Citation Nr: 21073150 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 18-01 540 DATE: December 7, 2021 ORDER The appeal of the issue of entitlement to service connection for cysts is dismissed. The appeal of the issue of entitlement to service connection for a testosterone disability is dismissed. The appeal of the issue of entitlement to service connection for facial scars is dismissed. New and material evidence having been received, the claim for service connection for a right knee disability is reopened, and the appeal is granted to this extent only. REMANDED Entitlement to service connection for knee scars is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for thyroid disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. During a February 2021 Board of Veterans' Appeals (Board) virtual tele-hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeals for service connection for cysts, service connection for a testosterone disability, and service connection for facial scars. 2. A November 2009 rating decision denied service connection for a right knee condition; the Veteran did not timely perfect an appeal. 3. Evidence received since the November 2009 rating decision with respect to the claim of entitlement to service connection for a right knee condition is new and material. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeals for service connection for cysts, service connection for a testosterone disability, and service connection for facial scars by the Veteran are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The November 2009 rating decision, in which the Regional Office (RO) of the Department of Veterans Affairs (VA) denied service connection for a right knee condition, is final. 38 U.S.C. § 7104(b). 3. Evidence received since the November 2009 rating decision to reopen the claim of entitlement to service connection for a right knee condition is new and material and the claim is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1971 to September 1977 with subsequent reserve service. The Board notes that the Veteran's complete service treatment records (STRs) have not been found. A July 2014 VA memorandum noted that multiple attempts to locate the Veteran's STRs had been made; however, no records were located. The Board is aware that when service records are unavailable through no fault of a veteran, it has a heightened duty to assist, as well as an obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). New and Material Evidence Prior unappealed decisions are final. However, 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). The United States Court of Appeals for Veterans Claims (Court) has held that, 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, 145 (1991). VA law requires that in order to reopen a previously and 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). Where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239-40 (1995). New evidence is that which was not previously submitted to agency decisionmakers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA's duty to provide a VA examination is triggered. There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening. Shade, 24 Vet. App. at 117-20. 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a right knee disability In July 1987, the RO initially denied service connection for a right knee condition. The Veteran did not timely appeal the rating decision; therefore, the July 1987 rating decision is final. Most recently, in November 2009, the RO denied service connection for a right knee condition. The Veteran did not timely appeal the rating decision; therefore, the November 2009 rating decision is final. The basis for the RO's denial was that there was no evidence that a right knee condition was incurred in or caused by service. Since the most recent prior final decision, lay evidence has been added to the record. In October 2016, a co-worker noted that the Veteran had bilateral leg pain since the 1980s when they first met. He noted that the Veteran had difficulty using ladders and his knee gave way on occasion. During his February 2021 Board hearing, the Veteran testified that he injured his right knee during active-duty service and was treated with a cast for three months. He noted terrible right knee pain since. Specifically, the Veteran reported bilateral knee pain during reserve service. The reason for the prior final denial was that there was no evidence establishing the Veteran's right knee condition was caused by service. In other words, the nexus element was missing. This recent evidence suggests that the Veteran's right knee pain is related to his active service. The evidence raises a reasonable possibility of substantiating the claim. The Board finds that new and material evidence has been received since the November 2009 rating decision. Therefore, the claim of entitlement to service connection for a right knee disability is reopened. Service Connection 2. Service connection for cysts 3. Service connection for a testosterone disability 4. Service connection for facial scars During his February 2021 Board hearing, the Veteran stated that he desired to withdraw the claims for entitlement to service connection for cysts, entitlement to service connection for a testosterone disability, and entitlement to service connection for facial scars. The undersigned verified that the representative had explained the ramifications of a withdrawal to the Veteran, and informed the Veteran that he is not precluded from filing a new claim for those issues at a later date at a Department of Veterans Affairs (VA) Regional Office (RO), essentially starting the process over. This testimony constitutes a valid withdrawal of the Veteran's appeal as it reflects that the withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of such action. See Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011) ("withdrawal of a claim 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"). 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. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. Accordingly, the Board does not have jurisdiction to review the claims of entitlement to service connection for cysts, entitlement to service connection for a testosterone disability, and entitlement to service connection for facial scars, and they are dismissed. REASONS FOR REMAND 5. Entitlement to service connection for knee scars is remanded. 6. Entitlement to service connection for a right knee disability is remanded. 7. Entitlement to service connection for a left knee disability is remanded. The Veteran contends that he has had right knee pain since active duty. During his February 2021 Board hearing, the Veteran stated that he injured his right knee during active-duty service and was treated with a cast for three months. He noted terrible right knee pain since. The Veteran stated that the began having left knee pain around 1978, within one year of separating from active service. Doctors informed him that his left knee pain was caused by favoring it over his right knee. He was unable to remember the treating physician's name or practice. As his bilateral knee pain worsened, his knees began to give out. In the 1990s, while working construction, the Veteran's knee gave out and he cut his right knee. A scar formed. VA and private treatment records note a current diagnosis of bilateral knee degenerative joint disease. As noted above, the Veteran's STRs are unavailable. However, the Board notes that lay testimony is competent as to matters capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Therefore, the AOJ should obtain a medical opinion to address whether the Veteran's claimed right knee disability was caused by active duty service, as well as opine whether the Veteran's claimed left knee disability and right knee scar is secondary to his right knee disability. 8. Entitlement to service connection for thyroid disability is remanded. The Veteran contends that his hypothyroidism, was caused by his exposure to herbicides during his active-duty service in Thailand. During his February 2021 Board hearing, the Veteran stated that he was stationed at Korat Royal Thai Air Force Base as a recreation specialist. The Veteran testified that he was exposed to herbicide agents as he was near the base perimeter while working on the golf driving range and softball fields. The Veteran's representative noted that the DD Form 214 noted foreign service during his active duty period; however, due to his military records unavailability, there is no way to verify service in Thailand without referral to the appropriate government records repository. Further, a November 1990 reservist Report of Medical History noted that the Veteran had thyroid trouble and that he had been on medication since 1982. Based upon the Veteran's testimony that he served at Korat Royal Thai Air Force Base and that his daily duties placed him in close proximity to the base perimeter, the Board finds that there is sufficient evidence which requires a request to determine whether the Veteran served in Thailand and whether his service in Thailand exposed him to herbicides. 9. Entitlement to a TDIU is remanded The Veteran claims entitlement to a total disability evaluation based on individual unemployability. Consideration of entitlement to a TDIU is dependent upon the impact of service-connected disabilities on a Veteran's ability to obtain or retain substantially gainful employment. The matter of TDIU is therefore inextricably intertwined with the currently pending claims discussed above. Harris v. Derwinski, 1 Vet. App. 180 (1991). Remand of the inextricably intertwined TDIU claim is therefore required as well. The matters are REMANDED for the following action: 1. Verify through the appropriate agencies the specific dates of ACDUTRA or INACDUTRA by requesting all reserve service treatment records and service personnel records and associate them with the claims file. Specifically, confirm the reserve service dates, ideally with a DD Form 214 or equivalent. The AOJ should prepare a summary of such dates, or document for the record why the production of a summary of service dates is not possible. All efforts to obtain these records should be fully documented. If records do not exist or further efforts to obtain the records would be futile, notify the Veteran. 2. Obtain an opinion from a qualified clinician, to determine the nature and etiology of any current bilateral knee disability. (a.) The examiner should opine whether it is at least as likely as not that the Veteran's right knee disability is etiologically related to an in-service injury, event, or disease, to include a karate kick to the knee. (b.) If the examiner finds that the right knee disability is etiologically related to an in-service injury, event, or disease, opine whether it is at least as likely as not that the Veteran's left knee disability is proximately due, or aggravated by his right knee disability. If the examiner finds that the right knee disability is etiologically related to an in-service injury, event, or disease, opine whether it is at least as likely as not that the Veteran's knee scar(s) is/are proximately due, or aggravated by his right knee disability. The examiner should note that secondary service connection "aggravation" means any incremental increase in disability in nonservice-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected condition and does not require that there be "permanent worsening" of the nonservice-connected disability. The examiner is notified that a lack of documented continuity of care from the time of service does not necessarily preclude service connection, and therefore the examiner should specifically address the Veteran's competent statements and testimony that he has had right knee pain since his injury during active service. A complete rationale should be provided for all opinions expressed and conclusions reached. If it is not possible to provide an opinion regarding symptoms 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). 3. Undertake appropriate development to verify the Veteran's contentions regarding his exposure to herbicides during his active duty service in Thailand. All appropriate government records repository and/or source of information should be contacted. Efforts to obtain this information and/or records should be documented in the record. Undertake any recommended follow-up action. The AOJ should send an inquiry along with a description of the Veteran's account of his service and purported exposure to herbicide agents in Thailand to determine whether the Veteran was stationed at Korat Royal Thai Air Force Base anytime between 1973 and 1974, and the likelihood that the Veteran was exposed to herbicide agents in Thailand. In that assessment, the contacted government agency/entity should also address the following: (a.) verify the Veteran's contentions regarding the proximity of the softball field and golf course to the base perimeter at Korat Royal Thai Air Force Base; if a map or photograph of the Korat Royal Thai Air Force Base during the relevant period is available, please provide a copy of that; (b.) determine whether it would have been "routine" for a recreation specialist to be regularly/daily working on or near the perimeter of the base. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Costello, 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.