Citation Nr: 21073379 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 15-04 253 DATE: December 8, 2021 ORDER The issue of whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a left varicocele is dismissed. REMANDED Entitlement to service connection for a disability characterized as unexplained knots under skin of the stomach claimed as due to non-Hodgkin's Lymphoma (NHL) or treatment thereof is remanded. Entitlement to service connection for skin rashes claimed as due to NHL or treatment thereof is remanded. Entitlement to service connection for allergies claimed as due to NHL or treatment thereof is remanded. Entitlement to a compensable rating for NHL since July 1, 2009 is remanded. FINDING OF FACT On October 9, 2019, prior to the promulgation of a decision in the appeal, VA received notification from the appellant requesting withdrawal of his appeal with respect to the issue of whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a left varicocele. CONCLUSION OF LAW The criteria for withdrawal of an appeal by the appellant with respect to the issue of whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a left varicocele have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from May 1966 to May 1969. This case is before the Board of Veterans' Appeals (Board) following a Board Remand in March 2017 after it came back on Remand from the United States Court of Appeals for Veterans Claims regarding a Board decision rendered in October 2015. In July 2015, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board. A transcript of that hearing is considered as evidence in this appeal. In a September 2021 letter, the Veteran was notified that the VLJ who conducted the Board hearing was no longer employed by the Board and that the Veteran had the right to another Board hearing. The Veteran was advised that if he did not respond within 30 days from the date of the letter, the Board would assume that he did not want another hearing and proceed accordingly. No response has been received from the Veteran; as such, the Board must assume that the Veteran does not desire a second hearing and the Board proceeds with the appeal. Withdrawal of Appeal 1. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a left varicocele The issue of service connection for left varicocele (claimed as left testicle drop) was denied in a February 2007 rating decision. In January 2012, the Veteran requested that his claim for service connection for left varicocele (left testicle drop) be reopened. A September 2012 rating decision notification letter denied service connection for left varicocele (claimed as left testicle drop); in essence, the AOJ reopened the claim and denied the claim on its merits. Later that month, the Veteran submitted a Notice of Disagreement with the denial of service connection for left varicocele. In November 2014, the AOJ issued a statement of the case with respect to the issue of entitlement to service connection for left varicocele; and later that month, the Veteran perfected his appeal with respect to this issue. Although the AOJ apparently reopened the Veteran's claim of entitlement to service connection for left varicocele but denied the claim on the merits, on appeal, the Board must make its own determination as to whether any newly submitted evidence warrants a reopening of the claims. This is important because the preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claims on the merits. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). The Board did so in its October 2015 decision and denied the issue as to whether new and material evidence sufficient to reopen a claim of entitlement to service connection for a left varicocele had been received. The Veteran appealed this denial to the United States Court of Appeals for Veterans Claims; and in December 2016, pursuant to a Joint Motion for Partial Remand, the Court set aside the Board's October 2015 decision and remanded the case to the Board for further proceedings consistent with the Joint Motion. Specifically, the Joint Motion noted that the November 2014 Statement of the Case contained no discussion of the need for new and material evidence with regard to the left varicocele issue. In March 2017, the Board remanded the issue for issuance of a Statement of the Case and noted, "If and only if the Veteran files a timely Substantive Appeal should this issue be returned to the Board." In September 2019, the AOJ issued an additional Statement of the Case for the issue of whether new and material evidence had been received in support of service connection for left varicocele. On October 9, 2019, prior to the promulgation of a decision in the appeal, VA received notification from the appellant requesting withdrawal of his appeal with respect to the issue of whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a left varicocele. 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. Id. The Board wishes to clarify that although the March 2017 Board Remand noted, "If and only if the Veteran files a timely Substantive Appeal should this issue be returned to the Board;" in reality, the issue of whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a left varicocele was already on appeal. The Statement of the Case issued in September 2019 was essentially just a correction of the November 2014 Statement of the Case. However, as the Veteran requested in October 2019 to withdraw his appeal with respect to the issue of whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a left varicocele, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal, and it is dismissed. REASONS FOR REMAND 2. Entitlement to service connection for a disability characterized as unexplained knots under skin of the stomach claimed as due to non-Hodgkin's Lymphoma (NHL) or treatment thereof 3. Entitlement to service connection for skin rashes claimed as due to NHL or treatment thereof 4. Entitlement to service connection for allergies claimed as due to NHL or treatment thereof 5. Entitlement to a compensable rating for NHL since July 1, 2009 The Board is cognizant of the fact that the Veteran's case has been in adjudicative status for several years, and it has already been remanded in the past. Consequently, the Board wishes to assure the Veteran that it would not be remanding this case again unless it was essential for a full and fair adjudication of his claims. Initially, the Board notes that in January 2017, the Veteran submitted authorization for records from Ear, Nose, and Throat Center of Ozark from April 2014 to present. It does not appear that these records have been obtained and associated with the file. In the Board's March 2017 Remand, it directed that the reviewing physician address the following: a.) Since November 2006, is there is clinical evidence that the Veteran has been experiencing rashes or red splotches or hives/urticaria on a chronic basis? Explain. b.) If yes, is it as least as likely as not that said skin condition(s) is/are related to the Veteran's service-connected NHL or treatment thereof? Explain, to include discussion of the July 11, 2011 VA Oncology note and the December 2014 letter from a private oncologist. c.) Since November 2006, is there is clinical evidence that the Veteran has been experiencing a chronic skin condition manifested by knots or nodules under the skin of the stomach? Explain. d.) If yes, is it as least as likely as not that said skin condition is related to the Veteran's service-connected NHL or treatment thereof? Explain, to include discussion of the July 11, 2011 VA Oncology note and the December 2014 letter from a private oncologist. e.) Since November 2006, is there clinical evidence that the Veteran had been diagnosed with any allergy or allergies, any chronic sinusitis or chronic rhinitis? f.) If yes, is it as least as likely as not that any such allergy, sinusitis or rhinitis is related to the Veteran's service-connected NHL or treatment thereof? Explain, to include discussion of the July 11, 2011 VA Oncology note and the December 2014 letter from a private oncologist. In June 2021, a medical opinion by an outside oncologist was obtained. The oncologist did not answer the questions as to whether, since November 2006, there has been clinical evidence of chronic rashes, red splotches, hives/urticaria, a chronic skin condition manifested by knots or nodules under the skin of the stomach, allergies, or any chronic sinusitis or chronic rhinitis. He did note that at a November 2015 annual physical, he complained only of sinusitis status post surgery with no further problems with the Mantle Cell lymphoma; that a dermatologist was treating him for basal cell skin cancer, multiple actinic keratoses, and seborrhea; that it was possible that the "knot" reflected PUD (peptic ulcer disease); that multiple dermatologic records were not supportive of the allegations despite myriad diagnoses; and that none of the dermatologic diagnoses were tethered to the Veteran's NHL. The oncologist also did not discuss the July 11, 2011 VA Oncology note and the December 2014 letter from a private oncologist. In July 2021, an addendum opinion was obtained from the private oncologist to address deficiencies in the June 2021 medical opinion. The oncologist opined that it was not at least as likely as not that any such allergy, sinusitis or rhinitis was related to the Veteran's NHL or treatment thereof. He explained that there were some atopic conditions that could yield such nonspecific URI (upper respiratory tract infection) symptoms but that, "here, the malignancy and its treatment were mutually exclusive thereof (both due to absence of linked symptoms and due to absence of corroborative chronology)." In addition, although the oncologist mentions the July 11, 2011 VA Oncology note and the December 2014 letter from a private oncologist, he does not discuss it and it appears to the Board that he was unable to find either document. Thus, the Board concludes that the June and July 2021 medical opinions do not substantially comply with the Board's prior remand directives; and they are inadequate opinions. Stegall v. West, 11 Vet. App. 268 (1998). As such, further medical examination and medical comment on the existence of residuals is necessary to resolve the conflicting indications in the record. In order to ensure proper adjudication of the Veteran's claim, a new VA examination to determine if the Veteran has any residuals of non-Hodgkins lymphoma is, therefore, appropriate. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Ear, Nose, and Throat Center of Ozark from April 2014 to present. Make two requests for any authorized records unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for an examination by an appropriate clinician, preferably an oncologist, to determine the current severity of NHL. The examiner must review the claims file. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must also address the following: (i) Since July 1, 2009, is there is clinical evidence that the Veteran has been experiencing rashes or red splotches or hives/urticaria on a chronic basis? If yes, is it as least as likely as not that said skin condition(s) is/are related to the Veteran's service-connected NHL or treatment thereof? (ii) Since July 1, 2009, is there is clinical evidence that the Veteran has been experiencing a chronic skin condition manifested by knots or nodules under the skin of the stomach? If yes, is it as least as likely as not that said skin condition is related to the Veteran's service-connected NHL or treatment thereof? (Continued on the next page) (iii) Since July 1, 2009, is there clinical evidence that the Veteran had been diagnosed with any allergy or allergies, any chronic sinusitis or chronic rhinitis? If yes, is it as least as likely as not that any such allergy, sinusitis or rhinitis is related to the Veteran's service-connected NHL or treatment thereof? The examiner must provide a rationale to support the opinions and include a discussion of the July 11, 2011 VA Oncology note and the December 2014 letter from a private oncologist. K. McDonald Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Olson, Patricia 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.