Citation Nr: 18153336 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 15-06 241A DATE: November 27, 2018 ORDER The appeal as to the request to reopen the claim of entitlement to service connection for a right ankle disability is dismissed. As new and material evidence to reopen the claim for service connection for a thoracolumbar spine disability has been received, the appeal as to this matter is granted. As new and material evidence to reopen the claim for service connection for a right knee disability has been received, the appeal as to this matter is granted. As new and material evidence to reopen the claim for service connection for a left knee disability has been received, the appeal as to this matter is granted. As new and material evidence to reopen the claim for service connection for head trauma has been received, the appeal as to this matter is granted. REMANDED The claim of entitlement to service connection for a thoracolumbar spine disability is remanded. The claim of entitlement to service connection for left knee disability is remanded. The claim of entitlement to service connection for right knee disability is remanded. The claim of entitlement to service connection for head trauma is remanded. The claim of entitlement to service connection for headaches, to include as secondary to head trauma, is remanded. The claim of entitlement to service connection for a seizure disorder, to include as secondary to head trauma, is remanded. The claim of entitlement to service connection for a brain aneurysm/brain hemorrhage, to include as secondary to head trauma, is remanded FINDINGS OF FACT 1. During his May 2018 Board hearing, prior to the promulgation of a decision by the Board in this appeal, the Veteran and his representative withdrew the issue of entitlement to service connection for a right ankle disability. 2. In a December 1995 rating decision, the agency of original jurisdiction (AOJ) denied the Veteran’s claim for service connection for a low back strain with radiating pain; although notified of the denial in a January 1996 letter, the Veteran did not initiate an appeal, and no pertinent exception to finality applies. 3. In a November 2003 rating decision, the AOJ denied the Veteran’s request to reopen his claims for service connection for right and left knee disorders; although notified of the denial in a letter dated in that same month, the Veteran did not initiate an appeal, and no pertinent exception to finality applies. 4. In a January 2004 rating decision, the AOJ denied the Veteran’s claim for service connection for head trauma; although notified of the denial in a later dated in February 2004, the Veteran did not initiate an appeal, and no pertinent exception to finality applies. 5. New evidence associated with the claims file since the December 1995, November 2003, and January 2004 rating decisions relates to unestablished facts necessary to substantiate the claims for service connection for a low back disability, right and left knee disabilities, and head trauma, and raises a reasonable possibility of substantiating each claim. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the claim of entitlement to service connection for a right ankle disability are met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The December 1995 rating decision in which the AOJ denied service connection for a low back strain with radiating pain is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 3. The November 2003 rating decision in which the AOJ declined to reopen service connection claims for right and left knee disorders is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 4. The January 2004 rating decision in which the AOJ denied service connection for head trauma is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 5. As additional evidence received since the December 1995 rating decision, pertinent to the claim for thoracolumbar spine disability, is new and material, the criteria for reopening the service connection claim are met. 38 U.S.C. §§ 5108; 38 C.F.R. § 3.156. 6. As additional evidence received since the November 2003 rating decision, pertinent to the claims for right and left knee disabilities, is new and material, the criteria for reopening the service connection claims are met. 38 U.S.C. §§ 5108; 38 C.F.R. § 3.156. 7. As additional evidence received since the January 2004 rating decision, pertinent to the claim for head trauma, is new and material, the criteria for reopening the service connection claim are met. 38 U.S.C. §§ 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1979 to June 1995. This appeal to the Board of Veterans Appeals (Board) arose from an October 2010 rating decision, in which the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, inter alia, denied service connection for headaches and seizures, and declined to reopen previously denied claims for service connection for a right ankle disability, for right and left knee disabilities, for low back strain, and for head trauma. The Veteran disagreed with the RO’s denial of his service connection claims and his requests to reopen previously denied claims, and this appeal ensued. While the Veteran also timely disagreed with the denial of his request to reopen a claim for service connection for a left ankle disability in the October 2010 rating decision, the RO subsequently granted service connection for left ankle degenerative joint disease in an August 2013 rating decision, thereby constituting a full grant of the benefits sought on appeal as to that matter. In May 2018, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge (VLJ) held at the RO. Regarding characterization of the requests to reopen the service connection claims for low back strain, right and left knee disabilities, and head trauma on appeal, it is noted that, regardless of the RO’s actions with respect to those claims, the Board has a legal duty under 38 U.S.C. §§ 5108 and 7104 to address the question of whether new and material evidence has been received to reopen a previously denied claim for service connection. That matter goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). As the Board must first decide whether new and material evidence to reopen the previously denied service connection claims for low back strain, right and left knee disabilities and head trauma has been received, those matters have been characterized accordingly—and, in view of the Board’s favorable decision on the request to reopen the claims—the Board has characterized the appeal as to each of those disabilities as now encompassing both a request to reopen the claim and the underlying claim for service connection, on the merits. As a final preliminary matter, the Board notes that the RO denied entitlement to a total disability rating based on individual employability (TDIU) in a February 2015 rating decision. The Veteran did not file a notice of disagreement (NOD) with the denial of his TDIU claim. See 38 C.F.R. § 20.200. Nonetheless, the AOJ included the issue in a December 2015 supplemental statement of the case (SSOC) that also addressed the other claims on appeal, and stated that current VA policy was to consider a denial of a TDIU claim as an issue associated with any pending appeals. The Board observes that the AOJ’s action in adding the TDIU claim to the pending claims on appeal was not proper. In this regard, VA policy is to incorporate a TDIU claim denied during the pendency of an increased rating claim to the appeal for such claim if the TDIU claim was based, at least in part, on the particular disability that is the subject of the appeal. See VA Adjudication Manual, M21-1, Part IV.ii.2.F.4.q; see also Rice v. Shinseki, 22 Vet. App. 447 (2009) (a claim for a TDIU is part of an increased or initial rating claim when such claim is expressly raised by a veteran or reasonably raised by the record). This appeal does not include a claim for an increased disability rating; therefore, there is no basis to incorporate the unappealed TDIU claim with the current claims on appeal. Thus, the TDIU issue is not presently on appeal before the Board. I. Withdrawal 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. 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. Withdrawal may be made by a claimant or by his or her authorized representative. 38 C.F.R. § 20.204. Here, during his May 2018 Board hearing, the Veteran and his representative clearly indicated that the Veteran to withdraw from appeal the service connection claim for a right ankle disability (which, as indicated, is properly characterized as a request to reopen a previously denied claim). Thus, no allegations of errors of fact or law remain for appellate consideration regarding this matter. Accordingly, the Board does not have jurisdiction to review this matter, and the appeal as to this claim must be dismissed. II. Requests to Reopen The Veteran’s claims for service connection for low back disability, right and left knee disabilities, and head trauma were previously considered and denied. In a December 1995 rating decision, the AOJ denied a claim for service connection for a low back strain because the evidence did not show that he had a permanent residual or chronic disability subject to service connection. In a November 2003 rating decision, the AOJ declined to reopen the service connection claims for right and left knee disabilities because new and material evidence had not been submitted to reopen claims previously denied because there was no evidence of current right or left knee disabilities. In a January 2004 rating decision, the AOJ denied a claim for service connection for head trauma because the Veteran’s service treatment records (STRs) did not show treatment or diagnosis of head trauma during active service. Although notified of the December 1995, November 2003, and January 2004 decisions in respective AOJ letters, the Veteran did not initiate an appeal with respect to any of these claims. See 38 C.F.R. §§ 20.200, 20.201. Moreover, no new and material evidence was received within the one-year appeal period from the date of the notice of any denial, and no additional service records (warranting reconsideration of either claim) have been received at any time. See 38 C.F.R. § 3.156(b), (c). Therefore, the December 1995, November 2003, and January 2004 decisions are final as to the evidence then of record pertaining to each respective claim, and are not subject to revision on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. However, under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). For petitions to reopen filed on and after August 29, 2001, 38 C.F.R. § 3.156(a) defines “new” evidence as evidence not previously submitted to agency decision makers and “material” evidence as 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 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). In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. This analysis is undertaken by comparing the newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). Furthermore, for purposes of the “new and material” analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Where VA has previously denied a claim because one element of service connection is missing, the case must be reopened when evidence potentially fulfilling the missing element is submitted. See Molloy v. Brown, 9 Vet. App. 513 (1996). Further, the Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, viewing the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court has 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.” Id. The evidence of record at the time of the December 1995 rating decision consisted of the Veteran’s service treatment records (STRs) and a VA examination report. Additional evidence of record at the time of the November 2003 and January 2004 rating decisions included private treatment records from various providers dated through August 2003. New evidence pertinent to the service connection claims for a thoracolumbar spine disability, right and left knee disabilities, and head trauma includes ongoing private treatment records noting fairly regular treatment for low back pain, knee pain, and for headaches and residuals of a brain aneurysm, noting the Veteran’s complaint of having recurring back pain approximately every two years, and noting CT scan results which showed marked narrowing and desiccation of the intervertebral discs at L5-S1 and moderate-severe foraminal stenosis; a January 2011 statement from the Veteran’s ex-wife, noting that the Veteran reported hitting his head multiple times during parachute jumps, and that he would return home reporting that his head was hurting after jumps; medical treatises submitted by the Veteran noting a risk of traumatic brain injury (TBI) for paratroopers; an August 2013 VA examination report reflecting diagnoses of lumbosacral spine degenerative disc disease (DDD) with bilateral sensory sciatic intervertebral disc syndrome (IVDS), and right knee degenerative joint disease and left knee patellofemoral syndrome; and statements and submissions from the Veteran, including during his May 2018 Board hearing, wherein he maintained that his back and knee disabilities and head trauma were all the result of completing several parachuting jumps as a paratrooper, wherein he reported suffering a specific injury to his head while stationed in Germany, resulting in a loss of consciousness, and wherein he asserted that while some injury complaints were noted in his STRs, many were not record, as he was frequently only provided with aspirin to quickly treat pain associated with his jumps. Given the “low threshold” standard of Shade, and presuming the credibility of the evidence, the Board finds that the additional evidence pertinent to the claims for thoracolumbar spine disability, right and left knee disabilities, and head trauma, received since the December 1995, November 2003, and January 2004 decisions, is new and material within the meaning of 38 C.F.R. § 3.156(a), warranting reopening of the service connection claims for thoracolumbar spine disability, right and left knee disabilities, and head trauma. See Justus, 3 Vet. App. at 513. REASONS FOR REMAND The Board’s review of the claims file reveals that further AOJ action on the reopened claims, as well as the remaining service connection claims on appeal, is warranted. With respect to the reopened claims for low back and knee disabilities, the Board notes that the Veteran reported having recurrent back pain in a March 1995 report of medical history associated with his separation examination. The separation examination report additionally noted that the Veteran had chronic sore knees. The Veteran began reporting right knee pain in August 1981, after playing softball. The assessment was chondromalacia. In September 1992, he complained of having right knee pain for two weeks which began during a “jump refresher.” The assessment was a right knee strain. A June 1994 annual examination report also noted his report of occasional knee pain after exercising. He also reported recurrent back pain in association with that examination. Additionally, his STRs contain multiple additional reports of low back pain. He began complaining of back pain in November 1988, when, after physical training, he injured his back while bending over. On another occasion, in July 1994, he sought treatment with low back pain that reportedly began when he bent over. The assessment was mechanical low back pain. The Veteran continued to complain of knee and back pain following his separation from service. An August 1995 VA examination report noted that he had exertional knee pain since 1987, which was slowly progressive. The examiner noted that this was suggestive of mild early degenerative soft tissue change. The examination report further noted that the Veteran began noticing exertional low back pain since about 1988. He reported having recurring incidence of low back pain about every two years. Private treatment records dated throughout the years since the Veteran’s separation from service note his continued, periodic complaints of low back and knee pain. Additionally, during his May 2018 Board hearing, the Veteran contended that making several hundred jumps as a paratrooper in an airborne infantry regiment. The Veteran was afforded a VA examination for his claimed back and knee disabilities in September 2013. The VA examiner provided negative opinions with respect to any etiological relationship between the Veteran’s service and his currently diagnosed back and knee disabilities. With respect to the right knee disability, the examiner indicated that there were only two incidents noting right knee issues in the Veteran’s STRs, the last in May 1991. The examiner stated that this indicated that the conditions were acute and transitory. The examiner did not comment on the multiple reports of ongoing knee pain during service, including reports for treatment in September 1992 and his report in June 1994. Similarly, with respect to the low back disability, the examiner relied on a finding that the Veteran had acute and transitory back pain based on reports dated in August 1994, and did not comment on incidents in his STRs where he sought treatment for back pain in November 1988, or his report of recurrent back pain in June 1994, prior to the injury which incited the subsequent treatment in August 1994. Moreover, the examiner appeared to improperly rely on an absence of evidence of knee and back disability symptomatology since the Veteran’s separation from service, in noting that several years had passed since the in-service reports and the current examination. In this regard, the examiner did not address the notation on the Veteran’s separation examination report that he had chronic sore knees, or medical evidence of the Veteran’s treatment for knee and back symptoms occurring in the years since his separation from service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (a medical opinion based solely on the absence of documentation in the record is inadequate); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The examiner also did not address the Veteran’s contentions that his knee and back disabilities developed as a result of the several hundred parachuting jumps that he had completed as a paratrooper, which reportedly put significant pressure on his low back and knees. Due to the inadequate opinions provided in the September 2013 VA examination report, the Board finds that remand is required to afford the Veteran a new VA orthopedic examination of his back and knees to obtain adequate etiology opinions for his current disabilities. With respect to the Veteran’s claimed head trauma, and secondary disabilities of headaches, a seizure disorder, and brain aneurysm/hemorrhage, the medical evidence of record documents the Veteran’s long history of treatment for brain aneurysm and a seizure disorder, and his reports of headaches. Moreover, the Board notes that the Veteran credibly testified that he suffered head trauma due to his parachuting activities during service. He noted that he frequently would roll onto the ground after landing parachute jumps and that because his head was exposed, he would roll and hit his head. He maintained that because incidents of hitting his head on these occasions took place in the field, he did not receive formal treatment, but would just be given an aspirin by a medic. He also credibly testified as to a specific incident where hit his head against the door while commencing a jump, ripping off his helmet, due to his airplane hitting an air pocket. Additionally, the Veteran’s ex-wife provided a supporting statement in January 2011, noting that the Veteran frequently told her about hitting his head during parachute jumps, and that he would return with headaches. Finally, the Veteran has provided copies of medical treatises in support of his contention that paratroopers have an inherent risk of incurring head trauma as a result of their parachuting duties. The date, the Veteran has not been afforded a VA examination to obtain etiology opinions for the claimed disabilities associated with his reported head trauma. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159. Where the evidence indicates that the Veteran suffers from disabilities that may be associated with head trauma, and there is evidence indicating a possible link between such disabilities and his active service, the Board finds that remand of the head-trauma related claims is warranted to afford the Veteran an appropriate VA examination. Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all other outstanding, pertinent records. As for VA records, the claims file does not currently include VA outpatient treatment records. Accordingly, the AOJ should determine if the Veteran’s has received VA treatment for his claimed disabilities, and, if so, obtain and associate with the claims file all outstanding records of any such VA evaluation(s) and/or treatment. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the remaining claims on appeal (particularly, regarding private (non-VA) treatment), explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b)(1); but see also 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the remaining claims on appeal. These matters are hereby REMANDED for the following action: 1. Determine whether the Veteran has received VA treatment for his claimed disabilities on appeal, and, if so, obtain complete copies of all outstanding records of VA evaluation and/or treatment of the Veteran. Follow the procedures set forth in 38 C.F.R. § 3.159(c) regarding requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to one or more claim(s) on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a new VA orthopedic examination of his thoracolumbar spine and bilateral knees, by an appropriate physician. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran’s documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the physician prior to the completion of his or her report), and all clinical findings should be reported in detail. With respect to each current back and knee disability, the physician should provide an opinion, consistent with sound medical judgment, addressing whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset during service or is otherwise medically related to service—to include, but not limited to, the multiple reported instances of back and knee pain during service, and the Veteran’s completion of multiple jumps as a paratrooper during service. In rendering the requested opinions, the physician must consider and discuss all relevant medical evidence, and all lay assertions as to the nature, onset, and continuity of symptoms of the low back, and right and left knees, to include the Veteran’s assertions of having more frequent instances of back and knee injury after parachute jumps that were simply treated with aspirin. Notably, the absence of documented evidence of a specific disability and/or associated symptoms during or shortly after service should not, alone, serve as the sole basis for a negative opinion. In this regard, the physician is advised that the Veteran is competent to report his injuries, symptoms and history, which the Board has generally found credible, and that his assertions in this regard must be considered and discussed in formulating the requested opinions. If lay assertions in any regard are discounted, the physician should clearly so state, and explain why. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 5. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a VA neurological examination for claimed head trauma, headaches, a seizure disorder, and brain aneurysm/hemorrhage by an appropriate physician. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran’s documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician should clearly identify any headache disorder, seizure disorder, and brain aneurysm/hemorrhage residual(s) currently present, or present at any point pertinent to the current claim (even if now asymptomatic or resolved). The physician should also clearly indicate which, if any of the diagnosed disability(ies) is/are residual to head trauma. Then for each such diagnosed disability, the physician should provide opinions, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability that the disability had its onset during service or is otherwise medically related to service—to specifically include, but not limited to, the Veteran’s credibly reported instances of head trauma during parachute jumps, and/or completing the parachute jumps, themselves. In addressing the above, the physician must consider and discuss all medical and other objective evidence of record, to include the medical treatises provided by the Veteran pertaining to the risk of traumatic brain injury inherent in the duties of paratroopers, as well as all lay assertions. Notably, the absence of a documented evidence of a specific disability and/or associated symptoms during or shortly after service should not, alone, serve as the sole basis for a negative opinion. In this regard, the physician is advised that the Veteran is competent to report his injuries, symptoms and history, which the Board has generally found credible, and that his assertions in this regard must be considered and discussed in formulating the requested opinions. If lay assertions in any regard are discounted, the physician should clearly so state, and explain why. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the service connection claims on appeal considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Wilson, Counsel