Citation Nr: 21011044 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 17-39 334 DATE: February 26, 2021 ORDER The issue of whether new and material evidence has been received to reopen a claim of service connection for sleep apnea is dismissed. The application to reopen a claim of service connection for a right ankle disability is granted. The application to reopen a claim of service connection for a left ankle disability is granted. The application to reopen a claim of service connection for a right shoulder disability is granted. The application to reopen a claim of service connection for shin splints is granted. The application to reopen a claim of service connection for a right wrist disability is granted. The application to reopen a claim of service connection for a left wrist disability is granted. The application to reopen a claim of service connection for a low back disability is granted. REMANDED The issue of service connection for a right ankle disability is remanded. The issue of service connection for a left ankle disability is remanded. The issue of service connection for shin splints is remanded. The issue of service connection for a right wrist disability is remanded. The issue of service connection for a left wrist disability is remanded. The issue of service connection for a low back disability is remanded. The issue of service connection for bilateral hearing loss is remanded. The issue of service connection for tinnitus is remanded. The issue of service connection for a right shoulder disability is remanded. The issue of service connection for a left shoulder disability is remanded. FINDINGS OF FACT 1. During the January 2020 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew the issue of whether new and material evidence has been received to reopen a claim for service connection for sleep apnea. 2. In a September 2015 rating decision, the RO denied service connection for shin splints, right ankle, left ankle, right wrist, left wrist, right shoulder, and low back disabilities. The Veteran received notice of the decision, did not appeal this decision, and new and material evidence was not received within one year after it was issued. 3. Evidence received since the September 2015 rating decision relates to an unestablished fact and raises a reasonable possibility of substantiating the claims of service connection for shin splints, right ankle, left ankle, right wrist, left wrist, right shoulder, and low back disabilities. CONCLUSIONS OF LAW 1. The September 2015 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 2. Since the September 2015 rating decision, new and material evidence has been received to reopen the claims of service connection for shin splints, right ankle, left ankle, right wrist, left wrist, right shoulder, and low back disabilities. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2000 to October 2002 and December 2003 to March 2005. The Veteran served on active duty for training (ACDUTRA) from November 2002 to June 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran presented testimony before the Board. 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 as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. During the January 2020 Board hearing, the Veteran stated that he wished to withdraw his appeal as to the issue of whether new and material evidence has been received to reopen a claim for service connection for sleep apnea. “[W]ithdrawal 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.” Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011). A Board determination that a claimant validly withdrew his appeal orally must include a finding regarding whether [the appellant] understood the consequences of withdrawing his claims.” Acree v. O’Rourke, 891 F.3d 1009, 1015 (Fed. Cir. 2018). During the January 2020 Board hearing, the Veteran verbally confirmed that he wished to withdraw his appeal as to the issue of whether new and material evidence has been received to reopen a claim for service connection for sleep apnea. Additionally, given the discussion during the Board hearing regarding the other claims on appeal, the Board finds that the Veteran understood the consequences of withdrawing the appeal as to the issue of whether new and material evidence has been received to reopen a claim for service connection for sleep apnea. In light of the above, there remain no allegations of errors of fact or law for appellate consideration as to this issue. Accordingly, the Board does not have jurisdiction to review the appeal of the issue, and it is dismissed. New and Material Evidence Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA will reopen the claim and review it on the merits. The implementing regulation also provides that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decision makers. 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). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Regardless of whether the RO determined new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board’s jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Jackson v. Principi, 265 F.3d 1366, 1369 (2001) (the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board). In a September 2015 rating decision, the RO denied service connection for right ankle, left ankle, right wrist, left wrist, right shoulder, and low back disabilities on the basis that the evidence did not show current disabilities that had been incurred in or caused by service. Additionally, in the September 2015 rating decision, the RO denied service connection for shin splints on the basis that the disability was not incurred in or caused by service. Later that month, in a September 2015 notification letter, the Veteran received notice of the September 2015 rating decision. He did not appeal that decision and new and material evidence was not associated with the record within one year of its issuance. Accordingly, the September 2015 rating decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. In October 2016, the Veteran submitted applications to reopen his previously denied claims of service connection for shin splints, right ankle, left ankle, right wrist, left wrist, right shoulder, and low back disabilities. Relevant evidence received after the September 2015 rating decision includes the January 2020 Board hearing transcript, a January 2020 buddy statement, and 2019 private medical records. Specifically, during the January 2020 Board hearing, the Veteran provided testimony indicating that he has had shin splints, right ankle, left ankle, right wrist, left wrist, right shoulder, and low back pain in and since service. Also, the private medical records show that the Veteran had current pain or diagnoses of his claimed disabilities. In the January 2020 buddy statement, a former service member indicated that during his reserve service, he lead physical training and during that time, the Veteran reported had difficulties completing exercises due to his shoulder, wrist, ankle, and lower back injuries that he sustained during his active duty service. The January 2020 Board hearing transcript, January 2020 buddy statement, and the 2019 private medical records were not previously considered in the last prior final denial and such evidence relate to unestablished facts necessary to substantiate the claims and raise a reasonable possibility of substantiating the claims. See Shade, 24 Vet. App. at 117. Therefore, the criteria for reopening the claims of service connection for shin splints, right ankle, left ankle, right wrist, left wrist, right shoulder, and low back disabilities are met. REASONS FOR REMAND 1. The issue of service connection for a right ankle disability is remanded. 2. The issue of service connection for a left ankle disability is remanded. 3. The issue of service connection for shin splints is remanded. 4. The issue of service connection for a right wrist disability is remanded. 5. The issue of service connection for a left wrist disability is remanded. 6. The issue of service connection for a low back disability is remanded. 7. The issue of service connection for bilateral hearing loss is remanded. 8. The issue of service connection for tinnitus is remanded. 9. The issue of service connection for a right shoulder disability is remanded. 10. The issue of service connection for left shoulder disability is remanded. The Veteran claims that his bilateral hearing loss, tinnitus, shin splints, right ankle, left ankle, right wrist, left wrist, right shoulder, left shoulder, and low back disabilities are due to his military service. Specifically, he asserts that his shin splints, right ankle, left ankle, right wrist, left wrist, right shoulder, left shoulder, and low back disabilities are due to his military occupational specialty (MOS) as petroleum supplier and military duties he performed while serving in Iraq. See Board hearing transcript (January 2020). Furthermore, he attributes his hearing loss and tinnitus to his exposure to loud generators and mortar explosions when he was stationed in Diwaniyah, Iraq. He also reports that he has had bilateral hearing loss, ringing in his ears, shin splints, right ankle, left ankle, right wrist, left wrist, right shoulder, left shoulder, and low back pain in and since service. He reports that during his active duty service, he was placed on several limited profiles due to some of his claimed disabilities that are on appeal and that before he was deployed to Iraq, a board of doctors interviewed him regarding his ability to continue his active duty service due to disabilities. Id. In this case, further development is necessary to obtain outstanding service treatment records (STRs), personnel records, and treatment records. To this extent, the Veteran’s claims file is absent personnel records. Moreover, the Veteran’s DD Form 214 have not been obtained regarding the period from November 2000 to October 2002. With respect to STRs, although some of the Veteran’s reserve and very few active duty STRs have been associated with the record, most of the Veteran’s active duty STRs have not been obtained. Also, during the Board hearing, the Veteran testified that he sought VA and private treatment for his disabilities. The evidence of record contains very few VA treatment records and some private treatment records. For example, the Veteran indicated that he had on going VA treatment; however, VA treatment records from 2017 have only been associated with the record. Therefore, in light of the above identified outstanding evidence, a remand is required for further development. The matters are REMANDED for the following action:028626591 1. Obtain the Veteran’s complete service personnel records and service treatment records from his active duty and ACDUTRA service. 2. Obtain the Veteran’s VA treatment records since March 2005. 3. Request the Veteran’s private treatment records regarding treatment for his bilateral hearing loss, tinnitus, shin splints, right ankle, left ankle, right wrist, left wrist, (Continued on next page) right shoulder, left shoulder, and low back disabilities symptoms. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Castillo, 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.