Citation Nr: 18154568 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 16-23 774 DATE: November 30, 2018 ORDER New and material evidence having been received, the previously denied claim of entitlement to service connection for osteoarthritis of the left knee is reopened. New and material evidence having not been received, the previously denied claim of entitlement to a back condition is not reopened, and the appeal is denied. New and material evidence having not been received, the previously denied claim of entitlement to service connection for tinea pedis is not reopened, and the appeal is denied. New and material evidence having not been received, the previously denied claim of entitlement to service connection for left ankle gout is not reopened, and the appeal is denied. New and material evidence having not been received, the previously denied claim of entitlement to service connection for right ankle gout is not reopened, and the appeal is denied. Service connection for headaches, to include as due to service-connected asthma, is granted. REMANDED The claim of entitlement to service connection for depression is remanded. The claim of entitlement to service connection for osteoarthritis of the left knee is remanded. The claim of entitlement to service connection for residuals, right knee patellectomy, is remanded. The claim of entitlement to service connection for obstructive sleep apnea is remanded. The claim of entitlement to a rating in excess of 30 percent for asthma with coronary obstructive pulmonary disease (COPD) is remanded. The claim of entitlement to a total disability rating due individual unemployability based on service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Service connection for left knee osteoarthritis, back pain, tinea pedis, left ankle gout, and right ankle gout was previously denied in an unappealed August 2011 rating decision. 2. Since the August 2011 rating decision denying the Veteran’s service-connection claim for left knee osteoarthritis, new evidence has been associated with the claims file that raises a reasonable possibility of substantiating the claim. 3. Evidence received since the August 2011 rating decision does not raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for a back condition. 4. Evidence received since the August 2011 rating decision does not raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for tinea pedis. 5. Evidence received since the August 2011 rating decision does not raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for left ankle gout. 6. Evidence received since the August 2011 rating decision does not raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for right ankle gout. 7. The evidence of record favors a finding that headaches are proximately due to the Veteran’s service-connected asthma with COPD. CONCLUSIONS OF LAW 1. The August 2011 rating decision denying the Veteran’s claims for service connection for left knee osteoarthritis, a back condition, tinea pedis, left ankle gout, and right ankle gout, is final. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 20.1103. 2. As additional evidence received since the RO’s August 2011 denial is new and material evidence, the criteria for reopening the claim for service connection for left knee osteoarthritis are met. 38 U.S.C. § 5108; 38 C.F.R. §3.156(a). 3. Evidence submitted to reopen the claim of entitlement to service connection for a back condition is not new and material evidence, and the claim is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. Evidence submitted to reopen the claim of entitlement to service connection for tinea pedis is not new and material evidence, and the claim is not reopened. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.156(a). 5. Evidence submitted to reopen the claim of entitlement to service connection for left ankle gout is not new and material evidence, and the claim is not reopened. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.156(a). 6. Evidence submitted to reopen the claim of entitlement to service connection for right ankle gout is not new and material evidence, and the claim is not reopened. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.156(a). 7. The criteria for service connection for headaches have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had a period of active, honorable service from November 1963 to November 1965, and a period of active, dishonorable service from November 1965 to August 1968. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from August 2011, June 2013, July 2015, March 2016, and January 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Specifically, the June 2013 rating decision continued a 30 percent disability rating for asthma and denied a TDIU. The August 2011 rating decision, in part, found that the Veteran had failed to submit new and material evidence to reopen a previously denied claim of entitlement to service connection for post-operative right patellectomy. The July 2015 rating decision continued a 30 percent disability rating for asthma and continued a denial of service connection for left knee osteoarthritis. The March 2016 rating decision recharacterized the Veteran’s service-connected asthma disability to include COPD and continued a 30 percent disability rating for and found that the Veteran had failed to submit new and material evidence to reopen previously denied claims of entitlement to service connection for tinea pedis, back pain, left ankle gout, and right ankle gout. The January 2017 rating decision denied service connection for depression, headaches, and sleep apnea. New and Material Evidence 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 claimant. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises 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. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, “credibility” of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The United States Court of Appeals for Veterans Claims (Court) has held that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). 1. Left knee osteoarthritis The RO last denied the Veteran’s claim of entitlement to service connection for left knee osteoarthritis in an August 2011 rating decision. At the time of the decision, pertinent evidence of record included the Veteran’s service treatment records, the Veteran’s lay statements concerning his claimed condition, and VA treatment records. The RO denied the Veteran’s left knee claim on the basis that the condition neither occurred in or was caused by service. Evidence received since the August 2011 rating decision denying service connection for left knee osteoarthritis includes the results of a May 2015 VA knee examination and corresponding July 2015 addendum opinion, as well as December 2015 contentions from the Veteran, through his representative, that his left knee condition may be related to hydrocortisone injections sustained in service in October 1965, or alternatively, that his left knee condition is related to his right knee condition. This additional evidence relates to the open question of nexus, and as discussed below, triggers VA’s duty to assist. The evidence is new, material, and serves to reopen the claim. 2. Back condition, tinea pedis, left ankle gout, and right ankle gout The RO last denied the Veteran’s claims of entitlement to service connection for a back condition, tinea pedis, left ankle gout, and right ankle gout in an August 2011 rating decision. At the time of the August 2011 rating decision that denied service connection for all conditions, pertinent evidence of record included the Veteran’s service treatment records, lay statements from the Veteran, and VA treatment records dated through 2011. VA treatment records showed that the Veteran experienced low back pain and had a diagnosis of tinea pedis. VA treatment records did not show the presence of any ankle disabilities. The RO denied the claim for a back condition on the basis that there was no clinically diagnosed disability other than low back pain, and that there was no link established between the Veteran’s back pain and any incident of military service, as there were no complaints of or treatment for any back pain in service. The RO denied the claim for tinea pedis on the basis that, despite a currently diagnosed disability, there were no complaints of, treatment for, or diagnosis of athlete’s foot during service, nor any link between the diagnosed tinea pedis and service. The RO denied the claims for left and right ankle gout on the basis that service treatment records did not show complaints of, treatment for, or diagnoses of any ankle disability of any kind, to include gout, during active service. Moreover, there was no diagnosis of gout. The Veteran was notified of the August 2011 rating decision and did not appeal it, nor did he submit additional evidence within one year of that decision in support of his claims. As such, the RO’s August 2011 rating decision became final. See 38 U.S.C. §7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. The Veteran filed to reopen his claims for a back condition, tinea pedis, and left and right ankle gout in December 2015. Evidence received since the August 2011 rating decision includes updated VA treatment records. Records continue to show that the Veteran has, on occasion, complained of back pain. They continue to show that he has a diagnosis of tinea pedis, and that he does not have any diagnosed ankle disability, nor any complaints of ankle pain. The new evidence does not contain any evidence of a diagnosed ankle condition, nor any medical evidence linking the Veteran’s back pain or tinea pedis to any incident of service. The diagnoses of low back pain and tinea pedis were before the RO in August 2011. Therefore, as the evidence submitted since the August 2011 is not new and material evidence, the claims for service connection for a back condition, tinea pedis, and left and right ankle gout, are not reopened. 3. Headaches Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). To prevail on a claim for secondary service connection, the record must show (1) current disability, (2) a service-connected disability, and (3) medical nexus evidence establishing a connection between the current and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran has a diagnosis of headaches. See December 2017 Disability Benefits Questionnaire (DBQ). He contends that his headaches are secondary to his service-connected asthma with COPD. Significantly, the Veteran has been awarded service connection for asthma with COPD. Thus, the key issue is whether there is medical evidence establishing a link between the Veteran’s headaches and his service-connected asthma with COPD. The Board finds that such link has been established. In this regard, the Veteran submitted a private medical opinion from Dr. H.S. in December 2017. Dr. H.S. completed a DBQ, wherein he noted that the Veteran reported a several-decade history of headaches that began during military service and continued uninterrupted to the present. The Veteran reported that headaches were often brought on during periods of shortness of breath associated with asthma, as the lack of ability to breathe caused his head to hurt. Based on a review of the claims file and interview of the Veteran, Dr. H.S. opined that headaches were more likely than not caused and permanently aggravated by the Veteran’s asthma. In support of his opinion, Dr. H.S. submitted medical treatise evidence discussing the risk of migraines in patients with asthma. The Board acknowledges that there are multiple VA treatment records showing that the Veteran has denied experiencing headaches. Nonetheless, in a May 2013 VA emergency department admission note, the Veteran sought treatment after falling and hitting his head. The treating physician noted that the Veteran had a history of COPD and presented after a syncopal event where he fell onto his kitchen floor during a dizzy spell. The Veteran reported headaches as a result. There are no medical opinions contrary to the findings of Dr. H.S. Accordingly, in light of the medical treatment showing that headaches may have resulted from a fall that onset from a dizzy spell related to asthma, the Veteran’s lay statements, and the opinion of Dr. H.S. taken together with the medical treatise evidence discussing the risks of migraines in patients with asthma, the Board finds that the Veteran’s headaches have been medically linked to his service-connected asthma with COPD. Service connection for headaches is granted on a secondary basis.   REASONS FOR REMAND 1. Depression The Veteran’s service treatment records do not document any treatment for any mental health symptoms or conditions in service. Indeed, all in-service physical examinations reflect a normal psychiatric clinical evaluation. In connection with his claim, the Veteran submitted a private medical opinion from Dr. R.W. in December 2017. Dr. R.W. opined that the Veteran’s depressive disorder more likely than not began during the Veteran’s first period of service and has been permanently aggravated by his service-connected asthma with COPD. Pertinently, Dr. R.W. did not address the relevance of a July 1968 in-service report of psychiatric evaluation, wherein the Veteran was described as mentally responsible, able to distinguish right from wrong, and as having the mental capacity to participate and understand his separation proceedings. At that time, there was no evidence found of any underlying, previously unrecognized, medically disqualifying emotional illness. Rather, Dr. R.W. based his opinion on the statement of a friend of the Veteran, who did not serve with the Veteran but spoke of the Veteran’s change in demeanor after service, and the Veteran’s statements. While the Veteran indicated to Dr. R.W. that his mental health symptoms started during his first enlistment and continued to the present, there is no evidence of mental health treatment from his military separation in August 1968 until December 2016, when the Veteran sought treatment and said he had been depressed since 1988. As to Dr. R.W.’s contention that depression has been permanently aggravated by service-connected asthma, Dr. R.W. did not provide a rationale for that conclusion except to note that the Veteran’s sleep is interrupted by asthma and COPD. Accordingly, the Board finds that the Veteran should be afforded a VA examination to clarify the nature and etiology of the Veteran’s depression. 2. Osteoarthritis of the left knee and residuals of right knee patellectomy As noted in the Introduction, the Veteran had a period of honorable service from November 1963 to November 1965 and a period of other than honorable service from November 1965 to August 1968. Service treatment records show that the Veteran injured his right knee in June 1965, during his honorable period of service. He underwent a right knee patellectomy in December 1965. In connection with this claim, the Veteran underwent a VA knee examination in May 2015, wherein a VA examiner opined that the Veteran’s current right knee condition was at least as likely as not incurred in or caused by the Veteran’s patella repair in December 1965. He further opined that the Veteran’s left knee disability was secondary to the Veteran’s right knee disability due to overcompensation for the injured right knee. However, in a July 2015 clarification opinion, the examiner, after learning of the Veteran’s dishonorable period of service, clarified that the Veteran’s right knee disability was less likely than not caused by the right knee pain documented in June 1965, during the Veteran’s first period of honorable service. Moreover, the examiner noted that the Veteran’s left knee was treated briefly during the Veteran’s first period of service, but the medical treatment was benign with no overt pathology identified. Thus, as the examiner linked the left knee to the right knee, and found that the right knee condition was related to an injury occurring in a dishonorable period of service, the examiner noted that neither knee disability stemmed from an in-service injury. The Board, however, observes that in addition to the June 1965 right knee complaint, service treatment records show that in October 1965, during the Veteran’s honorable period of service, the Veteran had recurrences of pain in both knees, especially when flexed. It was shortly thereafter that he fractured his right patella. The VA examiner did not address the later complaints of knee pain, which bely the assertion that the earlier treatments for knee pain in June 1965 were benign and transient. Accordingly, the Board finds that an addendum opinion is necessary for clarification. 3. Obstructive sleep apnea The Veteran has not made specific contentions regarding the onset of his obstructive sleep apnea, nor indicated whether he believes it to be related to his military service, or secondary to his service-connected asthma with COPD. The Board, however, finds that the record raises the possibility that obstructive sleep apnea may be related to his service-connected asthma. In this regard, an April 2014 VA treatment note shows that the Veteran presented for evaluation of his COPD, reporting that he was finding it difficult to breathe. His wife reported that he snored loudly and sometimes stopped breathing in his sleep. A May 2014 VA treatment note shows that the Veteran was referred to the pulmonary clinic for evaluation of obstructive sleep apnea due to worsening fatigue and shortness of breath. It is unclear from the record if he was ultimately diagnosed with sleep apnea. Accordingly, the Board will remand the claim to afford the Veteran a VA sleep apnea examination. 4. Asthma with COPD The Veteran last underwent a VA respiratory examination in February 2016. At that time, the examiner stated that pulmonary function testing (PFT) results from a previous examination, in 2014, did not accurately reflect the Veteran’s current condition; nonetheless, the examiner did not perform updated PFT, without any explanation for not doing so. Thus, the matter must be remanded to afford the Veteran a complete VA examination to determine the severity of his service-connected asthma with COPD. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that when VA undertakes to provide a VA examination, it must ensure that the examination is adequate). 5. TDIU The Board will defer appellate consideration of the issue of entitlement to TDIU pending completion of the actions requested below. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he identify, submit or authorize VA to obtain any VA or private treatment records not already on file that he believes are pertinent to his appeal. 2. Schedule the Veteran for an appropriate VA examination to ascertain the nature and etiology of any diagnosed psychiatric disability currently present or present during the appeal period, to include depression. The examiner should take a history from the Veteran as to the progression of his depression. (a.) Identify any psychiatric disorder for which the Veteran has had a diagnosis since filing this claim in 2016. In providing a response, please note that the Veteran has been diagnosed as having depressive disorder. See December 2017 Dr. R.W. opinion. If current findings conflict with that diagnosis, please explain why that is so. (b.) For any psychiatric disorder identified, please discuss whether it is at least as likely as not (50 percent or greater probability) that the disorder had its onset in, or is otherwise related to service. In providing a response, please be mindful of the Veteran’s honorable and dishonorable periods of service, as well as the December 2017 opinion of Dr. R.W., and the Veteran’s lay statements as to a continuity of symptoms since service. A complete rationale must be provided for any opinion offered. 3. Return the claims file to the VA examiner who authored the July 2015 addendum opinion for the Veteran’s left and right knee disabilities, or if unavailable, another clinician of equal expertise. It is left to the discretion of the examiner whether an in-person examination is necessary. The examiner should address the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran’s right and left knee disabilities are related to the Veteran’s military service, to specifically include the instances of knee treatment in June 1965, August 1965, and October 1965 documented in the Veteran’s service treatment records? 4. Schedule the Veteran for an appropriate VA examination to assess his potential sleep apnea disability. The examiner should take a history from the Veteran as to the progression of his sleep symptoms. After review of the record, interview and examination of the Veteran, the examiner should answer the following: (a.) Identify whether the Veteran has obstructive sleep apnea. (b.) If so, is it as least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea was caused or aggravated beyond its natural progression by his service-connected asthma with COPD? 5. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his respiratory disorder. All necessary testing, to specifically include PFT, must be conducted and clinical findings must be recorded in detail. The PFT must be conducted using post-bronchodilator therapy, unless pre-bronchodilator pulmonary function tests are normal. The examiner must review the results of any testing prior to completion of the report. The PFT must also provide a value for the Veteran’s maximum exercise capacity expressed as milliliters/kilograms/minutes of oxygen consumption (with cardiac or respiratory limitation). If this value cannot be obtained, the examiner should explain why this is the case. The examiner must further state whether the Veteran experiences other pertinent physical findings, complications, conditions, signs and/or symptoms related to his service-connected respiratory disorder, to include cor pulmonale (right heart failure), right ventricular hypertrophy, pulmonary hypertension (shown by Echo or cardiac catheterization), episodes of acute respiratory failure, or requiring outpatient oxygen therapy. 6. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal, to include entitlement to a TDIU. If the benefits sought on appeal remain denied, the Veteran and his attorney should be provided with a Supplemental Statement of the Case and be afforded a reasonable period of time within which to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. APRIL MADDOX Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Polly Johnson, Associate Counsel