Citation Nr: 18143932 Decision Date: 10/23/18 Archive Date: 10/22/18 DOCKET NO. 16-27 997 DATE: October 23, 2018 ORDER New and material evidence having been presented, the claim of entitlement to service connection for headaches is reopened. New and material evidence not having been presented, the petition to reopen the claim of entitlement to service connection for allergies is denied. New and material evidence not having been presented, the petition to reopen the claim of entitlement to service connection for hypertension is denied. Entitlement to service connection for headaches is granted. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to an evaluation in excess of 50 percent for the service-connected major depressive disorder is remanded. Entitlement to an evaluation in excess of 10 percent for the service-connected right knee disability is remanded. Entitlement to an evaluation in excess of 10 percent for the service-connected left knee disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s first claim of service connection for allergies with headaches was denied in a January 2002 rating decision that was not appealed; no further evidence relevant to this service connection claim was submitted for a period of one year following the January 2002 rating decision. 2. Evidence relevant to a claim of service connection for headaches submitted since the January 2002 rating decision was not previously considered by agency decision makers; is neither cumulative nor redundant of the evidence already of record; relates to unestablished facts; and raises a reasonable possibility of substantiating the Veteran’s claims for service connection for headaches. 3. No evidence relevant to a claim of service connection for allergies has been submitted since the January 2002 rating decision. 4. The Veteran’s first claim of service connection for hypertension was denied in a February 2011 rating decision that was not appealed; no further evidence relevant to this service connection claim was submitted for a period of one year following the February 2011 rating decision. 5. Evidence relevant to a claim of service connection for hypertension submitted since the February 2011 rating decision is cumulative or redundant of the evidence already of record that was previously considered by agency decision makers. 6. The competent evidence of record indicates the Veteran’s headaches are caused by the service-connected major depressive disorder. CONCLUSIONS OF LAW 1. New and material evidence has been received since the January 2002 denial became final; the criteria for reopening the previously denied claim for headaches have been met. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 2. No new and material evidence has been received since the January 2002 denial became final; the criteria for reopening the previously denied claim for allergies have not been met. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 3. No new and material evidence has been received since the February 2011 denial became final; the criteria for reopening the previously denied claim for hypertension have not been met. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 4. The criteria for establishing service connection for headaches have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Air Force from November 1998 to August 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). As an initial matter, the Board notes the Veteran’s claim of service connection for allergies with headaches was raised by his report in a November 2001 VA examination of having developed headaches due to allergies. The Veteran later applied for service connection for headaches. As a lay person, the Veteran lacks the medical knowledge to describe the universe of his claim; accordingly, the Board has recharacterized the claim of service connection for allergies with headaches as two separate claims for service connection for headaches and for allergies. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Further, the Board acknowledges that the Veteran contested the effective date of the award of the increased disability rating for service-connected major depressive disorder, as well as the effective date associated with the right and left knee disabilities, which were evaluated under different rating criteria but remained at the same compensation level. By nature of the relevant regulations, these effective date issues are part and parcel of the issues for increased evaluations, and have been combined with those issues. Finally, the Court has held that entitlement to TDIU is an element of all appeals of an increased evaluation when such claim is raised by the record or asserted by the Veteran. Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009). As the record reflects some evidence of unemployability, the Board will evaluate whether the Veteran is entitled to a TDIU as part of the appeal for increased evaluations of depression and the right and left knee disabilities. New and Material Evidence A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, or new and material evidence is received during the appeal period after the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. If a claim of entitlement to 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. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). The threshold is low and does not require new and material evidence regarding each element of the claim that had not been proved in the prior final decision. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New evidence is defined as existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). 1. Whether new and material evidence has been received to reopen claims for service connection for allergies and headaches The Veteran’s claim for allergies with headaches was raised in a November 2001 VA examination, when he reported that he developed headaches as a result of allergies. The RO denied service connection for that claim in a January 2002 rating decision based on a finding that there was no current diagnosis of allergies or headaches. The Veteran was notified of that decision in a January 2002 notice letter. The Veteran did not submit any additional evidence respecting the claim or a notice of disagreement with the decision within one year of that notice letter. As no timely notice of disagreement or new and material evidence was received during the appeal period following the January 2002 notice letter, the January 2002 rating decision became final. See 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.1103; Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). New and material evidence is therefore required to reopen the claims of service connection for allergies and headaches. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Since the January 2002 rating decision, evidence of recurrent headaches has been associated with the record, as the Veteran submitted a disability benefits questionnaire filled out by a private physician. Therefore, the Board finds that new and material evidence which tends to substantiate the Veteran’s claim of service connection for headaches has been received in this case, and that claim is reopened. See 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (medical evidence indicating a medical opinion is warranted is sufficient to reopen a claim). However, since the January 2002 rating decision, none of the evidence submitted addresses the claim of service connection for allergies. The Veteran’s VA treatment records do not reflect complaints of or treatment for environmental or seasonal allergies; there are also no prescriptions for medication to treat allergies. The Board further notes that, in an April 2009 progress note reviewing all systems, the Veteran reported no allergies or sinus problems. Accordingly, as no new evidence was submitted relevant to the claim for service connection for allergies, the petition to reopen the claim is denied. 2. Whether new and material evidence has been received to reopen a claim for service connection for hypertension The Veteran filed his initial hypertension claim in September 2009. The RO denied service connection for that claim in a February 2011 rating decision based on a finding that the diagnosed hypertension was more likely than not caused by a genetic predisposition to hypertension and poor diet rather than by his military service. The Veteran was notified of that decision in a March 2011 notice letter. The Veteran did not submit a notice of disagreement with the decision within one year of that notice letter, nor any additional evidence respecting the claim. As no timely notice of disagreement or new and material evidence was received during the appeal period following the March 2011 notice letter, the February 2011 rating decision became final. See 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.1103; Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). New and material evidence is therefore required to reopen the claim of service connection for hypertension. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Since the February 2011 rating decision, the only evidence relevant to this claim that has been associated with the record is VA treatment records. These records show the Veteran continues to be followed for hypertension and treated with medication. However, this evidence is redundant of the evidence in the record at the time of the February 2011 rating decision, as it only proves the Veteran is diagnosed with a current disability of hypertension, which was already established in the record at the time of the prior final denial. Therefore, the Board finds that new and material evidence which tends to substantiate the Veteran’s claim of service connection for hypertension has not been received in this case, and the petition to reopen the claim is denied. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also 38 C.F.R. § 3.303, Hickson v. West, 12 Vet. App. 247, 252-53 (1999). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Service connection on a secondary basis may not be granted without medical evidence of a current disability and medical evidence of a nexus between the current disability and a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512-14 (1998); see also Allen v. Brown, 7 Vet. App. 439, 488 (1995). 3. Entitlement to service connection for headaches In February 2017, the Veteran submitted a disability benefits questionnaire filled out by a private physician in December 2015. At this examination, the Veteran reported that his headaches began around 2007, and have become more frequent and severe over the years. The Veteran endorsed sensitivity to light and sound and pain on both sides of the head; he reported the headaches typically lasted 1-2 days and that prostrating headaches occurred at least once per month. The examiner opined that the headaches are caused by the Veteran’s service-connected depressive disorder. He noted the Veteran reported noticing headaches developing during episodes of depression. The examiner explained, citing a medical journal article, that patients with mental health problems are more likely to develop headaches because pain and mood are regulated by the same part of the brain. The Board finds this opinion to be probative, as it is based on the facts of the Veteran’s circumstances and is supported by medical research. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (probative value of a medical opinion is derived from it being factually accurate, fully articulated, and soundly reasoned). As there is medical evidence of a current disability of headaches and of a causal relationship between the headaches and the Veteran’s service-connected major depressive disorder, the Board finds that service connection for headaches on a secondary basis is appropriate. See 38 C.F.R. § 3.310. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. The Veteran filed a timely notice of disagreement in May 2015 in response to the February 2015 rating decision, contesting the decision made on the issue of service connection for sleep apnea. The RO did not then provide the Veteran with a statement of the case with respect to this issue. Therefore, a remand is required to issue a statement of the case. See Manlincon v. West, 12 Vet. App. 238 (1999). 2. Entitlement to an evaluation in excess of 50 percent for service-connected major depressive disorder is remanded. In February 2017, the Veteran submitted a private psychological examination performed in January 2016. This examiner described the Veteran’s major depressive disorder as having psychotic features, which had not previously been identified by the other examination reports of record. The examiner did not adequately describe which symptoms of the Veteran’s psychiatric disorder constituted psychotic features, such as the hallucinations and passive suicidal ideation the Veteran first reported on this examination, and whether these are a progression of the service-connected depressive disorder secondary to chronic knee pain. Accordingly, another examination is necessary to determine the current nature and severity of the service-connected major depressive disorder. 3. Entitlement to evaluations in excess of 10 percent for service-connected right and left knee disabilities is remanded. The Board notes the most recent VA knee examination took place in October 2014, and the most recent VA treatment records are dated in August 2013. At the time of the October 2014 VA examination, the Veteran reported that he was awaiting a consultation for a new orthopedic treatment provider. Thus, it appears there are more recent VA treatment records that are relevant to the claim on appeal. VA treatment records from the entirety of the appeal period are necessary to determine the severity of the Veteran’s right and left knee disabilities. VA treatment records, even if not in the claims file, are considered part of the record on appeal because they are within VA’s constructive possession. See 38 U.S.C. § 5103A (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). On remand, the RO should obtain updated VA records, as well as any other relevant VA treatment records identified by the Veteran, and associate them with the record. 4. Entitlement to a TDIU is remanded. The TDIU issue is intertwined with the above remanded issues and is also remanded at this time. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Issue a statement of the case with respect to the February 2015 rating decision and corresponding May 2015 notice of disagreement regarding the issue of service connection for sleep apnea. 2. Obtain all VA treatment records from the Fayetteville VA Medical Center, and/or any other VA medical facility that may have treated the Veteran, and associate those documents with the claims file. 3. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of the Veteran’s service-connected major depressive disorder associated with knee disabilities. (Continued on the next page)   The examiner should provide a full description of the disorder and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to the service-connected depressive disorder alone. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Josey, Associate Counsel