Citation Nr: 21068007 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 18-46 636 DATE: November 8, 2021 ORDER Entitlement to service connection for mallet finger and an increased rating for hypertension have been withdrawn and are dismissed. New and material evidence having been received, the petition to reopen the claim for service connection for headaches is granted. Service connection for an acquired psychiatric disorder, to include generalized anxiety disorder and major depression, is granted. REMANDED Entitlement to service connection for allergic rhinitis is remanded. Entitlement to service connection for headaches is remanded. FINDINGS OF FACT 1. In the June 2021 hearing, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran and his representative that a withdrawal of his appeal for service connection for mallet finger and an increased rating for hypertension was requested. 2. The August 2008 Board decision that denied service connection for headaches became final. 3. Evidence received since the August 2008 Board decision is new and material and related to unestablished facts necessary to substantiate the claim of service connection for headaches. 4. The competent and probative evidence is at least in equipoise that the Veteran's current generalized anxiety disorder and major depression are secondary to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran as to the claims for entitlement to service connection for mallet finger and an increased rating for hypertension are met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 19.55. 2. The August 2008 Board decision that denied service connection for headaches became final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. 3. Additional evidence received since the August 2008 Board decision is new and related to unestablished facts necessary to substantiate the claim of service connection for headaches. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. The criteria for service connection for generalized anxiety disorder and major depression, to include as secondary to service-connected disabilities, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from June 1974 to October 1985. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a virtual Board hearing in June 2021; a transcript is of record. The Veteran filed a claim for service connection for PTSD. However, pursuant to Clemons v. Shinseki the Board finds that it is appropriate to characterize the Veteran's claim as noted above. 23 Vet. App. 1, 5 (2009). Withdrawal 1. Entitlement to service connection for mallet finger and entitlement to an increased rating for hypertension. 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. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. For the veteran to withdraw an issue that is on appeal on the record during a Board hearing, the withdrawal must be 1) explicit, 2) unambiguous, and 3) done with a full understanding of the consequences of such action by the veteran. Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). In the present case, the Veteran indicated that he wished to withdraw the issues of entitlement to service connection for mallet finger and an increased rating for hypertension. To effectuate this, the Veteran stated on the record at the June 2021 Board hearing, after the case was certified to the Board for appeal, his request that these issues be withdrawn. During the June 2021 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew the issues entitlement to service connection for mallet finger and an increased rating for hypertension. Additionally, the representative and Veteran went through the issues that remained on appeal, and the Veteran had the opportunity to discuss any additional matters or concerns at the conclusion of the hearing and did not. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). As the appeal about this issue has been withdrawn, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the issues and they are dismissed. New and Material Evidence Where a claim has been finally adjudicated, new and material evidence is required in order to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239, 239-40 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Where new and material evidence is received within one year after the initial denial, the denial is not final, and the claim remains pending. 38 C.F.R. § 3.156(b). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA's duty to provide a VA examination is triggered. Id. 2. Whether new and material evidence has been submitted to reopen the petition for service connection for headaches. In the August 2008 Board decision, the Board denied service connection for headaches. The Board stated that there was no nexus between the Veteran's disability and his service. The Veteran did not timely appeal the Board's decision to the United States Court of Appeals for Veterans Claims. Since the final denial, the Veteran's medical records suggest that he has headaches that are due to his sinuses. Therefore, the Board finds this evidence is new and material to the Veteran's claim as the evidence addresses a potential nexus for his headaches. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (stating that the language of 38 C.F.R. § 3.156(a) creates a low threshold for reopening a previously denied claim). Therefore, the petition to reopen is granted. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability, which is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 43, 448-49 (1995). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 5758 (1990). 3. Entitlement to service connection for an acquired psychiatric disorder. The Veteran asserts service connection for an acquired psychiatric disorder. The Veteran has current diagnoses of generalized anxiety disorder and major depression, to include as reported in his 2016 examination. As such, the first element of service connection has been met. The 2016 examiner provided a negative nexus opinion. However, the examiner also explained the Veteran's service-connected urticaria, as well as chronic pain due to other service-connected disabilities, were part of numerous factors affecting his mental health. The record shows the Veteran is service-connected for left knee as well thoracolumbar spine disabilities. Additionally, the examiner stated the Veteran's disabilities can aggravate his mental health disorders, which the examiner found was more applicable for the Veteran. The Board finds this opinion to tend to have probative value towards a positive secondary nexus. The examiner stated the Veteran's service-connected disabilities, to include chronic pain from them, could aggravate the Veteran's acquired psychiatric disorders. As such, the Board finds this opinion to have more probative value as a positive nexus opinion. After review of the competent and probative evidence, the Board finds that when resolving reasonable doubt in favor of the Veteran, the evidence tends to show that his major and persistent depressive disorders are secondary to his service-connected disabilities and accompanying chronic pain. 38 U.S.C. § 5107(b). The Board acknowledges the 2016 examiner provided a negative nexus opinion, but the Board finds the rationale, overall, supports a positive secondary nexus. Additionally, a private disability benefits questionnaire (DBQ) also listed posttraumatic stress disorder as a diagnosis. However, the examiner stated that the Veteran's PTSD symptoms overlapped with his depression. The examiner did not provide a nexus opinion for the PTSD. As the PTSD symptoms are indistinguishable from the depression symptoms, and that there is no nexus statement for the PTSD, the Board finds that service connection is currently warranted only for generalized anxiety disorder and major depression. The Board resolves doubt in the Veteran's favor on this material issue and finds the evidence supports finding his generalized anxiety disorder and major depression are secondary to his service-connected disabilities.. 38 C.F.R. § 3.102; see Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (noting that the benefit of the doubt rule is a unique standard of proof, and "the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such benefits"). Therefore, the Board finds that service connection for generalized anxiety disorder and major depression is warranted. 38 C.F.R. § 3.310(a). REASONS FOR REMAND 1. Entitlement to service connection for allergic rhinitis is remanded. The Veteran asserts service connection for rhinitis. He has a current diagnosis of rhinitis, to include as reported at the September 2014 examination. As such, the first element of service connection is met. His service treatment records documented sinus problems. The 2014 examiner provided a negative nexus opinion. In support, the examiner stated the Veteran's in-service sinus problems would not be related to a diagnosis 15 years later. The examiner also found that his current disability started in the early to mid-2000s without evidence of problems in the prior 15 years. The Board finds this opinion to have insufficiently reviewed the evidence of record. In this regard, the Veteran stated he had ear problems in 1991 which was misdiagnosed as not related to sinus problems. See 11/26/2013, VA 21-4138 Sinus. He also reported that he had had complaints of sinus problems throughout the years. See 11/27/2014, VA 21-4142, Sinus. He has explained he has had these problems since service. See 10/12/2016, VA 21-4138. As such, the Board finds that an addendum or examination if warranted is needed to fully address the Veteran's contentions, to include those of continued symptomatology after service. 2. Entitlement to service connection for headaches is remanded. The Veteran asserts service connection for headaches. The Veteran's VA treatment records show headaches. He testified that he gets headaches two to three times per month. As such, the first element of service connection is met. His service treatment records show headaches. See 9/18/2014, STR Medical Photocopy Has. The September 2014 examiner stated the Veteran did not have headaches. However, in light of the Veteran's testimony and VA records added after the examination, the Board finds this examination to be insufficient to address the Veteran's claim. His VA treatment records suggest that the Veteran's headaches may be associated with his high blood pressure. See 10/3/2018, CAPRI Headaches. Other records suggest his headaches may be due to his sinus problems. See 8/17/2016, CAPRI HAs. Additionally, the Board cannot issue a decision on the issue entitlement to service connection for headaches because it is inextricably intertwined with the remanded service-connection issue (rhinitis). See Harris v. Derwinksi, 1 Vet. App. 180, 183 (1991) (noting that two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). As such, this issue is deferred pending the receipt of additional evidence, as directed below. These matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. Request the Veteran to submit any relevant private treatment reports or provide VA with authorization to obtain any such records. 2. After completing #1, regarding the Veteran's rhinitis, obtain an addendum opinion or, if necessary, schedule the Veteran for an in-person examination. Then, address whether: (a.) Is it at least as likely as not (probability of approximately 50 percent) that the Veteran's disability was caused by a disease or injury in service? (b.) If no, is it at least as likely as not (probability of approximately 50 percent) that the Veteran's disability was either 1) proximately due to OR 2) aggravated by any service-connected disability? The examiner is to review and address the Veteran's contentions and records. In particular, the Veteran stated he had ear problems in 1991 which was misdiagnosed as not related to sinus problems. See 11/26/2013, VA 21-4138 Sinus. He also reported that he had had complaints of sinus problems throughout the years. See 11/27/2014, VA 21-4142, Sinus. He has explained he has had these problems since service. See 10/12/2016, VA 21-4138. 3. After completing #1, regarding the Veteran's headaches, obtain an addendum opinion or, if necessary, schedule the Veteran for an in-person examination. Then, address whether: (a.) Is it at least as likely as not (probability of approximately 50 percent) that the Veteran's disability was caused by a disease or injury in service? (b.) If no, is it at least as likely as not (probability of approximately 50 percent) that the Veteran's disability was either 1) proximately due to OR 2) aggravated by any service-connected disability? The examiner is to review VA records suggesting his disability may be secondary to service-connected disabilities. His VA treatment records suggest that the Veteran's headaches may be associated with his high blood pressure. See 10/3/2018, CAPRI Headaches. Other records suggest his headaches may be due to his sinus problems. See 8/17/2016, CAPRI HAs. The term "aggravated" refers to a worsening of the underlying condition beyond the natural progression of the disease, as opposed to temporary or intermittent flare-ups or symptoms that resolve with return to the baseline level of disability. If aggravation is found, please state, to the extent possible, the baseline level of disability prior to aggravation. 4. Then, if the Veteran is now service connected for any of the remanded disabilities per the Veterans Benefits Administration (VBA), and any remanded disability is not found to be directly caused by a disease or injury in service, please address whether the disability: (a.) Is it at least as likely as not (probability of approximately 50 percent) that any disability was either 1) proximately due to OR 2) aggravated by any service-connected disability? 5. Inform EACH examiner that a comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Morales, 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.