Citation Nr: 21063113 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 17-57 640 DATE: October 13, 2021 ORDER New and material evidence having been received, the appeal to reopen service connection for headaches is granted. Service connection for a chronic kidney disease is denied. Service connection for an acquired psychiatric disorder, including as due to the service-connected lichen simplex disability, is denied. REMANDED Service connection for osteoarthritis in both knees is remanded. Service connection for headaches is remanded. FINDINGS OF FACT 1. An April 1994 rating decision denied service connection for headaches, due to a lack of current diagnosis and nexus to service. 2. The Veteran did not file a timely notice of disagreement (NOD) to appeal the April 1994 denial of service connection for the headache disorder and new and material evidence was not received during the one-year appeal period following that decision. 3. New evidence received since the April 1994 rating decision relates to establishing a current disability and nexus to service, which are necessary to substantiate a claim for service connection for the headache disorder. 4. The Veteran does not have a current disability of chronic kidney disease, and is already service connected for urinary tract infections (UTIs). 5. The Veteran has a current disability of other specified depressive disorder. 6. The Veteran did not experience an in-service psychological injury, disease, or event. 7. The acquired psychiatric disorder was not caused by or worsened in severity by the service-connected lichen simplex disability. CONCLUSIONS OF LAW 1. The April 1994 rating decision, which denied service connection for the headache disorder, became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. Evidence received since the April 1994 rating decision is new and material to reopen service connection for the headache disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for chronic kidney disease have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for an acquired psychiatric disorder (diagnosed as other specified depressive disorder), including as due to the service-connected lichen simplex, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.326, 3.310, 4.125. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1983 to May 1993. This matter is on appeal from a May 2015 rating decision issued by the Regional Office (RO) in Boise, Idaho. The Veteran during a Board videoconference hearing in May 2021 before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. Duties to Notify and Assist The Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. Neither the Veteran nor the 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). Legal Authority for New and Material Evidence Finally decided claims cannot be reopened in the absence of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Barnett v. Brown, 8 Vet. App. 1 (1995) (citing 38 U.S.C. §§ 5108, 7104(b)). Unappealed rating decisions by the RO are final with the exception that a claim may be reopened by submission of new and material evidence. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. When a veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is "new" and "material." See Smith v. West, 12 Vet. App. 312 (1999). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156 (a). Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. 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. Id. 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). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of 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, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. 1. Reopening Service Connection for a Headache Disorder An April 1994 rating decision denied service connection for the headache disorder for lack of a current disability and nexus to service. The Veteran did not file a timely NOD to appeal the April 1994 denial of service connection for the headache disorder, and new and material evidence was not received during the one-year appeal period following that decision. For this reason, the April 1994 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Since the April 1994 rating decision, which denied service connection for the headache disorder, VA has received additional lay and medical evidence. Lay and medical evidence including, but not limited to, the Veteran's lay statements at the May 2021 Board hearing and June 2009 VA treatment records, that establish a current disability and expound upon the claimed nexus to service. When the credibility of such evidence is presumed for the purposes of reopening the claim, such evidence relates to unestablished facts of a current disability and a nexus to service and could reasonably substantiate the issue of service connection for the headache disorder. For this reason, the Board finds that the additional evidence is new and material to reopen service connection for a headache disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Legal Authority for Service Connection Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). 2. Service Connection for a Chronic Kidney Disease The Veteran generally contends that she has a chronic kidney disease that is related to service. See May 2021 Transcript. The Board notes that medical treatment records indicate that a non-specific chronic kidney disease was included on a "problem list," but there is no specific current disability. During the May 2021 Board hearing, the Veteran provided testimony about this issue. When specifically questioned about the specific diagnosis and related symptoms, the Veteran responded: Honestly, I cannot. I don't --I have the frequent UTIs. And, I mean, they're really frequent. And based on that, I was diagnosed with the chronic kidney disease which has a bearing on my UTIs. The correlation, unfortunately, I'm not a doctor either, so I can't make the exact correlation to it. But you have the UTI and the kidney, chronic kidney. They're right there together, honestly. The Veteran also testified that she does not take any medication to treat a chronic kidney infection; she only takes medication to treat the UTIs. The Board finds that there is no current disability of a chronic kidney disease and that the Veteran is already service connected for UTIs. Without proof of a present disability, there can be no claim; thus, the instant appeal must be denied. 3. Service Connection for an Acquired Psychiatric Disorder, Including as Due to the Service-Connected Lichen Simplex Disability The Veteran proffered several explanations of what she considered psychological events that caused the current acquired psychiatric disorder based on direct service connection. The Veteran also asserted that the acquired psychiatric disorder is secondarily related to the service-connected lichen simplex. The Board finds that the Veteran has a current acquired psychiatric disability, diagnosed as other specified depressive disorder. See May 2015 VA Examination. Direct Service Connection After a review of the evidence of record, the Board finds that the weight of the lay and medical evidence demonstrates that the Veteran did not experience an in-service psychological injury, disease, or event. The Board will specifically discuss each of the claimed in-service events below. A. Reports of In-Service Sexual Assault During the May 2021 Board hearing, the Veteran reported that she was almost raped by another servicemember at the MEPS station and that she was inappropriately touched by a senior NCO servicemember. The Veteran explained that she did not report either incident. The Veteran does not claim that either of these incidents affected her performance in service. According to the DD 214 Form, during the Veteran's almost 10 years of service, she achieved a pay grade status of E-6. The service treatment records do not contain complaints of or treatment for psychiatric issues. In fact, the service treatment records demonstrate that contemporaneous evidence contradicts the notion that the Veteran experienced psychiatric symptoms or other behavioral markers during service. See December 1985 Military Medical Examination (The Veteran's psychiatric and neurological systems were found to be in normal condition). At service separation, the Veteran's psychiatric and neurological systems were found to be in normal condition. See January 1993 Service Separation Examination. Additionally, at service separation, the Veteran denied a history or current symptoms of depression, worry, or nervous trouble. See January 1993 Report of Medical History. Upon review of the record, the first time the Veteran reported these incidents was during her testimony at the May 2021 Board hearing, approximately 28 years after service separation, after filing several non-related claims of service connection, and after asserting several times that the acquired psychiatric disorder is due to the service-connected lichen simplex and having that claim denied. See May 1993 Claim (Service connection for headaches and UTIs); September 2014 Claim (Service connection for the left knee and headaches); September 2014 Private Opinion (The private examiner loosely related the depression to the lichen simplex); July 2015 Lay Statement (Explaining that the lichen simplex causes the depression). The first and only time the Veteran reported the newly alleged attempted rape and sexual assault was during the May 2021 Board hearing. During the May 2021 Board hearing, the Veteran's testimony about the attempted rape and sexual assault was vague and brief, and showed no indicia of behavioral changes or other markers that might corroborate the generally alleged assaults. The Veteran has not proffered a reason for pursuing a claim for service connection for psychiatric disorder but waiting years into the claim at a Board hearing to first report allegations of in-service assault. Based on the foregoing, the Board finds that that the Veteran is not credible in the recent reports of these psychological events, and that the evidence does not otherwise show indicia of behavioral markers to find that such events happened during service. B. Reports of Depression While Pregnant in Service During the May 2021 Board hearing, the Veteran asserted that the current depression is related to the depression she experienced in service when she was pregnant. See May 2021 Transcript. The Board notes that the Veteran was pregnant during service; however, as mentioned above, psychiatric symptoms are absent from the service treatment records and the Veteran was found to have normal psychiatric and neurological systems at service separation. Upon review of the record, the first time the Veteran reported that she experienced depression during her pregnancy was when she testified at the May 2021 Board hearing, approximately 28 years after service separation, after filing several non-related claims of service connection, and after asserting several times that the acquired psychiatric disorder is due to the service-connected lichen simplex. It was only after the first proffered theory of secondary service connection was rejected by VA, and several years into this compensation claim, that the Veteran added the theory that the current psychiatric symptoms might be related to a pregnancy during service, and was also the first allegation of symptoms of depression during service. The first and only time the Veteran reported the pregnancy depression was during the May 2021 Board hearing. Again, the Veteran's testimony was vague and brief and inconsistent with the symptoms, histories, and findings during service and at service separation. Based on the foregoing, the Board finds that that the Veteran is not credible in reporting that she experienced depression during service in conjunction with a pregnancy. C. Reports of Anxiety when Husband was Deployed During the May 2021 Board hearing, the Veteran reported that the current depression is related to the depression she experienced in service when her husband was deployed. See May 2021 Transcript. As to this contention, as with other newly proffered reports of in-service events or symptoms years into the compensation claim, psychiatric symptoms are absent from the service treatment records and the Veteran was found to have normal psychiatric and neurological systems at service separation. Upon review of the record, the first time the Veteran reported that she experienced depression when her husband was deployed was during her testimony at the May 2021 Board hearing, approximately 28 years after service separation, after filing several non-related claims of service connection, and after asserting several times that the acquired psychiatric disorder is due to the service-connected lichen simplex, and after having this theory rejected by VA. The first and only time the Veteran reported the pregnancy depression was during the May 2021 Board hearing; the testimony was ambiguous and short. Based on the foregoing, the Board finds that that the Veteran is not credible in this recent reporting of having experienced psychological symptoms during service when her husband was deployed. Secondary Service Connection The Veteran contends that the acquired psychiatric disorder is due to the service-connected lichen simplex disability based on secondary service connection. See July 2015 Lay Statement (The Veteran's spouse explained that the Veteran feels depressed and anxious because of the lichen simplex) The weight of the evidence is against finding that the acquired psychiatric disorder was caused by or worsened in severity by the service-connected lichen simplex disability. In September 2014, a private examination statement presented the bare conclusion that the lichen simplex caused depression, but provided no rationale to support the conclusion. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). In a May 2015 VA examination, the VA examiner rendered a negative nexus opinion for secondary service connection because any current depressive symptoms were associated with post-military life, specifically the Veteran's tubal ligation and an unexpected pregnancy that resulted in a miscarriage. The rationale included the onset and first report of such symptoms after these post-service life events and evidence of record showing the Veteran's attribution of depressive symptoms to the post-service events. The VA examiner noted that the Veteran reported only periodic self-consciousness and a slight decrease in self-confidence due to having this skin condition on her lower legs and denied that her self-consciousness or mild irritability causes clinically significant social or occupational problems. As the May 2015 VA examination opinion includes a rationale based on the specific facts of this case that include no symptoms in service or for years after service, and the onset of depression following significant post-service events, is more probative than the September 2014 private statement that lacks a rationale and does not address accurate facts, as found by the Board, of significant post-service events and post-service onset of depression. Based on the foregoing, the Board finds that the criteria for service connection for an acquired psychiatric disorder (diagnosed as other specified depressive disorder), including as due to the service-connected lichen simplex disability, have not been met; thus, the appeal must be denied. REASONS FOR REMAND 4. Service connection for osteoarthritis in both knees is remanded. The Veteran contends that the bilateral knee disorder is either related to an in-service softball injury in July 1984 and/or the altered gait caused by the service-connected right ankle disability. See May 2021 Transcript. The Veteran testified during the May 2021 Board hearing that, even though the first report of knee symptoms of record was in 2002, approximately nine years after service separation, she was self-medicating the bilateral knee pain. According to service treatment records, the Veteran experienced an in-service injury. In July 1984, the Veteran collided with someone when she was playing softball, injuring the left knee. The Board also notes that the Veteran is service connected for a right ankle disability. In May 2021 correspondence, a VA examiner explained that chronic pain in the ankles will cause a person to alter their gait, which disrupts the normal mechanics of movement and produces undue stress on the knees. There is no VA examination of records assessing the bilateral knee disorders. The Board finds that there is insufficient evidence of record to adjudicate the claim of service connection for a bilateral knee disorder. As such, a remand is warranted to obtain a VA examination opinion. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 5. Service connection for a headache disorder is remanded. The Veteran contends that the current headache disorder is related to the headache she experienced in service. See May 2021 Transcript. Upon review of service treatment records, the Veteran sought treatment for headache symptoms twice in service. The Veteran injured her head during service in April 1984. According to the service treatment records, the Veteran "bumped" her head and acquired a laceration to the scalp. The military medical examiner noted that there was no swelling or discoloration and cleaned the wound. The Veteran was instructed to keep the laceration clean. Later during service in September 1984 the Veteran sought treatment for headaches that she was experiencing for five days, with pain radiating from the left temple and ear. The military medical examiner attributed the symptoms to sinusitis. The January 1993 service separation examination indicates that the head, neurological system, and psychiatric system were all normal. Additionally, when the Veteran reported her medical history at service separation, she denied a head injury, frequent or severe headaches, or loss of memory. There is no VA examination of record assessing the headache disorder. As such, a remand is warranted to obtain a VA examination opinion. The issues of service connection for knee disorders and service connection for headaches are REMANDED for the following action: 1. Schedule a VA examination to assist in determining service connection for the bilateral knee disorder. The VA examiner should offer the following opinions: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's left knee disorder is related to the July 1984 in-service softball injury? (b.) Is it at least as likely as not (i.e., probability of 50 percent or more) that the left knee disorder was proximately due to the service-connected right ankle disability? (c.) Is it at least as likely as not (i.e., probability of 50 percent or more) that the left knee disorder was aggravated by (worsened in severity beyond a normal progression by) the service-connected right ankle disability? (d.) Is it at least as likely as not (i.e., probability of 50 percent or more) that the right knee disorder was proximately due to the service-connected right ankle disability? (e.) Is it at least as likely as not (i.e., probability of 50 percent or more) that the right knee disorder was aggravated by (worsened in severity beyond a normal progression by) the service-connected right ankle disability? 2. Schedule a VA examination to assist in determining service connection for the headache disorder. The VA examiner should offer the following opinions: (Continued on the next page) Is it at least as likely as not (50 percent or greater probability) that the headache disorder is related to the April 1984 in-service head injury? J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Costantino, Associate Counsel 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.