Citation Nr: 21009412 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 17-48 154A DATE: February 22, 2021 ORDER The claim of entitlement to service connection for sleep apnea has been withdrawn. Reopening of the previously denied claim for entitlement to service connection for left ankle sprain is granted. Reopening of the previously denied claim for entitlement to service connection for right ankle sprain is granted. Reopening of the previously denied claim for entitlement to service connection for lower back pain is granted. Reopening of the previously denied claim for entitlement to service connection for left shoulder strain is granted. Reopening of the previously denied claim for entitlement to service connection for a right shoulder injury is granted. REMANDED Entitlement to service connection for fibromyalgia is remanded. Entitlement to service connection for gastrointestinal symptoms to include irritable bowel syndrome (IBS) is remanded. Entitlement to service connection for an unspecified skin condition to include acne is remanded. Entitlement to service connection for left ankle sprain is remanded. Entitlement to service connection for right ankle sprain is remanded. Entitlement to service connection for lower back pain is remanded. Entitlement to service connection for right shoulder injury is remanded. Entitlement to service connection for left shoulder strain is remanded. FINDINGS OF FACT 1. The claim for service connection for sleep apnea was withdrawn on the record during a hearing held on December 2, 2020. 2. An unappealed May 2008 rating decision denied service connection for left ankle sprain, right ankle sprain, lower back pain, right shoulder injury, and left shoulder strain on the grounds that the conditions were not incurred in or caused by service. 3. Evidence received since May 2008 was not previously considered by agency decision makers and relates to unestablished facts necessary to substantiate the claim for service connection for left ankle sprain, right ankle sprain, lower back pain, right shoulder injury and left shoulder strain. CONCLUSIONS OF LAW 1. The claim for service connection of sleep apnea is withdrawn. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.202, 20.204. 2. The May 2008 rating decision denying entitlement to service connection for left ankle sprain, right ankle sprain, lower back pain, right shoulder injury and left shoulder strain is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 3. New and material evidence has been received to reopen the previously denied claims of service connection for left ankle sprain, right ankle sprain, lower back pain, right shoulder injury and left shoulder strain. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 2005 to October 2007. He served in the Southwest Asia Theater of Operations during the Persian Gulf War. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision by the Roanoke, Virginia Regional Office (RO) of the United States Department of Veterans Affairs. The Veteran testified at a December 2020 hearing held before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. The undersigned noted at the December 2020 hearing that the issue of entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently rated as 70 percent disabling, was erroneously included on an appeal document, as a notice of disagreement was not filed and this issue was not included on the Veteran’s VA Form 9, Appeal to Board of Veterans’ Appeals. The issue of entitlement to an increased rating in excess of 70 percent for PTSD is not on appeal. Withdrawal 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 by the appellant or their representative so long as the Veteran and/or claimant is identified, the file number is included, and there is a clear statement of withdrawal identifying the issue(s) withdrawn. 38 C.F.R. §§ 19.55, 20.205. During the December 2020 hearing, the issue of service connection for sleep apnea was withdrawn on the record by the Veteran and his attorney; the requirements for withdrawal are met. As the Veteran has withdrawn his appeal on this issue, there remains no allegation of error of fact or law for appellate consideration. Accordingly, the Board has no further jurisdiction in this matter, and the appeal must be dismissed. New and Material Evidence Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. 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 sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Service connection for left ankle sprain, right ankle sprain, lower back pain, right shoulder injury and left shoulder strain was denied in a May 2008 rating decision on the grounds that these claimed disabilities were not related to military service. Evidence received since the May 2008 rating decision denying service connection for these disabilities includes VA medical records and hearing testimony indicating a possible nexus between these disabilities and the Veteran’s military service. The Veteran described the onset and continuity of symptoms; he is competent to do so, and his credibility is presumed for purposes of reopening. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, reopening of the claims is warranted. REASONS FOR REMAND The Veteran’s claims for entitlement to service connection for entitlement to service connection for fibromyalgia, gastrointestinal symptoms to include IBS, unspecified skin condition to include acne, left ankle sprain, right ankle sprain, low back pain, right shoulder injury, and left shoulder strain are remanded for additional development. The Veteran’s service treatment records reflect treatment for ankle strain and symptoms, acne and left shoulder strain in service. At his hearing, the Veteran testified that he has experienced back, bilateral shoulder and bilateral ankle symptoms since service which he attributes to multiple ruck marches, as long as 22 miles in one day. He testified that he experiences fibromyalgia, which is triggered by cold weather and causes him difficulty in the morning. The Veteran testified that he has experienced gastrointestinal issues since he joined the military, causing stomach pain, diarrhea and constipation. With regard to his claimed skin condition, he testified that he had shaving bumps in service and still has bumps on his chest. The Board finds that a VA examinations and opinions are needed to properly adjudicate the Veteran’s claims of service connection for fibromyalgia, gastrointestinal symptoms to include IBS, unspecified skin condition to include acne, left ankle sprain, right ankle sprain, low back pain, right shoulder injury and left shoulder strain. A review of the file reveals the Veteran failed to report for VA examinations which had been scheduled related to his claims for entitlement to service connection. The Veteran testified at his hearing that he has been homeless and that he was unable to secure transportation to the VA examinations that had been scheduled. At his hearing, the Veteran offered his assurances that he would attend any newly scheduled VA examinations. The Board notes that the consequences for failure to report for a VA examination without good cause may include denial of the claim. On remand, the examinations should be rescheduled and the Veteran should be notified that it is his responsibility to report any scheduled examinations and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. The matters are REMANDED for the following action: 1. Associate with the claims file any outstanding, updated VA treatment records. 2. Schedule the Veteran for a VA fibromyalgia examination. The claim file must be reviewed in conjunction with the examination. The examiner should determine whether or not the Veteran meets the criteria for a diagnosis of fibromyalgia. If so, the examiner must state whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed fibromyalgia is related to his time in service. A full and complete rationale for the opinion is required. 3. Schedule the Veteran for a VA gastrointestinal examination. The claim file must be reviewed in conjunction with the examination. The examiner should determine whether or not the Veteran meets the criteria for a diagnosis of a gastrointestinal disability, to include IBS. If so, the examiner must state whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed gastrointestinal disorder is related to his time in service. A full and complete rationale for the opinion is required. 4. Schedule the Veteran for a VA skin examination. The claim file must be reviewed in conjunction with the examination. The examiner should determine whether or not the Veteran meets the criteria for a diagnosis of a skin condition, to include acne. If so, the examiner must state whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed skin condition is related to his time in service. A full and complete rationale for the opinion is required. 5. Schedule the Veteran for a VA ankle examination. The claim file must be reviewed in conjunction with the examination. The examiner should determine whether or not the Veteran meets the criteria for a diagnosis of a right and/or left ankle disability. If so, the examiner must state whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed right and/or left ankle disability is related to his time in service, to include as due to marching and running while wearing rucksacks, and/or injuries sustained while playing basketball. A full and complete rationale for the opinion is required. 6. Schedule the Veteran for a VA back examination. The claim file must be reviewed in conjunction with the examination. The examiner should determine whether or not the Veteran meets the criteria for a diagnosis of a low back disability. If so, the examiner must state whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed low back disability is related to his time in service, to include as due to marching and running while wearing rucksacks. A full and complete rationale for the opinion is required. 7. Schedule the Veteran for a VA shoulder examination. The claim file must be reviewed in conjunction with the examination. The examiner should determine whether or not the Veteran meets the criteria for a diagnosis of a right and/or left shoulder disability. If so, the examiner must state whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed right and/or left shoulder disability is related to his time in service, to include as due to marching and running while wearing rucksacks, and/or a shoulder injury sustained while playing basketball in service. A full and complete rationale for the opinion is required. 8. Then, readjudicate the remanded issues. If any benefit sought remains denied, the Veteran and his representative should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. M. Lunger, 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.