at his hearing before the Board, prior to the promulgation of a decision in the appeal, the Veteran stated that he wished to withdraw the appeal as to the issue of entitlement to a rating for lumbosacral strain with degenerative disc disease, in excess of 20 percent prior to October 6, 2014 and in excess of 40 percent from October 6, 2014 and from April 1, 2018. Oral withdrawal of an appeal is only effective where the withdrawal is "explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant." DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Specifically, based on the pre-hearing conference and the statements made on the record, the Board finds the Veteran understood the consequences of his representative's actions. The withdrawal of this appeal was unambiguous, and the Veteran was fully informed of the consequences. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal as to that matter and it is dismissed. 2. New and Material Evidence to Reopen Claim of Service Connection for Seizure Disorder A January 2006 rating decision denied service connection for seizures secondary to head injury. A notice of disagreement or pertinent evidence was not received within the subsequent one-year period. Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). Therefore, the January 2006 rating decision is final. 38 U.S.C. § 7105. The Veteran subsequently sought to reopen the claim, but an October 2010 rating decision determined that the claim remained denied. That decision is also final. In May 2016, the AOJ determined that new and material evidence had not been received to reopen the service connection claim. The Veteran initiated an appeal. The June 2017 statement of the case reopened the claim. The service connection claim has been perfected. Regardless of the action of the AOJ, the Board of Veterans' Appeals (Board) has a legal duty under 38 U.S.C. § 5108 and § 7104 to address the question of whether new and material evidence has been received to reopen the claims for service connection. This matter goes to the Board's jurisdiction to reach the underlying claims and adjudicate the claims on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Prior unappealed decisions are final. A claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). When new and material evidence is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140 (1991). New evidence means existing evidence not previously submitted to agency decisionmakers. 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. 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. 38 C.F.R. § 3.156(a) (2016). To reopen a finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed, unless the evidence is inherently incredible or consists of statements which are beyond the competence of the person making them. Justus v. Principi, 3 Vet. App. 510 (1992); Meyer v. Brown, 9 Vet. App. 425 (1996); King v. Brown, 5 Vet. App. 19 (1993); Duran v. Brown, 7 Vet. App. 216 (1994). Evidence may be considered new and material if it contributes to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it will not eventually convince the Board to grant the claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In this case, new and material evidence has been received since medical evidence has been received establishing a current diagnosis; medical evidence has been received indicating that the current disability preexisted service entry; and lay evidence has been received that suggests that a seizure disorder to include epilepsy was either incurred in or aggravated in service. In this case, the additional evidence is new to the record and is also material because this evidence, when considered with the evidence of record, would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. There is a low threshold for reopening a claim; one that does not require that a claimant submit a medical opinion to reopen a claim if the new evidence causes VA to obtain a medical opinion. 38 C.F.R. § 3.156(a). Rather, if there is newly submitted evidence of current disability which in connection with the prior evidence, raises a reasonable possibility of substantiating the claim, and the element of a nexus could be established by providing a VA examination, the claim may be reopened. That reopening then triggers VA's duty to assist in providing the claimant with a VA examination. In this case, the additional lay and medical evidence suggests multiple bases for service connection, and includes diagnoses and a theory of entitlement not previously considered. That evidence raises a reasonable possibility of substantiating the claim. Therefore, the claim of entitlement to service connection for a seizure disorder is reopened. REASONS FOR REMAND 1. Entitlement to service connection for seizures is remanded. The claim for service connection for a seizure disorder has been reopened. The Veteran has not been afforded an examination and due to the question of the exact diagnosis, the Board finds that additional medical inquiry is warranted including examination and opinion regarding service aggravation (outpatient records note that the Veteran had a seizure disorder/epilepsy since age 13) and service incurrence (resulting from an inservice head injury). 2. Entitlement to service connection for service connection for penile condition with loss of erectile power as secondary to service-connected right lower extremity nerve disabilities is remanded. The Veteran was afforded a VA examination in March 2016. The following opinion was provided: Current literature does not support the Veteran's erectile dysfunction as being caused by the Veteran's service-connected left L3 and bilateral L4, L5, S1 radiculopathies. The Veteran has a low normal testosterone level, epilepsy and seizures that requires medical management which is least likely cause of Veteran's erectile dysfunction. Therefore, it is less likely as not the Veteran's erectile dysfunction was aggravated beyond its natural progression by his service-connected right sciatica nerve involvement. The Board notes that this issue must be deferred pending the outcome of the issue of service connection for seizures. 3. Entitlement to service connection for a right ankle disability is remanded. The Veteran testified at his Board hearing in March 2021 that his right foot drop, which is shown in the medical records, has caused or aggravated his right ankle disability and resulted in disability. When the Veteran was last examined for right ankle disability, he was not diagnosed with current disability at that time. He should be afforded a new examination to address this contention. 4. Entitlement to service connection for OSA is remanded. The Veteran and his indicated that he has OSA which is demonstrated in the record. His wife was able to state that she has observed his OSA since about 5 years post-service when she had the opportunity to observe that disorder. The Veteran testified that OSA began in service. The Board finds that a medical opinion should be obtained regarding the etiology of his OSA. 5. Entitlement to an increased rating for right sciatic nerve disability, currently rated 20 percent disabling is remanded. 6. Entitlement to an increased rating for left sciatic nerve disability, currently rated 10 percent disabling is remanded. 7. Entitlement to an increased rating for right femoral nerve and anterior crural nerve disability, currently rated 20 percent disabling is remanded. 8. Entitlement to an increased rating for left femoral nerve disability, in excess of 10 percent prior to September 18, 2020 and in excess of zero or noncompensable from that date is remanded. The Veteran has been afforded examination for his lower extremity nerve disabilities; however, there are discrepancies with regard to the level of severity of these disabilities based on the Veteran's statements including his hearing testimony and the outpatient record. In significant part, the Veteran has testified that he has right foot drop which outpatient records also indicate. He has testified that he has a less severe left foot drop which has not been assessed. It was also argued that he has a higher level of dysfunction of the thighs, calves, and hips (he does have a separately rated hip disorder) than are represented by the ratings which the Veteran and his representative argue have been inadequately explained. For example, it appears unclear how a foot drop equates to moderate impairment. The Board finds that another examination should be conducted, which also explicitly addresses foot drop on both sides (as claimed). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of any current seizure disorder. The examiner should review the record prior to examination. The examiner should provide an opinion as to the following questions: (a) Is there clear and unmistakable (obvious or manifest) evidence that the Veteran had a seizure defect, infirmity, or disorder that preexisted his military service; please address the notations in VA clinicals records that state that the Veteran had a seizure disorder/epilepsy since age 13. (b) If there is clear and unmistakable evidence that the Veteran had a preexisting seizure defect, infirmity, or disorder at the time of his service entrance, is there evidence that the Veteran's preexisting seizure disorder increased in severity (worsened) in service, taking into consideration the incident when the Veteran sustained injury to include the forehead and nose areas. (c) If the preexisting seizure defect, infirmity, or disorder increased in severity in service, is there clear and unmistakable (obvious or manifest) evidence that the increase in severity during service was due to the natural progress of the seizure disorder; please identify with specificity any evidence that supports this finding; (d) If the examiner determines that the Veteran did not have a seizure defect, infirmity, or disorder that preexisted service, is it at least as likely as not that the Veteran currently has a seizure disorder that had its onset in, or is otherwise etiologically related, to his military service, to specifically include the incident when the Veteran sustained injury to include the forehead and nose areas The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 2. Obtain a medical opinion based on the medical and lay evidence of record as to whether it is more likely than not, less likely than not, or at least as likely as not, that current OSA had its clinical onset during service or is otherwise related to any in-service disease, event, or injury. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lower extremity nerve disabilities. The examiner should provide a full description of the right sciatic, left sciatic, right femoral and anterior crural, and left femoral nerve disabilities. The examiner should report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner should specifically address the Veteran's claimed thigh, calf, and hip impairments as well as any right foot drop and left foot drop. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner should specifically also provide an opinion as to the following: Is it more likely than not, less likely than not, or at least as likely as not, that any current right ankle disability is proximately due to, or the result of, right lower extremity nerve disability to include a right foot drop. The examiner should also provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that any current right ankle disability is permanently aggravated by the Veteran's right lower extremity nerve disability to include a right foot drop. (Continued on the next page) The examiner should provide a complete rationale for all opinions expressed and conclusions reached. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Connolly, 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.