Citation Nr: 21030902 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 17-38 482 DATE: May 19, 2021 ORDER New and material evidence has been received to reopen the Veteran's claim for entitlement to service connection for bilateral knee disability. Entitlement to service connection for posttraumatic stress disorder has been withdrawn. REMANDED Entitlement to service connection for bilateral knee disability is remanded. Entitlement to service connection for diabetes mellitus is remanded. FINDINGS OF FACT 1. A February 1993 rating decision denied the Veteran's claim for entitlement to service connection for bilateral knee disability. The Veteran was notified of that decision and did not appeal or submit new and material evidence within one year of that rating decision. 2. The evidence received since the February 1993 rating decision, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim and raises the reasonable possibility of substantiating the claim for entitlement to service connection for a bilateral knee disability. 3. On March 11, 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of his claim for entitlement to service connection for posttraumatic stress disorder is requested. CONCLUSIONS OF LAW 1. The February 1993 rating decision denying the Veteran's claim for entitlement to service connection for bilateral knee disability is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§§ 3.104, 3.156, 20.201, 20.302, 20.1103. 2. The additional evidence received since the February 1993 rating decision is considered new and material; the claim for entitlement to service connection for bilateral knee disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a). 3. The criteria for withdrawal of entitlement to service connection for posttraumatic stress disorder by the appellant (or his or her 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 January 1978 to April 1978 and from April 1978 to June 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the transcript is associated with the evidentiary record. During his March 2021 hearing, the Veteran requested that the record remain open for 30 days. The Veteran's request was granted. 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. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the appellant has withdrawn his claim for entitlement to service connection for posttraumatic stress disorder. At his May 2021 Board hearing the Veteran testified that he would like to withdraw his claim for entitlement to service connection for PTSD. The Veteran further testified that he understood that by requesting to withdraw the claim the issue of entitlement to service connection for PTSD would not be adjudicated by the Board. As the Veteran's oral withdrawal was explicit, unambiguous, and done with full understanding of the consequences of such actions the issue of entitlement to service connection for PTSD is withdrawn. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018). Accordingly, the Board does not have jurisdiction to review the appeal and the claim for entitlement to service connection for PTSD is dismissed. REOPENING Legal Criteria To reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § § 5108. New evidence means existing evidence not previously submitted to VA. 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 and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § § 3.156(a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the "credibility" of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § § 3.156(a) creates a low threshold for finding new and material evidence and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). Analysis 1. New and material evidence has been received to reopen the Veteran's claim for entitlement to service connection for bilateral knee disability The Veteran initially filed a claim for entitlement to service connection for bilateral knee disability in July 1992. A February 1993 rating decision denied the claim, noting that there was no evidence of treatment for or diagnosis of a knee disability in service. The Veteran did not appeal the rating decision, and no new and material evidence was received within one year of the rating decision. Accordingly, the February 1993 rating decision is final. The Veteran filed a new claim for entitlement to service connection for bilateral knee disability in November 2015. In the March 2016 rating decision, the agency of original jurisdiction (AOJ) found that no new and material evidence was received, and Veteran's claim was not reopened. The Veteran filed a July 2016 notice of disagreement and subsequently perfected his appeal with a February 2017 Form 9. To reopen the claim, there must be new and material evidence received since the February 1993 rating decision. Here, September 2017 VA treatment records note that the Veteran has a history of bilateral osteoarthritis of the knees. At the March 2021 hearing, the Veteran testified that his bilateral knee pain is a result of his activity in service including climbing in and out of large trucks, breaking down and carrying equipment, wearing combat boots, completing physical therapy. The Veteran also reported that he twisted his knees in service. This evidence is new, and material as it relates to the issues of a current disability and an in-service injury. This evidence raises the reasonable possibility of establishing entitlement to service connection for a bilateral knee disability. New and material evidence having been received, entitlement to service connection for bilateral knee disability is reopened. The Veteran's claim is further discussed in the remand section below. REASONS FOR REMAND 1. Entitlement to service connection for diabetes mellitus is remanded. Evidence of record, including October 2014 VA treatment records note that the Veteran has a current disability of diabetes mellitus. At the March 2021 hearing, the Veteran testified that during his military service he experienced weight fluctuation, constant thirst and used the bathroom frequently, all of which he contends are related to his diabetes mellitus. Consistent with the Veteran's contentions, September 1985 and October 1985 service treatment records show that the Veteran was required to participate in the weight control program in service. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). VA's duty to assist includes providing a medical examination when it is necessary to decide a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Here, the AOJ did not provide the Veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Because there is evidence of currently diagnosed disabilities, an in-service event, and an indication that the current disabilities may be associated with the in-service event, remand for a VA examination is required. 2. Entitlement to service connection for bilateral knee disability is remanded. As discussed above, the Veteran's claim for entitlement to service connection for a bilateral knee disability is considered reopened. The evidence of record shows that the Veteran has a current knee disability and the Veteran has testified to in-service events including twisting his knee in service as well as wearing combat boots, completing military training in combat boots, breaking down and carrying equipment and climbing in and out of large trucks. Despite this evidence, the Veteran has not been afforded a VA examination for his bilateral knees and the record does not contain an etiology opinion. Because there is evidence of a current disability and an in-service injury, remand is warranted for a VA examination. McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Additionally, during his March 2021 hearing, the Veteran testified that following his military service, he was treated by a civilian doctor for approximately six to seven years. He also testified that for the last six to seven years his private physician, Dr. R, has given him a permanent disability and handicap sticker so that he does not have to walk long distances, due to his knees. These treatment records are not present in the Veteran's claims file. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2020). This includes making reasonable efforts to obtain relevant private medical records. 38 C.F.R. § 3.159(c)(1). The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. Ask the Veteran to complete a VA Form 21-4142 for Doctor R. Make two requests for the authorized records from Doctor R for the period from 2013 to present unless it is clear after the first request that a second request would be futile. All attempts to request outstanding records should be documented in the claims file. 3. Ask the Veteran to complete a VA Form 21-4142 for any private treatment provider he has seen from 2013 to present. Make to requests for all records from the identified treatment providers from 2013 to present unless it is clear after the first request that a second request would be futile. All attempts to request outstanding records should be documented in the claims file. 4. After all outstanding records have been obtained, schedule the Veteran for a VA examination for his diabetes mellitus. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the Veteran's diabetes at least as likely as not related to service, including the Veteran's contentions of frequent weight fluctuation in service as well as constant thirst and frequent restroom use in service? In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. Provide a rationale to support all opinion(s). 5. After all outstanding records have been obtained, schedule the Veteran for a VA examination for his bilateral knee disability. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the Veteran's bilateral knee disability to include osteoarthritis at least as likely as not related to service, any incident of service or manifested within one year of service including the Veteran's contentions of engaging in training in combat boots during service, climbing in and out of trucks during service and twisting his knee during service. In providing the requested opinion, specifically consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. Provide a rationale to support all opinion(s). Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Wimbish, 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.