Citation Nr: 20021236 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 15-23 356 DATE: March 25, 2020 ORDER The appeal for entitlement to service connection for gastroesophageal reflux disease (GERD) is dismissed. The appeal for entitlement to service connection for posttraumatic stress disorder (PTSD) is dismissed. The appeal for entitlement to service connection for anxiety disorder is dismissed. The appeal for entitlement to a temporary total evaluation because of treatment for a service-connected condition (left knee) requiring convalescence, to include a rating in excess of 60 percent thereafter for left knee disability, is dismissed. A rating of 30 percent for irritable bowel syndrome (IBS) is granted. The application to reopen a claim of service connection for right knee disability is granted. The application to reopen a claim of service connection for depression is granted. REMANDED Service connection for right knee disorder, to include as secondary to the service-connected left knee disability, is remanded. Service connection for depression, to include as secondary to service-connected left knee disability and/or secondary to service-connected IBS, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU). FINDINGS OF FACT 1. At the November 2019 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrawal the issues of entitlement to service connection for GERD, PTSD, and anxiety disorder, as well as the issue of entitlement to a temporary total evaluation because of treatment for a service-connected condition (left knee) requiring convalescence, to include a rating in excess of 60 percent thereafter for left knee disability. 2. An August 2003 RO decision denied the Veteran’s claims of entitlement to service connection for depression and a right knee disorder. The Veteran did not appeal or submit new and material evidence within one year. 3. June 2007 and January 2009 rating decisions denied the Veteran’s application to reopen a claim of entitlement to service connection for right knee disability. The Veteran did not appeal the right knee issue or submit new and material evidence within one year. 4. Evidence received subsequent to the January 2009 RO decision does, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the Veteran’s claim of entitlement to service connection for right knee disability. 5. Evidence received subsequent to the August 2003 RO decision does, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the Veteran’s claim of entitlement to service connection for depression. 6. The Veteran’s IBS approximated severe symptoms of alternating diarrhea and constipation, with more or less constant abdominal distress. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of entitlement to service connection for GERD have been met. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. § 20.205 (2019). 2. The criteria for withdrawal of the issue of entitlement to service connection for PTSD have been met. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. § 20.205 (2019). 3. The criteria for withdrawal of the issue of entitlement to service connection for anxiety disorder have been met. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. § 20.205 (2019). 4. The criteria for withdrawal of the issue of entitlement to a temporary total evaluation because of treatment for a service-connected condition (left knee) requiring convalescence, to include a rating in excess of 60 percent thereafter for left knee disability have been met. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. § 20.205 (2019). 5. The January 2009 rating decision that denied the Veteran’s application to reopen a claim of entitlement to service connection for right knee disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (2019). 6. New and material evidence has been received to reopen the claim of service connection for right knee disorder. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156(a) (2019). 7. The August 2003 rating decision that denied the Veteran’s claim of entitlement to service connection for depression is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (2019). 8. New and material evidence has been received to reopen the claim of service connection for depression. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156(a) (2019). 9. The criteria for a rating of 30 percent for IBS are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.114, Diagnostic Code 7319 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1973 to May 1973. This comes before the Board of Veterans Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2019 the Veteran testified at a hearing before the undersigned Veterans Law Judge at a VAMC in Oregon. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record an address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran offered testimony before the undersigned Veterans Law Judge at a Board hearing in November 2019. The Board finds that all requirements for hearings have been met. 38 C.F.R. § 3.103(c)(2) (2019); Bryant v. Shinseki, 23 Vet. App. 488 (2010). 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. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.205. In the present case, at the November 2019 Board hearing, the Veteran withdrew the issues of entitlement to service connection for GERD, PTSD, and anxiety disorder and, entitlement to a temporary total evaluation because of treatment for a service-connected condition (left knee) requiring convalescence, to include a rating in excess of 60 percent. The Board finds this withdrawal was done with a full understanding of the consequences as the Veteran confirmed that he understood he would need to file a new appeal for VA to address any of those issues. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Hence, there remain no allegations of errors of fact or law for appellate consideration as to those issues. Accordingly, the Board does not have jurisdiction to review the issues, and they are dismissed. Application to reopen a claim of service connection for right knee disability and depression In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). 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 (2017). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2019). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service- the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially 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) (2019). Right knee In various rating decisions, including most previously in January 2009, the RO denied the Veteran’s claim of entitlement to service connection for right knee disability. The denials were essentially based on the absence of a demonstration of right knee complaints during service and was also based on no showing of a relationship to left knee disability. The Veteran did not appeal or submit new and material evidence within one year of the January 2009 rating decision, and the rating decision as to the right knee is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Evidence of record submitted since the January 2009 denial includes an August 2010 RO decision which acknowledged the continuing deterioration of the Veteran’s left knee disability, resulting in a rating of 60 percent for the left knee. As the Veteran’s main assertion in this case has been that his left knee has aggravated his right knee condition, the Board finds that new and material evidence has been presented. The evidence (increasing left knee disability) is new, because it was not previously before VA and is also material because it relates to unestablished facts necessary to establish the claim-evidence of aggravation. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156(a). Further, new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened. Justus, 3 Vet. App. at 513. Moreover, when considering the new evidence in conjunction with the evidence already of record, combined with VA assistance including an examination, it raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. Accordingly, for all of the above reasons, the Veteran’s right knee claim is reopened. Depressive disorder An August 2003 rating decision denied the Veteran’s claim of entitlement to service connection for a depressive disorder. The denial was based on the finding that the Veteran’s depression had preexisted service and had not been aggravated by service or by service-connected left knee disability. The Veteran did not appeal or submit new and material evidence within one year of the August 2003 rating decision, and the August 2003 rating decision as to depression is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Evidence of record submitted since the August 2003 denial includes the Veteran’s assertion that his depression is aggravated by his service-connected IBS. As service connection for IBS was not in effect in August 2003, the Board finds that new and material evidence has been presented. The evidence (being service connected for IBS) is new, because it was not previously before VA in August 2003, and is also material because it relates to unestablished facts necessary to establish the claim-evidence of aggravation. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156(a). Further, new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened. Justus, 3 Vet. App. at 513. Moreover, when considering the new evidence in conjunction with the evidence already of record, combined with VA assistance including an examination, it raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. Accordingly, for all of the above reasons, the Veteran’s depression claim is reopened. Increased evaluation for IBS Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2019). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155, 38 C.F.R. § 4.1 (2019). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2019). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3 (2019). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev’d in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. Here, the appeal period begins in 2007. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2019). After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2019). The Veteran’s IBS is rated under 38 C.F.R. § 4.114, Diagnostic Code 7319. Under Diagnostic Code 7319, a 10 percent rating is assigned for moderate irritable colon syndrome with frequent episodes of bowel disturbance with abdominal distress. The maximum schedular 30 percent rating is assigned for severe irritable colon syndrome with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. At the November 2019 Board hearing the Veteran reported that over the past years he had constant (daily basis) and regular diarrhea, upset stomach, and nausea. He also had cramps and pain in his lower stomach and indicated that the medication that he took was not effective. In a November 2010 VA examination, the Veteran reported heartburn mainly at night time and sometime with gagging sensation but no nausea or vomiting. He had dysphagia and pyrosis but no hematuria or melena. He reported daily stomach churning and daily diarrhea with inadvertent stool accidents. In a July 2015 VA examination, the Veteran reported intermittent nausea without pattern, vomiting three times per week, intermittent stomach pain 3 to 4 times per week, daily diarrhea, and lower abdominal pain that was severe cramping about once every 10 days. Resolving all doubt in favor of the Veteran, the Board finds he is entitled to a rating of 30 percent for his IBS. The Veteran’s symptoms have more nearly approximated the 30 percent rating criteria, such as frequent bouts of diarrhea and/or constipation. At both of the 2010 and 2015 examinations, there was daily diarrhea. The Veteran confirmed this at the 2019 Board hearing. In addition to the daily nature of the diarrhea, there were multiple other symptoms that more nearly approximate constant abdominal distress, to include inadvertent stool accidents and cramping once every 10 days. The Board finds that this more nearly approximates severe symptoms. A rating in excess of 30 percent is not permitted under Diagnostic Code 7319. No other diagnostic codes are for consideration as disabilities specifically listed in the rating schedule may only be rated under the Diagnostic Codes which specifically pertain to them. Scott v. Wilkie, 2018-1535, slip. op. at 8 (Fed. Cir. April 15, 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2019). VA’s duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). The Board finds that the medical evidence of record is not sufficient to adjudicate the claims of service connection for right knee disability and depression and the Veteran should be scheduled for VA examination that includes a medical opinion that addresses the Veteran’s assertions in this case. As the issues on remand impact the issue of entitlement to a TDIU, the Board will defer adjudication of that issue pending review by the AOJ. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment on and after July 31, 2019. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant non-VA medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the appellant which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with the appropriate examinations for his right knee claim. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran’s right knee disability had its onset in service or is etiologically related to the Veteran’s active service. The examiner must also provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran has a right knee disability that is caused or aggravated by his service-connected left knee disability. 4. After any additional records are associated with the claims file, provide the Veteran with the appropriate examinations for his depressive disorder claim. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide the following opinions: A. On the basis of all the evidence of record, is it clear and unmistakable (i.e., obvious, manifest, or undebatable) that the depressive disorder pre-existed his entry onto active duty? B. If the depressive disorder clearly and unmistakably preexisted active service, is it clear and unmistakable (i.e., obvious, manifest, or undebatable) that the preexisting depressive disorder either (1) underwent no increase in disability during service, or (2) that any increase in disability during service was due to the natural progression of the condition? C. If either A or B is answered in the negative, is it at least as likely as not that the depressive disorder had its onset in, or is otherwise caused by, the Veteran’s service? D. Is it at least as likely as not that the depressive disorder is caused or aggravated by the Veteran’s service-connected IBS or left knee disability. 5. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2019). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David Nelson 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.