Citation Nr: 18149255 Decision Date: 11/09/18 Archive Date: 11/08/18 DOCKET NO. 15-14 748 DATE: November 9, 2018 ORDER New and material evidence has been received to reopen the Veteran’s service connection claim for left knee retro patellofemoral pain syndrome. The claim is reopened. The reduction in rating from 30 percent to 0 percent for posttraumatic tension headaches was not proper. A restoration of the 30 percent rating is granted. Entitlement to service connection for obstructive sleep apnea (OSA), claimed as secondary to traumatic brain injury (TBI) is granted. REMANDED Entitlement to service connection for left knee retro patellofemoral pain syndrome is remanded. Entitlement to an increased rating for posttraumatic stress disorder (PTSD), rated as 10 percent disabling prior to October 28, 2009; rated as 30 percent disabling from October 28, 2009; and rated as 50 percent disabling effective July 21, 2010, is remanded. Entitlement to an increased rating for right knee retro patellofemoral pain syndrome, currently rated as 10 percent disabling, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to a separate compensable rating for a TBI is remanded. FINDINGS OF FACT 1. In March 2008, the RO denied the Veteran’s claim of service connection for left knee retro patellofemoral pain syndrome (claimed as left knee synovitis). The Veteran failed to file a timely notice of disagreement; and no new and material evidence was received within a year of the rating decision’s issuance 2. Certain evidence received since the March 2008 decision is neither cumulative nor redundant of the evidence of record at the time of the March 2008 denial and, by itself or in conjunction with the evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim of service connection. 3. The 30 percent rating for the Veteran’s posttraumatic tension headaches due to TBI was in effect for fewer than five years at the time of the reduction. 4. The August 2010 VA examination report on which the reduction was based did not reflect a material improvement in the Veteran’s posttraumatic headaches nor is it reasonably certain that any improvement shown would be maintained under the ordinary conditions of life. 5. The evidence is at least in equipoise as to whether obstructive sleep apnea had its onset during active service. CONCLUSIONS OF LAW 1. The March 2008 RO rating decision denying service connection claim for left knee retro patellofemoral pain syndrome is final. 38 U.S.C. § 7105. 2. Evidence received since the March 2008 RO rating decision is new and material; accordingly, the claim for service connection for left knee retro patellofemoral pain syndrome is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for restoration of a 30 percent rating for posttraumatic tension headaches due to TBI, from October 28, 2009, have been met. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.105(e), 3.344, 4.71a, Diagnostic Code 8100. 4. The criteria for service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence Following notification of an initial review and adverse determination by the Regional Office (RO), a notice of disagreement must be filed within one year from the date of notification thereof; otherwise, the determination becomes final and is not subject to revision except on the receipt of new and material evidence. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. Following receipt of a notice of a timely disagreement, the RO is to issue a statement of the case. 38 C.F.R. § 19.26. A substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the statement of the case to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 C.F.R. § 20.302(b). Otherwise, the determination becomes final and is not subject to revision except on the receipt of new and material evidence. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. When a claim to reopen is presented, a two-step analysis is performed. The first step of which is a determination of whether the evidence presented or secured since the last final disallowance of the claim is “new and material.” See Elkins v. West, 12 Vet. App. 209, 218-19 (1999) (en banc); see also 38 U.S.C. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998). The provisions of 38 C.F.R. § 3.156 (which define “new and material evidence”) provides as follows: New evidence means existing evidence not previously submitted to agency decisionmakers. 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). Second, if VA determines that the evidence is new and material, the VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist has been fulfilled. See Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc) (discussing the analysis set forth in Elkins), overruled on other grounds sub nom. Winters v. Gober, 219 F.3d 1375, 1378 (Fed. Cir. 2000); Elkins, supra. The second step becomes applicable only when the preceding step is satisfied. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). In Evans v. Brown, 9 Vet. App. 273 (1996), the Court held that to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally denied on any basis. Additionally, evidence considered to be new and material sufficient to reopen a claim should be evidence that tends to prove the merits of the claim that was the specified basis for the last final disallowance of the claim. In Justus v. Principi, 3 Vet. App. 510 (1992), the Court held that for new and material evidence purposes only, new evidence is presumed to be credible. The only exception would be where evidence presented is either (1) beyond the competence of the individual making the assertion or (2) inherently incredible. If new and material evidence has been received with respect to a claim that has become final, then the claim is reopened and decided on a de novo basis. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The Board notes that the RO reopened the Veteran’s claim in its April 2015 statement of the case. Despite the determination made by the RO, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001); see also VAOPGCPREC 05-92. The Veteran’s claim of service connection for left knee retro patellofemoral pain syndrome was denied by way of a March 2008 rating decision. The Veteran failed to file a timely notice of disagreement, and no evidence was received within the appeal period after the decision. As such, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 3.156(b)(new and material evidence received within the appeal period after a decision is considered as having been received in conjunction with the prior claim); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) (VA must determine whether evidence received during the appeal period after a decision contains new and material evidence per 3.156(b) and failure to readjudicate the appeal after receipt of such evidence renders the decision non-final). The evidence on record at the time of the March 2008 denial included service treatment records that did not reflect findings of a left knee disability; private treatment records reflecting that the Veteran was diagnosed with a left knee disability after hitting his knee on a U-Haul truck; and a VA examination report in which the examiner opined that the left knee disability was as likely as not related to service. The bases for the denial included the fact that there was no record of a left knee disability in the service treatment records. The RO found that a positive nexus opinion rendered by the VA examiner was unsupported by objective evidence of a left knee injury during service. Evidence received since the March 2008 rating decision includes treatment reports from Dr. J.B.K., a September 2013 VA examination report in which the examiner found that the Veteran’s left knee disability was less likely than not related to service or secondary to his right knee disability, and testimony at a February 2018 Board hearing in which the Veteran testified that he has to alter his gait as a result of his right knee disability. The Board notes that the Court has interpreted the language of 38 C.F.R. § 3. 156(a) as creating a low threshold and viewed the phrase “raises a reasonable possibility of substantiating the claim” as enabling rather than precluding the reopening of a claim. The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which does not require new and material evidence as to each previously unproven element of a claim. It was indicated that it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element, as it would force the Veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA. Shade v. Shinseki, No. 08-3548 (U.S. Vet. App. Nov. 2, 2010). In determining whether the submitted evidence is new and material, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, would at least trigger VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The Board finds that the Veteran’s testimony meets the low threshold of 38 C.F.R. § 3.156(a) and is new and material evidence to reopen the Veteran’s claim; because it indicates that his left knee disability may be caused or aggravated by his service connected right knee disability. The Board recognizes that the issue of secondary service connection was addressed by the September 2013 VA examiner. However, the examiner’s negative nexus opinion was based on the assumption that the Veteran did not have an altered gait due to his service connected right disability. The Veteran’s testimony that he does have an altered gait constitutes an unestablished fact necessary to substantiate the claim. As new and material evidence has been received to reopen the claim. The claim for entitlement to service connection for a left knee disability is reopened. Service Connection Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). At his February 2018 Board hearing, the Veteran testified that he was not diagnosed with OSA during service but that he came home from service with anomalies in his breathing during sleep. He contended that his sleep apnea may be secondary to respiratory conditions that are well documented in the service treatment records (which show bronchitis, sinusitis, a possible upper respiratory infection, etc.). The Board notes that the Veteran is service connected for allergic rhinitis. The Veteran testified that he slept near burn pits and sandstorms while on active duty. The Veteran stated that his first sleep study was conducted in November 2006, when his sergeant suggested that he should get examined due to all of his sleep problems. The Board does not find evidence of a November 2006 sleep study. However, the service treatment records reflect that the Veteran completed a Report of Medical History in November 2006. In it, he checked that he was having frequent trouble sleeping. He handwrote that he had been having trouble sleeping for four months. The Veteran also reported having trouble sleeping in September 2005, only this time it was described as insomnia. He also reported trouble sleeping in November 2005. This time it was associated with sinus congestion and a possible upper respiratory infection. The Veteran underwent a sleep study with the Pacific Sleep Program in September 2007. He reported that his wife has commented about his breathing for at least the past two years. The Pacific Sleep Program diagnosed Obstructive Sleep Apnea Syndrome, severe. The Board notes that sleep apnea is often diagnosed well after symptomatology, because the sufferer is asleep when symptoms occur and therefore is not necessarily aware of the existence of symptoms. In this case, the Veteran did report trouble sleeping during service. Most compelling however, is the fact that the Veteran was diagnosed with severe sleep apnea in September 2007 (17 months after discharge from service). The Board finds it unlikely that the Veteran’s sleep apnea was non-existent in April 2006, and severe 17 months later. This is particularly true in light of the Veteran’s credible testimony that his sergeant advised him to seek treatment during service; he reported having trouble sleeping during service; and the fact that even in September 2007, the Veteran’s wife had reported a two-year history of symptomatology. The Board recognizes that the Veteran underwent VA examinations in March 2011 and September 2013; and that both times, the examiner (which was the same for both examinations) rendered negative nexus opinions. However, the scope of the examinations (and the negative nexus opinions) were somewhat limited. In March 2011, the VA examiner found that the sleep apnea was less likely than not related to an in-service TBI. The examiner stated that the Veteran’s polysomnogram showed clearly that the apnea was due to upper airway obstruction and was not due to central (brain origin) sleep apnea. In September 2013, the VA examiner again found that the Veteran’s sleep apnea was not due to an in-service explosion /TBI. The examiner also noted that the apnea is due to an airway obstruction. The Board finds that the Veteran’s credible testimony, in-service reports of trouble sleeping, and severe OSA diagnosed a mere 17 months after discharge from service are sufficient to establish that OSA likely began during service. Consequently, service connection for OSA is granted. Rating Reductions In any case involving a rating reduction, the fact-finder must ascertain, based upon a review of the entire record, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon a thorough examination. The provisions of 38 C.F.R. § 3.344(a) require a review of the entire record of examinations and the medical-industrial history to ascertain whether the recent examination was full and complete. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings will not be reduced on any one examination, except where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated, and it is reasonably certain that any material improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344. If doubt remains, after according due consideration to all the evidence developed by the several items discussed in 38 C.F.R. § 3.344(a), the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses. 38 C.F.R. § 3.344 (b). The provisions of paragraphs 3.344(a) and 3.344(b) apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. The 30 percent rating assigned for the Veteran’s posttraumatic tension headaches was granted by way of a May 2010 rating decision. It had been in effect for less than 5 years at the time of the reduction in July 2011. Thus, 38 C.F.R. § 3.344 (a) and (b) are not for application. Nevertheless, in any case, to warrant a reduction, it must be determined not only that an improvement in the disability level has actually occurred, but also that such improvement actually reflects an improvement in the ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993) (citing 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13). The reduction of a rating generally must have been supported by the evidence on file at the time of the reduction, but pertinent post-reduction evidence favorable to restoring the rating must also be considered. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). If there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt shall be resolved in favor of the Veteran. In other words, a rating reduction must be supported by a preponderance of the evidence. 38 U.S.C. § 5107(a); see also Brown, 5 Vet. App. at 421. In this case, the reduction was based on an August 2010 VA examination report. At that time, the examiner stated that the Veteran had mild tension headaches that were not prostrating. The basis for this conclusion appears to be the fact that the Veteran does not have any emergency room visits for headaches. The Board notes that the Veteran’s 30 percent rating was based largely on a February 2010 VA examination report in which he reported severe and prostrating headaches 1-2 times per month. At the Veteran’s February 2018 Board hearing, he testified that he has 3-4 headaches in a good month; and 6-8 headaches in a bad month. He stated that when they occur, he cannot get anything done. Rather, he has to go to a dark room and lie down. He stated that all of his headaches are prostrating. He also testified that there is an error in medical records dated February 2 that reflect a report of headaches once every four months. Instead, the Veteran testified that he reported headaches occurring 1-4 times per month The Board notes that in order for the Veteran’s rating to be properly reduced, it must be determined not only that an improvement in the disability level has actually occurred, but also that such improvement actually reflects an improvement in the ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993) (citing 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13). The Board notes that the August 2010 VA examination report does not reflect an improvement in the Veteran’s ability to function. At the examination, the Veteran reported severe headaches every 2-3 weeks. He stated that when they occur, he has to stop what he is doing and lie down to relive the pain. Consequently, the headaches that the Veteran reported are prostrating. These symptoms would yield a 30 percent rating under Diagnostic Code 8100, which states that a 30 percent rating is warranted for migraine headaches with characteristic prostrating attacks occurring on an average once per month over the last several months. 38 C.F.R. § 4.124a, Diagnostic Code 8100. Consequently, the August 2010 VA examination report does not reflect that the Veteran’s symptoms have improved. Instead, the report reflects that the VA examiner disputes the contentions of the Veteran (because he has not had any emergency room visits for headaches) and the findings of the February 2010 VA examiner. There is insufficient evidence to determine that not only an improvement in the disability level has actually occurred, but also that such improvement actually reflects an improvement in the ability to function under the ordinary conditions of life and work. Consequently, the Board finds that the reduction was improper and that the 30 percent rating should be restored effective October 28, 2009. REASONS FOR REMAND Entitlement to a separate rating for a TBI. In the present case, on February 7, 2018, at the Veteran’s Board hearing, the Veteran and his representative requested withdrawal of the issue of entitlement to a separate rating for a TBI. In this regard, the Board calls attention to the recent Court holding that a withdrawal of appeal must be explicit, unambiguous, and done with a full understanding of the consequences of such action by the appellant and the subsequent Board dismissal must include findings as to all three elements. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). On remand the Veteran and his representative should be apprised of the consequences of a withdrawal and should be afforded the chance to validly withdraw this issue if he so chooses. Entitlement to service connection for a left knee disability The Board finds that a VA examination is warranted to determine the nature and etiology of the Veteran’s left knee disability. The examiner should render an opinion regarding whether it is at least as likely as not that the Veteran’s left knee disability began during or is causally related to service. The examiner should also render an opinion regarding whether to the Veteran’s left knee disability was caused by, or aggravated by, his service connected right knee disability.   Entitlement to a higher initial rating for right knee retro patellofemoral pain syndrome, currently rated as 10 percent disabling Entitlement to increased ratings for PTSD, currently rated as 10 percent prior to October 28, 2009, rated as 30 percent from October 28, 2009, and rated as 50 percent disabling effective July 21, 2010 The Veteran’s most recent VA examinations occurred in September 2013. While a new examination is not required simply because of the time which has passed since the last examination, VA’s General Counsel has indicated that a new examination is appropriate when there is an assertion of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). At his February 2018 Board hearing, the Veteran provided testimony indicating that his disabilities have likely become more severe since these last examinations. Consequently, the Board finds that the claim should be remanded so that the Veteran can undergo more contemporaneous examinations. Entitlement to a TDIU The Veteran’s claim for a TDIU is dependent on whether his service connected disabilities render him unable to secure or follow a substantially gainful occupation. As such, the claim is inextricably intertwined with the issue of whether service connection is warranted for a left knee disability, and the issue of whether increased ratings are warranted for PTSD and a right knee disability. The matters are REMANDED for the following action: 1. Contact the Veteran in writing to explain that his withdrawal of his appeal relating to the claim of entitlement to a separate rating for a TBI is not yet valid. Explain that in this case the withdrawal would be irrevocable and that, once withdrawn the current claim date would be unavailable. Instead, any successful claim would be effective from the date of a future request to reopen. Request that the Veteran, if he still wishes to do so, submit his withdrawal in writing, acknowledging the contents of the notice letter. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his left knee disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. Additionally, the examiner should opine whether the Veteran’s left knee disability is at least as likely as not (1) proximately due to his service-connected right knee disability, or (2) aggravated beyond its natural progression by his service-connected right knee disability. If aggravation is found, the examiner should identify baseline level of disability prior to such aggravation. The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinion. The examiner should note the Veteran’s assertion that his right knee disability results in an alerted gait; and that he injured both knee in service (but the examiner only listed the right knee). Finally, the examiner should determine the current severity of his right knee disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s right knee disability alone and discuss the effect of the Veteran’s right knee disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page)   3. Schedule the Veteran for an examination by the appropriate clinician to determine the current severity of his service-connected PTSD. 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. 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 his service-connected PTSD alone. ERIC S. LEBOFF Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Prem, Counsel