Citation Nr: 21032845 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 17-23 275 DATE: May 28, 2021 ORDER The appeal as to the claim of entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is dismissed. The appeal as to the claim of entitlement to service connection for a back condition, to include scoliosis and arthritis, is dismissed. The appeal as to the claim of entitlement to service connection for right shoulder arthritis is dismissed The appeal as to the claim of entitlement to service connection for left shoulder arthritis is dismissed. The appeal as to the claim of entitlement to service connection for right lower extremity sciatica is dismissed. The appeal as to the claim of entitlement to service connection for left lower extremity sciatica is dismissed. The appeal as to the claim of entitlement to service connection for right knee arthritis is dismissed. The appeal as to the claim of entitlement to service connection for left knee arthritis is dismissed. The appeal as to the claim of entitlement to service connection for an oral condition with tooth loss is dismissed. The appeal as to the claim of entitlement to service connection for erectile dysfunction is dismissed. REMANDED Entitlement to service connection for deviated septum is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for acid reflux is remanded. Entitlement to service connection for a heart disability, to include enlarged heart and cardiomyopathy, is remanded. Entitlement to service connection for restless leg syndrome of the right leg is remanded. Entitlement to service connection for restless leg syndrome of the left leg is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. On August 4, 2020, prior to the promulgation of a decision by the Board, the Veteran submitted a written communication, withdrawing his appeal with respect to the issue of entitlement to an initial rating in excess of 70 percent for PTSD. 2. On August 4, 2020, prior to the promulgation of a decision by the Board, the Veteran submitted a written communication, withdrawing his appeal with respect to the issue of entitlement to service connection for a back condition, to include scoliosis and arthritis. 3. On August 4, 2020, prior to the promulgation of a decision by the Board, the Veteran submitted a written communication, withdrawing his appeal with respect to the issue of entitlement to service connection for right shoulder arthritis. 4. On August 4, 2020, prior to the promulgation of a decision by the Board, the Veteran submitted a written communication, withdrawing his appeal with respect to the issue of entitlement to service connection for left shoulder arthritis. 5. On August 4, 2020, prior to the promulgation of a decision by the Board, the Veteran submitted a written communication, withdrawing his appeal with respect to the issue of entitlement to service connection for right lower extremity sciatica. 6. On August 4, 2020, prior to the promulgation of a decision by the Board, the Veteran submitted a written communication, withdrawing his appeal with respect to the issue of entitlement to service connection for left lower extremity sciatica. 7. On August 4, 2020, prior to the promulgation of a decision by the Board, the Veteran submitted a written communication, withdrawing his appeal with respect to the issue of entitlement to service connection for right knee arthritis. 8. On August 4, 2020, prior to the promulgation of a decision by the Board, the Veteran submitted a written communication, withdrawing his appeal with respect to the issue of entitlement to service connection for left knee arthritis. 9. On August 4, 2020, prior to the promulgation of a decision by the Board, the Veteran submitted a written communication, withdrawing his appeal with respect to the issue of entitlement to service connection for an oral condition with tooth loss. 10. On August 4, 2020, prior to the promulgation of a decision by the Board, the Veteran submitted a written communication, withdrawing his appeal with respect to the issue of entitlement to service connection for erectile dysfunction. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim of entitlement to an initial rating in excess of 70 percent for PTSD by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the claim of entitlement to service connection for a back condition, to include scoliosis and arthritis by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of the claim of entitlement to service connection for right shoulder arthritis by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for withdrawal of the claim of entitlement to service connection for left shoulder arthritis by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 5. The criteria for withdrawal of the claim of entitlement to service connection for right lower extremity sciatica by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 6. The criteria for withdrawal of the claim of entitlement to service connection for left lower extremity sciatica by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 7. The criteria for withdrawal of the claim of entitlement to service connection for right knee arthritis by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 8. The criteria for withdrawal of the claim of entitlement to service connection for left knee arthritis by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 9. The criteria for withdrawal of the claim of entitlement to service connection for an oral condition with tooth loss by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 10. The criteria for withdrawal of the claim of entitlement to service connection for erectile dysfunction by the Veteran 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 in the United States Army from January 1966 to January 1968. During his period of service, he earned the National Defense Service Medal, Vietnam Campaign Medal, Vietnam Service Medal, and Army Commendation Medal. In his May 2017 substantive appeal, the Veteran requested a live videoconference hearing before the Board. In an April 2021 correspondence, the Veteran requested his hearing request be withdrawn and a decision be rendered based on the evidence of record. As such, his hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(e) (2020). Withdrawn Claims 1. Entitlement to a higher rating for PTSD 2. Entitlement to service connection for a back condition 3. Entitlement to service connection for right shoulder arthritis 4. Entitlement to service connection for left shoulder arthritis 5. Entitlement to service connection for right lower extremity sciatica 6. Entitlement to service connection for left lower extremity sciatica 7. Entitlement to service connection for right knee arthritis 8. Entitlement to service connection for left knee arthritis 9. Entitlement to service connection for an oral condition with tooth loss 10. Entitlement to service connection for erectile dysfunction 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. 38 C.F.R. § 20.205 (2020). Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.205 (2020). In the present case, the Veteran perfected his appeal of the November 2015 denials of entitlement to an initial rating in excess of 70 percent for PTSD and entitlement to service connection for a back condition, right shoulder arthritis, left shoulder arthritis, right lower extremity sciatica, left lower extremity sciatica, right knee arthritis, left knee arthritis, an oral condition, and erectile dysfunction. On August 4, 2020, the Veteran submitted written correspondence indicating a request to withdraw his appeals with respect to the claims of entitlement to an initial rating in excess of 70 percent for PTSD and entitlement to service connection for a back condition, right shoulder arthritis, left shoulder arthritis, right lower extremity sciatica, left lower extremity sciatica, right knee arthritis, left knee arthritis, an oral condition, and erectile dysfunction. These withdrawals were effective immediately upon receipt by VA. 38 C.F.R. § 20.205 (2020). Thus, the Board finds that there remain no allegations of errors of fact or law for appellate consideration at this time. Accordingly, the Board does not have jurisdiction to review the appeals, and the Veteran's claims for entitlement to an initial rating in excess of 70 percent for PTSD and entitlement to service connection for a back condition, right shoulder arthritis, left shoulder arthritis, right lower extremity sciatica, left lower extremity sciatica, right knee arthritis, left knee arthritis, an oral condition, and erectile dysfunction are dismissed. REASONS FOR REMAND 1. Entitlement to service connection for deviated septum The Board notes that the Veteran has not been afforded VA examination with respect to his claim of entitlement to service connection for deviated septum. VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159 (2020). 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 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). The Veteran asserts that his deviated septum is the result of an in-service injury. Specifically, the Veteran reported that he experienced nasal trauma as a result of a physical attack during which he was repeatedly punched in the face. He indicates that his condition has continued since separation. Medical treatment records also show that the Veteran underwent a nasal septoplasty in 1999. As such, the Board finds that a remand for examination is warranted to ascertain whether his claimed deviated septum is etiologically related to his active duty service. See McLendon, supra. 2. Entitlement to service connection for obstructive sleep apnea 3. Entitlement to service connection for acid reflux The Veteran contends that his obstructive sleep apnea and acid reflux are related to his service-connected PTSD or treatment thereof. See May 2017 Substantive Appeal. Accordingly, a VA examination is needed to address the nature and etiology of the Veteran's obstructive sleep apnea and acid reflux, to include whether it was caused or aggravated by service-connected PTSD or the treatment thereof. See McLendon, supra. 4. Entitlement to service connection for a heart disability The Veteran appeared for a VA heart conditions examination in June 2015. The examiner noted that the Veteran did not have a diagnosed heart condition. The examiner determined that the Veteran's heart condition was "probable cardiomyopathy." Though the examiner noted the Veteran had an enlarged heart, he indicated there was no evidence of ischemia nor has the Veteran ever had angioplasty, coronary artery bypass grafting (CABG) or documented ischemic heart disease (IHD). Unfortunately, the Board finds that the June 2015 VA examination is inadequate for adjudication purposes. Although the examiner determined that the criteria for diagnosis of ischemic heart disease were not met, the examiner failed to offer an opinion as to whether the Veteran's heart condition, to include enlarged heart and cardiomyopathy, was related to service, to include exposure to herbicide agents, or secondary to his service-connected disabilities. The Board acknowledges that once VA undertakes the effort to provide an examination when developing a service connection claim, an adequate examination must be provided. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As such, a remand is required to obtain a new examination and opinion. 5. Entitlement to service connection for restless leg syndrome of the right leg 6. Entitlement to service connection for restless leg syndrome of the left leg The Veteran generally contends that his bilateral restless leg syndrome is related to service. Here, there is some indication in the record that the Veteran's bilateral restless leg syndrome pre-existed service. At the time of his December 1965 pre-induction examination, the Veteran indicated "yes" in response to whether he had or has ever had cramps in his leg on his report of medical history. The contemporaneous clinical evaluation of the lower extremities was normal. A veteran is presumed to have been sound upon entry into the military, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Here, the pre-induction examination report is controlling. As a leg disability, to include restless leg syndrome, was not noted at entrance into service, the Veteran is presumed to have been sound at such time with respect to this disability. 38 C.F.R. § 3.304(b). To rebut this presumption, it must be shown with clear and unmistakable evidence that a disorder preexisted service and that the disorder was not aggravated by service. Id. Moreover, the Board notes that there is some indication the Veteran's claimed bilateral restless leg syndrome may be related the obstructive sleep apnea claim remanded herein; thus, the Board finds these claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that claims are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). As the Board is unable to reach a conclusion on this issue of entitlement to service connection for bilateral restless leg syndrome with the evidence currently of record, a VA medical opinion should be obtained on remand. See McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). 7. Entitlement to a TDIU The Veteran seeks a TDIU; however, adjudication of this claim must also be deferred, as this issue is inextricably intertwined with the issue of obstructive sleep apnea being remanded herein. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for VA examinations with appropriate medical examiner(s) to determine the nature and etiology of his deviated septum, obstructive sleep apnea, acid reflux, heart disability, and bilateral restless leg syndrome. The examiner(s) must review pertinent documents in the Veteran's claims file in conjunction with the examinations. This must be noted in the examination reports. All tests and studies deemed necessary by the examiner(s) should be performed. (a.) With regard to deviated septum, the examiner must state whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's current deviated septum had its onset in service or is otherwise etiologically related to active service. In providing the opinion, the examiner is asked to consider the Veteran's statements regarding his in-service physical assault and address them in the rationale for the opinion. (b.) With regard to obstructive sleep apnea, the examiner must state whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's obstructive sleep apnea (i) is caused by his service-connected PTSD or treatment thereof; or (ii) is aggravated by his service-connected PTSD or treatment thereof. In providing this opinion, the examiner's attention is directed to the July 2015 PTSD examination, which appears to indicate that a sleep apnea diagnosis is relevant to the understanding or management of his PTSD. (c.) With regard to acid reflux, the examiner must state whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's acid reflux (i) is caused by his service-connected PTSD or treatment thereof; or (ii) is aggravated by his service-connected PTSD or treatment thereof. (d.) With regard to heart disability, to include enlarged heart and cardiomyopathy, the examiner must state whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's heart disability, to include enlarged heart and cardiomyopathy, (i) had its onset in service or is otherwise etiologically related to active service, to include as due to exposure to herbicide agents; (ii) is caused by his service-connected PTSD or treatment thereof; or (iii) is aggravated by his service-connected PTSD or treatment thereof. (e.) With regard to bilateral restless leg syndrome, the examiner must answer: a. Is there clear and unmistakable (undebatable) evidence that restless leg syndrome existed prior to the Veteran's active duty service? b. If the answer to question (a) above is yes, is there clear and unmistakable (undebatable) evidence that the pre-existing restless leg syndrome did NOT undergo an increase in severity beyond the natural scope of the disability during the Veteran's active duty service? c. If the answer to question (a) above is no, is at least as likely as not (a 50 percent or greater probability) that restless leg syndrome (i) had its onset in service or is otherwise etiologically related to active service; (ii) is caused by his claimed obstructive sleep apnea or service-connected PTSD; or (iii) is aggravated by his claimed obstructive sleep apnea or service-connected PTSD. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 2. After the above development has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of TDIU. M. Mills Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tracy O. Joseph, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED