Citation Nr: 21030956 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 18-01 118 DATE: May 20, 2021 ORDER The appeal pertaining to the issue of entitlement to a disability rating in excess of 40 percent for residuals of gonorrhea, urethral stricture, is dismissed. New and material evidence has not been submitted to reopen a claim for entitlement to service connection for a right pinky finger condition; the petition to reopen the claim is denied. New and material evidence has been submitted to re-open a claim for entitlement to service connection for a right shoulder condition, to include arthritis, and, to this extent only, the petition is granted. Service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for a right shoulder condition, to include arthritis, is remanded. FINDINGS OF FACT 1. At an April 2021 hearing, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran requesting to withdraw his appeal as to the issue of entitlement to a disability rating in excess of 40 percent for residuals of gonorrhea, urethral stricture. 2. A June 2015 rating decision that denied the Veteran's claim for a right pinky finger condition was not appealed, nor was new and material evidence received during the appeal period; evidence associated with the record since the final June 2015 rating decision is cumulative and redundant of evidence already of record, does not relate to an unestablished fact necessary to substantiate the claim for service connection, and does not raise a reasonable possibility of substantiating the claim. 3. A June 2015 rating decision that denied the Veteran's claim for a right shoulder condition, to include arthritis, was not appealed, nor was new and material evidence received during the appeal period; however, evidence received since the final June 2015 rating decision is new and raises a reasonable possibility of substantiating the claim. 4. Resolving doubt in the Veteran's favor, the evidence indicates that PTSD is a component of his service-related psychiatric disability picture. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal of the issue of entitlement to a disability rating in excess of 40 percent for residuals of gonorrhea, urethral stricture have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 2. A June 2015 rating decision that denied the claims of entitlement to service connection a right pinky condition and right shoulder condition, to include arthritis, is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 3. New and material evidence pertaining to a right pinky condition has not been received since the final June 2015 rating decision; accordingly, the claim for service connection for a right pinky condition is not reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 4. Evidence received since the June 2015 rating decision pertaining to a right shoulder condition, to include arthritis, is new and material, and the claim of entitlement to service connection is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The criteria for an award of service connection for PTSD, as a component of the Veteran's psychiatric disability, have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.156(b), 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from September 1976 to August 1984, and from May 1986 to April 1987. The period from September 1976 to August 1984 is honorable service, while the subsequent period is dishonorable service for the purpose of VA benefits. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in October 2013 and August 2017 by a Department of Veterans Affairs (VA) Regional Office. The Veteran testified at a hearing before the undersigned in April 2021. A transcript of that hearing has been associated with the record. Finally, concerning the Veteran's claim for service connection for PTSD, the current appeal was certified to the Board as stemming from an August 2016 request to reopen a previously-denied claim for service connection. However, review of the record shows that the Veteran initially filed a claim for PTSD in April 2012. After that claim was denied in October 2013, he filed a notice of disagreement in April 2014. Following a February 2015 statement of the case, the Veteran filed a VA Form 9, Appeal to Board of Veterans' Appeals, in March 2015. For reasons that are unclear, that appeal was never certified to the Board. Thus, the Board finds that the claim of entitlement to service connection for PTSD currently before it stems from the properly-appealed October 2013 rating decision, and has adjudicated the claim as such. Withdrawal At his April 2021 hearing, the Veteran withdrew his appeal as to the issue of entitlement to a disability rating in excess of 40 percent for residuals of gonorrhea, urethral stricture. 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 has withdrawn his appeal as to issue of entitlement to a disability rating in excess of 40 percent for residuals of gonorrhea, urethral stricture. Hence, there remain no allegations of errors of fact or law for appellate consideration as to that issue. Accordingly, the Board does not have jurisdiction to review the appeal, and it is dismissed. See id.; see also Evans v. Shinseki, 25 Vet. App. 7, 15 (2011). New and Material Evidence A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted. 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. The threshold to reopen a claim is low and does not require new and material evidence regarding each element of the claim that was not proved in the prior decision. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Right Pinky Finger The Veteran filed an original claim for service connection for a right pinky finger condition in March 2014, and the claim was denied in a June 2015 rating decision. At that time, it was determined that the Veteran did not have a diagnosed right pinky finger condition of any sort. The Veteran did not appeal or submit additional evidence within the appeal period and, accordingly, the June 2015 decision became final. Evidence submitted since the June 2015 rating decision includes VA treatment records and examination reports which are new, but do not provide competent evidence as to whether the Veteran has a current right pinky condition that may be related to service. Therefore, this evidence would not reasonably substantiate the claim, were the claim be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Id. Similarly, statements from the Veteran claiming entitlement to service connection are not new as they are cumulative of statements that were previously made and considered in the June 2015 rating decision. New and material evidence to reopen the claim for service connection for a right pinky condition has not been received, and the claim is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Right Shoulder Arthritis The Veteran filed an original claim for service connection for a right shoulder condition, to include arthritis, in March 2015, and the claim was denied in a June 2015 rating decision. At that time, it was determined that although the Veteran had a right shoulder condition, there was no nexus between it and service. The Veteran did not appeal or submit additional evidence within the appeal period and, accordingly, the June 2015 decision became final. Evidence submitted since the June 2015 rating decision includes the Veteran's April 2021 hearing testimony that his doctors have told him that there was a link between his right shoulder and military service. A review of the record does not reflect a positive nexus statement from a doctor as to the Veteran's right shoulder; however, the Veteran is competent to state that a doctor told him that the condition is related to his military service. For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). As the evidence is new and material, is neither cumulative nor redundant of the evidence previously of record, is presumed credible, and raises a reasonable possibility of substantiating the claim, the claim for service connection for a right shoulder condition, to include arthritis, is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Service Connection PTSD The Veteran seeks service connection for PTSD. The Board notes that service connection is in effect for generalized anxiety disorder with adjustment disorder, alcohol and substance abuse (hereinafter, "generalized anxiety disorder"). The rating criteria for all psychiatric disabilities are governed by one uniform general rating formula, found under 38 C.F.R. § 4.130. The United States Court of Appeals for Veterans' Claims has held that when the symptoms of a service-connected disability and a nonservice-connected disability cannot be differentiated, all symptoms must be attributed to the service-connected disability for evaluation purposes. Mittleider v. West, 11 Vet. App. 181, 182 (1998). The record in this case contains no competent medical evidence distinguishing specific symptoms as relating only to generalized anxiety disorder, or as relating only to another diagnosis. Thus, all psychiatric symptoms are already for consideration in evaluating the service-connected disability. In light of the Veteran's 70 percent rating for generalized anxiety disorder, and multiple VA examinations which list the Veteran's various mental health symptomatology, and in consideration of the fact that the Veteran has been diagnosed with PTSD by VA treatment providers, the Board finds that a remand to seek clarification as to which symptoms may or may not be attributed to the generalized anxiety disorder and PTSD would not serve a useful purpose. Rather, the Board will all resolve doubt in the Veteran's favor and award service connection for PTSD, to be hyphenated together with the generalized anxiety disorder rating; rules against pyramiding prohibit assignment of a separate rating percentage. 38 C.F.R. § 4.14. The claim is granted. REASONS FOR REMAND Regarding the reopened right shoulder claim, the Board concludes that a VA examination and medical opinion are necessary to determine the etiology of any right shoulder condition, to include arthritis. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Board notes that the Veteran's service treatment records show that in October 1983, he was treated for injuries to his right shoulder following a fall. In addition, his post-service VA treatment records show consistent reference to right shoulder pain, with a suggestion of possible arthritis. Even if a VA examiner finds that arthritis is not present, the Board notes that the Federal Circuit has held that pain can constitute disability under 38 U.S.C. § 1110 if it causes impairment in earning capacity and a diagnosis is not required to meet the current disability requirement. See Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). The matters are REMANDED for the following action: Obtain an opinion to determine the nature and etiology of any right shoulder disability. The claims file, including a copy of this remand should be reviewed by the examiner. The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any right shoulder disability had its onset during service or is otherwise related to military service. In addition, the examiner should note that disability may exist even in the absence of a specific diagnosis, and that pain can constitute disability if it causes impairment in earning capacity. The examiner must provide a complete rationale for any opinion set forth. In addressing this matter, the examiner should address the pertinent evidence in the service treatment records, post service medical records and examinations, as well as the lay evidence provided by the Veteran regarding in-service injury and symptomatology. To that end, the examiner should be aware that the Veteran served a period of dishonorable service between May 1986 to April 1987 and is ineligible for service connection benefits for disability incurred during that period. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeremy J. Olsen, 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.