Citation Nr: 22017188 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 17-55 607 DATE: March 24, 2022 ORDER The application to reopen the claim of service connection for a lumbar disability is granted. The application to reopen the claim of service connection for a right leg disability, to include as secondary to the lumbar disability, is granted. The appeal for entitlement to service connection for hypertension has been withdrawn. REMANDED Entitlement to service connection for a lumbar disability is remanded. Entitlement to a service connection for a right leg disability, to include as secondary to the lumbar disability, is remanded. FINDINGS OF FACT 1. In an August 2008 decision, the RO initially denied service connection for a lumbar spine disability; the Veteran did not appeal this decision or submit new and material evidence within the one-year appeal period. 2. Evidence received since the August 2008 decision relates to an unestablished fact necessary to substantiate the claim for entitlement to service connection for a lumbar spine disability. 3. In a March 2011 decision, the RO initially denied service connection for a right leg disability; the Veteran did not appeal this decision or submit new and material evidence within the one-year appeal period. 4. Evidence received since the March 2011 decision relates to an unestablished fact necessary to substantiate the claim for entitlement to service connection for a right leg disability. 5. Prior to promulgation of a decision in the appeal, the Veteran knowingly withdrew his appeal for entitlement to service connection for hypertension. CONCLUSIONS OF LAW 1. New and material evidence has been received regarding the claim for service connection for a lumbar disability, and the claim is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. New and material evidence has been received regarding the claim for service connection for a right leg disability, and the claim is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. The criteria for withdrawal of an appeal on the issue of entitlement to service connection for hypertension have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from September 1979 to September 1983. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 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 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a lumbar disability The Veteran asserts that he suffers from a lumbar spine disability related to his time in service. In August 2008, the RO denied service connection for a lumbar spine disability. The denial was based on the lack of evidence of chronicity. The Veteran was notified of this denial in a letter in August 2008, but did not appeal, and did not submit new and material evidence within the one-year appeal period. Therefore, this denial became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. In October 2010, the Veteran submitted a request to reopen the previously denied claim of service connection for a lumbar spine disability. The RO declined to reopen the claim for service connection in March 2011, December 2013, and February 2016. The evidence received since the initial August 2008 denial includes: statements in support of service connection, medical records, and testimony at a Board hearing. This new evidence could reasonably substantiate the claim. Thus, the claim is reopened. 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a right leg disability to include as secondary to the lumbar disability. The Veteran asserts that he suffers from a right leg disability due to service, to include as secondary to his lumbar spine disability. In March 2011, the RO denied service connection for a right leg disability. The denial was based on the lack of evidence in service, and a lack of service connection for the lumbar spine disability. The Veteran was notified of this denial in a letter in March 2011, but did not appeal, and did not submit new and material evidence within the one-year appeal period. Therefore, this denial became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. In December 2015, the Veteran submitted a request to reopen the previously denied claim of service connection for a right leg disability. The RO declined to reopen the claim for service connection in February 2016. The evidence received since the 2011 denial includes: statements in support of service connection, treatment records, a VA examination, and testimony at a Board hearing. This new evidence could reasonably substantiate the claim. Thus, the claim is reopened. 3. Entitlement to service connection for hypertension 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 Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. At the October 2021 Board hearing, the Veteran withdrew the appeal on the issue of entitlement to service connection for hypertension. The Veteran's withdrawal of this particular issue at the videoconference hearing was clear and unambiguous. See 38 C.F.R. § 20.204 (b); DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). That is, during the October 2021 Board videoconference hearing, the Veteran, assisted by his representative, explicitly, unambiguously, and with a full understanding of the consequences, withdrew this issue. The undersigned VLJ clearly identified the withdrawn issue, and the Veteran affirmed that he was requesting a withdrawal as to this issue. See hearing transcript at pages 2-3. All of these facts are significant because the Federal Circuit Court has adopted the DeLisio rule that a withdrawal must be 1) explicit, 2) unambiguous, and 3) done with a full understanding of the consequences of such action by the appellant, with the subsequent Board dismissal decision including findings as to all three elements. Acree v. O'Rourke, 891 F.3d 1009, 1015 (Fed. Cir. 2018). The undersigned VLJ explained no decision would be made as to the issue of entitlement to service connection for hypertension and it would be dismissed. It can be inferred that the Veteran, through the assistance of his representative, understood what the impact of requesting an appeal withdrawal before the Board. The Board concludes all three elements were met here for the withdrawal, such that the withdrawal of this issue is valid. Accordingly, the Board does not have jurisdiction to review this issue on appeal and it is dismissed. REASONS FOR REMAND 4. Entitlement to service connection for a lumbar disability. 5. Entitlement to service connection for a right leg disability, to include as secondary to the lumbar disability. The Veteran has asserted he suffers from a lumbar spine disability as a result of his time in service, and that his right leg disability is secondary to the lumbar spine disability. The Veteran's service treatment records (STRs) show in September 1980 he was seen with complaints of low back pain and was diagnosed with a muscle spasm. In November 1980, he was seen with complaints of low back pain, which radiates. In March 1981, he was seen with complaints of an injury to his back. He was assessed as having a contusion to the lumbosacral spine and was ordered light duty. In December 1982, he reported back pain that is sharp and consistent. He was assessed as having a spasm. In May 1983, he was seen with complaints of injuring his right leg and right thigh when he fell off of a bike. On discharge examination in July 1983, he was noted as having a history of back pain. The examiner noted no visible abnormalities, range of motion was normal, and straight leg raises were negative, bilaterally. The Veteran underwent an examination in August 2008. The examiner noted the Veteran was seen during service after a fall. X-rays were negative and he was diagnosed with a contusion. In November 1980, he was seen with low back pain and diagnosed with a mild strain. In December 1982, he was seen with low back pain and diagnosed with a resolving strain. He reported intermittent low back pain for the past 5 years. The examiner concluded the low back condition is not related to service, as there was no chronicity of back pain established in service, and the Veteran first reported back pain in 2002. The Veteran underwent an examination in February 2016 and reported right leg pain. The examiner noted the Veteran denied a right hip injury in service and reported continuous pain since 2008. The examiner concluded the right leg disability was less likely than not incurred in or caused by an in-service injury, event, or illness. Records from Sarasota Memorial Hospital reveal treatment for his lumbar spine. He underwent a lumbar laminectomy in 2012. At a January 2012 visit, the physician noted the Veteran to have a history of chronic back pain due to an injury in service. He further was noted as having radicular pain, particularly into his right leg. In December 2015, he was seen at the VAMC, with reports of back pain that radiates down his right leg. At the Board hearing he reported during service unloading cables in the motor pool. He stated while unloading the heavy cables his back snapped and popped. He reported post service mainly trying to self-medicate with heating pads or taking over the counter medication for his back. He reported seeking treatment by a physician and then a chiropractor shortly after service; however, he did not recall the practitioner's name, and further added it was likely the providers had died by now. He reported falling during service and injuring his right leg. He added that roughly eight years prior his back gave out while standing and he fell. He reported current pain, tingling, burning, and numbness his right lower extremity. A remand is needed in order to provide the Veteran with another examination, taking into account the in-service injuries, Veteran's statements of chronicity, and medical records documenting chronic lumbar condition. The matters are REMANDED for the following action: 1. Obtain outstanding private and VA medical records. 2. Arrange for the Veteran to undergo a VA examination to determine the nature and etiology of the claimed lumbar spine disability. Following a review of the claims file, the examiner should prove an opinion for the following: (a) Is it at least as likely as not that the Veteran suffers from a lumbar spine disability that is related to his service? To the extent the Veteran reported back pain that originated in service and has continued since, he is competent to so report. The examiner is asked to provide a rationale for all opinions reached 3. Arrange for the Veteran to undergo a VA examination to determine the nature and etiology of he claimed right lower extremity disability. Following a review of the claims file, the examiner should provide an opinion for the following: (a) Is it at least as likely as not that the Veteran's right lower extremity disability is related to his service? (b) Is it at least as likely as not that the Veteran's right lower extremity disability was caused by his lumbar spine disability? (c) Is it at least as likely as not that the Veteran's right lower extremity disability was aggravated (permanently worsened beyond the natural progression of the disease) by his lumbar spine disability? The examiner is asked to address the Veteran's contentions, personnel records, and STRs. The examiner is asked to reference the Veteran's reports of right leg pain during service, and the later development of right leg pain secondary to his lumbar spine. The examiner is asked to provide a rationale for all opinions reached. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Skiouris, 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.