Citation Nr: 21010794 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 16-08 055 DATE: February 25, 2021 ORDER Entitlement to service connection for a right leg disability is dismissed. New and material evidence having been received, the claim of entitlement to service connection for a left great toe disability is reopened; to that extent only, the appeal is granted. REMANDED Entitlement to service connection for a left great toe disability is remanded. Entitlement to service connection for sarcoidosis is remanded. FINDINGS OF FACT 1. At a December 2020 hearing before the Board of Veterans' Appeals (Board), the Veteran requested to withdraw his appeal seeking service connection for a right leg disability. 2. An April 1985 rating decision denied entitlement to service connection for a left foot disability on the basis that there was no evidence the condition was incurred in service. 3. Since the April 1985 rating decision became final, evidence relating to an unestablished fact necessary to substantiate the claim of service connection for a left great toe disability has been received, and it raises a reasonable possibility of substantiating such claim. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal seeking service connection for a right leg disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a left great toe disability; thus, the Veteran's petition to reopen his claim is granted. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from May 1976 to September 1977. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In an April 2019 decision issued by a Veterans Law Judge other than the undersigned, the Board denied the Veteran’s appeals seeking service connection for a right leg disability and to reopen entitlement to service connection for sarcoidosis and a left great toe disability (hereinafter sometimes called the “toe issue”). The Veteran appealed the April 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2020 order, which incorporated the parties’ February 2020 Joint Motion for Remand (JMR), the Court vacated and remanded the April 2019 Board decision. The Veteran testified at a hearing before the undersigned Veterans Law Judge in December 2020. The Veteran's appeal seeking service connection for sarcoidosis has been characterized and developed as a claim to reopen an April 1985 denial of service connection for sarcoidosis. However, under 38 C.F.R. § 3.156(c), if at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. Here, and as will be further explained in the Remand section, service personnel records that are relevant to the claim of service connection for sarcoidosis were associated with the claims file after the April 1985 rating decision was issued. Accordingly, the matter of service connection for sarcoidosis requires review on a de novo basis. The Board has characterized the claim accordingly. The Board finds the records were not relevant to the claim of service connection for a left great toe disability. In a recent decision, Kisor v. Wilkie 969 F.3d 1333 (Fed. Cir. 2020), the United States Court of Appeals for the Federal Circuit explained that for records to be relevant in the context of 38 C.F.R. § 3.156(c), the record must address a dispositive issue and therefore affect the outcome of the case. In other words, the record must speak to a matter in dispute. Id. at 1338-39. A review of the records did not reveal any evidence that addresses an in-service left foot injury. Accordingly, the Board will address the matter as a claim to reopen the April 1985 denial of service connection for a left foot disability. Withdrawal 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 by the appellant 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. The Veteran requested to withdraw his appeal seeking service connection for a right leg disability at the December 2020 Board hearing. His testimony makes clear that he requested to withdraw the matter with a full understanding of the consequences. His representative agent noted that he had discussed the ramifications of withdrawing the issue, including potential consequences related to an effective date of service connection, with the Veteran, who agreed that he understood the consequences. See Acree v. O’Rourke, 891 F.3d 1009 (2018). Therefore, there remains no allegation of error of fact or law for appellate consideration with respect to the claim seeking service connection for a right leg disability. The Board does not have jurisdiction to review the appeal, and it is dismissed. New and Material Evidence Generally, if a claim for service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. "New" evidence is defined as existing evidence not previously submitted to agency decisionmakers. "Material" evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a "low" threshold and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110 (2010). Despite any prior determination reached by the RO regarding the claims on appeal, under the legacy appeal system, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). An April 1985 rating decision denied service connection for a left foot disability on the basis that there was no evidence the condition was incurred in service. The Veteran did not perfect an appeal or submit new and material evidence within one year of the determination. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.1103. As previously noted, a final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. The Veteran submitted a petition to reopen his claim in January 2014. The pertinent evidence of record in April 1985 included the Veteran’s service treatment records, VA treatment records, and a March 1985 VA examination report. Evidence received since the April 1985 rating decision became final includes the Veteran’s testimony at the Board hearing that a VA treatment provider told him he had a bone spur on the left great toe that more than likely was the result of the Veteran’s reported in-service injury after viewing an X-ray. The Veteran also reported he had experienced left toe pain since dropping a wall locker on it in service and having a bone spur removed in April 1981. As this evidence provides for the possibility that the Veteran has a left toe disability that is related to his service, the Board finds that this new evidence received relates to an unestablished fact necessary to substantiate the claim for service connection for a left great toe disability, and raises a reasonable possibility of substantiating such claim. The Board accordingly finds that new and material evidence has been received to reopen the claim of service connection for a left great toe disability. To that extent only, the appeal is granted. The reopened claim will be addressed in Remand section below. REASONS FOR REMAND Entitlement to service connection for a left great toe disability is remanded. The Veteran was provided a VA foot examination in February 1985. The Veteran reported he injured his big left toe during service when a wall locker he was moving fell on it. The toe remained painful and enlarged throughout service. VA treatment records show a bone spur was removed from the left great toe in April 1981. On examination, there was tenderness and warmth to palpation and inflammation. There was also a large, tender scar under the toenail of the left great toe. The examiner did not provide an explicit etiology opinion, but noted the Veteran’s description of his in-service injury and the available VA treatment records “parallel the same injury.” At the December 2020 Board hearing, the Veteran reported he continues to experience left great toe pain. However, the private treatment records that have been associated with file do not document a specific left great toe disability, and the nature of any such current disability is very unclear in this record. Accordingly, the Board finds that a remand to schedule an examination and obtain an adequate etiology opinion is required. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that where the record does not adequately reveal the current state of that disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination). Entitlement to service connection for sarcoidosis is remanded. VA treatment records show sarcoidosis was diagnosed by X-ray on July 1981. The Veteran’s service treatment records do not document lung-related complaints, but at the December 2020 Board hearing, the Veteran contended he began experiencing symptoms of sarcoidosis during service. These symptoms included right-sided chest pain; purple blisters that he later learned were skin granulomas on the bottom of his foot and toe; shortness of breath; muscle and joint pain; and general fatigue. He said he sought treatment many times, but no causes were identified. The Veteran’s service personnel records, which were received in January 2021, show the Veteran was administratively discharged for a personality disorder. In an August 1977 statement, a sergeant in the Veteran’s unit noted that the company corpsmen had complained to him that the Veteran had complained to them on several occasions for non-specific illnesses but that an underlying condition was not identified. The Veteran was provided a VA examination in February 1985. The examiner diagnosed sarcoidosis and noted the Veteran’s symptoms did not have their onset until 1979, but did not provide an actual etiology opinion. Accordingly, the Board finds that a remand to obtain an adequate etiology opinion is required. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In addition, VA treatment records dated from April 1981 to February 1985 are associated with the record, but it’s not clear whether the Veteran continued to seek VA treatment for the sarcoidosis and left toe pain. On remand, any outstanding VA treatment records should be obtained, and the Veteran should be given an opportunity to identify or submit any outstanding private treatment records. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. Contact the Veteran and ask him to identify whether there are any outstanding private medical records reflecting treatment for a left toe disability or sarcoidosis. If such records are identified, then obtain those records and associate them with the electronic claims file. If possible, the Veteran is encouraged to obtain and submit these records himself in order to avoid any additional delays. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the claimed great left toe disability. The claims file should be made available and reviewed by the examiner. Following consideration of the evidence of record (both lay and medical), the examiner is asked to address the following: (a) Provide diagnoses for any great left toe disabilities. (b) If a disability is not diagnosed, this opinion should be reconciled with the Veteran’s post-service complaints of ongoing toe pain, including following the April 1981 toe surgery. (c) For each toe disability diagnosed (if any), provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it originated during active service or is otherwise etiologically related to active service. The examiner must not ignore the Veteran’s competent reports of the claimed in-service injury or of symptoms experienced during active service and since. The examiner must include in the medical report the rationale for any opinion expressed. 3. Obtain an addendum opinion from a qualified medical professional to address the nature and origin of the Veteran’s sarcoidosis. The claims file should be made available and reviewed by the examiner. Following consideration of the evidence of record (both lay and medical), the examiner is asked to address the following: Is at least as likely as not (50 percent or greater probability) that the sarcoidosis originated during active service or is otherwise etiologically related to active service? The examiner must not ignore the Veteran’s competent reports of symptoms experienced during active service and since. The examiner must include in the medical report the rationale for any opinion expressed. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board William A. Skowronski, 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.