Citation Nr: 21012263 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 17-28 384A DATE: March 3, 2021 ORDER New and material evidence having been presented, the claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is reopened. To this limited extent only, the appeal of that issue is granted. New and material evidence having been presented, the claim of entitlement to service connection for residuals of a left fifth toe injury is reopened. To this limited extent only, the appeal of that issue is granted. New and material evidence having been presented, the claim of entitlement to service connection for headaches is reopened. To this limited extent only, the appeal of that issue is granted. Entitlement to service connection for vertigo has been withdrawn. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for gastrointestinal disorders is remanded. Entitlement to service connection for low blood pressure is remanded. Entitlement to service connection for residuals of a left fifth toe injury is remanded. Entitlement to service connection for a left foot disability is remanded. Entitlement to service connection for a back disability is remanded. FINDINGS OF FACT 1. The Veteran’s claim of service connection for an acquired psychiatric disorder was denied in a March 2009 rating decision that was not appealed; no further evidence relevant to the Veteran’s service connection claim for an acquired psychiatric disorder was submitted for a period of one year following the March 2009 rating decision. 2. The Veteran’s claim to reopen his claim of service connection for residuals of a left fifth toe injury was denied in a March 2009 rating decision that was not appealed; no further evidence relevant to the Veteran’s service connection claim for residuals of a left fifth toe injury was submitted for a period of one year following the March 2009 rating decision. 3. The Veteran’s claim of service connection for headaches was denied in a September 2013 rating decision that was not appealed; no further evidence relevant to the Veteran’s service connection claim for headaches was submitted for a period of one year following the September 2013 rating decision. 4. Evidence relevant to the claim for an acquired psychiatric disorder was submitted since the March 2009 rating decision, and was not previously considered by agency decision makers; is neither cumulative nor redundant of the evidence already of record; relates to unestablished facts; and raises a reasonable possibility of substantiating the Veteran’s claim for service connection for an acquired psychiatric disorder. 5. Evidence relevant to the claim for residuals of a left fifth toe injury was submitted since the March 2009 rating decision, and was not previously considered by agency decision makers; is neither cumulative nor redundant of the evidence already of record; relates to unestablished facts; and raises a reasonable possibility of substantiating the Veteran’s claim for service connection for residuals of a left fifth toe injury. 6. Evidence relevant to the claim for headaches was submitted since the September 2013 rating decision, and was not previously considered by agency decision makers; is neither cumulative nor redundant of the evidence already of record; relates to unestablished facts; and raises a reasonable possibility of substantiating the Veteran’s claim for service connection for headaches. 7. Prior to the promulgation of a decision in the appeal, during the November 2020 Board hearing, the Veteran’s representative withdrew the Veteran’s appeal of entitlement to service connection for vertigo. CONCLUSIONS OF LAW 1. The criteria for reopening the previously denied claim of entitlement to service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 2. The criteria for reopening the previously denied claim of entitlement to service connection for residuals of a left fifth toe injury have been met. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 3. The criteria for reopening the previously denied claim of entitlement to service connection for headaches have been met. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 4. The criteria for withdrawal of entitlement to service connection for vertigo by the appellant’s authorized representative 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 from April 1992 to August 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Veteran testified at a hearing before the undersigned. New and Material Evidence If a claim of entitlement to 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; 38 C.F.R. § 3.156. A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, a substantive appeal is filed within 60 days of the issuance of a statement of the case, or new and material evidence is received during the appeal period after the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103. VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). The threshold is low and does not require new and material evidence regarding each element of the claim that had not been proved in the prior final decision. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New evidence is defined as 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). 1. New and material evidence having been presented, the claim of entitlement to service connection for an acquired psychiatric disorder is reopened. To this limited extent only, the appeal of that issue is granted. The Veteran filed his initial claim of service connection for an acquired psychiatric disorder in August 2004. In a July 2005 rating decision, the RO denied service connection for an acquired psychiatric disorder. Specifically, the RO found that there was no confirmed diagnosis of PTSD and that the Veteran had not provided evidence regarding his claimed stressor. The Veteran filed a timely notice of disagreement in February 2006, and a statement of the case was issued in August 2007. However, the Veteran did not file a substantive appeal in response to that statement of the case, nor was new and material evidence received during the 60 days after the statement of the case was issued. Thus, the July 2005 rating decision became final as to the Veteran’s claim for an acquired psychiatric disorder. See 38 U.S.C. § 7105; 38 C.F.R. § 3.156(b). The Veteran filed a claim to reopen his claim for service connection for an acquired psychiatric disorder in December 2007. In a March 2009 rating decision, the RO reopened the service connection claim because the Veteran had submitted new and material evidence, but denied the claim again on the merits because, again, there was no confirmed diagnosis of PTSD and the medical evidence was insufficient to confirm a link between the Veteran’s current symptoms and an in-service stressor. The Veteran did not submit a notice of disagreement or any additional evidence relating to this service connection claim within one year of being notified of the March 2009 decision. Thus, the March 2009 decision became final as to the Veteran’s claim for an acquired psychiatric disorder. See 38 U.S.C. § 7105; 38 C.F.R. § 3.156(b). New and material evidence is therefore required to reopen the claim for service connection for an acquired psychiatric disorder. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Since the March 2009 rating decision, the Veteran has been diagnosed with PTSD, as well as other acquired psychiatric disorders including severe chronic depression and dysthymic disorder. In addition, new evidence regarding a nexus between the Veteran’s PTSD and his time in active service has been associated with the record. Therefore, the Board finds that new and material evidence which tends to substantiate the Veteran’s claim for service connection for an acquired psychiatric disorder has been received in this case, and the claim is reopened. See 38 C.F.R. § 3.156(a). 2. New and material evidence having been presented, the claim of entitlement to service connection for residuals of a left fifth toe injury is reopened. To this limited extent only, the appeal of that issue is granted. The Veteran filed his initial claim of service connection for residuals of a left fifth toe injury in August 2004. In a July 2005 rating decision, the RO denied service connection for residuals of a left fifth toe injury. Specifically, the RO found that there was no evidence of a fracture in service, the examination did not reveal any residuals of a fracture, and there was no nexus. The Veteran filed a timely notice of disagreement in February 2006, and a statement of the case was issued in August 2007. However, the Veteran did not file a substantive appeal in response to that statement of the case, nor was new and material evidence received during the 60 days after the statement of the case was issued. Thus, the July 2005 rating decision became final as to the Veteran’s claim for residuals of a left fifth toe injury. See 38 U.S.C. § 7105; 38 C.F.R. § 3.156(b). The Veteran filed a claim to reopen his claim for service connection for residuals of a left fifth toe injury in December 2007. In a March 2009 rating decision, the RO denied the Veteran’s petition to reopen the claim, finding that the evidence the Veteran submitted did not constitute new and material evidence because it did not relate to an unestablished fact necessary to substantiate the claim and did not raise a reasonable possibility of substantiating the claim. The Veteran did not submit a notice of disagreement or any additional evidence relating to this service connection claim within one year of being notified of the March 2009 decision. Thus, the March 2009 decision became final as to the Veteran’s claim for residuals of a left fifth toe injury. See 38 U.S.C. § 7105; 38 C.F.R. § 3.156(b). New and material evidence is therefore required to reopen the claim for service connection for residuals of a left fifth toe injury. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Since the March 2009 rating decision, the Veteran has been diagnosed with neuralgia of the left foot and left foot pain. Therefore, the Board finds that new and material evidence which tends to substantiate the Veteran’s claim for service connection for residuals of a left fifth toe injury has been received in this case, and the claim is reopened. See 38 C.F.R. § 3.156(a). 3. New and material evidence having been presented, the claim of entitlement to service connection for headaches is reopened. To this limited extent only, the appeal of that issue is granted. The Veteran filed his initial claim of service connection for headaches in October 2012. In a September 2013 rating decision, the RO denied service connection for headaches. Specifically, the RO found that the Veteran’s service treatment records did not show complaints of or treatment for this condition, that there was no medical evidence that the Veteran suffers from a chronic medical condition that began in or was caused by the Veteran’s military service, and that this condition neither occurred in or was caused by service. The Veteran did not submit a notice of disagreement or any additional evidence relating to this service connection claim within one year of being notified of the September 2013 decision. Thus, the September 2013 decision became final as to the Veteran’s claim for headaches. See 38 U.S.C. § 7105; 38 C.F.R. § 3.156(b). New and material evidence is therefore required to reopen the claim for service connection for headaches. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Since the September 2013 rating decision, the Veteran’s VA treatment records reflect that he suffers from headaches and that he has reported that he has suffered from headaches since his time in service. The Veteran’s VA treatment records also reflect that the Veteran’s headaches may be due to the medications the Veteran is taking for his acquired psychiatric disorders. Therefore, the Board finds that new and material evidence which tends to substantiate the Veteran’s claim for service connection for headaches has been received in this case, and the claim is reopened. See 38 C.F.R. § 3.156(a). The Board notes that service department records that existed at the time of the September 2013 rating decision appear to have been associated with the claims file in February 2015, however, the Board finds that these records were considered by the RO in making the September 2013 decision. Thus, the provisions of 38 C.F.R. § 3.156(c) do not apply. Withdrawal Entitlement to service connection for vertigo has been withdrawn. 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. Id. In the present case, the Veteran’s authorized representative withdrew the Veteran’s appeal of entitlement to service connection for vertigo during the November 2020 Board hearing. The Veteran’s authorized representative’s full understanding of the consequences of the withdrawal is evident because she affirmatively asked for this issue to be dismissed. Thus, the Board finds the Veteran’s authorized representative has explicitly, unambiguously, and with a full understanding of the consequences, withdrawn the issue of entitlement to service connection for vertigo. See Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). There is no remaining allegation of error of fact or law for appellate consideration regarding this issue. Therefore, the Board does not have jurisdiction to review this issue, and it is dismissed. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder is remanded. VA developed new, pertinent evidence regarding the issue of entitlement service connection for an acquired psychiatric disorder after the issuance of an April 2017 statement of the case. For example, the Veteran was afforded a VA examination regarding his claim for an acquired psychiatric disorder in May 2018. Thus, the evidence must be referred to the AOJ for initial consideration to ensure the Veteran is afforded due process. 38 C.F.R. § 19.31(b). 2. Entitlement to service connection for headaches is remanded. 3. Entitlement to service connection for erectile dysfunction is remanded. 4. Entitlement to service connection for gastrointestinal disorders is remanded. 5. Entitlement to service connection for low blood pressure is remanded. The Veteran contends that his headaches, erectile disfunction, gastrointestinal disorders, and low blood pressure are related to his acquired psychiatric disorder and/or the medications he takes for his acquired psychiatric disorder. Because these claims are, at least in part, dependent upon the outcome of the Veteran’s claim for service connection for an acquired psychiatric disorder, the issues are inextricably intertwined, and remand of the claims for headaches, erectile disfunction, gastrointestinal disorders, and low blood pressure is required. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). The Board notes that the Veteran has not been afforded VA examinations for any of these claims. The Board also notes that the Veteran contends that his headaches are also directly connected to his service and/or secondary to his tinnitus, and that his erectile dysfunction is also due to his in-service military sexual trauma. 6. Entitlement to service connection for residuals of a left fifth toe injury is remanded. As discussed above, VA has developed new evidence regarding the Veteran’s claim for residuals of a left fifth toe injury, including VA treatment records reflecting diagnoses of neuralgia of the left foot and left foot pain, since the January 2005 VA examination. The Veteran has not been afforded a VA examination regarding this claim since January 2005. Accordingly, remand for a new VA examination is warranted. 7. Entitlement to service connection for a left foot disability is remanded. 8. Entitlement to service connection for a back disability is remanded. The Veteran contends that his left foot and back disabilities are related to the residuals of his left toe injury. Because these claims are dependent upon the outcome of the Veteran’s claim for service connection for residuals of a left toe injury, the issues are inextricably intertwined, and remand of the claims for a left foot and back disability is required. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). The Veteran also contends that his left foot disability is directly connected to his in-service left toe injury, but the Veteran has not been afforded a VA examination regarding his left foot claim. As stated above, the Veteran’s VA treatment records reflect that the Veteran has left foot pain. In addition, the Veteran’s service treatment records reflect that he injured his left toe while in service. Finally, the Veteran contends that he has suffered from left foot pain since his time in service. Thus, the Board finds that a VA examination regarding the Veteran’s left foot claim is warranted. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (VA is obliged to provide an examination where there is insufficient information to decide the claim and there is an indication the current disability may be associated with service). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. Obtain an opinion, preferably with a qualified clinician who has not previously examined the Veteran, to determine whether any left fifth toe and/or left foot disability found during the period on appeal is related to the Veteran’s military service. If the selected clinician determines that an examination is necessary to respond to this request, such examination should be scheduled. The examiner should identify all left fifth toe and/or left foot disabilities found during the period on appeal. For each left fifth toe and/or left foot disability identified, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the disability began in or is otherwise caused by the Veteran’s active service. In doing so, the examiner should address the Veteran’s (1) service treatment records which establish that he injured his left fifth toe in service and (2) the Veteran’s contention that he has had left foot pain continuously since service. The clinician should be advised that pain alone, even without an identifiable underlying diagnosis, can constitute a current disability. Therefore, if no left fifth toe and/or left foot disability is diagnosed during the appeal period, the clinician must opine as to whether the Veteran’s current left fifth toe and/or left foot pain results in functional loss. If the current left fifth toe and/or left foot pain does result in functional loss, the clinician must opine as to whether the current left fifth toe and/or left foot pain is related to the Veteran’s military service. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 3. Readjudicate the issues on appeal based on all the evidence of record. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then, return the matter to the Board, if otherwise in order. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Elias, Associate 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.