Citation Nr: 21007282 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 17-19 159 DATE: February 9, 2021 ORDER Entitlement to service connection for fibromyalgia has been withdrawn. Entitlement to service connection for right carpal tunnel syndrome has been withdrawn. Entitlement to service connection for left carpal tunnel syndrome has been withdrawn. Entitlement to service connection for a nerve damage disability has been withdrawn. New and material evidence has been received regarding the claim of entitlement to service connection for left knee disability, the application to reopen the claim is granted. New and material evidence has been received and the claim of entitlement to service connection for a back disability, the application to reopen the claim is granted. REMANDED Entitlement to service connection for cataracts is remanded. Entitlement to service connection for glaucoma is remanded. Entitlement to service connection for a leg cramp disability is remanded. Entitlement to service connection for a heart disability is remanded. Entitlement to service connection for neuropathy is remanded. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for hyperplastic squamous mucosa is remanded. Entitlement to service connection for dysplasia is remanded. Entitlement to service connection for a skin disability is remanded. Entitlement to service connection for a joint pain disability is remanded. Entitlement to service connection for femur disability is remanded. Entitlement to service connection for left knee disability is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a dental disability is remanded. FINDINGS OF FACT 1. At the hearing before the undersigned the Veteran withdrew the claims of entitlement to service connection for fibromyalgia, right and left carpal tunnel syndrome, and nerve damage. 2. Service connection for left knee and back disabilities was denied in a February 2010 rating decision. The Veteran did not file a timely Notice of Disagreement with the rating decision. 3. Evidence associated with the claims file since the final February 2010 rating decision relates to unestablished facts necessary to substantiate the claims for service connection for left knee and back disabilities. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim of entitlement to service connection for fibromyalgia by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the claim of entitlement to service connection for right carpal tunnel syndrome by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of the claim of entitlement to service connection for left carpal tunnel syndrome by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for withdrawal of the claim of entitlement to service connection for a nerve damage disability by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 5. The February 2010 rating decision that denied service connection for left knee and back disabilities is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 6. New and material evidence has been received to reopen the claims for service connection for left knee and back disabilities. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from May 1980 to October 1983. The Veteran testified at a hearing before the undersigned in December 2020. A transcript of the hearing has been associated with the claims file. A claim of service connection for a dental disability is also considered a claim for VA outpatient dental treatment. Mays v. Brown, 5 Vet. App. 302, 306 (1993). In dental claims, the Agency of Original Jurisdiction (AOJ) adjudicates the claim for service connection and the VA Medical Center adjudicates the claim for outpatient treatment. As the current issue of service connection for a dental disability stems from an adverse determination by the AOJ, the dental issue addressed herein must be limited to service connection for compensation purposes only. Upon review of the record it is unclear if the VA Medical Center has adjudicated a claim for outpatient treatment. Accordingly, a claim for VA outpatient dental treatment is REFERRED to the AOJ for further referral to the appropriate VA medical facility for any appropriate action. See 38 C.F.R. § 17.161. Withdrawal 1. Entitlement to service connection for fibromyalgia. 2. Entitlement to service connection for right carpal tunnel syndrome. 3. Entitlement to service connection for left carpal tunnel syndrome. 4. Entitlement to service connection for a nerve damage disability. 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. At the hearing before the undersigned in December 2020 the Veteran expressed his desire to withdraw his appeals of the above listed issues. He specifically stated his intention to withdraw the claims and that he understood the consequences of doing so. The withdrawal at the hearing was made on the record at a hearing before the undersigned. Hence, there remain no allegations of errors of fact or law for appellate consideration with respect to the above listed issues and those claims are dismissed. Applications to Reopen 5. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for left knee disability 6. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a back disability. The claims were previously denied in a February 2010 rating decision. The decision is final because the Veteran did not perfect an appeal of that decision and no new and material evidence was received within one year of that decision. Service connection for left knee disability was denied on the basis that there was no clinical diagnosis of a left knee condition related to service or to his service-connected right knee condition. Service connection for a back disability was denied on the basis that there was no record of treatment or traumatic injury in service, and the evidence was against a finding that the disability was caused by his service-connected right knee disability. Of record at the time of the rating decision were service treatment records and VA treatment records. The question before the Board is whether new and material evidence has been submitted to reopen the claims. Since the February 2010 rating decision, the Veteran submitted a statement indicating that he was awarded Social Security disability in May 2020, though he did not submit the records or indicate that he disagreed with the February 2010 rating decision. At the hearing before the undersigned, the Veteran argued that his left knee and back disabilities are made worse by his having to compensate for his right knee. The Veteran also indicated that he is treated by a chiropractor through VA for his back disability. The Board finds this evidence is “new” in that it had not been previously submitted. Moreover, the evidence is “material” because it relates to unestablished facts necessary to substantiate the Veteran’s claims; that is that his left knee and back disabilities may be aggravated by his service-connected right knee disability. As such, the claims for entitlement to service connection for left knee and back disabilities are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). REASONS FOR REMAND The Veteran claims that several of the claimed disabilities are the result of exposure to chemicals and radiation during service. Service personnel records show that the Veteran served at Ft. McClellan and Seneca Army Depot (SEAD). The Veteran has submitted materials indicating chemical contamination at SEAD and Ft. McClellan, and radiation contamination at Ft. McClellan. The Veteran has reported that he was exposed to chemicals radiation in service and has generally argued that many of his disabilities are related to his exposure to chemicals and radiation. The record does not contain sufficient evidence regarding the Veteran’s asserted radiation exposure. While the Veteran’s disabilities are not radiogenic diseases identified by 38 C.F.R. § 3.311, the Veteran submitted evidence indicating that some could possibly be radiogenic in origin. Accordingly, VA should develop the Veteran’s claim as directed under 38 C.F.R. § 3.311. 1. Entitlement to service connection for cataracts is remanded. 2. Entitlement to service connection for glaucoma is remanded. Service treatment records show that the Veteran burned his eye and face in service. VA treatment records show that the Veteran has been noted to have a history of glaucoma and notations of narrow angles. The Board cannot make a fully-informed decision on the claim because no VA examiner has opined whether the Veteran has eye disabilities that are related to his injury in service or exposure to chemicals in service. The claims are remanded for medical opinions. 38 C.F.R. § 3.159 (c)(4). 3. Entitlement to service connection for a leg cramp disability is remanded. 4. Entitlement to service connection for neuropathy is remanded. 5. Entitlement to service connection for COPD is remanded. 6. Entitlement to service connection for GERD is remanded. VA treatment records show complaints of occasional leg cramps; however, there is a denial of varicose veins or known peripheral vascular disease (PVD). See VA Treatment, April 2002. VA treatment records show a notation of decreased sensation in the right lower extremity, that the Veteran has been diagnosed with COPD, and that the Veteran has been diagnosed with and treated for GERD. See, e.g., VA Treatment, February 2015, July 2016, January 2017. The Veteran submitted an article that referred to a study that noted soreness of joints with PCB exposure. The Veteran also submitted articles regarding PCBs and neuropathy, identified irritation of the respiratory tract with PCB exposure, and identified that stomach conditions can be associated with PCB exposure. The Board cannot make a fully-informed decision on these claims because no VA examiner has opined whether the Veteran has a leg cramp disability, neuropathy, COPD, and GERD that is related to his exposure to chemicals in service. The claims are remanded for medical opinions. 38 C.F.R. § 3.159 (c)(4). 7. Entitlement to service connection for a heart disability is remanded. VA treatment records show complaints and treatment for heart complaints. The Veteran has submitted an article regarding radiation as a risk factor for cardiovascular disease. The Veteran has submitted a printout that indicated that heavy metals and PCBs may injure the heart. The Board cannot make a fully-informed decision on the claim because no VA examiner has opined whether the Veteran has a heart disabling that is related to his exposure to chemicals and/or radiation in service. The claim is are remanded for a medical opinion. 38 C.F.R. § 3.159 (c)(4). 8. Entitlement to service connection for hyperplastic squamous mucosa is remanded. 9. Entitlement to service connection for dysplasia is remanded. 10. Entitlement to service connection for a skin disability is remanded. VA treatment records show treatment for skin disabilities. See, e.g., VA Treatment,September 2015. The Veteran has submitted and article that discusses PCBs and skin conditions. In addition, the Board notes that skin cancer is a radiogenic disease. See 38 C.F.R. § 3.311. The Board cannot make a fully-informed decision on the issues because no VA examiner has opined whether the Veteran has a skin disability that is related to his exposure to chemicals and/or radiation in service. The claims are remanded for medical opinions. 38 C.F.R. § 3.159 (c)(4). 11. Entitlement to service connection for femur disability is remanded. 12. Entitlement to service connection for a joint pain disability is remanded. 13. Entitlement to service connection for left knee disability is remanded. VA treatment records show complaints of left knee pain and the use of a brace on the left knee. The records further note that the Veteran received injections in the knee from a non-VA provider. See VA Treatment,January 2015. The Veteran has contended that his left knee disability is related to his right knee disability due to overcompensating. The Veteran has not been afforded a VA examination regarding the etiology of his. The Board cannot make a fully-informed decision on the claim because no VA examiner has opined whether his left knee disability is due to or aggravated by his service-connected right knee disability. The claim is remanded for a medical opinion. 38 C.F.R. § 3.159 (c)(4). 14. Entitlement to service connection for a back disability is remanded. The Veteran was afforded a VA examination regarding the etiology of his back disability. However, although the examiner found that the disability was not related to his service-connected right knee disability, the examiner did not comment on whether the disability was aggravated by the Veteran’s service-connected right knee disability. As such, the claim must be remanded to obtain an adequate VA medical opinion. 38 C.F.R. § 3.159 (c)(4). 15. Entitlement to service connection for a dental disability is remanded. The Veteran testified that he received treatment from VA. Review of the claims file does not show VA treatment records dated since March 2017. Therefore, remand is necessary to obtain and associate with the claims file VA treatment records regarding the Veteran dated since March 2017. In VA treatment records the Veteran was noted to receive private treatment from Drs. P., including knee injections. The Veteran had outside pain management, for back and neck pain, and received medication outside of VA. In addition, VA treatment notes indicate that the Veteran had treatment at an emergency department for chest pain and the Veteran testified at the hearing before the undersigned that he received chiropractic treatment, but it was unclear from the testimony whether this treatment was at VA. A remand is required to allow VA to obtain authorization and request all identified private treatment records. In a Report of General Information dated in May 2010, the Veteran was noted to report that he was receiving Social Security disability and permanent workman’s compensation for cervical spine. On remand, after obtaining any necessary authorization, attempts must be made to obtain and associate with the claims file treatment records regarding the Veteran’s claims for Social Security disability and worker’s compensation. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file the Veteran’s VA treatment records for the period from March 2017 to the Present. 2. Ask the Veteran to complete a VA Form 21-4142 for all private treatment providers, including Dr. P., his chiropractor, and emergency department treatment. Make two requests for the authorized records from all identified private providers, unless it is clear after the first request that a second request would be futile. 3. After obtaining any necessary authorization, obtain records that relate to the disabilities for which the claimant is seeking VA benefits from Social Security Administration. Document all requests for information as well as all responses in the claims file. 4. After obtaining any necessary authorization, attempt to obtain and associate with the claims file records regarding the Veteran’s application for Worker’s Compensation benefits. Document all requests for information as well as all responses in the claims file. 5. Develop the Veteran’s assertion that he was exposed to radiation at Seneca Army Depot and Fort McClellan. If evidence of possible exposure to radiation or ionizing radiation is found, obtain a dose assessment and an opinion. If more details are needed, contact the Veteran to request the information. 6. After completion of all of the above directives, obtain medical opinions (via or telehealth interview, review of the record, etc., or if an in-person examination if the examiner determines it is necessary) to determine the nature and etiology of any eye disability, including cataracts and glaucoma; leg cramp disability; heart disability; neuropathy; COPD; GERD; and skin disability, including hyperplastic squamous mucosa and dysplasia found to be present. Copies of all pertinent records must be made available to the examiner for review. Based on the examination and review of the record, the examiner must answer the following: Is it at least as likely as not that any diagnosed eye disability, including cataracts and glaucoma; leg cramp disability; heart disability; neuropathy; COPD; GERD; and skin disability, including hyperplastic squamous mucosa and dysplasia found to be present is related to an in-service injury, event, or disease, including exposure to chemicals, exposure to radiation, and burns in service? Why or why not? A complete rationale should be provided for all opinions expressed. 7. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the nature and etiology of any left knee and back disability found to be present. Copies of all pertinent records must be made available to the examiner for review. Based on the examination and review of the record, the examiner must answer the following: (a) Is it at least as likely as not that any diagnosed left knee and back disability is related to an in-service injury, event, or disease, including in service notation of headache? Why or why not? (b) Is it at least as likely as not that any diagnosed left knee and back disability is (i) caused by or (ii) aggravated by his service-connected right knee disability? Why or why not? Aggravation here is defined as any increase in disability. A complete rationale should be provided for all opinions expressed. 8. Confirm that the VA medical opinion provided comports with this remand, specifically that the standard for the secondary aggravation opinion is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If not, get an addendum. M.E. LARKIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Robert J. Burriesci, 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.