Citation Nr: 21071947 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 17-29 863 DATE: December 1, 2021 ORDER Entitlement to an increased rating in excess of 30 percent for hypothyroidism with hypokalemia is dismissed. As new and material evidence has been received, the appellant's claim to entitlement to service connection for headaches to include as due to cervical strain is reopened. REMANDED Entitlement to service connection for gastroesophageal reflux disease as due to hypothyroidism with hypokalemia is remanded. Entitlement to service connection for headaches to include as due to cervical strain is remanded. FINDING OF FACT 1. On August 24, 2018, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran and representative that a withdrawal of the appeal of the claim for an increased rating in excess of 30 percent for hypothyroidism with hypokalemia was requested. 2. A May 2010 rating decision denied service connection for the Veteran's claimed headaches. The Veteran was notified of this decision but did not initiate an appeal, therefore the decision became final. 3. The evidence received since that decision, when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for headaches. CONCLUSION OF LAW 1. The criteria for withdrawal of the appeal of the Veteran's claim for an increased evaluation in excess of 30 percent for hypothyroidism with hypokalemia by the Veteran have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The May 2010 rating decision, which denied the Veteran's claim of entitlement to service connection for headaches, is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103. 3. Evidence received since the May 2010 rating decision in relation to the Veteran's claim for entitlement to service connection for headaches is new and material; therefore, the claims are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in active-duty service with the Army from January 1986 to February 1997. This matter is on appeal from an August 2016 rating decision. The Board notes that following the most recent Supplemental Statement of the Case (SSOC) in August 2018, additional VA medical center (VAMC) records were associated with the record. However, after review of the additional VAMC records, the Board finds the records duplicative or not relevant to the adjudication of the appealed issues; as such, a waiver is not necessary. Dismissal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. Except for appeals withdrawn on the record at a hearing, withdrawal must be in writing. 38 C.F.R. § 20.204 (b)(1). In an August 24, 2018 statement, the Veteran's representative stated that they discussed with the Veteran the issue for an increased evaluation for hypothyroidism and "based on the rating criteria for this condition, we have decided to withdraw this issue form appeal." The Board notes that in April 2021 the Veteran submitted a claim for an increased rating for hypothyroidism; however, in a later April 2021 VA correspondence, the Veteran called to withdraw this claim. As such, the Veteran has withdrawn the appeal concerning an increased evaluation for hypothyroidism; accordingly, the Board does not have jurisdiction to review the issue and it is dismissed. 38 C.F.R. § 20.204. New and Material Evidence In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to VA. 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 and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the "credibility" of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156 (a) creates a low threshold for finding new and material evidence and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). Headaches In a May 2010 rating decision, service connection for headaches was denied. Evidence at the time of the rating decision included the Veteran's service treatment records (STR)s and VAMC treatment records. The rating decision found there was no nexus between the Veteran's claimed condition and active duty service. The Veteran was notified of this decision but did not appeal within one year of the decision; therefore, the May 2010 rating decision became final. New evidence since the May 2010 rating decision includes VA medical treatment records, VA examinations, submitted lay statements, and the Veteran's substantive appeal. The Veteran has stated that his headaches stem from a motor vehicle accident in service as well as asserting that his headaches may as be due to his service-connected cervical strain. The evidence and statements, if presumed credible, raise a reasonable possibility of substantiating the claim. Therefore, new and material evidence has been received, and the claim for service connection for headaches is reopened. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). REASONS FOR REMAND The Board finds that remand is warranted for additional development. Gastroesophageal Reflux Disease (GERD) The Veteran asserts that his GERD is caused or aggravated by his service-connected hypothyroidism to include as due to his medication to treat his hypothyroidism. In a May 2018 VA medical opinion, the examiner found no nexus between the Veteran's Synthroid or prescribed methocarbamol use and the development of GERD. The examiner noted that NSAID such as meloxicam could cause a "NSAID gastritis/gastropathy" but did not find any evidence of this condition after review of the medical treatment record. In a June 2018 addendum VA medical opinion, the examiner did not find a baseline for the Veteran's GERD and indicated there was insufficient medical evidence to make that determination. The examiner did not find the Veteran's GERD to be aggravated beyond natural progression by the Veteran's hypothyroidism and found there was no medical literature or medical record evidence to show the Veteran's GERD was permanently aggravated beyond natural progression from the Veteran's prescribed medication to treat his hypothyroidism. Concerning the Veteran's treatment for hyperthyroidism by radioactive iodine, the examiner noted the Veteran received such treatment in October 1996. The examiner found that the Veteran's GERD was less likely than not due to radioactive iodine treatment and "so there is no aggravation beyond its natural progression." However, the examiner further stated that "if additional clarification is needed, this examiner is requesting [Regional Office] to request Gastroenterology specialty request of medical opinion for appeal purpose." The Board notes the examiner did not give any further specific rationale or explanation as to why there was no aggravation of the Veteran's GERD from the radioactive iodine treatment; given the examiner's further indication that they were looking for additional clarification of opinion, the Board finds the opinion inadequate, and remand warranted to obtain an adequate opinion. Headaches Concerning the Veteran's claim for service connection for headaches, the Board notes the Veteran has raised several theories on the nature and etiology of his claimed headaches. The Veteran has submitted statements or reported that his headaches were due to a July 1994 motor vehicle accident (MVA) that occurred during service and that he has been experiencing symptoms since. In March 2016, the Veteran asserted that his headache was also secondary to his service-connected cervical strain. In the most recent VA examination in February 2017 with subsequent May 2018 and June 2018 addendum opinions, the examiners found the Veteran's service treatment records did not show a diagnosis for chronic headaches or the medical record did not document complaints of headaches until 2010. However, the Veteran's treatment record shows complaints of headaches beginning from January 1999. In addition, the provided opinions do not address the Veteran's report of his headaches stemming from the July 1994 MVA or the raised secondary theory relating to his service-connected cervical strain. As such, the Board finds remand warranted to obtain an adequate opinion on the nature and etiology of the Veteran's claimed headaches. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated and outstanding treatment records. 2. Schedule a VA examination with an appropriate provider to determine the nature and etiology of the Veteran's headaches and GERD disability. The complete record, to include a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. The examiner should respond to the following: (a.) Is it as least as likely as not (a 50 percent or greater probability) the Veteran's headaches arose in service or is etiologically related to his military service to include a July 1994 motor vehicle accident? (b.) Is it as least as likely as not (a 50 percent or greater probability) the Veteran's headaches was caused by or related to his service-connected cervical strain? (c.) Is it at least as likely as not (50 percent probability or more) that the Veteran's headaches were aggravated by his service-connected cervical strain? (d.) Is it as least as likely as not (a 50 percent or greater probability) the Veteran's GERD was caused by or related to his hypothyroidism to include treatment with medication and radioactive iodine? (e.) Is it as least as likely as not (a 50 percent or greater probability) the Veteran's GERD was aggravated by his hypothyroidism to include treatment with medication and radioactive iodine? (f.) In providing the above opinions, the examiner should note that "Aggravation" is defined as any worsening beyond the natural progression of the disability. The examiner should establish a baseline level of disability prior to aggravation. If a baseline cannot be established, the examiner should explain why. (g.) In rendering the requested opinions, the VA examiner should identify and address any relevant medical and lay evidence to include the complaints of headaches, vomiting and diarrhea in the service treatment record (STRs); the July 1994 report of MVA; the September 1996 medical evaluation board; and the September 2015, December 2015, February 2017, May 2018 and June 2018 VA examination findings and medical opinions. (h.) The examiner is also advised that the Veteran is competent to report in-service events and treatment, symptoms and history, and such reports and assertions must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports or lay statements, the examiner must provide a reason for doing so. (i.) A complete rationale is requested for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.