Citation Nr: 21065690 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 18-48 665 DATE: October 27, 2021 ISSUES 1. Whether new material evidence has been received to reopen a previously denied claim of entitlement to service connection for lumbosacral strain. 2. Entitlement to service connection for lumbosacral strain. 3. Entitlement to service connection for an acquired psychiatric disability, claimed as posttraumatic stress disorder (PTSD). 4. Entitlement to service connection for erectile dysfunction (ED). 5. Entitlement to service connection for migraines. 6. Entitlement to service connection for seizure disorder (also claimed as epilepsy). 7. Entitlement to service connection for sleep apnea. 8. Entitlement to a compensable disability rating for the service-connected bilateral hearing loss (BHL). 9. Entitlement to a disability rating in excess of 30 percent for the service-connected gastroesophageal reflux disease (GERD). 10. Entitlement to a disability rating in excess of 10 percent for the service-connected status post ACL reconstruction right knee. ORDER New and material evidence has been received sufficient to reopen a previously denied claim for service connection for lumbosacral strain, and the appeal is granted to this extent only. REMANDED Entitlement to service connection for lumbosacral strain is remanded. Entitlement to service connection for an acquired psychiatric disability, claimed as PTSD is remanded. Entitlement to service connection for ED is remanded. Entitlement to service connection for migraines is remanded. Entitlement to service connection for seizure disorder (also claimed as epilepsy) is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to a compensable disability rating for the service-connected BHL is remanded. Entitlement to a disability rating in excess of 30 percent for the service-connected GERD is remanded. Entitlement to a disability rating in excess of 10 percent for the service-connected status post ACL reconstruction right knee is remanded. FINDINGS OF FACT 1. The claim for service connection for a lumbosacral strain was denied in a November 1999 rating decision that was not appealed. 2. Evidence received since the November 1999 rating decision for the claim of service connection for a lumbosacral strain includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claim for service connection. CONCLUSION OF LAW New and material evidence has been received to reopen the previously denied and final claim of service connection for a lumbosacral strain. 38 U.S.C. §§ 5103, 5103A, 5107, 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1990 to February 1999. This case comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned during a July 2021 Board videoconference hearing; copies of the transcript is of record. At the outset, the Board notes that the issues of entitlement to service connection for asthma and service connection for eczema were raised by the record, to include in the Veteran's May 2017 notice of disagreement, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these issues, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b) (2017). In that regard, the Veteran is reminded that there are special procedures now in place for the filing of claims for service connection. New and Material Claim Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. 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 is defined as existing evidence not previously submitted to agency decisionmakers. 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. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). 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). Furthermore, consideration is not limited to whether the newly received evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). The Court has also held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade, 24 Vet. App. 110. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of the RO's actions, given the previous unappealed denial of the claim on appeal, the Board has a legal duty under 38 U.S.C. §§ 5108, 7104 (West 2014) to address the question of whether new and material evidence has been received to reopen the claims for service connection. This matter goes to the Board's jurisdiction to reach the underlying claims and adjudicate the claims on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). Historically, the claim for service connection for lumbosacral strain was denied in a November 1999 rating decision that was not appealed. This determination was based upon a finding that the evidence failed to establish any relationship between the current diagnosis for lumbosacral strain and any disease or injury during military service. The evidence received in pertinent part since the November 1999 rating decision includes the Veteran's detailed testimony before the undersigned and a private opinion dated in February 2021 that will be addressed below. The Board finds that this evidence is sufficient to reopen the previously-denied claim. The foregoing evidence is not cumulative or redundant of the evidence previously of record and relates to unestablished facts necessary to substantiate the claim. Therefore, this evidence is new and material, and reopening of the claim for lumbosacral strain is in order. Shade v. Shinseki, No. 08-3548 (U.S. Vet. App. Nov. 2, 2010). REASONS FOR REMAND The Board finds that additional evidentiary development is required before adjudication of the issues on appeal. Lumbosacral Strain Service treatment records show that the Veteran received treatment for low back pain in August 1996 with an assessment of musculoskeletal strain. VA treatment records show diagnosis of lumbosacral strain. The Veteran submitted a private opinion dated in February 2021 in which it was stated that it was more likely than not that his back issues were directly related to his time and experiences while in the military service. However, no rationale was provided for this opinion. See, Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). The Board notes that the Veteran was afforded a VA examination for his claimed back disability in May 1999; however, no etiological opinion was provided in this examination report. As such, the Board finds that the Veteran should be afforded a VA examination on remand for his claimed lumbosacral strain. Acquired Psychiatric Disability, Claimed as PTSD The Veteran contends, and testified before the undersigned, that service connection is warranted for an acquired psychiatric disability as related to his duties as a combat engineer in service. The Board notes that the Veteran filed his initial service connection claim for PTSD. However, in Clemons v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim; symptoms described; and the information submitted or developed in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In light of the Court's decision in Clemons, the Board has re-characterized the pertinent issues on appeal as entitlement to service connection for an acquired psychiatric disorder claimed as PTSD. To this point, VA treatment records show diagnoses of unspecified anxiety disorder and other specified trauma- and stressor-related disorder. Therefore, expanding this issue will provide the most potentially favorable review of the Veteran's claim in keeping with the Court's holding in Clemons. The Board finds that the Veteran should be afforded a VA examination regarding the nature and etiology of these claimed conditions. ED The Veteran was afforded a VA examination in September 2016 in which the examiner stated that he was not diagnosed with PTSD, and it was less likely as not he incurred ED secondary to PTSD. As outlined above, the Board has expanded the Veteran's claim for service connection for PTSD to include any acquired psychiatric disorder diagnosed during the pendency of this appeal. As such, the Board finds that if, and only if, an acquired psychiatric disability is found to be related to service, the Veteran's claims file should be provided to the September 2016 examiner, or appropriate substitute if this examiner is not available, to provide an addendum opinion for his claimed ED. Migraines and Seizure Disorder The Veteran was afforded a VA examination in September 2016 in which the examiner stated that he had no treatment records for complaints of headaches and that his separation examination in 1998 listed frequent headaches as once weekly on left side of the head. The examiner noted the Veteran's head injury at age 17, when he was struck with a baseball bat and hospitalized for a week. The examiner opined that it was less likely as not that the Veteran incurred migraine headaches during active duty service; neither were the headaches worsened beyond natural progression during active duty service. The examiner stated that the headaches were secondary to preceding head injury during childhood. The Veteran was afforded a VA examination in September 2016 in which the examiner noted his history of a traumatic brain injury at the age of 17 years. The examiner opined that it was less likely as not that the claimed condition was a disability pattern that was associated with a specific exposure to Southwest Asia environmental hazards. The Board notes there is no entrance examination of record. As such, the presumption of soundness did not attach in this case. See Smith v. Shinseki, 24 Vet. App. 40 (2010). However, the Board finds that the evidence suggests the Veteran may have had pre-existing migraines and/or seizure disorder (also claimed as epilepsy) prior to service. Thus, given the above, opinions on whether it is clear and unmistakable that the Veteran entered service with preexisting migraines and/or seizure disorder (also claimed as epilepsy), and whether the disabilities were aggravated by his active duty condition is needed. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304. Sleep Apnea The Veteran was afforded a VA examination in September 2016 in which the examiner stated in pertinent part that service treatment records were silent for complaints of snoring or sleep issues. The examiner stated that it was less likely as not that the claimed condition was a disability pattern that was associated with a specific exposure to Southwest Asia environmental hazards. The Veteran testified before the undersigned that he had his tonsils out and did a rhinoplasty in service as related to his sleep apnea. Service treatment records show that the Veteran had a deviated nasal septum, tonsillar hypertrophy with heroic snoring, nasal septoplasty, and tonsillectomy in 1996. As such, the Board finds that an addendum opinion is required on remand. Rating for BHL, GERD, and Status Post ACL Reconstruction Right Knee The Veteran testified before the undersigned as to the worsening of his BHL, GERD, and status post ACL reconstruction right knee to include worsening pain and worsening flareups. The Veteran was last afforded VA examination for his hearing loss in August 2016, for his right knee in September 2016, and GERD in January 2019. As such, the Board finds that remand is warranted to assess the current severity of the service-connected BHL, GERD, and status post ACL reconstruction right knee. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records; and, with appropriate authorization from the Veteran, any additional outstanding private treatment records identified by him as pertinent to his claims. If any of these records are found to be unavailable, this should be specifically noted in the claims file and the Veteran should be notified as to the unavailability of such records pursuant to 38 C.F.R. § § 3.159 (e). 2. Schedule the Veteran for a VA examination conducted by an appropriate health care provider to determine the nature and etiology of his claimed lumbosacral strain. The electronic claims files, to include a copy of this remand, must be made available to and be reviewed by the examiner in conjunction with the examination. All necessary special studies or tests should be accomplished, as appropriate. The examiner should opine whether it is at least as likely as not (50 percent probability or greater) that any lumbosacral strain had its onset in service or is otherwise etiologically related to service, to include the aforementioned in-service complaints outlined above. A full and complete rationale for all opinions expressed must be provided. 3. The Veteran should be afforded a VA examination by a psychologist or psychiatrist. Access to the Veteran's electronic claims file, including a copy of this remand, must be made available to and reviewed by the examiner. The examiner should address the following: a) Indicated whether the Veteran has a diagnosis of PTSD that conforms to the DSM-V criteria. If a diagnosis of PTSD is not deemed appropriate, the examiner must specifically explain this finding in light of the other previous diagnoses of PTSD of record, to specifically include a November 2017 diagnosis noted in private treatment record. b) If PTSD is diagnosed, the examiner should specifically determine whether it is at least as likely as not (a 50 percent or greater possibility) that the Veteran's PTSD is related to his military service. If a diagnosis of PTSD is deemed appropriate, the examiner must explain how the diagnostic criteria of the DSM-V are met, to include identification of the specific stressor(s) underlying the diagnosis, and comment upon the link between the current symptomatology and the stressor(s). The examiner must state whether the claimed stressor(s) is adequate to support a diagnosis of PTSD. If the examiner determines that the Veteran has PTSD related to the claimed in-service stress of an in-service personal assault, fear of hostile action during active service, the examiner should review the claims file and render an opinion as to whether there is evidence which would be consistent with the alleged trauma, and offer an opinion as to the clinical significance, if any, or such evidenced changes. c) The examiner should opine whether it is at least as likely as not (a 50 percent or greater possibility) that any acquired psychiatric disability diagnosed during the pendency of this appeal to include unspecified anxiety disorder and other specified trauma- and stressor-related disorder had their onset in service or are otherwise etiologically related to service. The examiner must explain the rationale for all opinions, citing to supporting factual data and/or medical literature, as deemed appropriate. 4. If, and only if, an acquired psychiatric disability is found to be related to service, provide the Veteran's claims file to the September 2016 examiner, or appropriate substitute if this examiner is not available, to provide an addendum opinion for his claimed ED. An examination is only required if deemed necessary by the examiner. The examiner should opine whether it is at least as likely as not (50 percent or better probability) that any ED diagnosed during the pendency of this claim was aggravated by the Veteran's acquired psychiatric disability. In providing the etiology opinion, the examiner should be aware of that the Court held in Ward v. Wilkie, 31 Vet. App. 233 (2019), that a "permanent worsening" of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). A full and complete rationale for all opinions expressed must be provided. 5. Provide the Veteran's claims file to the September 2016 examiner, or appropriate substitute if this examiner is not available, to provide addendum opinions regarding the Veteran's claimed migraines and/or seizure disorder (also claimed as epilepsy). An examination is only required if deemed necessary by the examiner. The examiner should opine: (a.) Whether the Veteran's migraines and/or seizure disorder (also claimed as epilepsy) clearly and unmistakably existed prior to the Veteran's active duty service. (b.) If the examiner finds that the Veteran's migraines and/or seizure disorder (also claimed as epilepsy) clearly and unmistakably existed prior to service, state whether it is clear and unmistakable that the pre-existing disability was NOT aggravated during service. (c.) If the Veteran's migraines and/or seizure disorder (also claimed as epilepsy) did not clearly and unmistakably exist prior to service, the examiner must provide an opinion addressing whether it is at least as likely as not (50 percent probability or not) that the Veteran's migraines and/or seizure disorder (also claimed as epilepsy) had its clinical onset during service or are due to an event or incident of the Veteran's period of active service. A full and complete rationale for all opinions expressed must be provided. 6. Provide the Veteran's claims file to the September 2016 examiner, or appropriate substitute if this examiner is not available, to provide an addendum opinion regarding the Veteran's claimed sleep apnea. An examination is only required if deemed necessary by the examiner. The examiner should opine whether it is at least as likely as not (50 percent or better probability) that any sleep apnea diagnosed during the pendency of this claim had their onset in service or are otherwise related to service, to include as related to the aforenoted deviated nasal septum, tonsillar hypertrophy with heroic snoring, nasal septoplasty, and tonsillectomy in service in 1996. A full and complete rationale for all opinions expressed must be provided. 7. Arrange for the Veteran to be afforded a VA examination in order to ascertain the current severity of the service-connected BHL. Access to the electronic claims file must be made available to and reviewed by the examiner, and any indicated studies should be performed. All appropriate diagnostics should be accomplished and all clinical findings should be reported in detail. The RO should ensure that the examiner provides all information required for rating purposes. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. 8. Arrange for the Veteran to be afforded a VA examination in order to ascertain the current severity of the service-connected GERD. Access to the electronic claims file must be made available to and reviewed by the examiner, and any indicated studies should be performed. All appropriate diagnostics should be accomplished and all clinical findings should be reported in detail. The RO should ensure that the examiner provides all information required for rating purposes. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. 9. Schedule the Veteran for an appropriate VA examination to assess the manifestations of the service-connected status post ACL reconstruction right knee. The electronic record, to include a copy of this remand, must be reviewed in conjunction with the examination. All testing deemed necessary must be conducted and results reported in detail. The examiner should: Conduct all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, express any functional loss in terms of additional degrees of limited motion of the Veteran's disability, i.e., the extent of the Veteran's pain-free motion. Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), please record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. If a joint cannot be tested on "weight-bearing," please specifically indicate why that testing cannot be done. Pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is instructed to inquire whether there are periods of flare-ups. If the answer is "yes," the examiner should state their severity, frequency, and duration explaining if there are any additional or increased symptoms and limitations experienced during flares. The examiner must ALSO name the precipitating and alleviating factors. The examiner must ALSO estimate, "per [the] veteran," to what extent, if any, they affect functional impairment. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. 10. Review the record to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his attorney the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M.K., 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.