Citation Nr: 18145893 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 09-44 899 DATE: October 30, 2018 ORDER The application to reopen the claim for service connection for a back condition is denied. The application to reopen the claim for service connection for patellofemoral syndrome of the right knee is denied. The application to reopen the claim for service connection for patellofemoral syndrome of the left knee is denied. The application to reopen the claim for service connection for a psychiatric condition is granted. The application to reopen the claim for service connection for a respiratory condition to include sleep apnea is granted. The application to reopen the claim for service connection for hypertension is granted. REMANDED Whether new and material evidence has been received to reopen the claim for entitlement to service connection for erectile dysfunction to include as secondary o an acquired psychiatric disorder is remanded. Entitlement to service connection for an acquired psychiatric disorder to include as secondary to service-connected disease or injury is remanded. Entitlement to service connection for a respiratory disorder to include sleep apnea is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for bilateral pes planus is remanded. Entitlement to service connection for temporomandibular joint (TMJ) disorder is remanded. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. In a February 1995 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for a back condition; the Veteran did not complete an appeal of this rating decision. In an unappealed August 2005 rating decision, the RO continued the denial of the previously denied back condition claim. 2. Evidence submitted since the August 2005 rating decision is cumulative or redundant of the evidence of record at the time of the prior final denial of the back condition claim. 3. In an unappealed September 2005 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for patellofemoral syndrome of the right knee. 4. Evidence submitted since the September 2005 rating decision is cumulative or redundant of the evidence of record at the time of the prior final denial of the patellofemoral syndrome of the right knee claim. 5. In an unappealed September 2005 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for patellofemoral syndrome of the left knee. 6. Evidence submitted since the September 2005 rating decision is cumulative or redundant of the evidence of record at the time of the prior final denial of the patellofemoral syndrome of the left knee claim. 7. In an unappealed August 2005 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for a psychiatric condition. 8. The evidence received since the August 2005 rating decision, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for a psychiatric condition. 9. In an unappealed August 2005 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for hypertension. 10. The evidence received since the August 2005 rating decision, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for hypertension. 11. In an unappealed August 2005 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for a respiratory condition. 12. The evidence received since the August 2005 rating decision, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for a respiratory condition. CONCLUSIONS OF LAW 1. The August 2005 rating decision denying the reopening of service connection for a back condition is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. Since the August 2005 rating decision, new and material evidence has not been received, and the claim of entitlement to service connection for a back condition is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The September 2005 rating decision denying the reopening of service connection for patellofemoral syndrome of the right knee is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 4. Since the September 2005 rating decision, new and material evidence has not been received, and the claim of entitlement to service connection for patellofemoral syndrome of the right knee is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 5. The September 2005 rating decision denying the reopening of service connection for patellofemoral syndrome of the left knee is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 6. Since the September 2005 rating decision, new and material evidence has not been received, and the claim of entitlement to service connection for patellofemoral syndrome of the left knee is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 7. The August 2005 rating decision denying service connection for hypertension is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 8. Since the August 2005 rating decision, new and material evidence has been received with respect to the Veteran’s claim of entitlement to service connection for hypertension; therefore, the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 9. The August 2005 rating decision denying service connection for a respiratory condition is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 10. Since the August 2005 rating decision, new and material evidence has been received with respect to the Veteran’s claim of entitlement to service connection for a respiratory condition; therefore, the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 11. The August 2005 rating decision denying service connection for a psychiatric condition is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 12. Since the August 2005 rating decision, new and material evidence has been received with respect to the Veteran’s claim of entitlement to service connection for a psychiatric condition; therefore, the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had a period of active duty for training (ACDUTRA) from October 1974 to February 1975 as well as a period of active service from July 1978 to February 1980. These matters come to the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board hearing held via videoconference; a transcript of that hearing is of record. During the April 2018 Board hearing, the VLJ clarified the issues on appeal; clarified the concept of new and material evidence, service connection, and TDIU claims; identified potential evidentiary defects which included evidence of a nexus between the Veteran’s current disabilities on appeal and his service as well as the effect of the Veteran’s service-connected disabilities on his employment; clarified the type of evidence that would support the Veteran’s claim; enquired as to the existence of potential outstanding records; and held the record open for 60 days to allow for the submission of additional evidence. Thus, the actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing set forth in 38 C.F.R. § 3.103. The Veteran was also afforded hearings before RO personnel in December 2008 and June 2015; transcripts of those hearings are of record. Service Connection Pertinent legal criteria Veterans are entitled to compensation from VA if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran must show: “(1) the existence of a present disability; (2) 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”-the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). For certain chronic disorders, including arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. 3.303(b). The Board notes that the Veteran has not claimed that his disabilities on appeal are the result of combat with the enemy. Therefore, the combat provisions of 38 U.S.C. § 1154 (2012) are not for consideration. In general, Board decisions and rating decisions that are not timely appealed are final. See 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 20.1100, 20.1103 (2017). Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured to that claim. “New” evidence means evidence not previously submitted to the agency decision-maker. “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 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. See 38 C.F.R. § 3.156(a) (2017). The threshold for determining if there is new and material evidence is low. See Shade v. Shinseki, 24 Vet. App. 110 (2010). In the determination of whether new and material evidence has been received, the credibility of the evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The VA is not, however, bound to consider credible that which is the patently incredible. See Duran v. Brown, 7 Vet. App. 216 (1994). Back condition In the February 1995 rating decision, the RO denied service connection for a back condition on the basis that there was no evidence of a current back disability that was incurred during service or was related to any injury that may have occurred in service. Although the Veteran submitted a timely notice of disagreement to the rating decision, he did not complete his appeal with the filing of a timely substantive appeal following the issuance of a statement of the case dated April 1995. The February 1995 decision therefore became final. The Veteran thereafter filed a claim to reopen his previously denied back condition claim in August 2002. The RO continued the denial of the claim in an August 2005 rating decision on the basis that new and material evidence was not submitted to reopen the previously denied claim. The Veteran did not appeal the August 2005 rating decision and new and material evidence was not submitted within one year of the rating decision. The decision therefore became final. At the time of the prior final rating decision in August 2005, the record included the Veteran’s statements, the Veteran’s service treatment records, a VA examination dated December 1994, and postservice VA and private treatment records. The service treatment records documented the Veteran’s treatment for back pain in February 1979 which the Veteran reported for the past four months. He reported recurrent back pain on his January 1980 report of medical history. Moreover, the Veteran submitted statements indicating that his back pain in service was from an injury to his back when he fell. See, e.g., a statement from the Veteran dated August 2002. The December 1994 VA examination documented the Veteran’s report of injury from falling in service and injuring his back and that he has had back pain since that injury. The VA examiner noted an impression of chronic low back pain. A private X-ray report dated August 2002 noted impression of mild mid-lumbar spondylosis. In April 2007, the Veteran applied to reopen his claim of entitlement to service connection for a back condition. In order to reopen the previously denied claim, the evidence submitted since the last final denial (August 2005) must be new and material. After a thorough review of the entire record the Board concludes that new and material evidence sufficient to reopen the claim of entitlement to service connection for a back condition has not been submitted. In the present case, an unestablished fact is whether the Veteran has a back condition that was incurred in or aggravated by service. Such evidence has not been associated with the claims folder. Although the Board notes that the Veteran was provided a VA examination for his back condition in January 2009, the VA examiner could not provide an opinion without resort to speculation as to whether the Veteran has a back condition that was incurred in or aggravated by service. As the opinion was speculative in nature, the Board finds that the opinion is of no probative value in evaluation of the Veteran’s claim and is not new and material evidence. Furthermore, with regard to recent statements from the Veteran to the extent that he has a back condition that is related to service, to include injury to his back, such evidence is cumulative and redundant of similar statements made prior to the August 2005 rating decision. Accordingly, such statements are not new. See Reid v. Derwinski, 2 Vet. App. 312, 315 (1992). In short, there is no competent evidence that the Veteran has a back condition that was incurred in or aggravated by service. Moreover, the requirement which was missing at the time of the August 2005 denial of service connection remains lacking. New and material evidence has not been received, and the Veteran’s claim of entitlement to service connection for a back condition may not be reopened. The benefit sought on appeal remains denied. Patellofemoral syndrome of the right and left knees The RO denied service connection for patellofemoral syndrome of the right and left knees in a September 2005 rating decision on the basis that the evidence did not show that a chronic knee condition began during service or was aggravated during service. The Veteran did not appeal the denial of the knee condition claims in the September 2005 rating decision and new and material evidence was not associated with the claims folder within one year of the rating decision. The decision therefore became final. At the time of the prior final rating decision in September 2005, the record in pertinent part included the Veteran’s service treatment records, the Veteran’s statements, postservice medical treatment records, and a VA examination report dated September 2005 for the Veteran’s knees. On his January 1980 service report of medical history, the Veteran reported swollen or painful joints and cramps in the legs. The September 2005 VA examination noted an X-ray report of patellofemoral spurring, and the examiner diagnosed the Veteran with bilateral patellofemoral knee pain. An April 2004 X-ray of the knees revealed impression of very early degenerative disease in bilateral patellofemoral joint. The Veteran also reported in a February 2004 statement that he had an injury during service from playing basketball. As the September 2005 rating decision is final, new and material evidence is therefore required to reopen the claims. In April 2007, the Veteran applied to reopen his claim of entitlement to service connection for his right and left knee conditions. In order to reopen the previously denied claims, the evidence submitted since the last final denial (September 2005) must be new and material. After a thorough review of the entire record the Board concludes that new and material evidence sufficient to reopen the claims of entitlement to service connection for patellofemoral syndrome of the right and left knees has not been submitted. In the present case, the unestablished fact is whether the Veteran has patellofemoral syndrome of the right and/or left knees that was incurred in or aggravated by service. Such evidence has not been associated with the claims folder. Although the Board notes that medical evidence continues to document osteoarthritis of the Veteran’s knees, as indicated above, such evidence was of record prior to the September 2005 rating decision. Moreover, the Board notes the Veteran’s current statement regarding injury in service from playing basketball. See, e.g., the April 2018 Board hearing transcript, page 12. However, his statements regarding injury from playing basketball were also of record prior to the September 2005 rating decision. Indeed, with regard to recent statements from the Veteran to the extent that he has a right or left knee condition that is related to service, such evidence is cumulative and redundant of similar statements made prior to the September 2005 rating decision. Accordingly, such statements are not new. See Reid, supra. In short, there is no competent evidence that the Veteran has patellofemoral syndrome of the right and/or left knees that was incurred in or aggravated by service. Moreover, the requirement which was missing at the time of the September 2005 denials of service connection remains lacking. New and material evidence has not been received, and the Veteran’s claims of entitlement to service connection for patellofemoral syndrome of the right and left knees may not be reopened. The benefits sought on appeal remain denied. Hypertension, respiratory condition, and psychiatric condition The RO denied service connection for hypertension, a respiratory condition to include sleep apnea, and a psychiatric condition in an August 2005 rating decision because there was no evidence of a current hypertension, respiratory condition, or psychiatric condition related to his service. The Veteran did not appeal the August 2005 rating decision and new and material evidence was not associated with the claims folder within one year of the rating decision. The decision therefore became final. At the time of the prior final rating decision in August 2005, the record in pertinent part included the Veteran’s service treatment records, the Veteran’s statements, and postservice medical treatment records. The Veteran’s service treatment records were absent complaints of or treatment for hypertension. He complained of chest pain in August 1978. On his January 1980 report of medical history, the Veteran reported shortness of breath, chest pain or pressure, and depression or excessive worry. Postservice treatment records documented treatment for hypertension, sleep apnea, and allergic rhinitis. As the August 2005 rating decision is final, new and material evidence is therefore required to reopen the claims. In reviewing the evidence added to the claims folder since the August 2005 denial, the Board finds that additional evidence has been submitted which is sufficient to reopen the Veteran’s claims. Specifically, the Veteran testified during the April 2018 Board hearing that his hypertension is due to working in gas chambers during service, and that he has had high blood pressure since service. See the April 2018 Board hearing transcript, pgs. 2-3. He also testified that he suffered from daytime fatigue during service which caused his current sleep apnea, and his wife presented testimony as to longstanding fatigue since service. Moreover, the medical evidence now documents treatment for adjustment disorder which was not of record prior to the August 2005 rating decision. As indicated above, the Veteran’s previous claims were denied as there was no evidence of a current hypertension, psychiatric condition, or respiratory condition that was due to in-service disease or injury. As the aforementioned statements and medical evidence were not of record prior to the August 2005 rating decision, the Board finds that the new evidence relates to an unestablished fact necessary to substantiate the claims. As new and material evidence has been received, the claims for service connection for hypertension, a respiratory condition, and a psychiatric condition are reopened. REASONS FOR REMAND Acquired psychiatric disorder, erectile dysfunction, respiratory disorder, hypertension, TMJ, bilateral pes planus, and TDIU The Board initially notes that a January 2016 letter to the Veteran from the RO indicates that the Veteran has undergone training or counseling under VA’s Chapter 31 vocational rehabilitation program. On remand, the AOJ should secure any Chapter 31 vocational rehabilitation folder including any counselor’s assessment, and associate it with the claims folder. With regard to the Veteran’s claim of service connection for hypertension, the Veteran claims that he has hypertension that is related to his service, to include from being in gas chambers. The Board finds the Veteran credible as to his report that he went in gas chambers during service. Moreover, the current medical evidence documents treatment for hypertension and the Veteran has indicated that he has had high blood pressure since service. In light of the foregoing, the Board finds that the Veteran should be provided a VA examination to determine the etiology of his hypertension. The Board also notes that during the April 2018 Board hearing, the Veteran testified that he received treatment for hypertension in 1984 or 1985. The Board observes that these records are not associated with the claims folder. Thus, on remand, all outstanding treatment records pertaining to the Veteran’s hypertension claim should be obtained. With regard to the Veteran’s claim of service connection for an acquired psychiatric disorder, the Veteran contends that he has an acquired psychiatric disorder that is related to his service, or is alternatively secondary to his service-connected headaches, vertigo, and tinnitus. See the April 2018 Board hearing transcript, page 17. The Board notes that a January 1980 service report of medical history documents the Veteran’s report of depression or excessive worry. Further, the current medical evidence documents treatment for adjustment disorder with anxiety. See a VA treatment record dated October 2009. There is no medical opinion of record as to whether the Veteran’s current acquired psychiatric disorder is related to his service to include the report of depression or excessive worry in January 1980, or whether his acquired psychiatric disorder is caused or aggravated by his service-connected headaches, vertigo, and tinnitus. In light of the foregoing, the Board finds that a medical opinion for such should be obtained on remand. With respect to the Veteran’s claim of whether new and material evidence has been received to reopen a previously denied claim of service connection for erectile dysfunction, in an August 2005 rating decision, the erectile dysfunction disability currently on appeal was denied as not incurred or aggravated during active duty service. The Veteran did not appeal the rating decision and new and material evidence was not submitted within one year of the rating decision. Therefore, this constitutes a final decision on the erectile dysfunction claim. Thereafter, the Veteran raised a new theory of service connection, claiming that his erectile dysfunction is secondary to medication taken for his acquired psychiatric disorder. See, e.g., the April 2018 Board hearing transcript, page 15. A claim based on a new theory of entitlement is not a new claim, but constitutes a claim to reopen the previously denied claim. Additionally, if the evidence supporting the Veteran’s new theory of causation constitutes new and material evidence, then VA must reopen the Veteran’s claim. Although the Veteran is not currently service connected for an acquired psychiatric disorder, as discussed above, the Board is remanding the Veteran’s acquired psychiatric disorder claim for further evidentiary development. Moreover, as the Veteran asserts that his erectile dysfunction is secondary to his acquired psychiatric disorder, this puts VA on notice of evidence, which may prove to be new and material but have not been submitted with the application. Accordingly, VA has a duty under 38 U.S.C. § 5103 to inform the Veteran of the evidence that is “necessary to complete the application.” More specifically, VA’s duty here is to inform the Veteran of the necessity of presenting probative nexus evidence that links his present erectile dysfunction to his potentially service-connected acquired psychiatric disorder in order to complete his application for reopening this service connection claim. Graves v. Brown, 8 Vet. App. 522 (1996). With regard to the Veteran’s claim of service connection for a respiratory disorder, the Veteran contends that he has a respiratory disorder to include sleep apnea that is related to his service. The Board notes that the Veteran’s service treatment records document treatment for chest pain in August 1978 and on his January 1980 report of medical history, the Veteran reported shortness of breath and chest pain or pressure. Further, the Veteran and his wife testified that the Veteran had daytime fatigue during service and thereafter which he attributed to his sleep apnea. Indeed, the current medical evidence documents treatment for sleep apnea as well as allergic rhinitis for many years. There is no medical opinion of record which indicates whether the Veteran’s sleep apnea, allergic rhinitis, or any other respiratory disability is related to service. Thus, the Board finds that an opinion for such should be obtained on remand. The Board also notes that the Veteran testified during the April 2018 Board hearing that he was initially diagnosed with sleep apnea in 1994. See the April 2018 Board hearing, page 7. These treatment records are not associated with the claims folder. As such, these records should be obtained on remand. The Board finally notes that the claim of entitlement to TDIU is inextricably intertwined with the claims remanded herein. In other words, development of these claims may impact his TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) [two or more issues are inextricably intertwined if one claim could have significant impact on the other]. The matters are REMANDED for the following action: 1. Send the Veteran the appropriate VCAA notice for new and material evidence required to reopen his claim for service connection for erectile dysfunction. 2. Secure the Veteran’s complete Chapter 31 vocational rehabilitation folder, if it exists, including any counselor’s assessment and associate it with the claims folder. 3. Request the Veteran to provide authorization to obtain any outstanding, relevant private treatment records, to include records pertaining to his hypertension and sleep apnea that he identified during the April 2018 Board hearing. After securing the necessary authorization, these records should be requested. If any records are not available, the Veteran should be notified of such. 4. Thereafter, schedule the Veteran for a VA examination by an appropriately qualified examiner to determine the likely etiology of his hypertension, acquired psychiatric disorder, and respiratory disorder. Based on review and examination, the examiner should provide an opinion as to the following: a. Whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran has hypertension that was incurred in or aggravated by service, to include from working in gas chambers. b. Whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran has an acquired psychiatric disorder that was incurred in or aggravated by service, to include his report of depression or excessive worry in January 1980. c. Whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran has an acquired psychiatric disorder that is caused or aggravated (i.e., permanently worsened beyond the normal progression of the disability) by his service-connected headaches, vertigo, and tinnitus. If the examiner finds that the acquired psychiatric disorder is aggravated by the service-connected headaches, vertigo, and tinnitus, then he/she should quantify the degree of aggravation, if possible. d. Whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran has a respiratory disorder to include sleep apnea and allergic rhinitis that was incurred in or aggravated by service, to include his treatment for chest pain in August 1978 as well as his report of shortness of breath and chest pain in January 1980 and his report of experiencing daytime fatigue. The underlying reasons for all opinions expressed must be provided. If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Arif Syed, Counsel