Citation Nr: 21069676 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 17-00 173 DATE: November 19, 2021 ORDER The appeal for entitlement to service connection for fibromyalgia is dismissed. New and material evidence having been received, a request to reopen a claim for service connection for a back disability is granted. New and material evidence having been received, a request to reopen a claim for service connection for a right hip disability is granted. New and material evidence having been received, a request to reopen a claim for service connection for a left hip disability is granted. New and material evidence having been received, a request to reopen a claim for service connection for a right shoulder disability is granted. New and material evidence having been received, a request to reopen a claim for service connection for a left shoulder disability is granted. REMANDED Entitlement to service connection for a left ankle disability, to include as secondary to bilateral knee disabilities, is remanded. Entitlement to service connection for a right ankle disability, to include as secondary to bilateral knee disabilities, is remanded. Entitlement to service connection for a gastrointestinal condition, to include Irritable Bowel Syndrome (IBS) and gastroesophageal reflux disease (GERD), is remanded. Entitlement to service connection for a left wrist disability is remanded. Entitlement to service connection for a right wrist disability is remanded. Entitlement to service connection for a left elbow disability is remanded. Entitlement to service connection for a back disability, to include as secondary to bilateral knee disabilities, is remanded. Entitlement to service connection for a left hip disability, to include as secondary to bilateral knee disabilities, is remanded. Entitlement to a right hip disability, to include as secondary to bilateral knee disabilities, is remanded. Entitlement to service connection for a left shoulder disability, to include as secondary to bilateral knee disabilities, is remanded. Entitlement to service connection for a right shoulder disability, to include as secondary to bilateral knee disabilities, is remanded. Entitlement to service connection for a disability manifested by fatigue, muscle pain, numbness, and sleep disturbances, however diagnosed, to include as secondary to post-traumatic stress disorder (PTSD) or sleep apnea, is remanded. Entitlement to service connection for a cardiovascular condition, to include as secondary to PTSD or sleep apnea, is remanded. FINDINGS OF FACT 1. In August 2021, after certification of this claim to the Board and prior to promulgation of a decision in the appeal, the Veteran and his authorized representative requested that the claim for service connection for fibromyalgia be withdrawn from appeal. 2. Service connection for hip, shoulder, and back disabilities were denied in a July 2002 rating decision. Although the Veteran filed a timely notice of disagreement, he did not perfect an appeal after a statement of the case was issued; the rating decision thus became final. Evidence received since the time of that decision relates to previously unestablished elements of the claims. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal for service connection fibromyalgia by the Veteran (or his authorized representative) have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The July 2002 rating decision denying service connection for back, hip, and shoulder disabilities is final, but new and material evidence has been received to reopen the claims. 38 U.S.C. §§ 5108; 38 C.F.R. §§ 3.104(a), 3.156, 3.160(d). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1995 to October 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran testified before the undersigned at a hearing. A transcript of his testimony has been associated with the claims file. At the outset, the Board notes that the Veteran has argued that he is entitled to an earlier effective date and a higher disability rating for his service-connected PTSD, as well as service connection related to having low testosterone. However, these issues are not currently on appeal before the Board. Indeed, the Veteran has not yet filed on the appropriate form a claim for a low testosterone disability. Moreover, although entitlement to a 70 percent rating for PTSD was granted in a May 2017 rating decision, the Veteran did not file a notice of disagreement with respect to the rating assigned. Last, entitlement to an earlier effective date for PTSD was addressed in a September 2016 rating decision. The Veteran did not file a notice of disagreement with respect to this decision either. As such, the Board will not discuss these issues herein, as they are not currently on appeal. Withdrawal During his August 2021 hearing before the undersigned, the Veteran and his representative testified on the record that he wished to withdraw a claim for service connection for fibromyalgia. Therefore, a "case or controversy" involving a pending adverse determination that the Veteran has taken exception to does not currently exist with respect to these claims for service connection. See Shoen v. Brown, 6 Vet. App. 456, 457 (1994). Accordingly, the Board does not have jurisdiction to review the appeal for this claim, and it is dismissed. New and Material Evidence The Board notes that the Veteran originally filed claims for service connection for back, hip, and shoulder conditions that were denied in a July 2002 rating decision, which indicated that there was no current diagnosis of a back or hip condition and no evidence the shoulder condition occurred in or was caused by service. The Veteran filed a timely notice of disagreement and the RO issued a statement of the case in May 2005. However, he did not perfect an appeal to the Board, and the July 2002 rating decision became final. He attempted to reopen his claim for service connection for the shoulders in October 2008, but this request was denied in a March 2009 rating decision. Generally, a claim that has been denied by an unappealed decision may not thereafter be reopened. 38 U.S.C. § 7105(c). An exception to this rule exists for cases in which new and material evidence is presented or secured with respect to a claim that has been disallowed, in which case the claim must be reopened and the former disposition reviewed. 38 U.S.C. § 5108. "New" evidence means evidence not previously submitted to agency decisionmakers, and "material" evidence means 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 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). This is a "low threshold" in which the phrase "raises a reasonable possibility" should be interpreted as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The credibility of the newly-submitted evidence is presumed, though not blindly accepted as true if patently incredible. Justus v. Principi, 3 Vet. App. 510 (1992). Here, additional evidence has been submitted to the record since the July 2002 rating decision originally denying service connection. This evidence includes a private medical opinion from Dr. S.C. regarding the etiology of his shoulder disabilities, as well as VA treatment records and private treatment records and hearing testimony. These documents are new, as they were not in the record at the time of the previous rating decision. Additionally, they relate to unestablished facts necessary to substantiate his claims. For instance, Dr. S.C. opines in his report that his bilateral shoulder condition is related to his service, while his additional treatment records reflect current diagnoses of herniated discs, lumbar and thoracic strain, degenerative disc disease, and hip pain that causes functional loss. As such, the Board finds that new and material evidence has been submitted to reopen his claims. REASONS FOR REMAND 1. Bilateral wrists, left elbow, bilateral ankles, bilateral hips, bilateral shoulders, and back The Veteran asserts that he is entitled to service connection for disabilities of the bilateral wrists and left elbow due to injuries sustained during service. For instance, at his August 2021 hearing, he reported that while he was stationed in Bosnia in 1996, he was carrying sandbags to build a bunker when he and another soldier stepped off a wooden plank and fell into a sink hole filled with mud up to his neck. He reported that his unit had to wrap a rope around a Humvee to pull him and the other soldier out of the mud using the rope. His contention is that as a result of this incident, he sustained various injuries throughout his body, including injuries to his wrists, elbow, ankles, hips, shoulders, and back. Although an August 1996 separation examination did not reflect abnormalities with respect to the wrists, elbows, ankles, hips, shoulders, or back, the Veteran endorsed problems such as cramps in his legs, painful shoulders or elbows, swollen and painful joints, recurrent back pain, and problems with his hips, left elbow, ankles, wrist, and back in accompanying reports of medical history. Additionally, he has argued that various current disabilities, such as the conditions related to his ankles, hips, shoulders, and back, are secondary to service-connected bilateral knee disabilities. To that end, service treatment records reflect that the Veteran's left knee was injured during service during a training incident in Germany in March 1996 and that he also sought medical attention for his knee in Bosnia in May 1996. The Veteran argues that his service-connected bilateral knee disabilities have caused or aggravated the conditions related to his ankles, hips, shoulders, and back because he must overcompensate for the loss of motion in his knees by altering his gait and other movements. To date, VA has not provided the Veteran with VA examinations dedicated to the nature and etiology of the conditions in his wrists, elbow, ankles, hips, back, or shoulders. VA's duties to assist claimants in the development of claims also may include scheduling a medical examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Here, there is competent evidence that the Veteran has current disabilities, as well as evidence suggesting that he was either injured in service or has developed or aggravated his disabilities as a result of service-connected bilateral knee disabilities. His testimony indicates that these conditions could be connected to his service. At this juncture, however, there is insufficient medical evidence to decide the claims. For instance, the Board notes that although the Veteran submitted a private medical opinion from Dr. S.C. linking his bilateral shoulder disabilities to his service, the probative value of this opinion is limited. Although Dr. S.C. reviewed portions of the Veteran's service treatment records, he did not address certain relevant evidence, such as his August 1996 separation examination, in his opinion. As such, remand is warranted to obtain VA examinations and opinions regarding the nature and etiology of these disabilities. 2. IBS and GERD At the outset, the Board notes that the Veteran filed separate claims for service connection for IBS and a hiatal hernia, or GERD. The Board has broadly recharacterized his claims as a claim for a gastrointestinal condition, including IBS or GERD. Although he did not serve in Southwest Asia, the Veteran has alleged that he was exposed to similar environmental hazards, toxins, and chemicals commonly found in Southwest Asia while he was stationed in Bosnia, and that this exposure could be related to his gastrointestinal symptoms. He has also argued that his gastrointestinal symptoms had their onset during service and have continued since that time. The Veteran's service treatment records reflect that he reported stomach problems, as well as stomach or intestinal trouble and frequent indigestion, in his September 1996 report of medical history. Post-service treatment records also indicate that he endorsed symptoms such as diarrhea, nausea, and vomiting following service starting in 2003. To date, the RO has not obtained a VA examination or medical opinion regarding the etiology of his gastrointestinal symptoms. Remand is thus necessary. McLendon, 20 Vet. App. at 83-86. 3. Disability manifested by fatigue, muscle pain, numbness, and sleep disturbances At the outset, the Board notes that the Veteran has separately claimed service connection for various symptoms such as fatigue, muscle pain, numbness, and sleep disturbances. The Board also notes that he has been diagnosed with chronic fatigue syndrome. As such, the Board has broadly construed his claims as a claim for a disability manifested by fatigue, muscle pain, numbness, and sleep disturbances, however diagnosed, to better reflect his intent. See Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). As set forth above, the Veteran did not serve in Southwest Asia but has argued that he was exposed to similar environmental hazards and toxins while stationed in Bosnia. He has argued that this exposure has caused a disability manifested by symptoms such as fatigue, muscle pain, numbness, and sleep disturbances to develop. Additionally, the record has raised the possibility that this condition, however diagnosed, could have been caused or aggravated by other service-connected disabilities, including PTSD and sleep apnea. The Board also notes that it is unclear whether the Veteran's fatigue, muscle pain, numbness, and sleep disturbances are manifestations of a separate disability, such as chronic fatigue syndrome, or rather whether these symptoms are manifestations of a service-connected disability, such as sleep apnea. The record shows that the RO has not procured a VA examination or opinion with respect to these questions. As such, the Board finds that remand is warranted. 4. Cardiovascular condition Last, the Board notes that the Veteran has claimed entitlement to service connection for a cardiovascular condition characterized by symptoms such as chest pain and shortness of breath. As with his other claims, he has suggested that this condition could be related to exposure to environmental hazards or toxins. He has also indicated that this condition had its onset during service. To that end, it is unclear whether the Veteran has a current diagnosis of a cardiovascular condition. However, the record contains the results of various electrocardiogram tests from between 1999 and 2013, which reflect the presence of sinus bradycardia. The Board observes that sinus bradycardia can be indicative of other underlying conditions. Additionally, the Veteran's September 1996 report of medical history indicates that he complained of chest pains, pain or pressure in his chest, shortness of breath, and a pounding heart. As such, the evidence suggests that he could have a current cardiovascular condition that had its onset during or is related to his service. At the same time, it is unclear whether his cardiovascular symptoms are manifestations of another disability, such as sleep apnea. To date, however, the RO has not obtained a VA examination or medical opinion on this subject. In the interest of assembling clear and reliable findings, the Board will remand this issue for additional development as well. Accordingly, the matters are REMANDED for the following action: 1. After obtaining appropriate authorization, obtain and association with the claims file any outstanding VA treatment records, as well as any outstanding, relevant private treatment records. 2. Thereafter, obtain VA examinations and opinions with an appropriate VA examiner(s) with respect to the nature and etiology of the Veteran's bilateral ankle, bilateral wrist, left elbow, back, bilateral hip, bilateral shoulder, and gastrointestinal disabilities, as well as his disability manifested by fatigue, muscle pain, numbness, and sleep disturbances, and his cardiovascular disability. The examiner(s) must be provided with a copy of the entire claims file, which the examiner(s) must review in its entirety. All necessary tests and studies must be performed. After reviewing the claims file and examining the Veteran, the VA examiner(s) is asked to do the following: With respect to the claims for the bilateral ankles, back, bilateral hips, and bilateral shoulders: (a.) Identify all conditions that have been present at any time during the pendency of this appeal, including conditions that have since resolved. If the Veteran does not have any diagnosable conditions, but has pain only, determine whether the pain causes functional loss. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). (b.) For each identified condition, opine as to whether it is at least as likely as not (approximately 50 percent or greater probability) that it was caused or otherwise etiologically related to service, including service in Bosnia in 1996. (c.) For each identified condition, opine as to whether it is at least as likely as not (approximately 50 percent or greater probability) that it is (1) due to, or (2) aggravated by a service-connected disability, such as bilateral knee disabilities. The examiner is reminded that causation and aggravation are distinct legal concepts that must be addressed separately. "Aggravation" is defined as worsening beyond the natural progression of the disability. If a condition is aggravated by a service-connected disability, to the extent possible, the examiner is requested to provide an opinion as to the approximate baseline level of severity of the condition before the onset of the aggravation. With respect to the claims for the bilateral wrists and left elbow: (a.) Identify all conditions that have been present at any time during the pendency of this appeal, including conditions that have since resolved. If the Veteran does not have any diagnosable conditions, but has pain only, determine whether the pain causes functional loss. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). (b.) For each identified condition, opine as to whether it is at least as likely as not (approximately 50 percent or greater probability) that it was caused or otherwise etiologically related to service, including service in Bosnia in 1996. With respect to the claim for a gastrointestinal condition: (a.) Identify all conditions, such as IBS or GERD, that have been present at any time during the pendency of this appeal, including conditions that have since resolved. (b.) For each identified condition, opine as to whether it is at least as likely as not (approximately 50 percent or greater probability) that it was caused or otherwise etiologically related to service, including service in Bosnia in 1996. This includes addressing the Veteran's contentions that his conditions could be related to exposure to environmental hazards, toxins, and chemicals in Bosnia. With respect to the claim for a disability manifested by fatigue, muscle pain, numbness, and sleep disturbances: (a.) Identify all conditions that have been manifested by symptoms such as fatigue, muscle pain, numbness, and sleep disturbances and that have been present at any time during the pendency of this appeal, including conditions that have since resolved. To that end, the examiner should also clarify whether any symptoms of fatigue, muscle pain, numbness, and sleep disturbances are manifestations of a service-connected disability, such as sleep apnea, or are instead manifestations of separate disabilities, such as chronic fatigue syndrome. (b.) For each identified condition, opine as to whether it is at least as likely as not (approximately 50 percent or greater probability) that it was caused or otherwise etiologically related to service, including service in Bosnia in 1996. This includes addressing the Veteran's contentions that his conditions could be related to exposure to environmental hazards, toxins, and chemicals in Bosnia. (c.) For each identified condition, opine as to whether it is at least as likely as not (approximately 50 percent or greater probability) that it is (1) due to, or (2) aggravated by a service-connected disability, such as sleep apnea or PTSD. The examiner is reminded that causation and aggravation are distinct legal concepts that must be addressed separately. "Aggravation" is defined as worsening beyond the natural progression of the disability. If a condition is aggravated by a service-connected disability, to the extent possible, the examiner is requested to provide an opinion as to the approximate baseline level of severity of the condition before the onset of the aggravation. With respect to the claim for a cardiovascular condition: (a.) Identify all cardiovascular conditions that have been present at any time during the pendency of this appeal, including conditions that have since resolved. To that end, the examiner should also clarify whether symptoms such as chest pains or shortness of breath are manifestations of an underlying service-connected disability, such as sleep apnea, or are instead manifestations of separate disabilities. (b.) For each identified condition, opine as to whether it is at least as likely as not (approximately 50 percent or greater probability) that it was caused or otherwise etiologically related to service, including service in Bosnia in 1996. This includes addressing the Veteran's contentions that his conditions could be related to exposure to environmental hazards, toxins, and chemicals in Bosnia. (c.) For each identified condition, opine as to whether it is at least as likely as not (approximately 50 percent or greater probability) that it is (1) due to, or (2) aggravated by a service-connected disability, such as sleep apnea or PTSD. The examiner is reminded that causation and aggravation are distinct legal concepts that must be addressed separately. "Aggravation" is defined as worsening beyond the natural progression of the disability. If a condition is aggravated by a service-connected disability, to the extent possible, the examiner is requested to provide an opinion as to the approximate baseline level of severity of the condition before the onset of the aggravation. A complete rationale is required for any opinion rendered by the examiner(s). All opinions should be based on examination findings, historical records, and medical principles. The examiner(s) should fully articulate a sound reasoning for all conclusions made. In doing so, the examiner(s) is reminded to consider all relevant evidence of record, including the Veteran's hearing testimony, lay statements, service treatment records, post-service treatment records, and medical opinions from Dr. S.C. If the rendered opinions cannot be provided without resorting to mere speculation, the examiner(s) should so state but, more importantly, explain why an opinion cannot be provided without resorting to mere speculation, as simply stating this will not suffice. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rademacher, Associate 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.