Citation Nr: 1313345 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 04-33 929 ) DATE ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for ischemic heart disease. 2. Entitlement to service connection for sleep apnea. 3. Entitlement to service connection for gastroesophageal reflux disease (GERD). 4. Entitlement to service connection for arthritis of L5-S1, claimed as back pain. 5. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for hypertension. 6. Entitlement to service connection for hypertension. 7. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a right knee disability. 8. Entitlement to service connection for right knee disability. 9. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for migraine headaches. 10. Entitlement to service connection for migraine headaches. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. J. Vecchiollo, Counsel INTRODUCTION The Veteran had active military service from July 1969 to February 1972, including combat service in Vietnam, and from November 1990 to July 1991, and his decorations include the Combat Infantryman Badge and the Air Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In a September 2007 decision, the Board denied an increased rating for PTSD and remanded the back pain claim for further development and consideration. In September 2012, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA). The requested opinion was received November 2012, with an addendum received in December 2012. In January 2013, the Board informed the Veteran and his that it had requested a specialist's opinion in conjunction with the adjudication of his appeal, provided him a copy of that opinion and indicated that he was entitled to submit additional evidence or argument provided within 60 days of the date of that letter. In a signed statement, dated later that same month, the Veteran responded that he had no further evidence or argument to present, and in March 2013, his representative offered written argument in support of his appeal. Accordingly, the Board will proceed with the consideration of his case. The Veteran's back disability, right knee, migraine headaches and hypertension claims are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. On June 2012, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran requesting withdrawal of his appeals for ischemic heart disease, sleep apnea, and GERD. 2. The RO notified the Veteran of the May 2002 determination denying service connection claim for hypertension, and of the February 2005 rating action, declining to reopen the claim, as well as his appellate rights; however, timely appellate review was not perfected and the determination became final. 3. Evidence added to the record since the February 2005 rating action relates to unestablished facts necessary to substantiate the claim and raises the possibility of substantiating the service connection claim for hypertension. 4. The RO notified the Veteran of the May 2002 determination denying service connection claim for a right knee disability, and of the February 2005 rating action, declining to reopen the claim, as well as his appellate rights; however, timely appellate review was not perfected and the determination became final. 5. Evidence added to the record since the February 2005 rating action relates to unestablished facts necessary to substantiate the claim and raises the possibility of substantiating the service connection claim for a right knee disability. 6. The RO notified the Veteran of the May 2002 determination, denying service connection claim for migraine headaches, and of the February 2005 rating action, declining to reopen the claim, as well as his appellate rights; however, timely appellate review was not perfected and the determination became final. 7. Evidence added to the record since the February 2005 rating action relates to unestablished facts necessary to substantiate the claim and raises the possibility of substantiating the service connection claim for migraine headaches. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for ischemic heart disease by the Veteran have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. The criteria for withdrawal of the appeal for sleep apnea by the Veteran have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 3. The criteria for withdrawal of the appeal for GERD by the Veteran have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 4. Evidence added to the record since the February 2005 rating decision, denying the petition to reopen the claim of service connection for hypertension, is new and material and the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 5. Evidence added to the record since the February 2005 rating decision, denying the petition to reopen the claim of service connection for a right knee disability, is new and material and the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 6. Evidence added to the record since the February 2005 rating decision, denying the petition to reopen the claim of service connection for migraine headaches, is new and material and the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawn Claims The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). 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 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In this case, the Veteran has withdrawn the appeals for service connection for ischemic heart disease, sleep apnea, and GERD; hence, there remain no allegations of errors of fact or law for appellate consideration. As such, the Board does not have jurisdiction to review the appeals and they are dismissed. III. Petitions to Reopen the Hypertension, Right Knee, and Migraine Headaches Claims In this decision, the Board reopens all the claims, which represents a complete grant of the benefits sought on appeal as to this issue. As such, no discussion of VA's duty to notify and assist regarding reopened claims is necessary. The Veteran served in Vietnam and is in receipt of the Combat Infantrymans Badge. He contends that he injured his right knee in service when he jumped out of a helicopter into combat. He maintains that his hypertension was either caused by his exposure to herbicides while serving in Vietnam or by the stress caused from his service-connected PTSD. He also contends that he had migraine headaches during his second period of service in 1990 and 1991 and thereafter. The RO declined to reopen the Veteran's service connection claims. Thus, the preliminary question of whether previously denied claims should be reopened is a jurisdictional matter that must be addressed by the Board, prior to addressing the merits of the claims. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The RO denied the initial right knee service connection claim in a May 1972 rating action. At this time, service treatment records, a April 1972 VA examination report and statements from the Veteran were of record, but the RO concluded the evidence failed to reflect a currently diagnosed right knee disability or relate a condition to military service. The Veteran was notified of this determination and of his appellate rights; however, he did not appeal this determination. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302. The RO denied the initial hypertension and migraine headaches service connection claims in a May 2002 rating action. At this time, service treatment records from his first period of service, post-service treatment records, and statements from the Veteran were of record, but the RO concluded the evidence failed to reflect a currently diagnosed hypertension or a headache disability or relate a condition to military service. The Veteran was notified of this determination and of his appellate rights; however, he did not appeal this determination. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302. In a February 2005 determination, the RO declined to reopen the hypertension, right knee and migraine headaches service connection claims because the evidence failed to show that the Veteran's had current hypertension , right knee disability or migraine headaches caused by his service-connected PTSD. Based on the evidence outlined above and statements from the Veteran, the RO determined that new and material evidence relating the basis for the prior denial of the claim had not been received. The Veteran did not file a notice of disagreement with the February 2005 rating decision and no additional evidence pertinent to the issues was physically or constructively associated with the claims folder within one year of the rating decision. See 38 C.F.R. § 3.156(b) (2012); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the February 2005 rating decision became final based on the evidence then of record. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. § 20.1105 (2012). The claims decided therein are not subject to revision on the same factual basis. 38 U.S.C.A. § 7104. To reopen the claims, the appellant must present or secure new and material evidence with respect to that claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). New evidence means existing 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). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that 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, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. Since the February 2005 rating action addressing the matter, many pieces of evidence have been associated with the claims folder, to include medical and lay evidence. Significantly, the Veteran has provided competent statements concerning the relevant hypertension, right knee and migraine symptomatology, which for the limited purpose of reopening is presumed credible. Duran v. Brown, 7 Vet. App. 216, 220 (1994). Additionally, the medial evidence of record at least suggests the presence of currently diagnosed conditions, as reflected in a July 2010 VA X-ray diagnosing early degenerative change of the right knee, and treatment records noting current diagnoses of hypertension and migraine headaches. The lack of a diagnosed condition was part of the reason for the original denials. Ultimately, the evidence associated with the claims folder since the February 2005 rating action, when considered in light of VA's duty to assist, sufficiently raises a reasonable possibility of substantiating the service connection claim for a right knee disability and migraine headaches and the evidence is new and material within the meaning of 38 C.F.R. § 3.156(a). See Shade v. Shinseki, supra. Thus, the claims are reopened. ORDER The appeal for service connection for ischemic heart disease is dismissed. The appeal for service connection for sleep apnea is dismissed. The appeal for GERD is dismissed. New and material evidence has been received to reopen a claim of entitlement to service connection for hypertension and, to this extent the claim is granted. New and material evidence has been received to reopen a claim of entitlement to service connection for a right knee disability and, to this extent the claim is granted. New and material evidence has been received to reopen a claim of entitlement to service connection for migraine headaches and, to this extent the claim is granted. REMAND In the Board's September 2007 remand, the RO was instructed to provide the Veteran with notice of the information and evidence needed to substantiate his claim for service connection for back pain. In November 2007, the RO provided the Veteran with correct notice regarding the claim on a de novo basis. However, the Veteran subsequently requested service connection for the disability as secondary to PTSD. However, in May 2009, the RO provided the Veteran with notice regarding reopening a previously denied claim. As the de novo claim has not become a finally adjudicated claim (i.e., the original April 2003 claim), secondary service connection must also be considered on a de novo basis. Therefore, another remand is necessary to provide the Veteran with notice of the information and evidence needed to substantiate his claim for service connection for back pain as secondary to his PTSD on a de novo basis. The Veteran served in Vietnam and is in receipt of the Combat Infantrymans Badge. He contends that he injured his right knee in service when he jumped out of a helicopter into combat. In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) (West 2002) and its implementing regulation, 38 C.F.R. § 3.304(d) (2012), are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in the case of a combat Veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). An examination is needed to resolve this issue. He also contends that he had migraine headaches during and since his second period of service in 1990 and 1991. An examination is needed to resolve this issue. Finally, the Veteran seeks to establish service connection for hypertension. As discussed above, the Board has reopened this claim upon a finding that new and material evidence has been received. However, as the RO has not adjudicated the merits of the service connection claim in the first instance, the Board must remand the claim so that this may be accomplished, as well as any additional development. See Hickson v. Shinseki, 23 Vet. App. 394 (2010). Accordingly, the case is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC., for the following action: 1. Issue notice to the Veteran in compliance with 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002 & Supp. 2012), specific to the issue of entitlement to service connection for arthritis of L5-S1, claimed as back pain, as secondary to PTSD on a de novo basis. 2. Obtain copies of all additional treatment records concerning the Veteran's low back, right knee, and migraine headaches, dated since May 2011. 3. Notify the Veteran that he may submit lay statements from individuals who have first-hand knowledge, and/or were contemporaneously informed his in-service and post-service low back, right knee, hypertension and headache symptoms. He should also be invited to submit any evidence indicating whether he has been diagnosed as having diabetes mellitus. The Veteran should be provided an appropriate amount of time to submit this lay and medical evidence. 4. Then afford the Veteran an appropriate VA examination to determine the nature, onset and etiology of his right knee degenerative changes. The claims folder should be made available to and must be reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner must opine as to whether it is at least as likely as not that any right knee disability: a) had onset during service; or, b) arthritis had onset within one year of discharge from service; or, c) is otherwise causally related to the Veteran's active duty service, to include his reported injury of having injured the right knee while jumping out of a helicopter. In offering this impression, the examiner must specifically acknowledge and comment on the Veteran's competent lay report of recurrent right knee symptoms in and since service. The examiner should also opine as to whether it is at least as likely as not that the Veteran's right knee disability are either caused or aggravated (i.e. permanently worsened) by his service-connected PTSD. A rationale must be provided for any and all opinions offered. An examiner's report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. See Jones v. Shinseki, 23 Vet. App. 382 (2010). As such, if the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. 5. Then afford the Veteran an appropriate VA examination to determine the nature, onset and etiology of his migraine headaches. The claims folder should be made available to and must be reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner must opine as to whether it is at least as likely as not that any right migraine headaches: a) had onset during service; or, b) is otherwise causally related to the Veteran's active duty service, to include his reported experiencing migraine headaches during his secondary period of service in 1990 and 1991 and thereafter. In offering this impression, the examiner must specifically acknowledge and comment on the any competent lay report of having headaches in and since service. The examiner should also opine as to whether it is at least as likely as not that the Veteran's migraine headaches are either caused or aggravated (i.e. permanently worsened) by his service-connected PTSD. A rationale must be provided for any and all opinions offered. An examiner's report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. See Jones v. Shinseki, 23 Vet. App. 382 (2010). As such, if the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. 6. Then readjudicate the appeal. In doing so, the RO must specifically consider the application of 38 U.S.C.A. § 1154(b) (West 2002) and its implementing regulation, 38 C.F.R. § 3.304(d) (2012). If any benefit sought remains denied the Veteran should be issued a supplemental statement of the case (SSOC) which addresses actions taken since the issuance of the last SSOC and given the opportunity to respond, and the claim should thereafter be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B , 7112 (West Supp. 2012). STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs