Citation Nr: 21071628 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 18-31 856 DATE: December 1, 2021 ORDER Entitlement to service connection for dermatitis, bilateral feet, is dismissed. New and material evidence has not been received to reopen a claim of service connection for a back disability; thus, the claim to reopen is denied. Entitlement to service connection for sinusitis (claimed as congestion) is granted. REMANDED 1. Entitlement to service connection for a right shoulder disability is remanded. 2. Entitlement to service connection for a right knee disability is remanded. 3. Entitlement to service connection for a left knee disability is remanded. FINDINGS OF FACT 1. In December 2017, prior to the promulgation of a decision in the appeal, the Veteran's attorney withdrew the Veteran's claim of service connection for dermatitis, bilateral feet. 2. An April 2012 rating decision denied service connection for a back disability. 3. Evidence added to the record since the April 2012 rating decision does not raise a reasonable possibility of substantiating the claim of service connection for a back disability. 4. The Veteran has a diagnosis of sinusitis that is etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim of service connection for dermatitis, bilateral feet, have been met. 38 U.S.C. § 7105 (d)(5); 38 C.F.R. § 20.205. 2. The April 2012 rating decision that denied service connection for a back disability is final. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 20.1103. 3. New and material evidence has not been received to reopen the claim of service connection for a back disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The criteria for service connection for sinusitis (claimed as congestion) have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from June 2008 to December 2008, and from September 2010 to August 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran had a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims folder. Withdrawal of Claims 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. An appeal may be withdrawn in writing or in testimony at a hearing. 38 C.F.R. § 20.204. In a December 2017 written correspondence, the Veteran's attorney withdrew the Veteran's claim of service connection for dermatitis, bilateral feet. As the claim was properly withdrawn, there remain no allegations of errors of fact or law for appellate consideration as it relates to this issue. Accordingly, the claim dismissed. Claim to Reopen Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New and material evidence is defined as evidence not previously submitted to agency decision makers which bear directly and substantially upon the specific matter under consideration; such new and material evidence can be neither cumulative, nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). 1. Whether new and material evidence has been received to reopen a claim of service connection for a back disability. Procedural background shows an April 2012 rating decision denied service connection for a back disability because it was determined that the Veteran had a pre-existing back disability that was not aggravated by service, and that there was no evidence of a current back disability. As new and material evidence was not received within the one-year period following notification of the decision, and the Veteran did not initiate an appeal of the decision by filing a notice of disagreement, the decision became final. 38 U.S.C. § 7105 (a); 38 C.F.R. §§ 20.1103. Since the final denial, new evidence has been added to the record, to include treatment records that continue to show complaints of back pain, and an April 2018 VA examination that found no current diagnosis for a back disability. Thus, while the evidence is new, it is not material as it is cumulative and does not raise a reasonable possibility of substantiating the claim. In addition, the Board recognizes the Veteran's attorney's March 2020 written correspondence where the attorney contends the Veteran's pain is equivalent to a disability pursuant to Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). However, the attorney's assertion is incorrect. The attorney correctly pointed out the Court's finding that pain is an impairment because it diminishes the body's ability to function, and that pain need not be diagnosed as connected to a current underlying condition to function as an impairment. Saunders, 886 F.3d at 1364. (Fed. Cir. 2018). However, the Court specifically found that "to establish a disability, the veteran's pain must amount to a functional impairment." Id at 1367. In the Veteran's case, the Veteran has complained of pain, but there is no new evidence that shows functional impairment caused by his back pain. A December 2017 VA treatment record shows the Veteran reported increased back pain; however, an MRI showed normal results for his lumbar and thoracic spine. In addition, in his April 2018 VA back examination, the Veteran reported pain with daily flare-ups; however, the examiner found that the Veteran did not have functional loss or functional impairment. The examiner particularly found that the Veteran's back exhibited normal range of motion in all planes, and there was no pain noted on examination or with weightbearing. The Veteran was able to perform repetitive use testing with no loss of function or change; muscle strength testing was normal; and there was no muscle atrophy, radiculopathy, IVDS, or other neurologic abnormalities. Subsequent records show no evidence of a back disability, including pain with functional impairment; nor has otherwise been suggested by the Veteran or his attorney. Notably, the Veteran's attorney merely noted in her March 2020 written correspondence that the Veteran has back pain, but no other functional impairment. Therefore, as the evidence is absent of a current back disability, to include pain with functional impairment, the Board finds no new and material evidence has been submitted to reopen the claim of service connection for a back disability. Thus, the claim to reopen is denied. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a) (2018). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107 (b). 1. Entitlement to service connection for congestion. The Veteran seeks service connection for congestion. In an April 2018 VA examination for sinusitis, the Veteran reported that he developed sinus congestion and runny nose due to exposure to toxic fumes from burn pits and other organic and inorganic environmental exposures while in the Gulf War. The examiner diagnosed the Veteran with sinusitis and found that the condition is at least as likely as not a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology. In so finding, the examiner noted that VA recognizes this condition as one of the presumptive diseases related to Gulf War exposure to environmental hazards such as exposure to smoke and particles from oil well fires, exposure to pesticides, solvents, fuel fumes, burn pit fires, and other hazardous substances. The examiner further noted that a medical opinion was not necessary since VA recognizes the Veteran's condition as a presumptive disease related to Gulf War exposure. The Board notes that the examiner's finding is partially correct as service connection may be granted on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability, including resulting from an undiagnosed illness. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1). However, in the Veteran's case, the examiner found that the Veteran's condition was diagnosable, namely sinusitis. Notwithstanding the above, the Board notes that the Veteran's personnel records confirm service in the Gulf War. In addition, the Veteran has competently testified to experiencing sinus congestion while exposed to toxic fumes in the Gulf War. The Board finds the Veteran's testimony credible as it is consistent with the circumstances of his service. Further, although the examiner's opinion is conflicting, the examiner acknowledges the presumption associated with toxic fumes and service in the Gulf War and seems to opine that the Veteran's sinusitis was the result of the same. As such, the Board resolves all doubt in favor of the Veteran and finds that service connection for sinusitis is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a right shoulder disability is remanded. 2. Entitlement to service connection for a right knee disability is remanded. 3. Entitlement to service connection for a left knee disability is remanded. The Veteran seeks service connection for a bilateral knee and right shoulder disability. The Board notes that the Veteran's bilateral knee and right shoulder pain have been attributed to his service-connected fibromyalgia; however, in his hearing, the Veteran contended that he has a separate disability for his knees and shoulder that was caused by service. In January 2012 VA examinations for his knees and shoulder, the Veteran reported injuring his knees and right shoulder during a fall in Iraq while running with body gear. At that time, the examiner found no diagnosis for a right or left knee disability, or a right shoulder disability. However, results from a September 2016 MRI show that the Veteran has minimal degenerative changes of the knees and right shoulder. Since a specific diagnosis was not indicated for either disability, the Board finds remand is warranted to clarify whether the Veteran has a bilateral knee and right shoulder disability separate from his service-connected fibromyalgia; and if so, whether the identified disability was caused by service. The matters are REMANDED for the following action: 1. Obtain the Veteran's outstanding VA treatment records and associate them with claims folder. 2. Schedule the Veteran for VA examinations with a qualified clinician to determine the nature and etiology of the Veteran's right knee, left knee, and right shoulder disabilities. The examiner must review the claims folder, including a copy of this remand and all lay statements of record. (a) The examiner should first clarify whether the Veteran has a right knee, left knee, and/or right shoulder disability separate and distinct from the Veteran's service-connected fibromyalgia. (b) If so, provide an opinion as to whether the identified right knee, left knee, and/or right shoulder disability is at least as likely as not (50 percent probability or greater) related to service, to include as due to the Veteran's reported fall in Iraq. The examiner should provide a complete rationale for any opinions expressed. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. 3. The RO must review the examination reports and all opinions to ensure they are complete, adequate, and comply with the Board's specific remand directives. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Laffitte, 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.