Citation Nr: 21065514 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 19-18 348 DATE: October 26, 2021 ORDER The application to reopen the previously denied claim of entitlement to service connection for right knee patellofemoral syndrome is granted. The application to reopen the previously denied claim of entitlement to service connection for left knee patellofemoral syndrome is granted. The issue of service connection for traumatic brain injury is dismissed. The issue of an initial compensable rating for other specified trauma- and stressor-related disorder is dismissed. REMANDED The issue of service connection for right knee patellofemoral pain syndrome is remanded. The issue of service connection for left knee patellofemoral pain syndrome is remanded. The issue of service connection for gastroesophageal reflux disease (GERD) is remanded. The issue of service connection for residuals of a right ankle injury is remanded. The issue of service connection for residuals of a left ankle injury is remanded. The issue of service connection for bilateral hearing loss is remanded. The issue of service connection for a respiratory disorder is remanded. FINDINGS OF FACT 1. In a June 2011 decision, a Department of Veterans Affairs (VA) regional office (RO) denied service connection for right and left knee patellofemoral syndrome; the Veteran did not initiate an appeal of that decision, and new and material evidence was not received within one year of its issuance. 2. Evidence added to the record since the June 2011 decision denying service connection for right and left knee patellofemoral syndrome relates to an unestablished fact necessary to substantiate the claim for service connection and raises a reasonable possibility of substantiating that claim. 3. Prior to the promulgation of a decision in the appeal, the Veteran withdrew on the record during a Board telehearing his appeal for service connection for traumatic brain injury. 4. Prior to the promulgation of a decision in the appeal, the Veteran withdrew on the record during a Board telehearing his appeal for an initial compensable rating for other specified trauma- and stressor-related disorder. CONCLUSIONS OF LAW 1. The June 2011 rating decision that denied the claim of service connection for right and left knee patellofemoral pain syndrome is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. New and material evidence had been received sufficient to reopen the claim of service connection for right and left knee patellofemoral pain syndrome. 38 U.S.C. §§ 5107, 5108, 7104; 38 C.F.R. § 3.156. 3. The criteria for dismissal of the appeal of the issue of service connection for traumatic brain injury have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for dismissal of the appeal of the issue of an initial compensable rating for other specified trauma- and stressor-related disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2006 to October 2010 and from August 2015 to June 2016, including service in Afghanistan. This matter comes before the Board of Veterans' Appeals (Board) from a June 2018 rating decision. In May 2020, the Veteran testified at a Board telehearing; a transcript of the hearing is associated with the claims file. 1. Whether new and material evidence has been received to reopen the previously denied claim of service connection for right knee patellofemoral syndrome 2. Whether new and material evidence has been received to reopen the previously denied claim of service connection for left knee patellofemoral syndrome In March 2011, the Veteran filed his original claim for service connection for patellofemoral syndrome of both knees. In a June 2011 rating decision, the agency of original jurisdiction (AOJ) denied the claim because the Veteran had failed to appear for a scheduled VA examination and although he had been treated for right and left knee patellofemoral syndrome and placed on physical profile during military service, the evidence of record did not otherwise show a permanent residual or chronic patellofemoral pain syndrome disability involving either knee. The AOJ notified the Veteran and his former representative of the decision the same month. He did not initiate an appeal by filing a notice of disagreement (NOD). In addition, no additional evidence was received within the one-year appeal period following the notice of decision. Therefore, the June 2011 AOJ decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. In general, decisions of the VA regional office (RO) that are not appealed in the prescribed time period are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103 (2018). However, a finally disallowed claim will be reopened and the former disposition will be reviewed if new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. 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. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed unless evidence is inherently incredible or beyond the competence of witness. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In April 2018, the Veteran sought to reopen the claim for service connection for right and left knee patellofemoral pain syndrome. In the June 2018 rating decision, the RO declined to reopen the previously denied claim. In May 2020, the Veteran testified that he had experienced chronic pain in both knees since his first period of active duty service and that his VA primary care physician had prescribed a brace for his left knee. He believed that his current knee pain began while on active duty and was caused by general wear and tear placed on his knees by carrying things and going up and down a narrow stairwell on several aircraft carriers. The following day, the Board received partial Navy Reserve medical records, including the third page of a November 2017 evaluation report (DD Form 2807-1), in which the examining physician noted the Veteran's history of occasional bilateral knee pain that did not cause physical limitations. The new medical and lay evidence added to the claims file since the June 2011 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for right and left knee patellofemoral pain syndrome disabilities because, if presumed credible, it suggests that the Veteran continued to experience ongoing symptoms of bilateral knee pain since he was treated for bilateral patellofemoral pain syndrome during his first period of active duty service. Accordingly, this additional evidence is both new and material and warrants reopening the claim of service connection for right and left knee patellofemoral pain syndrome. 38 C.F.R. § 3.156. 3. Service connection for traumatic brain injury 4. An initial compensable rating for other specified trauma- and stressor-related disorder 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. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, during the May 2020 Board telehearing, the Veteran withdrew on the record the issues of service connection for traumatic brain injury and an initial compensable rating for other specified trauma- and stressor-related disorder. He affirmed his understanding that these issues would be listed as "dismissed" in the forthcoming Board decision without further consideration of the issues on the merits and that he had discussed his desire to withdraw the appeal of these issues with his agent prior to the hearing. The Veteran's statements on the record are explicit, unambiguous, and done with a full understanding of the consequences of such action. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Accordingly, the Board does not have jurisdiction to review the appeal of these issues and they are dismissed. REASONS FOR REMAND 1. The issue of service connection for right knee patellofemoral pain syndrome is remanded. 2. The issue of service connection for left knee patellofemoral pain syndrome is remanded. The Veteran was treated for right and left knee patellofemoral pain syndrome during his first period of service. A January 2011 Navy Reserve treatment record reflects his complaints of constant pain and discomfort in both knees, including when standing for long periods or climbing stairs. The assessment was suspect chondromalacia patella. During his first VA primary care visit in April 2011, he reported having bilateral knee pain. A partial Navy Reserve evaluation report dated in November 2017 indicates the Veteran was experiencing occasional bilateral knee pain with no physical limitations. In May 2020, he testified that he had experienced ongoing pain in both knees since active duty service and affirmed he would be willing to present for an examination. In light of the evidence of record, the AOJ should schedule an examination to determine whether the Veteran has a current right or knee disability related to his military service. 3. The issue of service connection for GERD is remanded. During the May 2020 hearing, the Veteran testified that he believed he had acid reflux symptoms since his first period of active duty. He reported that during annual physicals at Fort Dix while in the Navy Reserve, he was told he could be referred to VA or to a private physician to receive medication for acid reflux symptoms. In recalled seeing a private physician around 2013 for GERD symptoms and was told to focus on his diet. A March 2013 VA nursing telephone record reflects the Veteran's complaint of a persistent cough for the past month, worse over the past two weeks. He also described a frontal headache from sinus pressure, chills, and acid reflux. During a primary care visit the next day, he denied any gastrointestinal symptoms. The assessment included upper respiratory infection; sinusitis; possible mild chronic obstructive pulmonary disease (COPD). The physician prescribed antibiotics and Claritin. A June 2016 treatment record from three days prior to separation from his second period of active duty service reflects the Veteran's request for a prescription for Prilosec due to acid reflux. The assessment included GERD without esophagitis. The physician noted the Veteran had been diagnosed and treated successfully with proton-pump inhibitor (PPI) medication on deployment and wished to continue. The AOJ should obtain any ongoing VA treatment records dating since July 2015 and request any private treatment records dated around 2013 related to evaluation of acid reflux symptoms. After outstanding treatment records have been obtain, schedule the Veteran for an examination to obtain a medical opinion regarding the etiology of any current GERD disability. 4. The issue of service connection for residuals of a right ankle injury is remanded. 5. The issue of service connection for residuals of a left ankle injury is remanded. During the May 2020 hearing, the Veteran testified that he had taken a few tumbles every now and then when going up and down steep ladder-wells on aircraft carriers, stating that he injured his ankles in mid-2008 or mid-2009. He believed he had strained his ankles, resulting in a "limp for a few minutes" before "things [went] back to normal." Service treatment records from the Veteran's first period of active duty service are silent for complaints, diagnosis, or treatment related to right or left ankle problems. A December 2012 VA treatment record reflects the Veteran's report that he had developed right ankle pain two months earlier, mostly in the morning hours. During a January 2013 podiatry consultation, he complained of bilateral posterior heel pain that was worse in the morning or after resting and had been present for several years. The assessment was bilateral Achilles tendonitis at insertion; right ankle pain. A November 2017 Navy Reserve partial evaluation report (DD Form 2807-1) includes an examiner's summary, which notes the Veteran's history of a right ankle injury in 2015 that had resolved with rest, ice, compression, and elevation (RICE) and conservative treatment and that he currently had no right ankle pain or physical limitations. Because the most recent VA treatment records are dated in July 2015, because the Veteran's service treatment records from his second period of active duty appear to be incomplete, and because he continues to serve in the Navy Reserve, it is unclear whether the Veteran has a current right or left ankle disability. The AOJ should obtain the outstanding medical evidence and schedule the Veteran for an examination of his ankles. 6. The issue of service connection for bilateral hearing loss is remanded. The Veteran contends he has a bilateral hearing loss disability related to military noise exposure. A June 2018 VA examination report revealed he did not have a current hearing loss disability for VA purposes. See 38 C.F.R. § 3.385 (describing when impaired hearing will be considered a disability for VA purposes). Service treatment records from both periods of the Veteran's active duty service reflect that he underwent regular hearing conservation evaluations to monitor any changes in hearing due to military occupational noise exposure. Unfortunately, his service treatment records from his second period of active duty appear to be incomplete. For example, a May 2016 treatment record indicates he underwent hearing conservation evaluation; however, an audiogram or report of the audiometric testing results is not associated with the claims file. Moreover, the most recent Navy Reserve treatment record associated with the claims file is from November 2017, but he testified that his most recent military audiometric testing was done in March 2020. The AOJ should attempt to obtain outstanding active duty treatment records from the Veteran's second period of service and all Navy Reserve treatment records. Then, the AOJ should schedule the Veteran for an examination to determine whether he has a current hearing loss disability related to military noise exposure. 7. The issue of service connection for a respiratory disorder is remanded. A dental health questionnaire completed and reviewed on four separate dates between September 2006 and July 2010 during the Veteran's first period of active duty service reflects he denied currently or ever having asthma. A list of Discontinued Medications from the Veteran's Navy Reserve service indicates he filled prescriptions in April 2013, October 2013, and November 2013 for medication tablets and inhalers to take as needed for breathing or to take for three days following an acute attack. A June 2013 Medical Evaluation Form completed by a VA physician identified pulmonary asthma as one of the Veteran's current limitations. An August 2015 active duty treatment record indicates the Veteran presented for waiver consideration for mobilization related to a history of cold-induced asthma with rare use of an Albuterol inhaler. The interpretation of an August 2015 pulmonary function test (PFT) was mild obstruction. During a September 2015 pre-deployment health assessment, he again described a history of mild asthma, stating that he rarely used his Albuterol inhaler. The examiner found him qualified to deploy, having no medical conditions that required him to be placed in a delayed or hold status. The interpretation of an August 2016 PFT study was mild obstruction. A physician's summary from a partial evaluation report (DD Form 2808) completed in November 2017 notes the Veteran's history of cold-induced asthma since 2012 and being off medications since 2014 with no recurrence of any breathing issues. In May 2020, the Veteran testified that when he recently re-enrolled for VA primary care, his physician mentioned she wanted to revisit his history of respiratory problems. Again, the AOJ should attempt to obtain the outstanding Navy Reserve and active duty treatment records from the second period of service and VA treatment records dating since July 2015. Then, the AOJ should arrange for an examination to determine whether a current respiratory disorder, to include asthma, is related to military service or whether any asthma that existed prior to the second period of active duty service was aggravated by that service. The matters are REMANDED for the following action: 1. Obtain the Veteran's service personnel records and identify whether he has served on any periods of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA). 2. Obtain from the Service Department all active duty service treatment records from the Veteran's second period of active duty service, including a May 2016 Hearing Conservation Data report. 3. Obtain from the Service Department all Navy Reserve service treatment records, including the report of audiometric testing performed in March 2020. 4. With any necessary assistance from the Veteran, obtain the following medical records: a) Any ongoing treatment records from the East Orange VA Medical Center (VAMC) and Brick VA Community Based Outpatient Clinic (CBOC) dating since July 2015. b) Any private treatment records related to annual evaluations for bronchitis, asthma, or other respiratory problems dating since 2010. c) Records from a private physician related to evaluation and treatment of GERD from approximately 2013. d) Any other VA or private treatment records the Veteran identifies pertinent to his claims. 5. Schedule the Veteran for an examination with an appropriate clinician to evaluate the nature and etiology of his claimed GERD disability. Provide the Veteran's electronic claims file, including a copy of this Remand, to the designated examiner for review. Following a review of the claims file and examination, provide a medical opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any current GERD disability had its onset during a period of active duty or ACDUTRA service, or is otherwise related to such service, including the documented treatment for GERD during the Veteran's second period of active duty service. A detailed medical rationale must be provided for all opinions expressed. 6. Schedule the Veteran for an examination with an appropriate clinician to evaluate his claimed right and left ankle disabilities. Provide the Veteran's electronic claims file, including a copy of this Remand, to the designated examiner for review. For any current right or left ankle disability present on examination, to include any Achilles tendonitis, the examiner should provide a medical opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that such disability had its onset during a period of active duty or ACDUTRA or is otherwise related to such service, or whether such disability is related to an injury incurred during any period of INACDUTRA service. A detailed medical rationale must be provided for all opinions expressed. 7. Schedule the Veteran for an audiological examination to determine whether he has a current hearing loss disability for VA purposes. The examining audiologist should obtain a detailed history of the Veteran's military noise exposure, civilian occupational noise exposure, and any recreational noise exposure. Following a review of the claims file and examination, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any current hearing loss disability (within the meaning of 38 C.F.R. § 3.385) had its onset during a period of active duty or a period of ACDUTRA or INACDUTRA service, or is otherwise etiologically related to such service; or whether any current sensorineural hearing loss disability manifested within one year of separation from active duty service in October 2010 or June 2016. In addition, the examiner should opine as to whether any current hearing loss disability clearly and unmistakably preexisted the Veteran's second period of active duty service (August 2015 to June 2016). If so, is it clear and unmistakable that such hearing loss disability was NOT aggravated by military service? A detailed medical rationale must be provided for all opinions expressed, including an explanation of whether there was any significant threshold shift in right or left hearing acuity during any period of service. 8. Schedule the Veteran for an examination with an appropriate clinician to evaluate his claimed right and left knee disabilities. Provide the electronic claims file, including a copy of this Remand, to the designated examiner for review. For any current right or left knee disability present on examination, the examiner should provide a medical opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that such disability had its onset during a period of active duty or ACDUTRA or is otherwise related to such service, or whether such disability is related to an injury incurred during any period of INACDUTRA service. A detailed medical rationale must be provided for all opinions expressed. (Continued on the next page) 9. Schedule the Veteran for an examination with an appropriate clinician to evaluate the nature and etiology of his claimed respiratory disorder. Provide the Veteran's electronic claims file, including a copy of this Remand, to the designated examiner for review. Following a review of the claims file and examination, the examiner should provide a medical opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that a current respiratory disorder, to include asthma, had its onset during a period of active duty or ACDUTRA service, or is otherwise related to such service, including the documented mild obstruction documented in August and September 2015 PFTs during the Veteran's second period of active duty service. In addition, the examiner should provide a medical opinion as to whether any current respiratory disorder, to include asthma, clearly and unmistakably preexisted the Veteran's second period of active duty service (August 2015 to June 2016). If a current respiratory disorder clearly and unmistakable preexisted the second period of active duty service, is it clear and unmistakable that such disability was NOT aggravated by such service. A detailed medical rationale must be provided for all opinions expressed. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laura Kirscher Strauss 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.