Citation Nr: 18161266 Decision Date: 12/31/18 Archive Date: 12/31/18 DOCKET NO. 15-30 726 DATE: December 31, 2018 ORDER The appeal for entitlement to service connection for headaches, to include as secondary to posttraumatic stress disorder (PTSD), is dismissed. New and material evidence has been submitted to re-open a claim for entitlement to service connection for a left knee condition and, to this extent only, the claim is granted. New and material evidence has been submitted to re-open a claim for entitlement to service connection for a low back condition and, to this extent only, the claim is granted. REMANDED Entitlement to an acquired psychiatric disorder, to include PTSD, agoraphobia, depression, and anxiety disorder, is remanded. Entitlement to service connection for a left knee condition is remanded. Entitlement to service connection for a low back condition is remanded. FINDINGS OF FACT 1. In August 2018, prior to the promulgation of a decision in the appeal, the Veteran withdrew his claim for service connection for headaches. 2. The August 2007 rating decision that denied the Veteran’s claim for service connection for a left knee condition was not appealed, nor was new and material evidence received during the appeal period; however, evidence received since the final August 2007 rating decision is new and raises a reasonable possibility of substantiating the claim. 3. The August 2007 rating decision that denied the Veteran’s claim for service connection for a low back disorder was not appealed, nor was new and material evidence received during the appeal period; however, evidence received since the final August 2007 rating decision is new and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim for service connection for headaches have been met. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 20.204. 2. The August 2007 rating decision that denied the Veteran’s claim for entitlement to service connection for a left knee condition is final; however, new and material evidence has been received and, as such, the claim is reopened. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 3. The August 2007 rating decision that denied the Veteran’s claim for entitlement to service connection for a low back condition is final; however, new and material evidence has been received and, as such, the claim is reopened. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Headaches 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(d)(5). 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 the appellant or by his or her authorized representative. In an August 2018 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew the issue of entitlement to service connection for headaches. In addition, the VLJ discussed the consequences of withdrawing an appeal, and the Veteran expressed that he fully understood those consequences. Accordingly, there remain no allegations of errors of fact or law for appellate consideration of this issue. The Board does not have jurisdiction to review this claim and the claim is dismissed. Left Knee and Low Back Conditions A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted. 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. The threshold to reopen a claim is low and does not require new and material evidence regarding each element of the claim that was not proved in the prior decision. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Veteran filed an original claim for service connection for a left knee condition and a low back disorder in December 2006 that was denied in an August 2007 rating decision. The Veteran did not appeal or submit additional evidence within the appeal period and, accordingly, the August 2007 decision became final. In June 2012, the Veteran filed a petition to reopen the claims for a left knee condition and a low back disorder. New evidence submitted since the final August 2007 decision includes August 2018 testimony that the Veteran has experienced continuous symptoms since service. For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). As this evidence is new and material, is neither cumulative nor redundant of the evidence previously of record, is presumed credible, and raises a reasonable possibility of substantiating the claims, the claims for a left knee condition and a low back condition is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. To this limited extent only, the claims are granted. REASONS FOR REMAND Having reviewed the record, the Board finds that remand is warranted for the claims for an acquired psychiatric disorder, left knee condition, and a low back condition. Acquired Psychiatric Disorder Based on the medical evidence of record, the claims for service connection for PTSD, agoraphobia, depression, and anxiety disorder have been recharacterized into a claim for an acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Remand is warranted for an examination as there is medical evidence of psychiatric diagnoses and August 2018 testimony that the Veteran’s anxiety and depression began in service and has continued since service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); Duenas v. Principi, 18 Vet. App. 512 (2004). Accordingly, the Veteran should be afforded an examination to determine the nature and etiology of his claimed acquired psychiatric disorder. Attention is invited to the Veteran’s August 2018 testimony that his anxiety and depression began service. Left Knee Condition In a January 2016 VA examination, it was determined that the Veteran did not have a diagnosis of a left knee condition. However, in August 2018, the Veteran testified that his VA medical providers have recently requested that the Veteran begin physical therapy for his left knee. In light of this, remand is warranted for any outstanding VA medical records, to include records from December 2015. If the newly associated records indicate that the Veteran has been diagnosed with a left knee condition or is receiving treatment for left knee symptoms, then he should be afforded a new examination. If an examination is scheduled, attention is invited to the November 2006 separation report of medical history noting knee troubles Low Back Condition A January 2016 VA examination determined that the Veteran’s lumbar strain was less likely as not related to service. The examiner noted the service treatment records (STRs) documenting back pain and a normal separation examination, but did not provide a rationale. As the Veteran testified in August 2018 that he continued to experience symptoms after service, the Board finds that clarification is needed to determine whether the Veteran’s present low back condition is related to his in-service reports of back pain. Accordingly, remand is warranted for a new examination. The examiner should provide an opinion on the etiology of the Veteran’s low back condition. Attention is invited to the August 2004 STR noting back pain due to lifting weights, a September 2004 STR reporting that the Veteran reportedly injured his back 1 year previously while lifting weights, and that the pain was acting up again, and the September 2004 radiologic report. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records, to include records from December 2015. 2. Schedule the Veteran for an examination to determine the nature and etiology of any acquired psychiatric disorder. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. Attention is invited to the August 2018 testimony reporting that anxiety and depression symptoms had its onset in service. 3. After completion of directive 1, and only if records indicate that the Veteran has a diagnosis of a left knee or is receiving treatment for left knee symptoms, schedule the Veteran for an examination to determine the nature and etiology of any left knee condition. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. Attention is invited to the November 2006 separation report of medical history noting knee troubles. 4. Schedule the Veteran for an examination to determine the nature and etiology of any low back condition. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. Attention is invited to the August 2004 STR noting back pain due to lifting weights; a September 2004 STR reporting that the Veteran reportedly injured his back a year previously while lifting weights, and that the pain was acting up again; and the September 2004 radiologic report. Any opinion offered should be accompanied by the underlying reasons for the conclusion. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Vang, Associate Counsel