Citation Nr: 1642810	
Decision Date: 11/08/16    Archive Date: 12/01/16

DOCKET NO.  12-26 368	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUES

1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection fainting spells/syncope. 

2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a hernia. 

3. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for migraine headaches. 

4. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for traumatic brain injury (TBI), also claimed as residuals of head trauma. 

5. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an acquired psychiatric disorder (claimed as a mental disorder) other than posttraumatic stress disorder (PTSD), to include panic disorder with agoraphobia and major depressive disorder (MDD). 


6. Entitlement to service connection for a hernia. 

7. Entitlement to service connection for a sleep disorder/sleep apnea. 

8. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include panic disorder with agoraphobia and MDD. 

9. Entitlement to a higher initial rating for PTSD, currently evaluated as 10 percent disabling prior to April 15, 2015, and 50 percent thereafter. 

10. Entitlement to a higher initial rating for right knee patellofemoral syndrome with limitation of flexion, currently evaluated as 10 percent disabling. 

11. Entitlement to a higher initial rating for left knee patellofemoral syndrome with limitation of flexion, currently evaluated as 10 percent disabling. 

12. Entitlement to a higher rating for right knee strain and prepatellar tendonitis, currently evaluated as 20 percent disabling prior to August 1, 2014, and 10 percent disabling thereafter. 

13. Entitlement to a higher rating for left knee strain and prepatellar tendonitis, currently evaluated as 20 percent disabling prior to August 1, 2014, and 10 percent disabling thereafter.

14. Whether the rating reduction for right knee strain and prepatellar tendonitis, from 20 percent to 10 percent, effective August 1, 2014, was proper. 

15. Whether the rating reduction for left knee strain and prepatellar tendonitis, from 20 percent to 10 percent, effective August 1, 2014, was proper.

16. Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	John S. Berry, Attorney



ATTORNEY FOR THE BOARD

H. Hoeft


INTRODUCTION

The Veteran served on active duty from May 1989 to December 1993.

These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2012, April 2013, and April 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. 

Specifically, the May 2012 rating decision granted service connection for PTSD and assigned a 10 percent rating, effective from February 1, 2012, and denied a claim of service connection for panic disorder with agoraphobia and major depressive disorder.  

The April 2013 rating decision denied claims of service connection for TBI (new and material claim); a sleep disorder/sleep apnea; fainting spells/syncope (new and material claim); a hernia (new and material claim); migraines (new and material claim); and a TDIU rating.  

The April 2014 rating decision reduced the Veteran's ratings for right and left knee strain and prepatellar tendonitis, from 20 percent to 10 percent disabling, effective August 1, 2014.  (Note: The February 2014 rating decision that proposed to reduce the ratings for the knees, and the April 2014 decision that ultimately reduced the ratings to from 20 to 10 percent, were issued in response to the Veteran's May 2013 claim for an increased rating).  The Veteran disagreed with the April 2014 decision and perfected this appeal.  The Board has thus recharacterized the Veteran's claims as whether the rating reductions for left and right knee strain and prepatellar tendonitis, from 20 to 10 percent, were proper, to include entitlement to an increased rating for those disabilities.  

In a May 2015 rating decision, the RO granted an increased rating of 50 percent for PTSD, effective April 15, 2015.  However, the Veteran's claim for a higher rating for PTSD remains on appeal, as he is not in receipt of the highest possible rating throughout the rating period on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (a Veteran is presumed to be seeking the highest possible rating unless he expressly indicates otherwise).

The May 2015 rating decision also awarded separate 10 percent ratings for left and right knee patellofemoral syndrome with limitation of flexion, effective from April 27, 2015.  As these ratings were assigned during the course of the appeal of the Veteran's claim for an increased rating for his service-connected right and left knee disabilities, the appropriateness of those ratings is considered part and parcel of the current appeal and they have therefore been identified as additional issues for current appellate review.

The issues of entitlement to a higher initial rating for PTSD, currently evaluated as 10 percent disabling prior to April 15, 2015, and 50 percent thereafter; entitlement to a higher initial rating for right knee patellofemoral syndrome with limitation of flexion, currently evaluated as 10 percent disabling; entitlement to a higher initial rating for left knee patellofemoral syndrome with limitation of flexion, currently evaluated as 10 percent disabling; entitlement to a higher rating for right knee strain and prepatellar tendonitis, currently evaluated as 20 percent disabling; entitlement to a higher rating for left knee strain and prepatellar tendonitis, currently evaluated as 20 percent disabling; and entitlement to a TDIU rating; are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. In a final decision decided in June 1994, the RO denied the Veteran's claim of entitlement to service connection for a hernia.  

2. The evidence received since the June 1994 RO decision relates to unestablished facts and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a hernia disability. 

3. In a final decision decided in July 1998, the RO denied the Veteran's claim of entitlement to service connection for a residuals of a head injury.

4. The evidence received since the July 1998 RO denial does not relate to an unestablished fact necessary to substantiate the claim of service connection for residuals of a head injury/TBI. 

5. In July 2011, the Board denied service connection for migraine headaches.  

6. The evidence received since the July 2011 Board denial does not relate to an unestablished fact necessary to substantiate the previously denied service connection claim for migraine headaches, and/or does not raise a reasonable possibility of substantiating the claim.

7. In July 2009, the Board denied service connection for fainting spells/syncope. 

8. The evidence received since the July 2009 Board denial does not relate to an unestablished fact necessary to substantiate the previously denied service connection claim for fainting spells/syncope, and/or does not raise a reasonable possibility of substantiating the claim.

9. In a final decision decided in January 2006, the RO denied the Veteran's claim of entitlement to service connection for a mental disorder.  

10. The evidence received since the January 2006 RO decision relates to unestablished facts and raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disorder (previously clamed as a mental disorder), other than PTSD, to include panic disorder with agoraphobia and major depressive disorder. 

11. The preponderance of the competent medical and other evidence of record is against a finding that the Veteran's currently diagnosed ventral/umbilical hernia (status post repair) is related to service. 

12. The preponderance of the competent medical and other evidence of record is against a finding that the Veteran's currently diagnosed sleep apnea is related to service, and/or proximately due to or aggravated by service-connected PTSD. 

13. The preponderance of the competent medical and other evidence of record is against a finding that the Veteran's currently diagnosed panic disorder with agoraphobia and major depressive disorder is related to service.

14. Prior to the reduction in the April 2014 rating decision, 20 percent ratings for right and left knee strain and prepatellar tendonitis, had been in effect since February 2008. 

15. With respect to the reductions in evaluation for the right and left disabilities, the RO did not properly apply the provisions of 38 C.F.R. § 3.344.  


CONCLUSIONS OF LAW

1. The June 1994 RO decision that denied service connection for a hernia is final. 38 U.S.C.A. § 7105 (b)(West 2014); 38 C.F.R. § 20.1100 (2015).

2. Evidence received since the June 1994 RO decision is new and material, and the claim of entitlement to service connection for a hernia is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015).

3. The July 1998 RO decision, which denied service connection for residuals of head trauma (also claimed as TBI), is final. 38 U.S.C.A. § 7105 (b)(West 2014); 38 C.F.R. § 20.1100 (2015).

4. Evidence received since the July 1998 rating decision is not new and material, and the claim of service connection for residuals of a head injury/TBI is not reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 

5. The July 2011 Board decision, which denied service connection for migraine headaches, is final. 38 U.S.C.A. § 7104 (West 2014).

6. Evidence received since the July 2011 Board decision is not new and material, and the claim of service connection for migraine headaches is not reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015).

7. The July 2009 Board decision, which denied service connection for fainting spells/syncope, is final. 38 U.S.C.A. § 7104 (West 2014).

8. Evidence received since the July 2009 Board decision is not new and material, and the claim of service connection for syncope is not reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015).

9. The January 2006 RO decision, which denied service connection for a mental disorder, is final. 38 U.S.C.A. § 7105 (b)(West 2014); 38 C.F.R. § 20.1100 (2015).

10. Evidence received since the January 2006 RO decision is new and material, and the claim for service connection for an acquired psychiatric disorder (previously clamed as a mental disorder), other than PTSD, to include panic disorder with agoraphobia and MDD, is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015).  

11. The criteria for a grant of service connection for a hernia disability are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303 (2015).

12. The criteria for a grant of service connection for sleep apnea are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2015).

13. The criteria for a grant of service connection for panic disorder with agoraphobia and major depressive disorder are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303 (2015).

14. The reduction in evaluation for left knee strain and prepatellar tendonitis from 20 percent to 10 percent effective August 1, 2014, is void, and the 20 percent rating is restored. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.105, 3.344 (2015).

15. The reduction in evaluation for right knee strain and prepatellar tendonitis from 20 percent to 10 percent effective August 1, 2014, is void, and the 20 percent rating is restored. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.105, 3.344 (2015). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VCAA

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2015). 

Here, the Veteran was provided with the relevant notice and information in June 2012 and November 2012 letters prior to the initial adjudication of the claim pertaining to a sleep disorder. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).  The Veteran has not alleged any notice deficiency during the adjudication of the claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

With respect to the claims to reopen, the requirements of 38 U.S.C.A. §§ 5103 and 5103A (West 2014), and Kent v. Nicholson, 20 Vet. App. 1 (2006), have been met. By correspondence dated in February 2012 and November 2013, VA notified the Veteran of the information needed to substantiate and complete his claims, to include notice of the information that he was responsible for providing and of the evidence that VA would attempt to obtain.  The Veteran was also provided notice as to how VA assigns disability ratings and effective dates.  The correspondence provided the specific Kent-compliant notice required in claims to reopen; it advised him of the bases for the previous denials of the claims, and what type of evidence would be new and material (as well as what was needed to substantiate the underlying claims of service connection).  A notice deficiency is not alleged. 

With respect to the duty to assist, the Veteran's service treatment records (STRs), pertinent post-service treatment records, and records from the Social Security Administration (SSA) have been secured.  Notably, in a claim to reopen the duty to assist by arranging for an examination or securing a medical opinion does not arise unless the claim in fact is reopened. 38 C.F.R. § 3.159 (c)(4)(iii).  Also, the Veteran was afforded a VA examination addressing the claim for service connection for sleep apnea, and the findings and opinions from this examination are adequate for the purposes of deciding the claims on appeal. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  The Veteran has not identified any evidence that remains outstanding.  VA's duty to assist is met.

I. New and Material Claims

Generally, if a claim for service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2014).

"New" evidence is defined as existing evidence not previously submitted to agency decisionmakers.  "Material" evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a).  The Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110 (2010). 

For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 

Despite determinations reached by the RO, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).

a. Hernia 

In a June 1994 decision, the RO denied the claim for a hernia disability because there was no evidence of a current hernia disability.  At the time of the June 1994 decision, the evidence of record included service treatment records (STRs), which showed a notation of a weakened inguinal floor on separation.  VA correspondence reflects that the Veteran refused to appear for a contemporaneous VA examination in connection with his claim.   

The Veteran was informed of the June 1994 decision and of his appellate rights, but he did not appeal that decision or submit new and material evidence within one year following notification of that decision.  Accordingly, the June 1994 decision became final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.156(b); 20.302, 20.1103 (2015); see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010).

The evidence received since the June 1994 RO decision includes treatment records documenting a current hernia (status post repair) disability, as well as a February 2014 VA medical opinion.  This evidence relates to an unestablished fact needed to establish service connection (i.e., a currently diagnosed hernia disability).  Therefore, the Board finds that new and material evidence has been received and the criteria to reopen the Veteran's claim for entitlement to service connection for a hernia are met.  

b. Residuals of a head injury/TBI

The Veteran seeks service connection for residuals of a head injury, or TBI, on a direct incurrence basis due to injuries sustained during active duty service. 

In a July 1998 decision, the RO denied the claim for residuals of head trauma because there was no evidence of current head trauma residuals.  At the time of the July 1998 decision, the evidence of record included STRs, which showed that the Veteran hit his head on the windshield in a motor vehicle accident (noted as "resolved" on separation); that he had been assaulted in January 1992 (with no noted injury to the head); and that he answered "yes" to dizziness or fainting spells and periods of unconsciousness on his Separation Report of Medical History. See STRs and Separation Report of Medical History.  Also of record was a June 1997 VA general examination report in which the Veteran denied ever having any significant head injuries; the accompanying neurological examination was normal and no residuals of an in-service head injury or TBI were diagnosed at that time.  

The Veteran was informed of the July 1998 decision and of his appellate rights, but he did not appeal that decision or submit new and material evidence within one year following notification of that decision.  Accordingly, the July 1998 decision became final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.156(b); 20.302, 20.1103 (2015); see Bond, supra; see also Buie, supra. 

The evidence received since the July 1998 RO decision includes statements from the Veteran (and his attorney) in support of his claim, asserting that he was physically assaulted by a group of men and suffered head injuries that resulted in TBI; VA treatment records reflecting the Veteran's reports of sustaining a TBI in-service; a December 2012 VA examination report, noting that the Veteran did not meet the criteria for a TBI and that an identified cognitive disorder was due to TIAs; a March 2013 VA opinion stating that the Veteran did not have diagnosis of mild traumatic brain injury or any residuals of a TBI; an April 2013 VA TBI/polytrauma consultation report noting that the Veteran likely recovered from any TBI without significant impairments of brain function; and a January 2013 VA examination report, noting that the Residuals of a TBI Examination and neuropsychological testing did not support the diagnosis of residuals of a TBI ("In my opinion, the Veteran does not have residuals of TBI caused by head trauma that occurred while he was on active duty"). 

While some of the evidence received since July 1998 is new, it is not material to the claim for service connection for residuals of head injury (now claimed as a TBI).  Again, at the time of the July 1998 rating decision, the evidentiary record failed to document any head injury residuals (i.e., a current diagnosis).  Similarly, none of the newly submitted evidence, to include various VA examinations, demonstrates or otherwise identifies any current head injury residuals or a TBI diagnosis.  Since the Veteran has not provided new and material evidence in this regard, the claim for service connection for residuals of a head injury/TBI cannot be reopened at this time.

The Board acknowledges the Veteran's ongoing assertions (and those of his attorney) that he has residuals of a head injury, and/or a TBI from an in-service assault/injury.  Lay persons are competent to provide opinions on some medical issues.  Although the Veteran is competent to report symptoms and experiences observable by his senses, the specific issue in this case (i.e., whether he has current residuals of a head injury or a TBI) falls outside the realm of common knowledge of the Veteran (and his attorney).  Compare Jandreau v. Nicholson, 492 F .3d 1372, 1377 n.4 (Fed. Cir. 2007)( lay witness capable of diagnosing dislocated shoulder); see also Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n.4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge).  

In this case, determining the nature and etiology of any head injury residuals requires medical inquiry into biological processes, pathology, and physiological functioning.  Such internal physical processes are not readily observable and are not within the competence of the Veteran or his attorney in this case, who has not been shown by the evidence of record to have medical training or skills.  Thus, to the extent that the Veteran and his attorney are attempting to diagnose a TBI or head injury residuals, their lay statements in this regard are not considered competent evidence of a current diagnosis. See, id. 

Without competent evidence that the Veteran has current residuals of a head injury/TBI, none of the newly-received evidence addresses any fact left unestablished at the time of the July 1998 decision or raises a reasonable possibility of substantiating the Veteran's claim, and therefore, it is not new and material for purposes of reopening the claim.

Accordingly, the Board finds that the record contains no new and material evidence sufficient to reopen the claim for residuals of a head injury or TBI.  The claim is not reopened.  In the absence of new and material evidence, the benefit-of-the-doubt rule does not apply, and the petition to reopen the claim must be denied. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993).

c. Migraines

In July 1998, the RO initially denied service connection for migraine headaches to include as due to undiagnosed illness.  The RO considered the Veteran's service treatment records STRs which showed that there was a complaint of headaches in a November 1991 service treatment report.  In his December 1993 separation report of medical history, the Veteran answered "no" to frequent or severe headaches.  The separation Report of Medical History noted that the Veteran had hit his head on a windshield in a motor vehicle accident, but that there had been no loss of consciousness and the condition was noted as "resolved."  During a June 1997 VA psychological examination he complained of migraine headaches as a problem, but there was no diagnosis of migraines.  The RO thus initially denied service connection for migraines in the unappealed July 1998 rating decision because there was no evidence that the Veteran had the condition.

Thereafter, in an unappealed April 2003 decision, the RO considered evidence that included several complaints of headaches on the part of the Veteran.  Headaches reported in December 1998 and October 1999 were attributed to other diagnosed illnesses.  No complaints of headaches were documented after October 1999.  The RO concluded that the evidence did not show a diagnosis of migraine headaches and the RO implicitly concluded that no nexus existed to service.

The RO again denied the claim in an unappealed July 2005 rating decision. 

In July 2009, the Board denied a claim to reopen the previously denied claim for service connection for migraine headaches to include as due to an undiagnosed illness.  The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court).  In January 2010 the Court issued an Order granting the parties' Joint Motion for Remand (Joint Motion) to vacate the Board's decision and remand the case back to the Board for compliance with the Joint Motion.

In a September 2010 decision, the Board reopened and remanded the claim for service connection for migraine headaches.  At that time, the Board found that new and material evidence had been submitted; in its analysis, the Board pointed to evidence that included the Veteran's reports of ongoing headaches; an April 2007 treatment report from the Lincoln VAMC eye clinic noting that the Veteran reported a history of migraines; a July 2007 emergency room intake report at St. Elizabeth Regional Medical Center noting that the Veteran complained of headache; and a VA treatment record of November 2007 noting that the Veteran's tinnitus was triggering migraines in recent months.

In a July 2011 decision, the Board again denied the Veteran's claim for service connection for migraine headaches.  

At the time of the July 2011 Board decision, the Veteran primarily asserted that his migraine headaches were related to his service-connected tinnitus, or were due to his military service, generally, or to service in the Persian Gulf (undiagnosed illness).  The evidence included a December 2010 VA examination report, in which the examiner opined that the current headache condition was less likely as not due to or the result of or aggravated by his service-connected tinnitus.  The examiner also concluded that there was no evidence to support that the headache disorder was due to or the result of any specific exposure event to any hazard while he served in the Gulf War.  The evidence also consisted of statements from the Veteran in which he asserted that he had experienced continuous of headache symptomatology since 1991.  The Board considered the above evidence and ultimately found that his diagnosed migraines were not related active military service (to include on a direct incurrence basis, on the basis of continuity of symptomatology, or as a result of Gulf War exposures), were not shown to have manifested to a compensable degree within one year of discharge, and were not proximately due to or the result of his service-connected tinnitus.  

Evidence added to the record since the final Board decision includes statements from the Veteran in which he asserted that his migraines were directly due to injuries sustained in-service (i.e., hitting his head on a windshield and/or being assaulted in 1992), and that he has experienced headaches since service.  The evidence also includes VA treatment records documenting ongoing complaints/treatment for migraine headaches; a December 2012 VA examination report in which the examiner opined that he could find "no valid medical reasoning why any migraine headaches" would be related to the in-service windshield incident; and a March 2013 VA examination report in which the examiner was likewise asked to determine whether the Veteran had any residuals, to include migraines headaches, as a result of the in-service assault and the examiner concluded that he did not.  

Based on a thorough review of the above, the Board does not find that new and material evidence is present in the file.  

With respect to the Veteran's statements concerning service onset and continuity of headache symptomatology, such statements are essentially duplicative of previous statements of record at the time of July 2011 Board decision.  Accordingly, they are cumulative or redundant of the evidence of record at the time of the July 2011 decision, and thus do not constitute new and material evidence. See 38 C.F.R. § 3.156 (a).

The Board acknowledges that the Veteran has presented some new arguments as to why he believes service connection is warranted for his migraine headaches.  For instance, in his notice of disagreement, he expressly asserted that his headaches were directly due to an in-service assault.  However, a claim based on a new theory of entitlement is not a new claim, but constitutes an application to reopen the previously denied claim, and a final denial on one theory is a final denial on all theories.  In other words, a new theory of entitlement in and of itself is not new and material evidence. Robinson v. Mansfield, 21 Vet App 545 (2008). Ashford v. Brown, 10 Vet. App. 120 (1997); Perry v. West, 12 Vet. App. 365 (1999).  In this case, the Veteran has not submitted any new evidence indicating that his headaches are related to an in-service assault.  

With respect to his assertions (and those of his attorney) that his migraine headaches are related to service, as noted above, lay persons are competent to provide opinions on some medical issues.  However, the specific issue in this case, whether his migraines are related to any incident of service, falls outside the realm of common knowledge of the Veteran and his attorney. See Jandreau, supra.  Determining the etiology of migraine headaches requires medical inquiry into biological processes, pathology, and physiological functioning.  Such internal physical processes are not readily observable and are not within the competence of the Veteran and his attorney, who have not been shown by the evidence of record to have medical training or skills.  As a result, their lay statements are not competent evidence of a nexus. 

With respect to the newly added VA treatment records, such records show ongoing symptoms and treatment for migraine headaches, but do not relate to the unestablished fact of whether headaches are somehow related to service (or to service-connected tinnitus).  The fact that migraine headaches are present was an element of service connection already established and considered at the time of July 2011 Board decision.  Thus, these treatment records do not constitute new and material evidence. See id.  

Finally, the VA examiners' negative nexus opinions concerning migraine headaches do not raise a reasonable possibility of substantiating the claim, but on the contrary weigh against the claim.  Therefore, they do not constitute new and material evidence. See id.  

Without competent evidence that the Veteran's current migraine headaches are related to service (i.e., a nexus), none of the newly-received evidence addresses any fact left unestablished at the time of the July 2011 decision or raises a reasonable possibility of substantiating the Veteran's claim; therefore, it is not new and material for purposes of reopening the claim.

Accordingly, the Board finds that the record contains no new and material evidence sufficient to reopen the claim for migraine headaches.  The claim is not reopened. 38 U.S.C.A. § 5108 (West 2014).  In the absence of new and material evidence, the benefit-of-the-doubt rule does not apply, and the petition to reopen the claim must be denied. See Annoni, supra. 

c. Fainting spells/syncope 

By way of brief factual history, a November 1993 service treatment report revealed that the Veteran had fainted while having blood drawn.  In his December 1993 separation report of medical history, the Veteran answered "yes" to dizziness or fainting spells and periods of unconsciousness.  As noted above, STRs also reflected that the Veteran hit his head on the windshield in a motor vehicle accident (noted as "resolved" on separation) and that he had been assaulted in January 1992 (with no noted injury to the head).  

The Veteran was provided a June 1997 examination by a neurologist.  The examiner diagnosed the Veteran with syncope.  

Thereafter, the RO denied the Veteran's claim for service connection for fainting spells/syncope in an unappealed July 1998 rating decision.  That decision denied service connection on the basis of an undiagnosed illness basis because syncope was a diagnosed disorder.  The RO also denied service connection on a direct incurrence basis, as there was no medical nexus connecting the syncope diagnosed in 1997 to the acute episode of fainting while blood was being drawn in-service, or to any other incident of service.

In an unappealed April 2003 decision, the RO again denied the claim.  Evidence at that time showed that the Veteran continued to complain of fainting spells.  The claim was denied on an undiagnosed illness basis because syncope was determined to result from a known clinical diagnosis.  On a direct service connection basis, the claim was again denied because there was no medical nexus shown between the syncope the acute and transient episode of fainting with a blood draw in service.  

In an unappealed July 2005 decision, the RO confirmed and continued the previous denials of service connection for fainting spells/syncope as the evidence continued to show that syncope was not incurred in or aggravated by military service.

In July 2009, the Board declined to reopen the Veteran's claim for service connection for fainting spells/dizziness.  The Board cited to newly submitted evidence, including treatment records reflecting ongoing complaints of dizziness/syncope, and a May 2006 neurological treatment note from a neurologist that noted "a history of apparent brief decreased level of consciousness, somewhat atypical in its description, etiology uncertain whether this is syncope, I kind of doubt that this represents seizure, although I suppose that is within the possibility.  Psychogenic cause not entirely excluded in this setting."  The Board determined that no competent medical evidence had been added to the record that demonstrated a medical nexus. 

Evidence added to the record since the July 2009 Board decision includes statements from the Veteran in which he asserted that his syncope was directly due to being assaulted and/or hitting a windshield in-service.  The evidence also includes VA treatment records documenting ongoing complaints/treatment for syncope; a December 2012 VA examination report in which the examiner opined that he could find "no valid medical reasoning why....syncope" would be related to the in-service windshield incident; and a March 2013 VA examination report in which the examiner was likewise asked to determine whether the Veteran had any residuals, to include syncope, fainting spells, and blackouts, as a result of the in-service assault and the examiner concluded that he did not. (Emphasis added). 

Based on a thorough review of the above, the Board does not find that new and material evidence is present in the file.  

With respect to the Veteran's statements concerning service onset and continuity of syncope symptomatology, such statements are essentially duplicative of previous statements of record at the time of July 2009 Board decision.  Accordingly, they are cumulative or redundant of the evidence of record at the time of the July 2011 decision, and thus do not constitute new and material evidence. See 38 C.F.R. § 3.156 (a).

The Board acknowledges that the Veteran has presented some new arguments as to why he believes service connection is warranted for syncope.  For instance, in his notice of disagreement, he expressly asserted that his syncope was directly due to an in-service assault.  However, a claim based on a new theory of entitlement is not a new claim, but constitutes an application to reopen the previously denied claim, and a final denial on one theory is a final denial on all theories.  In other words, a new theory of entitlement in and of itself is not new and material evidence. See Robinson, supra; see also Ashford, supra.  In this case, the Veteran has not submitted any new evidence indicating that his diagnosed syncope is related to the in-service assault.  

With respect to his assertions (and those of his attorney) that his syncope is related to service, as noted above, lay persons are competent to provide opinions on some medical issues.  However, the specific issue in this case, whether his syncope is related to any incident of service, falls outside the realm of common knowledge of the Veteran and his attorney. See Jandreau, supra.  Determining the etiology of syncope requires medical inquiry into biological processes, pathology, and physiological functioning.  Such internal physical processes are not readily observable and are not within the competence of the Veteran and his attorney, who have not been shown by the evidence of record to have medical training or skills.  As a result, their lay statements are not competent evidence of a nexus. 

With respect to the newly added VA treatment records, such records show ongoing symptoms and treatment for syncope, but do not relate to the unestablished fact of whether syncope is somehow related to service.  The fact that syncope is present was an element of service connection already established and considered at the time of July 2009 Board decision.  Thus, these treatment records do not constitute new and material evidence. See id.  

Finally, the VA examiners' negative nexus opinions concerning syncope do not raise a reasonable possibility of substantiating the claim, but on the contrary weigh against the claim.  Therefore, they do not constitute new and material evidence. See id.  

Without competent evidence that the Veteran's current syncope is related to service (i.e., a nexus), none of the newly-received evidence addresses any fact left unestablished at the time of the July 2009 decision or raises a reasonable possibility of substantiating the Veteran's claim; therefore, it is not new and material for purposes of reopening the claim.

Accordingly, the Board finds that the record contains no new and material evidence sufficient to reopen the claim for syncope.  The claim is not reopened. 38 U.S.C.A. § 5108 (West 2014).  In the absence of new and material evidence, the benefit-of-the-doubt rule does not apply, and the petition to reopen the claim must be denied. See Annoni, supra.

d. An acquired psychiatric disorder other than PTSD, to include panic disorder with agoraphobia and major depressive disorder.

In a January 2006 decision, the RO denied a claim of entitlement to service connection for a mental disorder on the basis that there was no record of a mental condition that was incurred in or caused by military service.  At the time of the January 2006 decision, the evidence of record included STRs that showed depression/stress "caused by command interference with marriage" and VA treatment records documenting depressive disorder and anxiety disorder.  VA correspondence reflects that the Veteran refused to appear for a contemporaneous VA examination in connection with his claim.   

The Veteran was informed of the January 2006 decision and of his appellate rights, but he did not appeal that decision or submit new and material evidence within one year following notification of that decision.  Accordingly, the January 2006 decision became final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.156(b); 20.302, 20.1103 (2015); see also Bond and Buie, both supra. 

The evidence received since the January 2006 RO decision includes treatment records documenting current diagnoses of panic Disorder with agoraphobia and depression NOS (see April 2012 VA Examination Report), as well as a June 2013 VA medical opinion (finding that depression and panic disorder were at least as likely as not a result of the assaults described during service).  This evidence relates to an unestablished fact needed to establish service connection.  Therefore, the Board finds that new and material evidence has been received and the criteria to reopen the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder, other than PTSD, are met.  

II. Service Connection Claims

Service connection will be granted if the Veteran has a disability resulting from personal injury or disease incurred in the line of duty, or for aggravation of a preexisting injury or disease incurred in the line of duty during active service. 38 U.S.C.A. §§  1110, 1131; 38 C.F.R. § 3.303. 

To establish service connection, the Veteran must show (1) a present disability, (2) an 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, 1167 (Fed. Cir. 2004).

Service connection can be established on the basis of continuity of symptomatology for the chronic diseases specified at 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Under section 3.310 of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to, or aggravated by, service-connected disease or injury.  Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).

a. Hernia

After careful review of the evidentiary record, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a hernia disability. 

The Veteran asserts that his current hernia disability is directly related to the weakened inguinal floor noted upon separation from service.  

VA treatment records dated in 2012 reflect a ventral hernia, status post repair, diagnosis. See, e.g., March 2012 VA Treatment Records.  Moreover, as noted above, STRs reflect that the Veteran had a weakened inguinal floor upon separation from service.  The remaining question for consideration here is whether the Veteran's current umbilical hernia condition is related to the weakened inguinal floor shown in-service. 

The Board initially notes that the first documented medical report of a hernia - a ventral/umbilical hernia- was not until 2012, close to 19 years after separation from service.  With respect to negative evidence, the fact that there were no records of any complaints or treatment for a hernia for many years weighs against the claim. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (it was proper to consider the veteran's entire medical history, including a lengthy period of absence of complaints). 

Additionally, the only competent and probative medical opinion of record is against the Veteran's claim for service connection.  In this regard, the February 2012 VA examiner opined that the current hernia condition was not caused by or a result of the weakened inguinal floor documented in-service.  In reaching this conclusion, the examiner noted that the Veteran had undergone a supraumbilical area/ventral hernia repair in 2012 and that this was "some anatomical distance from the inguinal area, and [had] nothing to do with a weakened inguinal floor."  The examiner thus concluded that the hernia was not caused by or a result of the weakened inguinal floor, and that there was no relationship between these two as they were separate and distinct issues.  

The February 2012 VA opinion is considered probative as it is definitive, based upon a complete review of the Veteran's claims file, and supported by detailed rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Accordingly, the opinion is found to carry significant weight.  The Veteran has not provided any competent medical evidence to rebut the opinion against the claim or otherwise diminish its probative value. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995).  

The Board has also considered the Veteran's statements asserting a nexus between his diagnosed ventral/umbilical hernia and his military service.  However, the Veteran is not competent to provide an opinion regarding the etiology of his ventral/umbilical hernia because he lacks the required medical skill and knowledge. The Board finds that the determination of the cause of a hernia is beyond the capabilities of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  

In short, the most competent and probative evidence of record indicates that the current ventral/umbilical hernia (status post repair) did not originate in-service and is not otherwise related to the weakened inguinal floor documented on separation.  For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for a hernia disability, and the claim must be denied.  The benefit-of-the-doubt doctrine is, therefore, not for application. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  

b. Sleep apnea as secondary to PTSD or head injury residuals

The Veteran has expressly asserted that his current sleep apnea disorder is caused or aggravated by his service-connected PTSD, or, alternatively, by residuals of a head injury. See May 2013 Statement from Veteran's Attorney. 

After careful review of the evidentiary record, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for sleep apnea.

As an initial matter, current VA treatment and examination records confirm that the Veteran has a sleep apnea diagnosis.  See, e.g., December 2012 VA Examination. 

With respect to the Veteran's assertion that his sleep apnea is secondary to head injury residuals or a TBI, the Board has herein denied his appeal to reopen the claim for head injury residuals/TBI; hence the claim for service connection for sleep apnea as secondary to that disability must be denied. 38 C.F.R. § 3.310.

However, as noted above, the Veteran also claims that his sleep apnea is secondary to PTSD, a disorder for which service connection is currently in effect.  The remaining question for consideration here is thus whether the sleep apnea is proximately caused or aggravated by the service-connected PTSD. 

In this case, the only competent and probative medical opinions of record are against the Veteran's claim for service connection on a secondary basis.  In this regard, a December 2012 VA examiner opined that current medical literature did not show any relationship between PTSD specifically causing obstructive sleep apnea.  The examiner stated that the Veteran's medical records "clearly" showed the direct cause of his sleep apnea, and referred to an October 2012 CPAP titration study in which he highlighted the Veteran's weight and neck size.  Thereafter, a January 2013 VA examiner again opined that there was "no scientific literature to support a conclusion that posttraumatic stress disorder causes obstructive sleep apnea or persistently aggravates obstructive sleep apnea."

The December 2012 and January 2013 VA opinions, collectively, are considered highly probative as to the issue of causation/aggravation because they are unequivocal, based upon a complete review of the Veteran's claims file, and supported by rationale. See Nieves-Rodriguez, supra.  The December 2012 opinion, in particular, definitively attributed the Veteran's sleep apnea to other causes - namely, neck circumference and weight.  Accordingly, the opinions are found to carry significant probative value.  The Veteran has not provided any competent medical evidence to rebut the opinion against the claim or otherwise diminish its probative weight. See Wray, supra.  

In so finding, the Board acknowledges that the Veteran's attorney submitted several internet articles in support of the claim.  One article, entitled, "Sleep Problems, PTSD Widespread Following Sept. 11," generally addresses sleep disordered breathing (SDB) in people who suffer from PTSD.  The second article, entitlement "Posttraumatic Stress Disorder and Obstructive Sleep Apnea Syndrome," generally discusses the abatement of PTSD symptoms with treatment of obstructive sleep apnea.  Another internet article discussed a study in which 98.5% of combat Veterans with PTSD also reported sleep complaints and that 54% of the PTSD patients who underwent polysomnography at Walter Reed were diagnosed with obstructive sleep apnea.  

Medical treatise evidence can, in some circumstances, constitute competent medical evidence.  However, while the articles submitted by the Veteran address PTSD and sleep disorders/OSA, they do not contain any information or analysis specific to the Veteran's case.  In contrast, the medical opinions provided by the VA examiners were specific to the Veteran and definitely attributed his sleep apnea to his body habitus/neck circumference.  As such, the Board finds that the information reflected in the submitted articles simply is not probative of the specific medical questions at issue in this appeal, and is outweighed by the professional opinions of the VA examiners. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011).  

The Board has also considered the Veteran's statements asserting a nexus between his service-connected PTSD and sleep apnea.  However, the Board finds that the etiology of sleep apnea and its relationship to PTSD, falls outside the realm of common knowledge of a layperson, and thus, the Veteran is not competent to provide evidence on the issue of causation. See Jandreau, supra; see also Kahana, supra.  As such, the Veteran's lay statements regarding etiology are afforded little probative weight. 

Accordingly, for the reasons outlined immediately above, the Veteran's claim of entitlement to service connection for sleep apnea on a secondary basis must be denied. 

Neither the Veteran nor his attorney have asserted that the Veteran's sleep apnea is causally or etiologically related to service.  Moreover, the record is silent regarding any indication that the Veteran's sleep apnea is directly related to service.  Service treatment records are silent as to complaints, treatment, or diagnoses related to sleep apnea.  Sleep apnea was not diagnosed until approximately August 1997, nearly four years after separation from active duty service. See Maxson, supra.  The record does not otherwise include any lay or medical evidence that indicates onset of sleep apnea during service or that the currently diagnosed sleep apnea is causally or etiologically related to service.  Accordingly, the preponderance of the evidence is also against the claim for service connection for sleep apnea on a direct basis. 

In short, the most competent and probative evidence of record indicates that the Veteran's sleep apnea is neither related to service, nor to his service-connected PTSD.  For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for a sleep apnea, and the claim must be denied.  The benefit-of-the-doubt doctrine is, therefore, not for application. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  

c. An acquired psychiatric disorder other than PTSD, to include panic disorder with agoraphobia and major depressive disorder.

The Veteran specifically seeks service connection for panic disorder with agoraphobia and major depressive disorder. 

Although service connection is in effect for PTSD, this does not preclude the possibility of service connecting another psychiatric disorder. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) (two psychiatric disabilities "could have different symptoms and it could therefore be improper in some circumstances for the VA to treat these separately diagnosed conditions as producing only the same disability").

STRs show that the Veteran presented in February 1993 with depressive symptoms since separating from his fiancée three weeks prior ("r/o adjustment disorder with depressed mood" and "r/o personality disorder").  Subsequent STRs reflect that the Veteran was ultimately assessed with having a "long-standing" personality disorder in March 1993.  STRs also reflect that the Veteran checked "yes" as to having depression or excessive worry, and nervous trouble of any sort on his separation Report of Medical History.  The accompanying narrative noted that the reported depression/stress was caused by command interference with his marriage (i.e. situational).  The Separation Report of Medical Examination noted a normal psychiatric clinical evaluation. 

Following service, VA treatment records show ongoing treatment for anxiety and depression beginning in approximately 1995. See, e.g., February 1995 VA Treatment Report (Veteran "blames wife for his depressed mood"); see also November 1997 VA Mental Health Clinic Note.  In September 2005, VA treatment records reflect that the Veteran had been referred for anger management and depression; it was noted that his step-daughters had filed charges against him for verbal and physical abuse and that his wife had filed for divorce. See also November 2006 VA Treatment Note (noting significant stress related to divorce proceedings).  A May 2006 private treatment report noted that the Veteran had been incarcerated and was under a lot stress for what he stated was false charges of abuse; the assessment included a history of recent psychosocial stressors as referenced above.  VA mental health treatment records dated in 2007 show a diagnosis of depression and panic attacks.  VA treatment records dated in 2012 show a diagnosis of PTSD based on the Veteran's reports of being psychically assaulted in-service.  VA treatment records dated from 2008 to the present otherwise document ongoing mental health treatment for PTSD and depression. 

The Veteran underwent a VA PTSD examination in April 2012.  The Veteran reported that he had been personally assaulted in-service.  Pertinent diagnoses included PTSD, major depressive disorder, and panic disorder with agoraphobia.  The examiner found that there was insufficient evidence to diagnose a personality disorder ("I do not diagnose any other disorders other than the PTSD, MDD, and panic disorder").  The examiner stated that it was possible to differentiate what symptom(s) were attributable to each diagnosis.  The examiner noted that MDD and panic disorder with agoraphobia were the most disabling and would relate to occupational and social impairment with deficiencies in most areas including work, family relations, judgment, and thinking.  The examiner opined that the Veteran's PTSD was due to the in-service assault.  He also opined that that it was "less likely as not that the Veteran's panic disorder with agoraphobia and the major depressive disorder are due to service," noting that STRs did not document MDD or panic disorder during service, and that he had "very serious post military stressors for which he was alleged of sexual abuse of a minor."  The Veteran had indicated to the examiner that he suffered tremendous financial loss and employability due to that specific matter and that this led to  the end of his career as a CNA and what sounded like to the end to his schooling with nursing (LPN).  The examiner thus concluded that it was more likely than not that panic disorder with agoraphobia and the MDD were related to post military issues such as the alleged abused and pleading to lewd conduct.  The examiner provided separate GAF scores for the PTSD and MDD/panic disorder. 

In a December 2012 VA examination report, the April 2012 VA examiner stated: "I had performed a C and P examination of this veteran on 11 April, 2012.  At that time of evaluation I had noted that veteran had been arrested for sexual assault that was dropped down to lewd behavior.  My diagnosis was PTSD, MDD, and panic disorder.  I had separated out the GAF's for the PTSD versus MDD and panic disorder."  

In a January 2013 VA mental examination report, the examiner again diagnosed PTSD, MDD and panic disorder.  The examiner found that it was possible to differentiate what symptoms were attributable to each diagnosis (further noting that the present level of PTSD symptoms would contribute mildly to unemployability, while the non-service connected major depressive disorder and panic disorder would be a major contributor to his ability to maintain and secure employment). 

In a June 2013 VA mental examination report, the examiner again diagnosed PTSD, MDD and panic disorder; the Veteran reported the onset of these disabilities occurred in-service after being assaulted.  The examiner stated that it was not possible to differentiate what symptom(s) were attributable to each diagnosis, noting that the symptoms of PTSD, panic disorder and depression were "intertwined and overlapping such that separating each into a portion would be excessively speculative."  Notably, the Veteran described the in-service assault in detail, but refused to answer questions about his post-service relevant legal and behavioral history.  The examiner opined that PTSD, major depressive disorder, and panic disorder were at least as likely as not a result of the assaults described during Navy duty.  

In a March 2014 VA addendum opinion, the VA psychologist stated that the record should read that the Veteran's panic disorder and MDD "are not related to military service."  He opined: "The panic disorder and the major depressive disorder are related to post military stressors such as a trial for sexual abuse of his step-daughter, pleading to lewd acts, financial loss due to serious legal matters, and unemployabilty due to the result of the trial." 

In an April 2015 VA PTSD examination report, the examiner again diagnosed PTSD, depressive disorder, and panic disorder and attributed the following symptoms to PTSD: PTSD: difficulty in establishing and maintaining effective work and social relationships and chronic sleep impairment.  Depressive disorder and panic disorder symptoms included the following: anxiety; disturbance of motivation and mood; neglect of personal appearance and hygiene; panic attacks that occur weekly or less often; panic attacks that occur more than once a week; near continuous panic or depression; inability to establish and maintain effective relationships; impaired judgment; inability to establish and maintain effective relationships; difficulty in adapting to stressful circumstances including a work or worklike setting; and intermittent inability to perform activities of daily living.  The examiner further found that panic and depressive disorders resulted in total social and occupational functioning impairment, while PTSD resulted in occupation and social impairment with reduced productivity and reliability. 

The April 2015 VA also examiner provided the following opinion: 

I have reviewed the veteran's VBMS and Virtual VA file.  The Veteran was administered psychometric testing today to assist with indicators for validity and symptom severity for the PTSD, panic disorder and major depressive disorder.  The veteran had somewhat of a tendency toward exaggeration of symptoms, while at the same time somewhat of a level of reluctance to present information.  The testing, in light of the latter findings, is marginally valid.  The most prominent issue for this veteran is his panic disorder.  The veteran demonstrated a BR Score of 106 for anxiety, which is PROFOUND.  PTSD was with a BR Score of 79 that would be moderate in intensity.  Major depressive disorder would be severe with a BR score of 81.  This also corresponds to his BDI-II reporting of SEVERE rating for depression (see below).  The Veteran's symptom reporting for the PTSD on the PCL-M is 68 which would be moderate severe.  I remain in my opinion that the PTSD is entirely separate from the MDD and panic Disorder as was noted in prior examinations for C and P.  The Veteran was never diagnosed with PTSD until this had a delayed onset. The Veteran had gone years with diagnoses of GAD, panic disorder and or depression in the VA records.  I do not have panic disorder or MDD in service records. (Emphasis added). 

In this case, the Veteran primarily contends that his major depressive disorder and panic disorder are the result of an in-service assault.  

As noted above, STRs confirm that the Veteran was physically assaulted in 1992; however, there is no evidence of contemporaneous psychiatric symptomatology.  Rather, the evidence shows that he was treated for depressive symptoms in connection with recent marital problems in 1993.  He was ultimately diagnosed as having a personality disorder.  Notably, the separation examination did not document any psychiatric abnormalities.  

Nevertheless, as STRs confirm the in-service assault, and as the Veteran is competent to report his psychiatric symptoms associated with that assault, the Board finds that the in-service disease/injury requirement is met here. 

The record also reflects current psychiatric diagnoses, other than PTSD, to specifically include major depressive disorder and panic disorder. See 2012, 2013, 2014, and 2015 VA Mental Examinations.  Thus, the present disability requirement is met here.  

The remaining question for consideration here is whether the currently diagnosed psychiatric disorders, other than PTSD, are related to service.  

In this case, the only competent and probative medical opinions of record are against the claim for service connection.  In this regard, the April 2012, December 2012, January 2013, March 2014, and April 2015 examiner interviewed and examined the Veteran on numerous occasions; considered the STRs, the Veteran's accounts of the in-service assault, and post-service stressors; and concluded that PTSD was entirely separate (with separate symptomatology) and distinct from the diagnosed depressive disorder and panic disorder, and that it was more likely than not that panic disorder with agoraphobia and major depressive disorder were related to post-military stressors such as a trial for sexual abuse of his step-daughter, pleading to lewd acts, financial loss due to serious legal matters, and unemployabilty due to the result of the trial.  

The VA opinions, collectively, are considered highly probative as to the issue of nexus because they are unequivocal, based upon a complete review of the Veteran's claims file, and supported by rationale. See Nieves-Rodriguez, supra.  The April 2012 and March 2014 opinions, in particular, definitively attributed the Veteran's major depressive disorder and panic disorder to post-service stressor incidents.  Accordingly, the opinions are found to carry significant probative value.  The Veteran has not provided any competent medical evidence to rebut the opinions against the claim or otherwise diminish their probative weight. See Wray, supra.  

In so finding, the Board acknowledges that a January 2013 VA examiner found that depressive disorder and panic disorder were related to the in-service assault.  The Board affords little, if any, probative value to this opinion, however, as the examiner failed to address the Veteran's very significant post-service psychological stressors and the Veteran refused to answer questions pertaining to such stressors/issues at the time of the examination.  On the other hand, the April 2012, December 2012, January 2013, March 2014, and April 2015 VA examiner thoroughly considered all in-service and post-service stressor events and provided a detailed accounting of what symptoms were attributable to PTSD and what symptoms were attributable to panic disorder and major depressive disorder, as well as an explanation as to why panic disorder and major depressive disorder were separate and distinct psychiatric disorders from PTSD.  For these reasons, the Board finds that the probative value of the January 2013 is significantly outweighed by the more comprehensive and thorough April 2012, December 2012, January 2013, March 2014, and April 2015 VA opinions/examinations.  

The Board also acknowledges the Veteran's assertions that his panic disorder and depressive disorder stem from the in-service assault.  The Veteran is competent to report symptoms of depression and panic, which are within the realm of his personal experience; however, as a lay person, he is not competent to self-diagnose a psychiatric disorder for compensation purposes, namely because the diagnosis must conform to the DSM-IV or DSM-5. See 38 C.F.R. § 4.125 (2015); Jandreau, 492 F.3d at 1377, n. 4; Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014) ("PTSD is not the type of medical condition that lay evidence . . . is competent and sufficient to identify."). 

Moreover, an opinion as to the etiology of a psychiatric disorder is equally complex, especially where, as here, the Veteran has more than one psychiatric disorder with potentially overlapping symptomatology and all of the disorders were initially diagnosed several years after separation from service.  The Veteran has not shown that he is qualified through education, training, or experience to offer medical diagnoses on complex medical conditions.  Accordingly, he is not competent to self-diagnose a psychiatric disorder or offer an opinion as to its etiology and his opinion in this regard is of little probative value.

In summary, the competent evidence pertaining to the presence of a current psychiatric disorder other than PTSD are the VA examination reports documenting panic disorder with agoraphobia and major depressive disorder.  The only competent and probative evidence pertaining to the etiology of any psychiatric disorder other than PTSD are the April 2012, December 2012, January 2013, March 2014, and April 2015 VA opinions that MDD and panic disorder are due to post-service stressors.  No probative medical evidence has ever linked MDD or panic disorder to service or a service-connected disability. 

Even considering the lay assertions that MDD and panic disorder are related to service, the evidence simply does not suggest that it is at least as likely as not that the psychiatric disorders other than PTSD had onset in or are related to service or a service-connected disability.  Accordingly, the preponderance of the evidence is against the claim of service connection for a psychiatric disorder other than PTSD; there is no doubt to be resolved; and service connection is not warranted. See 38 U.S.C.A. § 5107 (b); 3.102.

III. Propriety of reductions - right and left knee strain and prepatellar tendonitis, reduced from 20 percent to 10 percent, effective August 1, 2014

At issue is the propriety of the RO's decision to reduce the Veteran's disability evaluations for his service-connected right and left knee disabilities from 20 percent to 10 percent, effective August 1, 2014. 

Prior to the reduction, the 20 percent ratings for right and left knee strain and prepatellar tendonitis was in effect for more than five years, from February 25, 2008, to August 1, 2014.  The reduction in rating, therefore, could not be effected without meeting the requirements of 38 C.F.R. § 3.344 (a) and (b). That is, the greater protections afforded to the Veteran under provisions of 38 C.F.R. § 3.344 (a) and (b) are applicable in the present case.

To properly reduce a disability rating, VA must meet both procedural and substantive benchmarks. 

Procedurally, where the reduction in the rating of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. 38 C.F.R. § 3.105 (e). 

In a February 2014 rating decision and notice letter dated the same month, the RO informed the Veteran of the proposal to reduce the disability ratings assigned for his service-connected right and left knee strain and prepatellar tendonitis, from 20 percent to 10 percent, which would reduce his combined evaluation for all service-connected disabilities from 60 percent to 50 percent.  The Veteran was given a period of 60 days after that letter to submit evidence showing that the disability rating should not be reduced.  The Veteran was also provided written notice of the final action.  The reduction was effectuated in an April 2014 rating decision and notice letter dated the same month, and the effective date of the reduction, August 1, 2014, was provided.

Therefore, the record indicates that the RO complied with the specific notice provisions applicable to rating reductions. See 38 C.F.R. § 3.105 (e). 

The Board must now consider whether the reduction in ratings was proper.  In cases such as this, where a rating has been in effect for five years or more, the rating agency must make reasonably certain that the improvement will be maintained under the conditions of ordinary life even if material improvement in the physical or mental condition is clearly reflected. Kitchens v. Brown, 7 Vet. App. 320 (1995).  A rating that has been in effect for five years or more may not be reduced on the basis of only one examination in cases where the disability is the result of a disease subject to periodic or episodic improvement. 38 C.F.R. § 3.344 (a)(2015).  The five year period is calculated from the effective date of the rating to the effective date of the reduction. Brown v. Brown, 5 Vet. App. 413 (1993).  If doubt remains, after according due consideration to all the evidence, the rating agency will continue the rating in effect. 38 C.F.R. § 3.344 (b) (2015). 

When an RO reduces a rating without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288 (1999).

The RO reduced the evaluation of the Veteran's left and right knee disabilities based on a November 2013 VA examination that found decreased flexion but no instability.  However, the February 2014 and April 2014 rating decisions, and July 2014 statement of the case show that the RO did not properly apply the provisions of 38 C.F.R. § 3.344, the primary regulation governing rating reductions.  Specifically, the RO did not address whether any demonstrated improvement in the Veteran's ability to function would be maintained under the ordinary conditions of life and work. 38 C.F.R. §§ 4.1, 4.2, 4.13 (2015); Brown, supra; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 

The Board emphasizes that failure to properly apply the provisions of 38 C.F.R. § 3.344 renders a rating reduction void ab initio.  Such an omission is error and not in accordance with the law. Greyzck v. West, 12 Vet. App. 288 (1999); Hayes v. Brown, 9 Vet. App. 67 (1996); Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). 

Accordingly, the reductions in rating of the left and right knee strain disabilities from 20 percent to 10 percent were not proper and is void ab initio.  Thus, the 20 percent rating must be restored effective August 1, 2014.  Because the outcome warranted in view of this procedural defect, the Board need not address, from an evidentiary standpoint, the actual merits of the reduction.


ORDER

New and material evidence having not been received, the claim for service connection for residuals of a head injury/TBI is not reopened.

New and material evidence having not been received, the claim for service connection for migraine headaches is not reopened.

New and material evidence having not been received, the claim for service connection for fainting spells/syncope is not reopened.

The claim of entitlement to an acquired psychiatric disorder, other than PTSD, to include panic disorder with agoraphobia and major depressive disorder is reopened.

The claim of entitlement to service connection for a hernia disability is reopened.

Entitlement to service connection for a hernia disability is denied.

Entitlement to service connection for a sleep disorder, diagnosed as sleep apnea, is denied.

Entitlement to service connection for an acquired psychiatric disorder, other than PTSD, to include panic disorder with agoraphobia and major depressive disorder is denied. 

The reduction in rating for right knee strain and prepatellar tendonitis, from 20 percent to 10 percent was not proper, and restoration of the 20 percent rating from August 1, 2014, is granted.

The reduction in rating for left knee strain and prepatellar tendonitis, from 20 percent to 10 percent was not proper, and restoration of the 20 percent rating from August 1, 2014, is granted.


REMAND

Increased Ratings for Knee Disabilities 

First, the Veteran was last provided a VA examination in connection with his service-connected bilateral knee disabilities in April 2015, which is fairly recent and contemporaneous in time.  Regardless, subsequent to the April 2015 VA knee examination, the Court in Correia v. McDonald, 28 Vet. App. 158 (2016) held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate.  In addition, as relevant to the present case, the Court stated in Correia that knees were "undoubtedly weight-bearing." Id.  A review of the claims file reveals that neither the April 2015 VA knee examination, nor the November 2013 VA knee examination, nor VA treatment records dated from 2012 to 2016 demonstrate range of motion testing for both knees in passive motion, weight-bearing, and nonweight-bearing situations. In short, these VA knee examinations were inadequate.  Thus, at present, none of the medical evidence of record fully satisfies the requirements of Correia and 38 C.F.R. § 4.59. 

As such, a new VA knee examination is necessary for the purpose of ascertaining the current severity and manifestations of the Veteran's service-connected bilateral knee disabilities.  In order to comply with the Correia case, it is requested that the VA examiner test the range of motion for both knees in active motion, passive motion, weight-bearing, and nonweight-bearing situations.

Lastly, as the appeal is already being remanded for new VA knee examinations per Correia, the Board notes that relevant VA treatment records were recently added to VBMS without a waiver of AOJ review (see 38 C.F.R. § 20.1304); significantly, these records also suggest that the Veteran's knee disabilities have worsened in severity since the last VA examination.  See, e.g., June 2016 VA Treatment Record (Veteran presented to the emergency room on two occasions in June 2016 with knee pain). See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). 

Increased Rating for PTSD

With respect to the Veteran's claim for a higher initial rating for PTSD, the evidence of record indicates that there are outstanding private and VA treatment records that are relevant to his claim.  Specifically, during his April 2015 VA PTSD examination, the Veteran reported that he has been receiving treatment from a private mental health provider, M.P., in Lincoln since January 2015.  Additionally, he reported that he had been treated at the Vet Center in Lincoln within the last six months.  To date, none of the aforementioned records have been associated with the electronic claims file.  Therefore, on remand, the VA should make reasonable efforts to obtain any outstanding VA and private treatment records concerning the Veteran's PTSD. See 38 U.S.C.A. § 5103A (b); 38 C.F.R. § 3.159 (c)(1).

TDIU 

As an initial matter, the Veteran meets the schedular requirements for TDIU as of April 2015. 38 C.F.R. § 4.16 (a).  

However, the Veteran's employment history is unclear from the record.  Specifically, the April 2015 and May 2015 VA examination reports reflect that the Veteran is currently employed (at least on a part-time basis) at "Casey's" in Lincoln, Nebraska.  

TDIU is not warranted when the Veteran is employed beyond marginal employment.  It is unclear from the record whether the Veteran's employment in 2015 was more than marginal.  As such, clarification should be obtained from the Veteran in this regard.

Accordingly, the case is REMANDED for the following action:

1. Updated treatment records should be obtained and added to the claims file.

2. Contact the Veteran, and, with his assistance, identify any outstanding records of medical treatment from VA or private health care providers that pertain to his PTSD, to specifically include private treatment records from M.P. in Lincoln, as well as treatment records from the Vet Center in Lincoln.  

Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159 (c) and obtain new VA Form 21-4142 releases if necessary.  If the VA attempts to obtain any outstanding records that are unavailable, the Veteran and his representative should be notified in accordance with 38 C.F.R. § 3.159 (e).

3. Send a letter to the Veteran requesting clarification of his employment status during the appeal period, including his employment at "Casey's" in 2015. 

4. After any additional records are associated with the claims file, the AOJ should secure the appropriate VA knee examination to ascertain the current severity and manifestations of the Veteran's service-connected bilateral knee disabilities.  Access to the VBMS and Virtual VA electronic claims files must be made available to the examiner for review.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.  The examination should include a statement as the effect of the Veteran's service-connected bilateral knee disabilities on the Veteran's occupational functioning and daily activities.  The VA examiner should provide a complete rationale for any opinions provided.

In particular, in order to comply with the Court's recent precedential decision in Correia v. McDonald, 28 Vet. App. 158 (2016), the VA knee examination must include range of motion testing for both knees in the following areas:

• Active motion;
• Passive motion;
• Weight-bearing; and
• Nonweight-bearing.

5. After completing the above development and any other action deemed necessary, adjudicate the claims.  If any benefit sought remains denied, provide the Veteran and his attorney a supplemental statement of the case after according the requisite time to respond.  The matter should then be returned to the Board for appropriate appellate review.

The appellant has the right to submit additional evidence and argument on the matter or 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 2014).



______________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs