Citation Nr: 20021082 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 17-59 498 DATE: March 24, 2020 ORDER The appeal pertaining to the issue of entitlement to an initial compensable rating for migraine headaches is dismissed. New and material evidence having been received, the application to reopen the claim of entitlement to service connection for a right knee disorder is granted. New and material evidence having been received, the application to reopen the claim of entitlement to service connection for an acquired psychiatric disorder is granted. Service connection for posttraumatic stress disorder (PTSD) and major depressive disorder (MDD) is granted. REMANDED Entitlement to an initial compensable rating for allergic rhinitis is remanded. Entitlement to service connection for a right knee disorder, to include as secondary to medial meniscus tear of the left knee, is remanded. FINDINGS OF FACT 1. Prior to the promulgation of a Board decision, the Veteran withdrew his appeal as to the issue of an initial compensable rating for migraine headaches on the record at the January 2020 Board hearing. 2. In a final rating decision issued in March 2014, the Agency of Original Jurisdiction (AOJ) denied service connection for a right knee disorder. 3. Evidence associated with the record since the final March 2014 denial is not cumulative or redundant of the evidence of record at the time of the prior decision and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a right knee disorder. 4. In a final rating decision issued in July 2014, the AOJ confirmed the prior denial of service connection for an acquired psychiatric disorder, characterized as PTSD. 5. Evidence associated with the record since the final July 2014 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disorder. 6. Resolving all doubt in his favor, the Veteran has a current diagnosis of PTSD related to his fear of hostile military or terrorist activity, and a current diagnosis of MDD related to his PTSD. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal pertaining to the issue of initial compensable rating for migraine headaches by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The March 2014 rating decision that denied service connection for a right knee disorder is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2013). 3. New and material evidence has been received to reopen a claim of entitlement to service connection for a right knee disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. The July 2014 rating decision that confirmed the prior denial of service connection for an acquired psychiatric disorder, characterized as PTSD, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2014). 5. New and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 6. The criteria for service connection for PTSD and MDD have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1999 to June 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in June 2015 by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2016, the Veteran testified at a RO hearing before a Decision Review Officer and, in January 2020, he testified at a Board hearing before the undersigned Veterans Law Judge. Transcripts of both hearings are of record. At such time, the undersigned held the record open for 30 days for the submission of additional evidence, which was received in January 2020. 38 U.S.C. § 7105(e)(1). 1. Entitlement to an initial compensable rating for migraine 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. 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. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the instant case, the Veteran withdrew his appeal pertaining to the issue of entitlement to an initial compensable rating for migraine headaches on the record at the January 2020 Board hearing. In this regard, the hearing transcript reflects that the Veteran’s withdrawal of such claim was explicit, unambiguous, and done with a full understanding of the consequences of such action. Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018); DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Therefore, there remain no allegations of errors of fact or law for appellate consideration with regard to such issue. Accordingly, the Board does not have jurisdiction to review the appeal of such issue and it is dismissed. Applications to Reopen Previously Denied Claims Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 2. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a right knee disorder. By way of background, VA received the Veteran’s original claim for service connection for a right knee disorder in June 2013. In a March 2014 rating decision, the AOJ considered the Veteran’s service treatment records, post-service treatment records, and a March 2014 VA examination, and denied service connection for a right knee disorder. In pertinent part, the AOJ found there was no record of diagnosis or treatment for a right knee disorder in service and no indication of any arthritic changes shown within one year of separation. Further, the AOJ noted that the March 2014 VA examination only showed an impression of probable chondromalacia, and did not include a definitive diagnosis. Later that month, the Veteran was advised of the decision and his appellate rights; however, he did not enter a notice of disagreement. Furthermore, no new and material evidence was physically or constructively received within one year of the issuance of such decision and, while the Veteran’s service personnel records were received in June 2014, such are irrelevant to his claim for service connection for a right knee disorder. Therefore, the March 2014 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2013)]. In February 2015, VA received the Veteran’s application to reopen his claim of entitlement to service connection for a right knee disorder based on a new theory of entitlement. In this regard, he alleged that such disorder is caused or aggravated by his service-connected medial meniscus tear of the left knee. Further, since the issuance of the March 2014 rating decision, a VA examination conducted in June 2015 notes the presence of degenerative joint disease in the right knee. However, the VA examiner opined that it was less likely than not that such disorder was proximately due to or the result of the Veteran’s service-connected left knee disability. In this regard, he indicated that a July 2013 X-ray revealed early degenerative joint disease of the right knee whereas March 2014 X-rays were essentially normal. Thus, the examiner found that the Veteran had, at worst, degenerative joint disease or, at best, chronic musculoligamentous strain, depending on which X-ray one used. However, he indicated that, in order for the Veteran to develop either condition, he would have to have developed an antalgic gait over the years, resulting in abnormal transfer of weight from the left to the right knee; however, his gait was normal without evidence of a limp. Nonetheless, at the Veteran’s January 2020 Board hearing, he reported that his gait has been altered due to overcompensation for his left knee disability and he now limped. Consequently, as the Veteran’s claim for service connection for a right knee disorder was previously denied based on the lack of a current disability and relationship to service, and the newly received evidence reflects such a diagnosed disorder and a new theory of entitlement, the Board finds that the evidence added to the record since the final March 2014 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for a right knee disorder. Thus, as new and material evidence has been received, such claim is reopened. 3. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for an acquired psychiatric disorder. By way of background, VA received the Veteran’s original claim for service connection for an acquired psychiatric disorder, characterized as PTSD, in March 2012. In a February 2013 rating decision, the AOJ considered the Veteran’s and his spouse’s lay statements, service treatment records, post-service treatment records, and a February 2013 VA examination and denied service connection for PTSD on the basis that the record failed to show a current diagnosis of such disorder. Following the issuance of such rating decision later that month, the Veteran filed an application to reopen his claim for service connection for an acquired psychiatric disorder, characterized as chronic adjustment disorder and PTSD, in April 2014. In July 2014, the AOJ considered the evidence previously of record, as well as the Veteran’s service personnel records and updated VA treatment records, and reopened the claim, but confirmed the prior denial. Specifically, the AOJ found that the record was negative for any relevant event, disease, or diagnosis in service, his service treatment records were negative for any relevant complaints, treatment, or diagnosis, and post-service treatment records did not show a diagnosis of PTSD. Thus, AOJ confirmed the prior denial of service connection for such disorder. Later that month, the Veteran was advised of the decision and his appellate rights; however, he did not enter a notice of disagreement. Furthermore, no new and material evidence was physically or constructively received within one year of the issuance of such decision, and no new relevant service department records have since been received. Therefore, the July 2014 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2014). Evidence received since the July 2014 rating decision consists of additional VA treatment records, a June 2017 VA examination, June 2016 and January 2020 psychiatric evaluations conducted by private psychologists, and the Veteran’s lay statements. In this regard, such VA treatment records reflect an additional psychiatric diagnosis of MDD. Further, while the June 2017 VA examiner found that the Veteran did not meet the criteria for a diagnosis of PTSD, the June 2016 and January 2020 private evaluations reflect such a diagnosis based on the Veteran’s fear of hostile military or terrorist activity coincident with his service in Iraq. Moreover, while the June 2017 VA examiner likewise found no nexus between the Veteran’s depression and his military service, the January 2020 psychologist found such to be related to PTSD. Consequently, as the Veteran’s claim for service connection for an acquired psychiatric disorder was previously denied based on the lack of a current disability related to his military service and the newly received evidence reflects such a diagnosed disorder, which has been related to his military service, the Board finds that the evidence added to the record since the final July 2014 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder. Thus, as new and material evidence has been received, such claim is reopened. 4. Entitlement to service connection for an acquired psychiatric disorder. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. For PTSD, service connection requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a), a link, established by medical evidence between current symptoms and an in-service stressor, and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f). However, if a claimed stressor is related to the veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304 (f)(3). The Veteran contends that he has an acquired psychiatric disorder, to include PTSD, that is related to his military service. In this regard, he contends that such disorder is a result of his two deployments to Iraq in 2003 and 2004. Specifically, the Veteran reported that there were mortar attacks almost every day, which would land in close proximity when he was working. He further indicated that he had a friend that was badly injured by shrapnel, two friends that were killed, and he was involved in a helicopter crash. As an initial matter, the Board notes that the Veteran’s military occupational specialty (MOS) was a helicopter repair man and he deployed to Iraq twice. Thus, as his reported stressors are consistent with the places, types, and circumstances of his service in Iraq and are related to his fear of hostile military or terrorist activity, his lay statements alone establish the occurrence of such stressors. Further, while February 2013 and June 2017 VA examiners found that the Veteran did not meet the relevant diagnostic criteria for a diagnosis of PTSD, and determined that his depression was unrelated to his military service, and the June 2016 psychiatric evaluation was not conducted by a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, the January 2020 private evaluation, which was conducted by a VA-trained and certified psychologist, reflects a diagnosis of PTSD related to the Veteran’s fear of hostile military or terrorist activity, and MDD related to such disorder. Consequently, as the VA examiners and the psychologist who conducted the January 2020 psychiatric evaluation are all medical professionals who are competent to diagnose psychiatric disorders in accordance with the relevant diagnostic criteria, the Board affords such opinions equal probative weight. Moreover, the Board notes that a May 2005 Post-Deployment Health Assessment reflects that the Veteran reported feeling constantly on guard, watchful, or easily startled and, at the time of the June 2016 evaluation by a private psychologist, he reported the onset of depression in 2006, which was within a year of his return from his most recent deployment to Iraq and discharge from service. Similarly, in an April 2012 statement, the Veteran’s spouse, whom he knew prior to his military service, reported that, upon his return from his second deployment, he was on edge, moody, showed little to no interest in activities he previously enjoyed, easily angered, exhibited paranoia, avoids crowds, and experienced depression. Furthermore, at the January 2020 hearing, the Veteran testified that he has been struggling with his mental health since he separated from the service, and experienced anger issues, was always on guard, and felt uncomfortable in social events, especially at school functions for his children. Consequently, t Board resolves all doubt in favor of the Veteran and finds that he has a current diagnosis of PTSD related to his fear of hostile military or terrorist activity, and a current diagnosis of MDD related to his PTSD. Thus, service connection for such disorders is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 5. Entitlement to an initial compensable rating for allergic rhinitis. The Board finds that a remand is necessary in order to afford the Veteran a contemporaneous VA examination so as to determine the current nature and severity of his allergic rhinitis. In this regard, the Board observes that he was last examined by VA in June 2015. At the time, the Veteran had less than a 50 percent obstruction of the nasal passage and did not have complete obstruction on either the left side or the right side. However, at the January 2020 Board hearing, the Veteran indicated that he allergic rhinitis had worsened since such time as had difficulty breathing through one or both nasal passages. Specifically, he noted that the right side is significantly worse than the left and sometimes feels as if he cannot breathe out of it at all. As a result, the Board finds that a remand is warranted in order to provide the Veteran a contemporaneous VA examination to assess the current nature and severity of his service-connected allergic rhinitis. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995) 6. Entitlement to service connection for a right knee disorder, to include as secondary to medial meniscus tear of the left knee. As noted previously, the Veteran, as relevant, contends that he has a right knee disorder, which has been diagnosed as chronic musculoligamentous strain and degenerative joint disease, that is caused or aggravated by his service-connected medial meniscus tear of the left knee. In this regard, the June 2015 VA examiner opined that it was less likely than not that the Veteran’s right knee disorder was proximately due to or the result of his service-connected left knee disability. In this regard, he indicated that a July 2013 X-ray revealed early degenerative joint disease of the right knee whereas March 2014 X-rays were essentially normal. Thus, the examiner found that the Veteran had, at worst, degenerative joint disease or, at best, chronic musculoligamentous strain, depending on which X-ray one used. However, he indicated that, in order for the Veteran to develop either condition, he would have to have developed an antalgic gait over the years, resulting in abnormal transfer of weight from the left to the right knee; however, his gait was normal without evidence of a limp. However, subsequent to such examination, the Veteran reported at his January 2020 Board hearing that his gait has been altered due to overcompensation for his left knee disability and he now limped. Moreover, the June 2015 VA examiner did not offer an opinion as to whether the Veteran’s right knee disorder is aggravated by his left knee disability. Consequently, a remand is necessary in order to obtain an addendum opinion addressing such matters. The matters are REMANDED for the following actions: 1. Afford the Veteran an appropriate VA examination to determine the current nature and severity of his service-connected allergic rhinitis. The record, to include a complete copy of this Remand, must be made available to the examiner, and all indicated tests and studies should be accomplished. The examiner should describe the nature and severity of all manifestations of the Veteran’s allergic rhinitis, to include whether either or both nasal passages are obstructed and, if so, the degree of such, and whether polyps are present. The functional impact of such disability should also be discussed. A rationale for any opinion should be provided. 2. Return the record to the VA examiner who conducted the June 2015 VA examination regarding the Veteran’s claimed right knee disorder. The record and a copy of this Remand must be made available to the examiner. If the June 2015 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a review of the record, to include the Veteran’s January 2020 Board hearing testimony indicating that his gait has been altered due to overcompensation for his left knee disability and he limped, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s right knee disorder, diagnosed as chronic musculo-ligamentous strain and degenerative joint disease, is caused or aggravated by his medial meniscus tear of the left knee, to include as due to overcompensation and/or an altered gait. For any aggravation found, the examiner should state, to the best of his or her ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Waite The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.