Citation Nr: 18143712 Decision Date: 10/22/18 Archive Date: 10/19/18 DOCKET NO. 14-34 124 DATE: October 22, 2018 ORDER The issue of entitlement to an initial disability rating in excess of 10 percent for tinnitus is dismissed. No new and material evidence having been received, the petition to reopen the service connection claim for pneumothorax is denied. REMANDED The issue of entitlement to service connection for a right knee disability is remanded. The issue of entitlement to service connection for a right eye disability is remanded. The issue of entitlement to an initial disability rating in excess of 70 percent for post-traumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. During a June 2018 travel Board hearing, the Veteran expressed a desire to withdraw his claim for an initial disability rating in excess of 10 percent for tinnitus. 2. Although new lay and medical evidence has been received since the final February 2009 rating decision denying service connection for pneumothorax, they do not raise a reasonable possibility of substantiating the claim because they do not contain competent evidence relating to the previously unestablished current disability element. CONCLUSIONS OF LAW 1. The criteria for withdrawal from appeal of the Veteran’s claim for an initial disability rating in excess of 10 percent for tinnitus have been met. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 20.204. 2. The February 2009 rating decision denying the Veteran’s service connection claim for pneumothorax is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 3. Following the February 2009 rating decision, no new and material evidence has been received to reopen the service connection claim for pneumothorax. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2004 to December 2008. 1. The issue of entitlement to an initial disability rating in excess of 10 percent for tinnitus. During a June 2018 travel Board hearing, the Veteran expressed a desire to withdraw his claim for an initial disability rating in excess of 10 percent for tinnitus. June 2018 Board Hearing Transcript at 2. An appeal may be withdrawn by the veteran or an authorized representative as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. §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. Further, the Board may dismiss any appeal that fails to allege a specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105(d)(5). As the Veteran has withdrawn the appeal of his claim for an initial disability rating in excess of 10 percent for tinnitus, there is no allegation of error of fact or law remaining for the Board to adjudicate. 2. Whether new and material evidence has been received to reopen the service connection claim for pneumothorax. The Veteran first initiated a service connection claim for pneumothorax in October 2008. October 2008 Veteran’s Application for Compensation and/or Pension. In a February 2009 rating decision, the Regional Office (RO) denied the claim, finding there was insufficient evidence of a current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). He did not initiate an appeal of this decision and it became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Thereafter, in February 2012, the Veteran filed a service connection claim for a “[left] lung” condition. February 2012 Fully Developed Claim. In a July 2012 rating decision, the RO recharacterized the claim as a service connection claim for pneumothorax. Even so, the RO did not adjudicate the issue of whether new and material evidence had been received to reopen the prior service connection claim for pneumothorax. Cf. 38 C.F.R. § 3.156(a). Instead, the RO adjudicated the issue on the merits, finding there remained insufficient evidence of a current disability. See Shedden, supra. He appealed this decision and it is now before the Board. Irrespective of the RO’s determination, the Board must independently assess whether new and material evidence has in fact been submitted in order to assume jurisdiction over the merits of this claim. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366, 1369-70 (Fed. Cir. 2001). Generally, “new” evidence is defined as existing evidence not previously submitted to agency decisions makers, while “material” evidence is defined as 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). The evidence must not be cumulative or redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. Id. Since the February 2009 rating decision, new lay and medical evidence has been associated with the claims file. In terms of lay evidence, letters from the Veteran were received in May 2013, August 2014 and June 2018. Additionally, he testified during a June 2018 travel Board hearing. June 2018 Board Hearing Transcript. In his letters and during the travel Board hearing, he continued to report suffering pain in his chest with cold weather, which he attributed to his left pneumothorax in service. This assertion is both cumulative and redundant of his prior complaint of chest tightness with temperatures below 40 degrees fahrenheit. See January 2009 VA Examination Report. Moreover, he is not competent to diagnose pneumothorax or the residuals thereof. Cf. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007); cf. also Jones v. West, 12 Vet. App. 460, 465 (1999). With respect to the medical evidence, new VA treatment records as well as a March 2012 Respiratory VA Examination Report have been associated with the claims file. However, none of these medical records contain a current diagnosis of pneumothorax or residuals thereof. Considering the above, the new lay and medical evidence is not material because there is no competent evidence of record diagnosing or suggesting the Veteran has a current diagnosis of pneumothorax or the residuals thereof. As a result, they do not raise a reasonable possible possibility of substantiating the service connection claim for pneumothorax. 38 C.F.R. § 3.156(a); see also Shade v. Shinseki, 24 Vet. App. 110 (2010). REASONS FOR REMAND 1. The issue of entitlement to service connection for a right knee disability is remanded. In furtherance of this claim, the Veteran underwent a VA examination in March 2013. March 2013 Knee and Lower Leg Conditions VA Examination Report. Upon examination, the VA examiner diagnosed him with right knee strain. Nevertheless, the VA examiner rendered a negative nexus opinion, finding that he was unable to determine exactly what his right knee condition was in service due to the lack of medical documentation in service. In doing so, the VA examiner did not consider his lay statements attributing his current right knee condition to his duties in service while deployed to Iraq. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (2006). Further, the VA examiner did not have an opportunity to consider his lay statements in subsequent May 2013 and June 2018 letters or testimony during a June 2018 travel Board hearing. May 2013 Letter from the Veteran; June 2018 Board Hearing Transcript at 11-14. Consequently, a remand is necessary for another VA examination. 2. The issue of entitlement to service connection for a right eye disability is remanded. A review of the medical evidence of record shows the Veteran has been diagnosed with various eye conditions, to include refractive error, astigmatism, papillary/allergic conjunctivitis and corneal opacity of the right eye. See April 2012 VA Optometry Consult; October 2013 VA Eye Evaluation Management Note. Although refractive error and astigmatism are congenital or developmental defects of the eye, which are not eligible for service connection, his diagnoses of papillary/allergic conjunctivitis and corneal opacity are not. 38 C.F.R. § 3.303(c) (2017). He contends these diagnoses stem from his exposure to environmental hazards during his service. See May 2013 Letter from the Veteran; August 2014 Letter from the Veteran; June 2018 Letter from the Veteran. Despite, the foregoing, he has yet to be afforded a VA examination. As the McLendon elements necessitating an examination have been met, a remand is necessary to obtain one. McLendon v. Nicholson, 20 Vet. App. 79 (2006). As another matter, the Veteran testified during the June 2018 travel Board hearing that he received treatment for a right eye condition while serving in the Army Reserves in 2009 or 2010. June 2018 Board Hearing Transcript at 18. A review of the claims file is negative for any service personnel or service treatment records associated with his Army Reserves service. Thus, a remand is also necessary in order to obtain these records. 3. The issue of entitlement to an initial disability rating in excess of 70 percent for PTSD is remanded. A review of the claims file reveals the Veteran’s VA treatment records associated with the claims file end in June 2017. However, during an August 2017 VA examination, the VA examiner observed he continued to receive psychiatric treatment through the VA. August 2017 PTSD VA Examination Report. In fact, the VA examiner noted his last appointment was in July 2017. Further, the Board notes there are no VA treatment records from 2014 or confirmation that such records do not exist. The matters are REMANDED for the following action: 1. Obtain all relevant, outstanding VA treatment records, to include those from the entire 2014 calendar year and from June 2017 to the present. 2. Obtain all service personnel and treatment records associated with the Veteran’s service in the United States Army Reserves from the appropriate agency(ies). 3. Once the first two requests have been completed, to the extent possible, schedule the Veteran for an examination with an appropriate medical professional to determine the nature and etiology of his claimed right knee disability. After reviewing the claims file, the examiner should: (a.) Identify all current and prior diagnoses of a right knee condition, to include patella alta, patellar tendonitis and knee strain. (b.) Reconcile all prior diagnoses of a right knee condition with the current findings. If a prior diagnosis cannot be reconciled with the current findings, explain why. (c.) As to each current diagnosis and any prior diagnosis that cannot be reconciled with the current findings, opine was to whether it is at least as likely as not (50 percent probability or greater) caused by or is otherwise related to the Veteran’s active duty service, to include the rigors of his duties transporting detainees while deployed to Iraq, and explain why. (d.) In rendering an opinion, the examiner should consider an October 2012 VA Orthopedic Surgery Attending Note documenting an assessment of right knee pain and patellar tendonitis; April 2013 VA Internal Medicine Outpatient Note documenting an assessment of right knee pain and possible patella alta. (e.) In rendering an opinion, the examiner should consider and weigh the Veteran’s relevant lay statements of record, to include his May 2013 and June 2018 letters and his testimony during the June 2018 travel Board hearing. 4. Once the first two requests have been completed, to the extent possible, schedule the Veteran for an examination with an appropriate medical professional to determine the nature and etiology of his claimed right eye disability. After reviewing the claims file, the examiner should: (a.) Identify all current and prior diagnoses of a right eye condition, to include papillary/allergic conjunctivitis and corneal opacity, and indicate whether any of these diagnoses are congenital or developmental defects. (b.) Reconcile all prior diagnoses of a right eye condition with the current findings. If a prior diagnosis cannot be reconciled with the current findings, explain why. (c.) As to each current diagnosis and any prior diagnosis that cannot be reconciled with the current findings, which are not congenital or developmental defects, opine was to whether it is at least as likely as not (50 percent probability or greater) caused by or is otherwise related to the Veteran’s active duty service, to include his exposure to environmental hazards in service, and explain why. (d.) In rendering an opinion, the examiner should consider an April 2012 VA Optometry Consult documenting an assessment of old corneal opacity of the right eye and refractive error/presbyopia and October 2013 VA Eye Evaluation and Management Note documenting an assessment of bilateral blurred vision secondary to myopia, bilateral astigmatism and bilateral mild to moderate papillary/allergic conjunctivitis. (e.) In rendering an opinion, the examiner should consider and weigh the Veteran’s relevant lay statements of record, to include to include his May 2013, August 2014 and June 2018 letters and his testimony during the June 2018 travel Board hearing. 5. Once the above requests have been completed, to the extent possible, readjudicate the appeal. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Suh, Associate Counsel