Citation Nr: 1800731 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 17-22 276A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Whether new and material evidence has been submitted sufficient to reopen the claim of entitlement to service connection for a left ankle disability. 2. Whether new and material evidence has been submitted sufficient to reopen the claim of entitlement to service connection for a right knee disability. 3. Whether new and material evidence has been submitted sufficient to reopen the claim of entitlement to service connection for a low back disability. 4. Whether new and material evidence has been submitted sufficient to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 5. Whether new and material evidence has been submitted sufficient to reopen the claim of entitlement to service connection for headaches. 6. Entitlement to service connection for a right knee disability. 7. Entitlement to service connection for a low back disability, to include as secondary to a right knee disability. 8. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD. 9. Entitlement to service connection for headaches, to include as secondary to PTSD. 10. Entitlement to a compensable evaluation for pseudofolliculitis barbae. 11. Entitlement to a total rating based on individual unemployability (TDIU) due to the service-connected disabilities. REPRESENTATION Veteran represented by: Jan Dils, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. R. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from October 2003 to September 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2017, the Veteran testified at a videoconference hearing held at the RO before the undersigned. A transcript of the proceeding has been associated with the record. The Board notes that the Veteran has an array of mental health diagnoses of record. Hence, the appeal has been characterized more broadly to encompass any acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issues of entitlement to service connection for a right knee disability, a low back disability, an acquired psychiatric disorder, to include PTSD, and headaches; and entitlement to a TDIU, 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 September 2017 letter, the Veteran and his representative withdrew his appeal pertaining to the claims of whether new and material evidence has been submitted sufficient to reopen the claim of entitlement to service connection for a left ankle disability and entitlement to a compensable evaluation for pseudofolliculitis barbae. 2. An April 2009 RO rating decision denied the claims of service connection for right knee disability, low back disability, PTSD, and headaches; the Veteran was notified of the decision and apprised of his right to appeal, but he did not appeal in a timely fashion or submit new and material evidence within one year of the notice of decision. 3. The evidence received since the April 2009 RO rating decision is neither cumulative nor repetitive of facts that were previously considered. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal pertaining to the claim of whether new and material evidence has been submitted sufficient to reopen the claim of entitlement to service connection for a left ankle disability have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for withdrawal of the appeal pertaining to the claim of entitlement to a compensable evaluation for pseudofolliculitis barbae have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 3. The April 2009 rating decision that denied service connection for a right knee disability, low back disability, PTSD, and headaches is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.201, 20.302, 20.1103 (2017). 4. The evidence received since the April 2009 rating decision is new and material for the purpose of reopening the claim of service connection for a right knee disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 5. The evidence received since the April 2009 rating decision is new and material for the purpose of reopening the claim of service connection for a low back disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 6. The evidence received since the April 2009 rating decision is new and material for the purpose of reopening the claim of service connection for PTSD. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 7. The evidence received since the April 2009 rating decision is new and material for the purpose of reopening the claim of service connection for headaches. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawal 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. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. In a September 2017 letter, the Veteran and his representative withdrew his appeal pertaining to the claims of whether new and material evidence has been submitted sufficient to reopen the claim of entitlement to service connection for a left ankle disability and entitlement to a compensable evaluation for pseudofolliculitis barbae. Hence, there remain no allegations of errors of fact or law for appellate consideration on these issues. Accordingly, the Board does not have jurisdiction to review the issues, and they are dismissed. II. New and Material Evidence The Veteran seeks service connection for a right knee disability, low back disability, acquired psychiatric disorder, and headaches. These claims for service connection were previously considered and denied by the RO in an April 2009 rating decision. The Veteran did not appeal the decision and it became final. 38 C.F.R. § 20.1103. A review of the claims file reflects that the Veteran did not submit any additional evidence within one year of the rating decision. See 38 C.F.R. § 3.156(b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009). As such, the Veteran's claims may be reopened only if new and material evidence has been secured or presented since the last final rating decision. 38 U.S.C. § 7105. As general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156, 20.1105. Under 38 C.F.R. § 3.156(a), new evidence means evidence not previously submitted to agency decision makers. 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. 38 C.F.R. § 3.156(a). 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. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, the veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. Id. at 120 (noting the assistance of 38 C.F.R. § 3.159(c)(4) would be rendered meaningless if new and material evidence required a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). At the time of the prior decision, the record included the claim, the service records, and VA treatment records. In essence, at the time of the prior decision, there was no accepted evidence of an in-service stressor or an in-service disease or injury. The evidence received since the April 2009 rating decision includes evidence that is both new and material to the claims. See 38 C.F.R. § 3.156. The Veteran testified that his right knee and low back disabilities were caused by "wear and tear" sustained in service and by being struck by a car. He also testified that he his PTSD was a result of witnessing a car bombing while he was stationed in Iraq. With regard to headaches, the Veteran testified that he had experienced headaches since service that were caused by his PTSD. This new evidence addresses the reasons for the previous denials. The credibility of this evidence is presumed for purposes of reopening these claims. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claims are reopened. ORDER The claim of whether new and material evidence has been submitted sufficient to reopen the claim of entitlement to service connection for a left ankle disability is dismissed. The claim of entitlement to a compensable evaluation for pseudofolliculitis barbae is dismissed. The application to reopen the claim for service connection for right knee disability is granted. The application to reopen the claim for service connection for a low back disability is granted. The application to reopen the claim for service connection for an acquired psychiatric disorder, to include PTSD, is granted. The application to reopen the claim for service connection for headaches is granted. REMAND In August 2017, the Veteran's attorney submitted a compact disc with medical records from the Social Security Administration (SSA) totaling 2,097 pages. The compact disc was damaged and unable to be associated with the record. A remand is necessary obtain the Veteran's outstanding SSA records. In September 2017, the Veteran testified that his low back and right knee disabilities began in service - specifically, due to "wear and tear" and being struck by a vehicle. The Veteran stated that he lost consciousness after being struck by a car. He indicated that he had received treatment for these disabilities since his separation from active service. April 2006 private treatment records indicate that the Veteran was treated for a lumbosacral spine strain, a right knee injury, and headaches. In May 2017, the Veteran was afforded a VA examination to determine the nature and etiology of his claimed right knee and lower back disability. The VA examiner opined that it was less likely than not that the Veteran's back disability and right knee disability were incurred in or caused by service. With regard to the Veteran's back disability, she elaborated that the disability was only acute and there was no evidence of chronicity of care. She indicated that the Veteran's service treatment records were silent regarding treatment for a knee disability. The Board finds that these opinions are inadequate as they do not address the Veteran's contentions that his low back and right knee disabilities - specifically, due to "wear and tear" and being struck by a vehicle in service. Additionally, the Veteran's service treatment records confirm that he was struck by a car and experienced pain to his leg, back, and dizziness after the accident. Furthermore, the VA examiner indicated that there was no chronicity of care, but did not address the April 2006 private treatment records. Therefore, a remand is necessary to obtain addendum VA medical opinions that address the etiology of the Veteran's right knee and back disabilities. The Veteran underwent VA examinations to determine the nature and etiology of his headaches in January 2016 and May 2017. Both examiners indicated that the Veteran did not have a diagnosed headache condition. However, they did not address the Veteran's VA treatment records that list headaches in his problem list. The Veteran testified that his headaches were caused by sleep disturbance attributable to his PTSD. The Board finds that a remand is necessary to obtain an addendum VA medical opinion to reconcile the conflicting evidence of record regarding the nature and etiology of the Veteran's claimed headache disorder. VA treatment records indicate that the Veteran was diagnosed with PTSD in June 2006. The Veteran was also recently hospitalized by VA for major depressive disorder. In May 2014, the Veteran wrote that a car bomb exploded outside the front gate while he was on guard duty. He saw people badly injured and killed in the incident. The AOJ has not verified the Veteran's claimed stressor. In July 2017, J.A., a private licensed clinical psychologist, opined that it was at least as likely as not that the Veteran's PTSD was incurred in service. He elaborated that the Veteran's PTSD was the direct result of traumatic events while on active duty in Iraq during a time of conflict. To the extent that this opinion related the Veteran's PTSD to his "fear of hostile military or terrorist activity," J.A. is a private mental health professional and not a VA or VA-contracted psychiatrist or psychologist, as specifically required pursuant to 38 C.F.R. § 3.304(f)(3) (2017). A remand is necessary to confirm the Veteran's stressor and to afford him a VA examination to determine the nature and etiology of his PTSD. The Board notes that the Veteran is homeless. If the AOJ is unable to schedule the Veteran for a VA examination, a VA medical opinion should be obtained. The claim of entitlement to a TDIU is intertwined with the aforementioned service connection claims. If a service connection claim is granted, this could entitle the Veteran to a TDIU. Thus, adjudication of the TDIU claim must be deferred until the remand development is completed for the service connection claims. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain the Veteran's SSA records and associate them with the claims file. 2. Prior to any examination, undertake the appropriate development to verify the Veteran's claimed PTSD stressor. In May 2014, the Veteran wrote that a car bomb exploded outside the front gate while he was on guard duty. He saw people badly injured and killed in the incident. 3. Refer the Veteran's VA claims file to the VA examiner who conducted the May 2017 VA examination, or if unavailable, another suitably qualified VA medical professional, for supplemental opinions as to the etiology of the Veteran's right knee and back disabilities. If, after review of the claims file, the examiner determines that another VA examination(s) is necessary, such must be scheduled and the Veteran must be notified. With respect to the right knee disability and back disability, the examiner is asked to address: Whether it is at least as likely as not (a 50 percent probability or greater) that the disorder began in service, was caused by service, or is otherwise related to service. If the examiner finds that it is at least as likely as not that the Veteran's right knee disability was incurred in service, but that his back disability was not, then he or she must provide an opinion regarding whether it is at least as likely as not that the Veteran's back disability is caused or aggravated beyond its natural progression by the Veteran's right knee disability. In making these determinations, the examiner must specifically consider and address the Veteran's Board hearing testimony, his contentions that his low back and right knee disabilities are due to "wear and tear" and being struck by a vehicle while he was in service, and 2006 private treatment records indicating treatment for lumbosacral spine strain and a right knee injury. A complete rationale must be provided for any opinion offered. 4. Refer the Veteran's VA claims file to the VA examiner who conducted the May 2017 VA examination, or if unavailable, another suitably qualified VA medical professional, for a supplemental opinion as to the nature and etiology of the Veteran's headache disability. If, after review of the claims file, the examiner determines that another VA examination is necessary, such must be scheduled and the Veteran must be notified. The examiner is asked to address: Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's headache disorder began in service, was caused by service, or is otherwise related to service. If the examiner finds that it is not at least as likely as not that the Veteran's headache was incurred in service, then he or she must provide an opinion regarding whether it is at least as likely as not that the Veteran's headaches are caused or aggravated beyond their natural progression by the Veteran's PTSD. In making these determinations, the examiner must specifically consider and address the Veteran's Board hearing testimony and the VA treatment records that list headaches in the Veteran's problem list. 5. Schedule the Veteran for a VA psychiatric examination with a VA or contract psychiatrist or doctoral level psychologist to determine the nature and etiology of his acquired psychiatric disorder, to include PTSD. If the AOJ is unable to schedule the Veteran for a VA examination, a VA medical opinion should be obtained. a) Determine whether the Veteran meets the criteria for a diagnosis of PTSD. If he does, the examiner must provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran's PTSD is based on an in-service stressor(s). The requested opinion should take into consideration all relevant evidence from the Veteran's claim file including relevant treatment records. The examiner should address the Veteran's May 2014 stressor statement. b) Offer an opinion, consistent with sound medical principles and in consideration of the Veteran's specific contentions, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that any non-PTSD psychiatric disorder, to include major depressive disorder, had its onset in service or is related to service. An opinion should be rendered for each psychiatric disorder with which the Veteran is diagnosed. The examiner is asked to provide a rationale for the opinions rendered. If the examiner is unable to provide a rationale, he or she should explain why. 6. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. §§ 5109B, 7112 (2012). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs