Citation Nr: 21032285 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 19-05 176 DATE: May 26, 2021 ORDER The petition to reopen the previously denied claim for service connection for diabetes mellitus, type II (DM) is dismissed. The petition to reopen the previously denied claim for service connection for pancreatitis is dismissed. As new and material evidence sufficient to reopen the previously denied claim for service connection for a back condition has been received, the application to reopen is granted. As new and material evidence sufficient to reopen the previously denied claim for service connection for peripheral neuropathy of the right lower extremity (RLE) has been received, the application to reopen is granted. As new and material evidence sufficient to reopen the previously denied claim for service connection for peripheral neuropathy of the left lower extremity (LLE) has been received, the application to reopen is granted. Entitlement to service connection for degenerative disc disease (DDD) of the lumbar spine is granted. Entitlement to service connection for sciatic neuritis of the LLE is granted. Entitlement to service connection for sciatic neuritis of the RLE is granted. FINDINGS OF FACT 1. Prior to the promulgation of a final decision by the Board, the Veteran indicated that he wished to withdraw his pending appeal to reopen the claim for DM. 2. Prior to the promulgation of a final decision by the Board, the Veteran indicated that he wished to withdraw his pending appeal to reopen the claim for pancreatitis. 3. In a July 2009 rating decision, the RO denied the Veteran's claim for service connection for peripheral neuropathy of the RLE on the basis that the evidence did not show an in-service disease or injury or a medical nexus linking peripheral neuropathy of the RLE to service or a service-connected disability. 4. Evidence submitted subsequent to the July 2009 decision bears directly and substantially upon the specific matter under consideration, is not cumulative or redundant, and in connection with evidence previously assembled raises a reasonable possibility of substantiating the claim of entitlement to service connection for peripheral neuropathy of the RLE. 5. In a July 2009 rating decision, the RO denied the Veteran's claim for service connection for peripheral neuropathy of the LLE on the basis that the evidence did not show an in-service disease or injury or a medical nexus linking peripheral neuropathy of the RLE to service or a service-connected disability. 6. Evidence submitted subsequent to the July 2009 decision bears directly and substantially upon the specific matter under consideration, is not cumulative or redundant, and in connection with evidence previously assembled raises a reasonable possibility of substantiating the claim of entitlement to service connection for peripheral neuropathy of the LLE. 7. In a March 2012 rating decision, the RO denied the Veteran's claim for service connection for a back condition on the basis that the evidence did not show an in-service disease or injury or a medical nexus linking a back condition to service. 8. Evidence submitted subsequent to the March 2012 decision bears directly and substantially upon the specific matter under consideration, is not cumulative or redundant, and in connection with evidence previously assembled raises a reasonable possibility of substantiating the claim of entitlement to service connection for a back condition. 9. The Veteran's current DDD of the lumbar spine is at least as likely as not related to his active duty service. 10. The Veteran's sciatic neuritis of the RLE is at least as likely as not related to his now service-connected DDD of the lumbar spine. 11. The Veteran's sciatic neuritis of the LLE is at least as likely as not related to his now service-connected DDD of the lumbar spine. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a Substantive Appeal for the petition to reopen the previously denied claim for service connection for DM by the Veteran have been met and the appeal is withdrawn. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of a Substantive Appeal for the petition to reopen the previously denied claim for service connection for pancreatitis by the Veteran have been met and the appeal is withdrawn. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The July 2009 rating decision denying service connection for peripheral neuropathy of the RLE is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.1103. 4. New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for peripheral neuropathy of the RLE has been submitted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 5. The July 2009 rating decision denying service connection for peripheral neuropathy of the LLE is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.1103. 6. New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for peripheral neuropathy of the LLE has been submitted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 7. The March 2012 rating decision denying service connection for a back condition is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.1103. 8. New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for a back condition has been submitted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 9. The criteria for service connection for DDD of the lumbar spine are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 10. The criteria for service connection for sciatic neuritis of the RLE are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310. 11. The criteria for service connection for sciatic neuritis of the LLE are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from October 1975 to July 1999. In May 2021, the Veteran testified at a virtual hearing before the undersigned. Withdrawn Claims 1. Whether new and material evidence has been submitted to reopen the previously denied claim for service connection for DM 2. Whether new and material evidence has been submitted to reopen the previously denied claim for service connection for pancreatitis Issues 1-2: Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. An appeal may be withdrawn on the record at a hearing, and the withdrawal is effective immediately upon receipt by VA. Withdrawal may be made by the veteran or by his or her authorized representative. 38 C.F.R. § 19.55. The Veteran perfected appeals of the April 2014 rating decision declining to reopen his previously denied claims for service connection for DM and pancreatitis. At his May 2021 Board hearing, the Veteran indicated that he wished to withdraw his DM and pancreatitis appeals. He confirmed that he was aware that withdrawing his appeals would close these claims and if he wanted them reconsidered, he would have to file new claims. The withdrawal was effective upon receipt by VA. As such, the Board finds that the Veteran has withdrawn his DM and pancreatitis appeals in compliance with the Court's holding in DeLisio v. Shinseki, and there remain no allegations of errors of fact or law for appellate consideration for these issues. 25 Vet. App. 45 (2011). Accordingly, the Board does not have jurisdiction to review these appeals and the petitions to reopen the previously denied claims for service connection for DM and pancreatitis are dismissed. New and Material Evidence Where service connection for a disability has been denied in a final decision, a subsequent claim for service connection for that disability may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. New evidence means 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). According to the United States Court of Appeals for Veterans Claims (Court), the pertinent VA law requires that in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. See Evans v. Brown, 9 Vet. App. 273 (1996). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, raise a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The credibility of the newly submitted evidence is presumed for the purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510 (1992). 3. Whether new and material evidence has been submitted to reopen the previously denied claim for service connection for a back condition 4. Whether new and material evidence has been submitted to reopen the previously denied claim for service connection for peripheral neuropathy of the RLE 5. Whether new and material evidence has been submitted to reopen the previously denied claim for service connection for peripheral neuropathy of the LLE Issues 3-5: The Veteran's claims for service connection for peripheral neuropathies of the RLE and LLE were originally denied in a July 2009 rating decision. The Agency of Original Jurisdiction (AOJ) determined that there was no evidence of peripheral neuropathy of either lower extremity in service and no medical nexus linking peripheral neuropathy of either lower extremity to service or a service-connected disability. The Veteran did not appeal this decision or submit any new evidence within one year of the denial. The July 2009 RO decision became final and is the last prior denial of these claims. The Veteran's claim for service connection for a back condition was originally denied in a March 2012 rating decision. The AOJ determined that there was no evidence of a back condition in service and no medical nexus linking a current back condition to service. The Veteran did not appeal this decision or submit any new evidence within one year of the denial. The March 2012 RO decision became final and is the last prior denial of this claim. The Board finds that since the July 2009 and March 2012 latest final decisions, the Veteran has submitted new and material evidence for the RLE, LLE, and back claims. Specifically, April 2019 private medical opinions conclude that the Veteran's low back disability is related to service and that he has bilateral leg sciatic neuritis that is secondary to his low back disability. T.J.S., Jr., MD opinion, April 2019. The opinions also conclude that the low back disability is related to service. T.J.S., Jr., MD opinion, April 2019. Given these possible medical nexus opinions, the Board finds that the low bar for reopening claims is met and that these private opinions are sufficient to qualify as new and material evidence for these claims. The claims for service connection for peripheral neuropathy of the RLE and LLE and a back condition are reopened. See Shade, supra; Hodge, supra. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (noting that nexus may be demonstrated by a showing of continuity of symptomatology where the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a)). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); see Allen v. Brown, 8 Vet. App. 374 (1995); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). 6. Entitlement to service connection for DDD of the lumbar spine 7. Entitlement to service connection for sciatic neuritis of the LLE 8. Entitlement to service connection for sciatic neuritis of the RLE Issues 6-8: The Veteran claims that he is entitled to service connection for his low back disability and for his RLE and LLE sciatic neuritis as secondary to the low back disability. Upon review of the record, the Board agrees. April 2019 private examinations confirmed diagnoses of DDD of the lumbar spine and bilateral leg sciatic neuritis. See private examinations, April 2019. As such, the first elements of Shedden/Caluza and Wallin are met for all three claims. Service treatment records (STRs) show treatment for the low back in October 1978 and January 1979. STRs. As such, the second element of Shedden/Caluza is met for the low back claim. As the Veteran's RLE and LLE claims are predicated upon the theory of secondary service connection, as opposed to direct incurrence, and he is being granted service connection for DDD of the lumbar spine herein, the second element of Wallin is met for the sciatic neuritis claims. The remaining questions are whether the Veteran's current DDD of the lumbar spine is related to service and whether his current sciatic neuritis of the RLE and/or LLE is due to or aggravated by his low back disability. As discussed above, the Veteran submitted two private medical opinions dated in April 2019. Dr. T.J.S. concluded that it was at least as likely as not that the Veteran's DDD of the lumbar spine is due to his military service. He explained that the STRs showed he first developed a lumbar spine strain in service and that DDD is a known complication of spinal strains, as the initial strain causes direct damage and initiates degenerative processes. He noted that there was current and credible medical literature to support the relationship and provided citations to this literature. Upon review of the pertinent records and medical literature and conducting a history and physical examination, he was able to conclude the Veteran's DDD of the lumbar spine was at least as likely as not directed related to service. Dr. T.J.S. also concluded that it was at least as likely as not that the Veteran's sciatic neuritis of the RLE and LLE were caused by his DDD of the lumbar spine. He explained that radiculopathic neuritis is a complication of spinal disease that is well described in the medical literature and provided citations of such. He further explained that a lumbar spine condition, like the Veteran's DDD, causes irritation and compression of the nerve roots as they exit the spine which causes symptoms to be transmitted down the nerves. Upon review of the pertinent records and medical literature and conducting a history and physical examination, he was able to conclude the Veteran's sciatic neuritis of the RLE and LLE were at least as likely as not related to his DDD of the lumbar spine. The Board notes that the Veteran was provided a VA contract examination and opinion in February 2018. However, this opinion is predicated on a finding of no current low back disability, despite there being such a diagnosis. As such, it is not adequate to decide the claim. As there are no adequate conflicting opinions of record, the evidence supports a finding that the Veteran's current DDD of the lumbar spine is related to his military service and his current sciatic neuritis of the RLE and LLE are related to his now service-connected DDD of the lumbar spine. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. The claims are granted. [CONTINUED ON THE NEXT PAGE] YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Moore, 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.