Citation Nr: 21029048 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 17-44 683 DATE: May 12, 2021 ORDER The application to reopen a previously denied claim for service connection for lymphoplasmacytic lymphoma is dismissed. Entitlement to service connection for chronic musculoskeletal pain, generalized weakness of the upper and lower extremities, bilateral cornea reshaping, bursitis of the right hip, bilateral plantar fasciitis, and cervical spine spasms, is dismissed. New and material evidence having been submitted, reopening of the claim of entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD) and anxiety, is granted. REMANDED Entitlement to service connection for a psychiatric disability, to include PTSD, is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to a psychiatric disability, is remanded. Entitlement to a rating in excess of 10 percent for lumbar spine degenerative disc disease L4-L5 with L4-L5 disc bulge (low back disability) is remanded. Entitlement to a rating in excess of 10 percent for residuals of right knee patellofemoral syndrome (right knee disability) is remanded. Entitlement to a rating in excess of 10 percent for residuals of left knee patellofemoral syndrome (left knee disability) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. During a February 2021 hearing, the Veteran withdrew his application to reopen a previously denied claim for service connection for lymphoplasmacytic lymphoma. 2. During a February 2021 hearing, the Veteran withdrew the issues of entitlement to service connection for chronic musculoskeletal pain, generalized weakness of the upper and lower extremities, bilateral cornea reshaping, bursitis of the right hip, bilateral plantar fasciitis, and cervical spine spasms. 3. In a December 2010 decision, service connection for a psychiatric disability, to include PTSD and anxiety, was denied. 4. The evidence associated with the claims file since the December 2010 decision is not cumulative or redundant and raises a reasonable possibility of substantiating the claim for service connection for a psychiatric disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the application to reopen a previously denied claim for service connection for lymphoplasmacytic lymphoma are met. 38 C.F.R. § 38 U.S.C. § 7105(b)(2), (d)(5) (2018); 38 C.F.R. § 20.204 (2020). 2. The criteria for withdrawal of the issues of entitlement to service connection for chronic musculoskeletal pain, generalized weakness of the upper and lower extremities, bilateral cornea reshaping, bursitis of the right hip, bilateral plantar fasciitis, and cervical spine spasms, are met. 38 C.F.R. § 38 U.S.C. § 7105(b)(2), (d)(5) (2018); 38 C.F.R. § 20.204 (2020). 3. The criteria for reopening a previously denied claim of service connection for a psychiatric disability are met. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1991 to October 2004 in the United States Marine Corps (USMC). This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In February 2021, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Withdrawn Issues The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. A substantive appeal may be withdrawn on record at a hearing or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. During the February 2021 Board hearing, the Veteran indicated that he no longer wanted to pursue the application to reopen a previously denied claim for service connection for lymphoplasmacytic lymphoma and the issues of entitlement to service connection for chronic musculoskeletal pain, generalized weakness of the upper and lower extremities, bilateral cornea reshaping, bursitis of the right hip, bilateral plantar fasciitis, and cervical spine spasms. As such, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review those issues on appeal, and they are dismissed. Claim to Reopen Psychiatric Disability In a final December 2010 decision, the RO denied service connection for PTSD because the evidence did not show that the Veteran had in-service stressors or a current diagnosis of PTSD. The RO denied service connection for anxiety because the evidence did not show a link between the disability and service. The Board finds that new and material evidence has been received to reopen the claim of service connection for a psychiatric disability. During the Board hearing, the Veteran described experiencing two in-service stressors involving the death of two fellow service members. In addition, he submitted defense casualty records describing those deaths. The Board finds that evidence new and material. Therefore, the claim is reopened. REASONS FOR REMAND The Board finds that additional development is required before the claims remaining on appeal are decided. Service Connection Psychiatric Disability and Erectile Dysfunction The Veteran maintains that his psychiatric disability is related to in-service stressors. As discussed above, he submitted evidence of two stressors involving the deaths of two fellow service members. In addition, VA treatment records have shown treatment for depression and anxiety. An August 2014 record also indicated that a PTSD screening was positive. Based on the foregoing, the Board finds that a remand is required for a VA examination to address the nature and etiology of the Veteran's claimed psychiatric disability. 38 C.F.R. § 3.159(c)(4). Furthermore, the Veteran maintains that his erectile dysfunction is caused or aggravated by his psychiatric disability. Therefore, a determination on that claim should be deferred pending a final disposition on the claim for service connection for a psychiatric disability. Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). Increased Rating Low Back and Knees During the February 2021 Board hearing, the Veteran stated that his service-connected low back and knee disabilities had worsened since they were last examined. Therefore, the Board finds that a remand is necessary for additional VA examinations. TDIU The Board finds the issue of entitlement to TDIU inextricably intertwined with the claims remanded herein. See Henderson v. West, 12 Vet. App. 11, 20 (1998). Action on that issue is therefore deferred. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of any psychiatric symptomatology that may be present. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should identify any psychiatric disorders that are present. The examiner should determine whether the diagnostic criteria to support a diagnosis of PTSD have been satisfied under the DSM-IV or DSM-V. If the PTSD diagnosis is deemed appropriate, the examiner should then provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that the current symptomatology is causally or etiologically related to an in-service stressor. If a diagnosis other than PTSD is deemed appropriate, the VA examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that the psychiatric disability manifested during or is otherwise related to active service. A rationale for all opinions expressed must be provided. 3. Then, schedule the Veteran for an appropriate VA examination to determine the current level of severity of all impairment resulting from his service-connected low back disability. The claims file must be made available to and reviewed by the examiner. All indicated tests should be performed and all findings should be reported in detail. The examiner should provide all information required for rating purposes, to specifically include range of motion in active motion, passive motion, weight bearing, and non-weight bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner must report whether there is a lack of normal endurance or functional loss due to pain and pain on use, including that experienced during flare ups; whether there is weakened movement, excess fatigability, incoordination; and the effects of the service-connected disability on the Veteran's ordinary activity, including his ability to work. The examiner should also ask the Veteran to identify the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment resulting from flare-ups. The examiner should identify the extent of the Veteran's functional loss during flare-ups and offer range of motion estimates based on that information. The examiner should also note the duration of any incapacitating episodes in the past 12 months resulting from the Veteran's lumbar spine IVDS/degenerative disc disease. 4. Then, schedule the Veteran for an appropriate VA examination to determine the current level of severity of all impairment resulting from his service-connected right and left knee disabilities. The claims file must be made available to and reviewed by the examiner. All indicated tests should be performed and all findings should be reported in detail. The examiner should provide all information required for rating purposes, to specifically include range of motion in active motion, passive motion, weight bearing, and non-weight bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner must report whether there is a lack of normal endurance or functional loss due to pain and pain on use, including that experienced during flare ups; whether there is weakened movement, excess fatigability, incoordination; and the effects of the service-connected disability on the Veteran's ordinary activity, including his ability to work. The examiner should also ask the Veteran to identify the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment resulting from flare-ups. The examiner should identify the extent of the Veteran's functional loss during flare-ups and offer range of motion estimates based on that information. 5. Confirm that the VA examination reports and all opinions provided comport with this remand and undertake any other development found to be warranted. 6. Then, readjudicate the issues remaining on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Mishalanie, 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.