Citation Nr: 21030817 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 18-38 379 DATE: May 19, 2021 ORDER New and material evidence having been received, the application to reopen the claim of service connection for a left hip disability is granted. New and material evidence having been received to reopen the claim of service connection for a left knee disability is granted. New and material evidence having been received, the application to reopen the claim of service connection for a left ankle disability is granted. New and material evidence having been received, the application to reopen the claim of service connection for a left foot disability is granted. Service connection for a sleep disability has been withdrawn. REMANDED A rating for residuals of a compression fracture of the thoracic spine with intervertebral disc syndrome (IVDS), in excess of 10 percent prior to November 10, 2016, and 20 percent thereafter is remanded. A rating in excess of 10 percent for left ulnar neuropathy is remanded. A rating in excess of 10 percent for left lower neuropathy is remanded. Entitlement to service connection for dermatitis is remanded. Entitlement to service connection for an acquired psychiatric disability is remanded. Entitlement to service connection for a chronic respiratory disorder is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a left foot disability is remanded. FINDINGS OF FACT 1. Service connection for a left hip disability was denied by the RO in a July 2011 rating action. The Veteran was notified of this action and of his appellate rights, but did not file a timely appeal. 2. Since the July 2011 decision denying service connection for a left hip disability, the additional evidence, not previously considered, relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 3. Service connection for a left knee disability was denied by the RO in a July 2011 rating action. The Veteran was notified of this action and of his appellate rights, but did not file a timely appeal. 4. Since the July 2011 decision denying service connection for a left knee disability, the additional evidence, not previously considered, relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 5. Service connection for a left ankle disability was denied by the RO in a July 2011 rating action. The Veteran was notified of this action and of his appellate rights, but did not file a timely appeal. 6. Since the July 2011 decision denying service connection for a left ankle disability, the additional evidence, not previously considered, relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 7. Service connection for a left foot disability was denied by the RO in a July 2011 rating action. The Veteran was notified of this action and of his appellate rights, but did not file a timely appeal. 8. Since the July 2011 decision denying service connection for a left foot disability, the additional evidence, not previously considered, relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 9. During the video conference hearing before the Board, conducted in February 2012, prior to the promulgation of a decision in the appeal, the appellant and his representative indicated that the appellant wished to withdraw the appeal seeking service connection for a sleep disorder; there are no questions of fact or law remaining before the Board in this matter. CONCLUSIONS OF LAW 1. The criteria for new and material evidence having been received, the application to reopen the claim of service connection for a left hip disability have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. The criteria for new and material evidence having been received the application to reopen the claim of service connection for a left ankle disability have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. The criteria for new and material evidence having been received, the application to reopen the claim of service connection for a left foot disability have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 4. The criteria for withdrawal of the claim of service connection for a sleep disability by the appellant 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 January 1977 to May 1992. In February 2021, a video conference board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. Service Connection Whether new and material evidence having been received to reopen claims of service connection for left hip, left knee, left ankle, and left foot disabilities. Service connection for a left hip, left knee, left ankle and left foot disabilities was previously denied by the RO in a July 2011 rating decision. The Veteran did not appeal this determination. In such cases, it must first be determined whether or not new and material evidence has been received such that the claim may now be reopened. 38 U.S.C. §§ 5108, 7105; Manio v. Derwinski, 1 Vet. App. 140 (1991). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Evidence of record at the time of the July 2011 rating decision that denied service connection for left hip, knee, ankle and foot disabilities included the Veteran's service treatment records (STRs) that showed that he had complaints of left hip, knee, and foot pain during service and a record of the Veteran having been involved in a motor vehicle accident, and a dirt bike accident while on active duty in which he sustained injuries of these joints. In addition, the Veteran underwent a February 2011 VA examination that showed no abnormality of the left hip, knee, ankle, or foot. This included an X-ray evaluation. Service connection was denied on the basis that there was no evidence of current disability. Evidence received subsequent to the February 2011 rating decision includes private and VA treatment records and August 2016 VA examinations that showed that the Veteran had pain of the left hip, knee, ankle and foot at various times. In addition, the Veteran offered testimony before the undersigned at the hearing in February 2021. At that time, the Veteran and his representative asserted that the Veteran has pain of the left hip, knee, ankle, and foot that causes functional impairment. The Board notes that it has been held that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received, without regard to other evidence of record. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board finds that the Veteran's testimony that he now has a current disability of the left hip, knee, ankle, and foot meets the threshold for new and material evidence such that the claim may be reopened. To this extent the appeal is allowed. Service connection for a sleep disability 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. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. In the present case, the appellant and his representative withdrew the appeal for entitlement to service connection for a sleep disorder at the February 2021 hearing before the undersigned. Hence, there remains no allegation of error of fact or law for appellate consideration regarding this issue. Accordingly, the Board does not have jurisdiction to review the appeal as to service connection for a sleep disorder and the appeal as to this issue is dismissed. REASONS FOR REMAND A rating for residuals of a compression fracture of the thoracic spine with IVDS, left ulnar neuropathy, and left lower neuropathy During the Board hearing in February 2021, the Veteran testified that his back disability and extremity neuropathy had worsened since the most recent VA examination in 2017. While the record contains a contemporaneous VA examination regarding the Veteran's back and neuropathy disorders, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The examiner did not attempt to elicit relevant information regarding the description of the Veteran's flare-ups and any additional functional loss suffered during flare-ups. As such, the Board finds that additional examinations are warranted to determine the adequate ratings for the Veteran's service-connected back and neuropathy disabilities. Service connection for dermatitis The Veteran seeks service connection for dermatitis, which he asserts is related to service. He testified that he had a skin disorder in service, which started on his head, and has now spread to other parts of his body. It is pointed out that he has provided private treatment records showing treatment for a skin disability. He has not been afforded a VA examination to ascertain whether he has a current skin disability that is related to service. Under these circumstances, the Board finds that a medical examination is warranted. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Service connection for an acquired psychiatric disability The Veteran seeks service connection for an acquired psychiatric disorder that he believes is related to his service-connected disabilities. In support of his claim a private psychiatric evaluation that supports this secondary service connection contention has been received. The Veteran has not been afforded a psychiatric examination to evaluate this contention. The Board finds this to be warranted. Id. Service connection for a chronic respiratory disorder The Veteran contends that service connection for a chronic respiratory disorder should be established. During his hearing on appeal, he stated that he stated that he was treated for pain and pressure in his chest and was afforded pulmonary function testing during service, which is noted in his STRs. The Board also notes that he was treated for sinusitis that was noted to be seasonal in service and has been diagnosed with both chronic obstructive pulmonary disease and allergic rhinitis. He has not been afforded a VA examination and the Board finds this to be warranted. Id. Service connection for hypertension The Veteran claims that his hypertension, which he testified had been diagnosed in approximately 2013, is related to pain from his service-connected back and neck disabilities. He stated that, as the pain increases his hypertension worsens. He has not been afforded a VA examination, which the Board finds to be warranted. Id. Service connection for a left hip, left knee, left ankle, and left foot disability The Veteran contends that his left hip, knee, ankle, and foot disorders are related to the motor vehicle accidents that he was involved in during service. Review of the record shows that he was treated for complaints of hip and knee disorders on several occasions during service and was diagnosed with chondromalacia while on active duty. The Board finds that the denial of service connection on the basis that he does not have a current disability must be further evaluated to ascertain whether he has pain in these areas that causes functional impairment such that a current disorder is demonstrated. As such, an examination is warranted. Id. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected thoracic spine, ulnar neuropathy, and lower neuropathy. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Schedule the Veteran for a VA examination for his dermatitis; respiratory disorder; and disorders of the left hip, knee, ankle, and foot. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is any dermatitis; respiratory disorder; or disorder of the left hip, knee, ankle, and foot are at least as likely as not related to service, including claimed in-service skin disorder, sinusitis, or any motor vehicle accident in service? Provide a rationale to support the opinions. 3. Is any acquired psychiatric disorder or hypertension at least as likely as not proximately due to a service-connected disability or is any psychiatric disorder or hypertension at least as likely as not aggravated, i.e., worsened beyond its natural progression, by a service-connected disability? A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph P. Gervasio 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.