Citation Nr: 18147864 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 08-24 200 DATE: November 6, 2018 ORDER Entitlement to a compensable rating for erectile dysfunction is dismissed. The Veteran's request to reopen previously-denied claims for service connection for right and left knee arthritis is denied. The Veteran's request to reopen previously-denied claims for service connection for right and left hip arthritis is denied. REMANDED Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) is remanded. Entitlement to a rating in excess of 10 percent for epididymitis with bilateral epididymal cysts is remanded. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. At the July 24, 2018, videoconference hearing, the Veteran withdrew his appeal with respect to the issue of entitlement to a higher rating for “penis deformity.” 1.2. Service connection for bilateral knee arthritis was denied in a rating decision dated in January 2015. The Veteran did not appeal this decision, and new and material evidence was not received within the year after the Veteran was notified of the January 2015 decision. 2.3. Evidence submitted subsequent to the January 2015 rating decision is either cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim for service connection for knee arthritis, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. 3.4. Service connection for bilateral hip arthritis was denied in a rating decision dated in January 2015. The Veteran did not appeal this decision, and new and material evidence was not received within the year after the Veteran was notified of the January 2015 decision. 4.5. Evidence submitted subsequent to the January 2015 rating decision is either cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim for service connection for hip arthritis, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran as to the issue of entitlement to a compensable rating for erectile dysfunction have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 1.2. The January 2015 rating decision which denied service connection for bilateral knee arthritis is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2.3. New and material evidence has not been received, and the claim of entitlement to service connection for bilateral knee arthritis is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3.4. The January 2015 rating decision which denied service connection for bilateral hip arthritis is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 4.5. New and material evidence has not been received, and the claim of entitlement to service connection for bilateral hip arthritis is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from August 1966 to August 1969. With respect to the issue of entitlement to service connection for PTSD, as the evidence demonstrates other psychiatric diagnoses besides PTSD, the Veteran’s claim has been recharacterized to encompass all mental health disorders and not just PTSD. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In July 2018, the Veteran testified at a videoconference hearing. A transcript of that hearing is of record.   Request to Withdraw Appeal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (West 20124). 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 (2016). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204; see also DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). At the July 2018 videoconference hearing, the undersigned noted that the issue of entitlement to special monthly compensation (SMC) for penis deformity had been discussed and that the issue was being withdrawn. The Veteran agreed. The undersigned stressed that once the issue was withdrawn, the Board would no longer have jurisdiction of the case and would not be adjudicated. The Veteran stated that he understood. The rating criteria allows for a 20 percent rating for erectile dysfunction with a showing of deformity of the penis. 38 C.F.R. § 4.115 (b), Diagnostic Code 7522. A footnote to 38 C.F.R. § 4.115b, Diagnostic Code 7522 indicates that review for entitlement to an SMC for loss of use of a creative organ should be taken. In this case, however, SMC based on loss of use of a created organ was granted effective February 5, 2007. Thus, the only issue on appeal related to penis deformity was the issue of entitlement to a compensable rating for erectile dysfunction. As such, the Board finds that the Veteran understood that he was withdrawing the issue of a higher disability rating for his erectile dysfunction. Given the above circumstances, the Board finds that the Veteran’s withdrawal with respect to an increased rating for “penis deformity” is explicit, unambiguous, and done with a full understanding of the consequences of such action. See Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Thus, the Board finds that the Veteran has withdrawn his appeal and there remains no allegation of errors of fact or law for appellate consideration. The Board, therefore, finds that the Veteran has withdrawn the appeal with respect to the issue of entitlement to an initial rating in excess of 10 percent for tinnitus; and, hence, there remain no allegations of errors of fact or law for appellate consideration with respect to this issue. Accordingly, the Board does not have jurisdiction to review the appeal with respect to this issue and it is dismissed.Accordingly, the Board does not have jurisdiction to review the appeal and the claim is dismissed. Requests to Reopen Previously-denied Claims A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. See 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means 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). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed unless such evidence is inherently incredible or beyond competence of the witness. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. 38 C.F.R. § 3.156 (c)(1). Relevant service records as defined by 38 C.F.R. § 3.156 (c) include: (i) service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the Veteran by name; (ii) additional service records forwarded by the Department of Defense or the service department to VA any time after VA’s original request for service records; and (iii) declassified records that could not have been obtained because the records were classified when VA decided the claim. See 38 C.F.R. § 3.156 (c)(1). The record indicates that additional service treatment records that existed but had not previously been associated with the claims file were received in March 2015 -- specifically a DD Form 1811, Physical and Mental Status on Release from Active Service, completed in August 1969; an audiogram; and an immunization record. These records are not relevant to the claims for service connection for knee and hip arthritis as they do not include any knee or hip complaints, findings or diagnoses. The Board notes that generally, to prevail on the issue of service connection there must be evidence of a current disability, in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166–67 (Fed. Cir. 2004). A disability may also be found to be service connected on a secondary basis if the claimant demonstrates that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310 (2017). With respect to arthritis, service connection may be established under 38 C.F.R. § 3.303(b) on the basis of a presumption under the law if manifested to a compensable degree within a year after discharge from service or by evidence of continuity of symptomatology. 38 U.S.C. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.303(b), 3.307, 3.309. 1. The Veteran's request to reopen a previously-denied claim for service connection for bilateral knee arthritis In a decision dated in January 2015, the RO denied the Veteran’s claim for service connection for bilateral knee arthritis on the basis that the Veteran’s service treatment records do not contain complaints, treatment, or diagnosis for knee arthritis; that there was no continuity of knee symptoms since his time in service to the present; and that there was no link between the Veteran’s knee arthritis and his military service. The Veteran did not appeal this decision although he was notified of his appeal rights; and new and material evidence was not received within the year after the Veteran was notified of the January 2015 decision. Thus, the January 2015 decision is final. At the time of the January 2015 decision, the record included service treatment records dated from August 1966 to August 1969; Army Reserve treatment records dated in May 1973, private treatment records from the Cleveland Clinic, Kaiser Permanente, and Dr. Fike; as well as VA treatment records dated from February 2005 to January 2015 from Cleveland and New York VA Medical Centers (VAMCs). The Board notes that the service treatment records dated from August 1966 to August 1969 and Army Reserve treatment records dated in May 1973 are absent complaints, findings or diagnoses of knee problems during service. On the clinical examinations in July 1969 and May 1973, the Veteran’s lower extremities were evaluated as normal. Further, on the Report of Medical History completed by the Veteran in conjunction with his July 1969 and May 1973 physicals, he denied ever having arthritis; bone, joint, or other deformity; and trick or locked knee. The New York VAMC records dated in August 2007 indicate that the Veteran presented for evaluation of knee pain; that the Veteran had pain and swelling for one week with no history of trauma; and that he had had similar pain two or three times previously beginning in 2003. See New York VAMC records, received June 2008 in Veterans Benefits Management System (VBMS). X-rays conducted in November 2007 showed significant degenerative changes of the left knee joint and moderate degenerative changes of the right knee joint. See Cleveland VAMC records, received November 2010 in VBMS. A July 2008 VA treatment record notes osteoarthritis of bilateral knees by x-ray. See Cleveland VAMC records, received January 2014 in VBMS. X-rays of both knees conducted at the Cleveland Clinic in July 2013 showed degenerative disease of bilateral knees, left worse than right. See July 2013, Dr. H. Finke, Radiology. On March 23, 2015, the Veteran submitted a statement requesting more assistance than VA had awarded him in the past and noted that his knees were inflamed, painful, and immobilized him. As such, the Board construes this statement as a request to reopen his claim of service connection for his knee disabilities was received on March 23, 2015. Regulations defining a “claim” were revised, effective March 24, 2015. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). The revision eliminated informal claims and required claims on specific forms. In this case, as VA received the Veteran’s request to reopen his claim for service connection for knee arthritis prior to the revision, the Board will apply the regulations effective prior to March 24, 2015 regarding defining a claim. On his VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, received in October 2015, the Veteran noted that his knee arthritis was related to mustard gas. Based on the grounds for the previous denial, new and material evidence would consist of evidence of a knee injury or disease in service, evidence of knee arthritis to a compensable degree within a year of service, credible evidence of continuity of knee symptoms since service, or competent evidence linking knee arthritis to his active duty service, to include mustard gas exposure. In this regard, additional evidence received since the January 2015 rating decision includes various VA treatment records; lay statements from the Veteran; and personal hearing testimony from the Veteran. As noted above, the service personnel records and service treatment records noted to have been received in March 2015 are not relevant to the claim of service connection for knee arthritis as they are absent any knee complaints, findings or diagnoses. X-rays of the Veteran’s knees conducted at the Cleveland VAMC in January 2015 showed medial compartment narrowing with medial and lateral marginal spurs, chondrocalcinosis in the lateral compartment, and degenerative change at the patellofemoral articulation on the left as well as minimal medial compartment narrowing and minimal degenerative change at the articulating surface of the patella on the right. See Cleveland VAMC records, received March 2015 in VBMS. Although the record is replete with evidence of bilateral knee arthritis, see Cleveland VAMC records, received January 2017 in Compensation and Pension Record Interchange (CAPRI)/VBMS, the record is still absent evidence of a knee injury or disease in service, evidence of knee arthritis to a compensable degree within a year of service, credible evidence of continuity of knee symptoms, or competent evidence linking knee arthritis to his active duty service. The Board has considered the evidence received since the January 2015 rating decision and finds that there is still no evidence that the Veteran’s bilateral knee arthritis was incurred in or aggravated by active service. Accordingly, the Board finds that the evidence received subsequent to the January 2015 rating decision is not new and material and does not serve to reopen the claim. 2. The Veteran's request to reopen a previously-denied claim for service connection for a bilateral hip disability In a decision dated in January 2015, the RO denied the Veteran’s claim for service connection for bilateral hip arthritis on the basis that the Veteran’s service treatment records do not contain complaints, treatment, or diagnosis for hip arthritis; that there was no continuity of hip symptoms since his time in service to the present; and that there was no link between the Veteran’s hip arthritis and his military service. The Veteran did not appeal this decision although he was provided notice of his appeal rights; and new and material evidence was not received within the year after the Veteran was notified of the January 2015 decision. Thus, the January 2015 decision is final. As noted above, at the time of the January 2015 decision, the record included service treatment records dated from August 1966 to August 1969; Army Reserve treatment records dated in May 1973, private treatment records from the Cleveland Clinic, Kaiser Permanente, and Dr. Fike; as well as VA treatment records dated from February 2005 to January 2015 from Cleveland and New York VAMCs. The Board notes that the service treatment records dated from August 1966 to August 1969 and Army Reserve treatment records dated in May 1973 are absent complaints, findings or diagnoses of hip problems during service. On the clinical examinations in July 1969 and May 1973, the Veteran’s spine and musculoskeletal system were evaluated as normal. Further, on the Report of Medical History completed by the Veteran in conjunction with his July 1969 and May 1973 physicals, he denied ever having arthritis and bone, joint, or other deformity. X-rays of the right hip conducted at Cleveland VAMC in January 2013 showed degenerative change. See Cleveland VAMC records, received January 2014 in VBMS. X-rays of the right hip conducted at the Cleveland Clinic in July 2013 showed severe degenerative disease of the right hip with subchondral sclerosis, joint space narrowing and osteophyte formation. See July 2013, Dr. H. Finke, Radiology. X-rays of the lumbar spine conducted at the Cleveland Clinic in December 2013 showed mild degenerative changes of the sacroiliac joints, severe right hip joint osteoarthritis, and moderate to severe left hip joint osteoarthritis. See December 2013, Dr. Hamidi, Osteopathic Medicine. On March 23, 2015, the Veteran submitted a statement requesting more assistance than VA had awarded him in the past and noted that his hips were inflamed, painful, and immobilized him. As such, the Board construes this statement as a request to reopen his claim of service connection for his hip disabilities was received on March 23, 2015. As noted above, regulations defining a “claim” were revised, effective March 24, 2015. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). In this case, as VA received the Veteran’s request to reopen his claim for service connection for hip arthritis prior to the revision, the Board will apply the regulations effective prior to March 24, 2015 regarding defining a claim. On his VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, received in October 2015, the Veteran noted that his hip arthritis was related to posttraumatic stress disorder (PTSD) and personal trauma. Based on the grounds for the previous denial, new and material evidence would consist of evidence of a hip injury or disease in service, evidence of hip arthritis to a compensable degree within a year of service, credible evidence of continuity of hip symptoms since service, or competent evidence linking hip arthritis to his active duty service, to include a personal trauma. In this regard, additional evidence received since the January 2015 rating decision includes various VA treatment records; lay statements from the Veteran; and personal hearing testimony from the Veteran. As noted above, the service personnel records and service treatment records noted to have been received in March 2015 are not relevant to the claim of service connection for hip arthritis as they are absent any hip complaints, findings or diagnoses. X-rays of the Veteran’s hips conducted at the Cleveland VAMC in January 2013 showed severe diffuse joint space narrowing with femoral head and acetabular spurring of the right hip and moderate joint space narrowing of the left hip. See Cleveland VAMC records, received March 2015 in VBMS. Although the record is replete with evidence of bilateral hip arthritis, and evidence that the Veteran had a total right hip replacement in July 2015, see Cleveland VAMC records, received January 2017 in CAPRI/VBMS, the record is still absent evidence of a hip injury or disease in service, evidence of hip arthritis to a compensable degree within a year of service, credible evidence of continuity of hip symptoms, and competent evidence linking hip arthritis to his active duty service. The Board has considered the evidence received since the January 2015 rating decision and finds that there is still no evidence that the Veteran’s bilateral hip arthritis was incurred in or aggravated by active service. Accordingly, the Board finds that the evidence received subsequent to the January 2015 rating decision is not new and material and does not serve to reopen the claim. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder to include PTSD To prevail on the issue of service connection there must be evidence of a current disability, in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166–67 (Fed. Cir. 2004). A disability may be found to be service connected on a secondary basis if the claimant demonstrates that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310 (2017). Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a) ([i.e., a diagnosis under Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5))]; (2) a link, established by medical evidence, between current symptoms and a stressor event in service; and (3) credible supporting evidence that the claimed stressor event in service occurred. 38 C.F.R. §§ 3.304 (f), 4.125(a). The DSM-5, not DSM-IV, applies to cases, such as here, that were certified to the Board since March 19, 2015. See 80 Fed. Reg. 53, 14308 (March 19, 2015). VA treatment records indicate that the Veteran has been diagnosed as having adjustment disorder, anxiety disorder, depressive disorder, and nightmare disorder. The Veteran underwent VA Mental Disorders examination in February 2016 at which time the examiner, a VA psychologist, noted: Based on a clinical interview, review of the available medical records, and objective psychological test findings, a psychological disorder is unable to be reliably diagnosed. The objective test findings from this examination indicated that [the Veteran] was feigning psychological and cognitive dysfunction, and possibly medical dysfunction, possibly for secondary gain. His scores indicated that he endorsed infrequent and infrequent psychopathological responses to such as degree as to render his report unreliable. This level of responding is uncommon even in individuals who are severely mentally ill and report credible symptoms. [The Veteran] has been diagnosed by his outpatient psychologist with an adjustment disorder, anxiety disorder and depressive disorder. However, these diagnoses cannot be substantiated based on the findings of this examination. Additionally, it is worth noting that [the Veteran] appears to have a history of anxiety and avoidance that dates back to childhood. He described himself as a secretive, quiet, and shy child who avoided others to a large degree in order to avoid potential embarrassment and humiliation via insults from others. He described his whole family as secretive. [The Veteran] also reported that he was bullied as a child and that while having good relationships with his parents, he felt their punishment was abusive in that it resulted in behavioral inhibition that generalized beyond the behavior targeted for punishment. In spite of these pre-existing factors and his testicular injury, [the Veteran] was able to have 2 long relationships with women and father 3 children across the 2 relationships. It is not clear that his relationships or work history would have turned out differently had he not had the testicular injury given his pre-injury anxiety and avoidance. See February 2016, Mental Disorders (other than PTSD and Eating Disorders), Disability Benefits Questionnaire (DBQ). In March 2016, the provider noted that the Veteran had been functioning in daily life for many years with severe depression and chronic suicidal thoughts; that his outer demeanor did not betray his inner turmoil likely because he had learned to mask it; and that he had been able to hide his depression from others. In May 2016, the Veteran presented for initial psychiatric assessment and related that his depression and anxiety had progressively worsened over the prior year in the setting of his ongoing financial issues, knee and hip pain, an injury to his testicles that has caused issues with initiating and maintaining an erection, lack of a romantic relationship (got divorced in 2008 and this contributed significantly). See Cleveland VAMC records, received January 2017 in CAPRI/VBMS. In light of the differing medical evidence of record with respect to whether the Veteran has a current psychiatric disability related, at least in part, to service-connected disability, it is the Board’s determination that the Veteran should be provided an opportunity to report for an additional VA Mental Disorders examination with an examiner who has not previously conducted a psychiatric examination on the Veteran to determine the etiology of any current psychiatric disorders. 2. Entitlement to an evaluation in excess of 10 percent for epididymitis with bilateral epididymal cysts The Veteran seeks a higher rating for his service-connected epididymitis with bilateral epididymal cysts. On his informal claim for an increased rating received in March 2015, the Veteran stated that he had suffered from testicle infections and pain for more than 40 years and that it had cost him his engineering job and his marriage. The Veteran’s chronic epididymitis has been rated at 10 percent pursuant to 38 C.F.R. § 4.115b, Diagnostic Code 7525 for chronic epididymo-orchitis which provides that epididymo-orchitis is to be rated as a urinary tract infection. For urinary tract infections, a 10 percent rating is provided for long-term drug therapy with one to two hospitalizations per year and/or requiring intermittent intensive management. A 30 percent rating is provided for recurrent symptomatic infections requiring drainage/frequent hospitalization (great than two times per year), and/or requiring continuous intensive management. 38 C.F.R. § 4.115a. The Veteran underwent VA Male Reproductive System Conditions examination in January 2016; however, the examiner did not address urinary tract infections. As such, it is the Board’s determination that the Veteran should be provided an opportunity to report for an additional VA examination to address any current chronic residuals of his epididymitis with bilateral epididymal cysts. 3. Entitlement to a TDIU Finally, because a decision on the remanded issue could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined; and a remand of this issue is required. In addition, in his Written Brief Presentation received by the Board in October 2017, the Veteran noted that in the January 2017 Supplemental Statement of the Case, the RO cited to a January 2016, VA examination report and a June 7, 2016, addendum opinion and that a review of the file failed to yield the addendum medical opinion. Thus, the June 7, 2016, addendum opinion should be associated with the file. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from February 2017 to the present as well as the June 2016 Addendum Opinion. 2. Schedule the Veteran for a psychiatric examination with a VA examiner who has not conducted a psychiatric examination on this Veteran to determine the nature and etiology of any acquired psychiatric disorder. If any acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is (1) at least as likely as not related to an in-service testicle injury or (2) aggravated beyond its natural progression by service-connected epididymitis with bilateral epididymal cysts or erectile dysfunction. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected epididymitis with bilateral epididymal cysts. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. (Continued on the next page)   4. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal, including the inextricably intertwined issues of entitlement to a TDIU. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Olson