Citation Nr: 18150874
Decision Date: 11/16/18	Archive Date: 11/15/18

DOCKET NO. 15-00 819
DATE:	November 16, 2018
ORDER
The withdrawn claim of entitlement to service connection for diabetes mellitus is dismissed. 
As new and material evidence has been submitted regarding the claim for service connection for an acquired psychiatric condition, to include posttraumatic stress disorder (PTSD), the Veteran’s claim is reopened. To this extent only, the appeal is granted.
As new and material evidence has been submitted regarding the claim for service connection for a respiratory condition, claimed as asthma, the Veteran’s claim is reopened. To this extent only, the appeal is granted.
REMANDED
Entitlement to service connection for a lumbar spine condition is remanded.
Entitlement to service connection for bilateral knee condition is remanded.
Entitlement to service connection for bilateral foot condition, claimed as flat feet, is remanded.
Entitlement to service connection for a respiratory condition, claimed as asthma, is remanded.
Entitlement to service connection for sleep disorder, to include obstructive sleep apnea, is remanded.
Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder and PTSD, is remanded.
FINDINGS OF FACT
1. The Veteran’s attorney explicitly, unambiguously, and done with a full understanding of the consequences of such action, withdrew the claim for entitlement to service connection for diabetes mellitus during the October 2017 Board hearing.
2. The February 2002 rating decision that denied the Veteran’s claim for service connection of an acquired psychiatric condition, claimed as major depressive disorder and anxiety disorder, was not appealed and is final.
3. Evidence received since the February 2002 decision is not cumulative or redundant, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric condition, to include major depressive disorder and PTSD.
4. The February 2002 rating decision that denied the Veteran’s claim for service connection of a respiratory condition (previously evaluated as asthma) was not appealed and is final.
5. Evidence received since the February 2002 decision is not cumulative or redundant, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a respiratory condition, to include asthma.
CONCLUSIONS OF LAW
1. The criteria for withdrawal of the claim for entitlement to service connection for diabetes mellitus have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017).
2. New and material evidence has not been received to warrant reopening of the claim of service connection for acquired psychiatric condition, claimed as major depressive disorder and PTSD. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156.
3. New and material evidence has not been received to warrant reopening of the claim of service connection for a respiratory condition, to include asthma. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from December 1978 to August 1980.
This appeal comes before the Board of Veterans’ Appeals (Board) from several rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO), in Philadelphia, Pennsylvania.  
In October 2017, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record.
Withdrawn Claim
At the outset, the Board notes that withdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011) (“Although Mr. DeLisio ‘thought’ that the Board member had identified the issues to be discussed, the transcript reflects neither an explicit discussion of withdrawal nor any indication that Mr. DeLisio understood that he might be withdrawing claims for benefits for any disabilities not discussed.”).
In October 2017 testimony before the Board, the Veteran’s attorney clearly and unambiguously announced an intent to withdraw the claim for service connection for diabetes mellitus. Notably, the Veteran and his representative acknowledged that the Veteran did not have the claimed condition. The undersigned clearly identified the withdrawn issue, and the Veteran’s attorney affirmed that a withdrawal as to the appeal was requested. See Hearing Transcript. 
The Board finds that the statement from the Veteran and his attorney qualifies as a valid withdrawal of the appeal in accordance with the provisions of 38 C.F.R. § 20.204 as the transcript has been reduced to writing and is of record. See Tomlin v. Brown, 5 Vet. App. 355, 357-58 (1993). In light of the Veteran’s withdrawal of the appeal of the claim, there remains no allegation of error of fact or law for appellate consideration. Therefore, the Board does not have jurisdiction to review this claim which is, therefore, dismissed.
New and Material Evidence
In general, decisions by the Agency of Original Jurisdiction that are not appealed in the prescribed time period are final. 38 U.S.C. § 7104. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim.
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. 
Moreover, a Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. See Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding 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).
To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992).
1. Whether new and material evidence has been submitted sufficient to reopen a previously denied claim for service connection for an acquired psychiatric condition
The preliminary issue for resolution before the Board is whether new and material evidence has been submitted sufficient to reopen the Veteran’s previously denied claim of entitlement to service connection for an acquired psychiatric condition. After review of the evidence of record, the Board finds that new and material evidence has been submitted.
The Veteran’s claim for service connection for an acquired psychiatric condition was previously denied in a February 2002 rating decision. The claim was denied on the basis that depression/anxiety was not shown to have been incurred in or caused by service. The Veteran was provided notice of this decision, and his appellate rights, by letter dated March 18, 2002. This claim became final as the Veteran did not file a notice of disagreement, or submit new and material evidence, within one year of the notice of denial. 38 C.F.R. §§ 3.156, 20.300, 20.302.
In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108. 
New evidence means 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). 
When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). Moreover, a Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. See Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding 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).
The basis for the February 2002 denial was a lack of evidence showing a link between a current diagnosis and service. At the time of the denial, the Veteran’s service treatment records, his application for compensation and pension, and his VA treatment records were considered. The new evidence submitted since this denial consists primarily of statements and testimony from the Veteran, Social Security Administration records, and a medical opinion from a private psychiatrist which links an acquired psychiatric disorder to service. 
As the new evidence of record suggests that he could have demonstrated symptoms of a psychiatric condition during service, and a nexus opinion has been submitted, the Board concludes that it satisfies the low threshold requirement for new and material evidence. Shade, supra. As such, this claim is reopened. 
However, the Board cannot, at this point, adjudicate the reopened claim, as further development is necessary. This is detailed in the REMAND below.
2. Whether new and material evidence has been submitted sufficient to reopen a previously denied claim for service connection for a respiratory condition, claimed as asthma.
The preliminary issue for resolution before the Board is whether new and material evidence has been submitted sufficient to reopen the Veteran’s previously denied claim of entitlement to service connection for a respiratory condition, claimed as asthma. After review of the evidence of record, the Board finds that new and material evidence has been submitted.
The Veteran's claim for service connection for a respiratory condition was previously denied in a February 2002 rating decision. The Veteran was provided notice of this decision, and his appellate rights, by letter dated March 18, 2002. This claim became final as the Veteran did not file a notice of disagreement, or submit new and material evidence, within one year of the notice of denial. 38 C.F.R. §§ 3.156, 20.300, 20.302. In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108. 
The basis for the February 2002 denial was a lack of evidence showing a link between a current diagnosis and service. At the time of the denial, the Veteran's service treatment records, his application for compensation and pension, and his VA treatment records were considered. The new evidence submitted since this denial consists primarily of statements and testimony from the Veteran regarding exposure to hazardous materials in service, Social Security Administration records, and a medical opinion from a private physician. 
As the new evidence of record suggests that he could have demonstrated been exposed to hazardous materials, resulting in respiratory symptoms, during service, and a nexus opinion has been submitted, the Board concludes that it satisfies the low threshold requirement for new and material evidence. Shade, supra. As such, this claim is reopened.
However, the Board cannot, at this point, adjudicate the reopened claim, as further development is necessary. This is detailed in the REMAND below.
REASONS FOR REMAND
1. Entitlement to service connection for a lumbar spine condition is remanded.
2. Entitlement to service connection for bilateral knee condition is remanded.
During the October 2017 Board hearing, the Veteran indicated that he believed that his back and bilateral knee conditions were related to another claimed condition which is also subject of this appeal. The Veteran’s representative also raised the intertwined issue of service connection for a low back and bilateral knee disabilities secondary to the other claimed conditions, specifically the bilateral foot condition. Following the Board hearing, the Veteran submitted a medical opinion from a private physician indicated that these conditions were related to the claimed foot condition. These issues are deferred pending additional opinion on the foot claims.
3. Entitlement to service connection for bilateral foot condition, claimed as flat feet, is remanded.
During the October 2017 Board hearing, the Veteran indicated that he believed that his bilateral foot condition was related to an injury in service, as well as being required to wear ill-fitting boots during training. The Veteran’s service treatment records indicate that he suffered a foot laceration, and was placed on a physical profile which limited his physical duties, and required that he wear “soft shoes” and to refrain from wearing boots.
Following the Board hearing, the Veteran submitted a medical opinion from a private physician indicated that his bilateral foot conditions are related to service. However, the opinion did not provide any reasons or bases for this conclusion. Therefore, the Board finds that the opinion is inadequate to adjudicate this claim.
It is the judgment of the Board that further development of the evidence is warranted, including providing the veteran with a comprehensive VA examination to determine whether the Veteran’s current condition is related to the documented in-service events. 38 U.S.C. § 5107(a); 38 C.F.R. §§ 3.103, 3.159 (2000); Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Green v. Derwinski, 1 Vet. App. 121 (1991).
4. Entitlement to service connection for a respiratory condition, claimed as asthma, is remanded.
In the October 2017 Board hearing, the Veteran stated that he thought that his current respiratory condition is related to service. The Veteran asserted that he was exposed to hazardous materials, such as silica and solvents, during his duties in the Air Force.  However, the assembled evidence does not include any adequate medical finding or opinion as to the likelihood that the asthma began in service, or is otherwise related to events in service. Nor does any medical evidence address the Veteran’s contentions. 
The Board is remanding the asthma service connection issue for a VA examination with file review and opinions as to the likely etiology of his asthma.
5. Entitlement to service connection for sleep disorder, to include obstructive sleep apnea, is remanded.
Regarding the Veteran’s claim for service connection for sleep apnea, the Board defers this issue pending development of the claim of service connection for asthma.
 
6. Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder and PTSD, is remanded.
During the October 2017 Board hearing, the Veteran indicated that he believed that his psychiatric conditions are related to events in service, including experiencing racism and being the victim of a sexual assault. 
The Veteran’s service treatment records indicate that he was referred to a psychiatric consultation as part of separation processing, but the consultation only cleared the Veteran for discharge. There is no other in-service evidence of psychiatric treatment. 
Following the Board hearing, the Veteran submitted a medical opinion from a private psychiatrist indicated that the Veteran has current diagnoses of bipolar disorder, substance dependency, and other specified trauma disorder. The psychiatrist concluded that the other specified trauma disorder is “related to his military service,” and the other conditions “as likely as not began during the course of his service.” However, the opinion did not provide any reasons or bases for these conclusions. Therefore, the Board finds that the opinion is inadequate to adjudicate this claim.
It is the judgment of the Board that further development of the evidence is warranted, including providing the veteran with a comprehensive VA examination to ascertain the Veteran’s current psychiatric conditions, and to determine the etiology of the diagnosed conditions. Additionally, a VA examination is necessary to determine whether the Veteran’s current conditions are related to the claimed in-service events, to include military sexual trauma. 
The matters are REMANDED for the following action:
1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his claimed conditions. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding relevant VA medical records.
2. Research whether separate mental health treatment records of the Veteran were maintained at March Air Force Base in California.
3. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any currently diagnosed acquired psychiatric disorder, to include PTSD. 
The examiner must opine whether the Veteran meets the criteria for a PTSD diagnosis. If so, the examiner should opine whether the Veteran’s lay statements and the Veteran’s service records, corroborate the claim that a personal assault/military sexual assault occurred in service. If the examiner finds that evidence indicates that a personal assault/military sexual assault occurred during the Veteran’s active service, the examiner must opine whether any PTSD is at least as likely as not related to the in-service personal assault. 
Additionally, the examiner is asked to identify any and all psychiatric conditions, to include major depressive disorder, and bipolar disorder. Then, with regard to each such diagnosed disorder, the examiner is asked to provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any such acquired psychiatric disorder had its onset during, or is otherwise related to, the Veteran’s active military service, to include the Veteran’s report of racial discrimination.
In offering any opinion, the examiner’s attention is directed towards the following evidence:
•	an August 1979 evaluation by the mental health department which reviewed the Veteran’s records and found no evidence of emotional instability, habits or traits which would affect judgment if granted a security clearance; 
•	a July 1980 mental health clinic STR noting the Veteran was facing administrative action and was seen at the request of his commander for psychological testing;
•	a July 1980 Report of Medical History wherein the Veteran denied frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, and nervous trouble of any sort;
•	a July 1980 Report of Medical Examination providing a normal clinical evaluation of the Veteran’s psychiatric status;
•	the Veteran’s personnel records (marked as STR – Dental in VBMS) reflecting disciplinary actions taken and showing a pattern of misconduct beginning approximately 6 months to a year after enlistment, and included his description of discrimination complaints and request for change of station, and the early discharge due unsuitability claimed as apathy, defective attitude, inability to expend efforts constructively, and possessing a dislike for authority and regimentation;
•	a January 2000 VA Discharge Summary where the Veteran denied having acute psychiatric issues;
•	an April 2013 statement wherein the Veteran attributed a diagnosis of bipolar disorder to intense military job duties;
•	an April 2013 VA psychosocial assessment wherein the Veteran denied experiencing military sexual trauma, and reported regularly drinking alcohol at 14 years old which became problematic at age 16 and during the military which had led to an early discharge; he also reported always being an insomniac which he believed stemmed from working in the military on all different types of shifts;
•	a May 2013 statement wherein the Veteran described starting to drink in basic training which escalated while stationed at Keesler Air Force Base (AFB) where drinking was the norm and encouraged, and having experienced his first blackout at Lackland AFB;
•	a March 2015 VA psychology session wherein the Veteran described severe childhood physical abuse by father and alcohol use disorder which started just before the military, describing racism with physical, verbal and sexual harassment from superiors in the military, drinking heavily and recklessly while in the military, and taking anti-anxiety medication in the 1990s;
•	 a May 2016 statement wherein the Veteran described PTSD, depression and mental anguish caused by racism, discrimination, physical assault and verbal during service which included being given false letters of reprimands and misconducts as well as MST during basic training;
•	stressor statements received in March 2017 wherein the Veteran further described racial discrimination incidents in service;
•	the Veteran’s October 2017 testimony; and
•	an April 2018 private medical opinion (marked in VBMS as received in September 2018) which diagnosed Bipolar Disorder and Other Specified Trauma Disorders and related them to miliary service.
4. Schedule the Veteran for a VA feet examination to address whether he manifests a bilateral foot disorder due to service. The claims folder must be available for review.

The examiner is requested to identify all current disorders of the feet, to include whether the Veteran has any permanent scars related to treatment of the right foot in service. The examiner should also identify all residual disability associated with the right foot/ankle fracture. For each disorder, ask the examiner to provide an opinion as to whether it is at least as likely as not that the condition is related to injury, disease, or other events during the Veteran’s service. 

If the examiner finds a condition on one of the Veteran’s feet that is related to service, the examiner is asked to provide an opinion on whether it is at least as likely as not that this condition caused any other condition of the opposite foot.
In providing this opinion, the examiner’s attention is directed towards the following evidence:
•	the Veteran’s October 1978 Report of Medical Examination which reflected a normal clinical evaluation of the feet;
•	STRs in December 1978 STR reflecting treatment for an open blisters/sores of the right foot as well as an evulsion fracture to the dorsal aspect of the right foot;
•	A December 1978 Physical Profile for an open wound of the right foot;
•	A July 1980 Report of Medical History wherein the Veteran denied swollen or painful joints, foot trouble and neuritis;
•	a July 1980 Report of Medical Examination providing a normal clinical evaluation of the feet and neurologic system;
•	an April 2013 description of injury in service which prevented use of shoes for a period of time and left permanent scars and pain of the feet;
•	an April 2013 VA foot examination report;
•	VA clinic records which record diagnoses of bunion, flat foot, equinus deformity, hallux valgus and metatarsalgia; and
•	the Veteran’s October 2017 testimony.
The examiner should specifically address the Veteran’s service treatment records indicating a laceration on the Veteran’s right foot and being prescribed a physical profile limiting the wearing of boots. The examiner should also address the Veteran’s contentions that his condition is the result of having been issued boots that were ill-fitting during basic training.
A complete rationale should accompany each opinion provided.
5. Schedule the Veteran for a VA examination to address the likely etiology of his respiratory condition, to include bronchial asthma. The claims folder must be made available for review. The examiner is instructed that the Veteran is presumed to have entered service in sound condition.
With respect to asthma, the examiner is requested to opine as to whether there is clear and unmistakable evidence that asthma pre-existed service and, if so, whether there is clear and unmistakable evidence that asthma was not aggravated during service.
If asthma did not clearly and unmistakably exist prior to service, the examiner should opine as to whether it is at least as likely as not that the Veteran’s asthma (a) had onset during his period of service, or (b) is otherwise related to events, including exposure to hazardous materials, during that service period.
The examiner should opine as to whether it is at least as likely as not that the Veteran’s COPD (a) had onset during his period of service, or (b) is otherwise related to events, including exposure to hazardous materials, during that service period.
In providing these opinions, the examiner’s attention is directed towards the following evidence:
•	the Veteran’s October 1978 Report of Medical Examination and Report of Medical History which is negative for a respiratory disorder including asthma;
•	a February 1979 Physical Profile for acute pharyngitis;
•	a December 1978 STR reflecting treatment for upper respiratory infection (URI);
•	a June 1980 chest x-ray examination report interpreted as showing no evidence of active inflammatory disease;
•	a July 1980 Report of Medical History wherein the Veteran denied a history of asthma;
•	a July 1980 Report of Medical Examination providing a normal clinical evaluation of the Veteran’s lungs and chest;
•	a March 2000 VA clinic record noting a childhood history of asthma;
•	a May 2013 VA primary care note reflecting an assessment of asthma since childhood and likely COPD due to tobacco;
•	a September 2014 chest x-ray in the VA clinic setting interpreted as showing mild increased opacity in both lung bases very likely atelectasis;
•	an October 2014 VA clinic visitation wherein the Veteran described a history suggestive of childhood asthma followed by a long remission and then a relapse in his 30s;
•	an August 2016 VA pulmonary consultation;
•	the Veteran’s October 2017 testimony of having asthma as a childhood which he had outgrown, but became symptomatic during service as a result of polluted air as well as the dust and grit, and that he started having breathing problems a couple of years after he got out of service; and
•	a June 2018 private medical opinion (marked in VBMS as received in September 2018) which noted the Veteran’s description of in-service exposure to volatile organic solvents, aromatic hydrocarbons, insecticides, diesel engine exhaust, silica, dust, sand, smoke and asbestos.
Ask the examiner to explain the reasons and bases for all conclusions and opinions.
6. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response.




 
T. MAINELLI
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Michael J. O'Connor