Citation Nr: 21010527 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 17-25 255 DATE: February 25, 2021 ORDER The appeal is dismissed with respect to the issue of whether new and material evidence has been received to reopen a previously denied claim of service connection for a right knee disability. The appeal is dismissed with respect to the issue of whether new and material evidence has been received to reopen the previously denied claim of service connection for a right shoulder disability. New and material evidence having been received, the application to reopen the previously denied claim of service connection for a low back disability is granted. New and material evidence having been received, the application to reopen the previously denied claim of service connection for posttraumatic stress disorder (PTSD) is granted. Entitlement to service connection for PTSD is granted. Entitlement to service connection for obstructive sleep apnea (OSA) is granted. Entitlement to service connection erectile dysfunction is granted. Entitlement to special monthly compensation (SMC) based on the loss of use of a creative organ is granted. REMANDED The application to reopen the previously denied claim of service connection for a gastrointestinal (GI) disability is remanded. Entitlement to service connection for a low back disability is remanded. FINDINGS OF FACT 1. At his July 2020 hearing before the Board of Veterans’ Appeals (Board), the Veteran explicitly, unambiguously, and with a full understanding of the consequences of such action, withdrew his appeal as to the issues of whether new and material evidence had been received to reopen previously denied claims of service connection for right knee and right shoulder disabilities. 2. In a February 2013 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for a low back disability. Although the Veteran was duly notified of the RO’s decision and his appellate rights, he did not perfect an appeal nor was new and material evidence received within the applicable time period. 3. Evidence received since the final February 2013 rating decision is not cumulative and redundant of other evidence of record and raises a reasonable possibility of substantiating the claim of service connection for a low back disability. 4. In an October 2011 rating decision, the RO determined that new and material evidence had not been received to reopen a previously denied claim of service connection for PTSD. Although the Veteran was duly notified of the RO’s decision and his appellate rights, he did not perfect an appeal nor was new and material evidence received within the applicable time period. 5. The evidence received since the final October 2011 rating decision is not cumulative and redundant of other evidence of record and raises a reasonable possibility of substantiating the claim of service connection for PTSD. 6. The evidence is in relative equipoise as to whether the Veteran’s current PTSD was incurred in service. 7. The evidence is in relative equipoise as to whether the Veteran’s current OSA is causally related to his service-connected PTSD. 8. The evidence is in relative equipoise as to whether the Veteran’s current erectile dysfunction is causally related to his service-connected PTSD. 9. The Veteran has loss of use of a creative organ due to service-connected erectile dysfunction. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal with respect to the issue of whether new and material evidence has been received to reopen a previously denied claim of service connection for a right knee disability are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the appeal with respect to the issue of whether new and material evidence has been received to reopen a previously denied claim of service connection for a right shoulder disability are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The February 1990 rating decision denying service connection for a low back disability is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1989). 4. The October 2011 rating decision determining that new and material evidence had not been received to reopen a previously denied claim of service connection for PTSD is final. 38 U.S.C. § 7105(c); 38 C.F.R.§§ 3.104, 20.302, 20.1103 (2011). 5. New and material evidence has been received to reopen the previously denied claim of service connection for a low back disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 6. New and material evidence has been received to reopen the previously denied claim of service connection for PTSD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 7. The criteria for service connection for PTSD have been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304(f). 8. The criteria for service connection for OSA have been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.310. 9. The criteria for service connection for erectile dysfunction have been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.310. 10. The criteria for SMC based on the loss of use of a creative organ have been met. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1978 to June 1983. This case comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in July 2020. A transcript of the hearing is of record. Withdrawn Claims 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, the Veteran, with the assistance of his attorney, has withdrawn his appeal with respect to the issues of whether new and material evidence has been received to reopen a previously denied claims of service connection for a right knee and right shoulder disabilities. In July 2020, VA received a statement from the Veteran, through his attorney, withdrawing his claims and appeals of service connection for right knee and right shoulder disabilities. The Board finds that the written statement included (1) the name of the Veteran, (2) the applicable VA file number, and (3) a statement that the appeal of these issues is withdrawn. Thus, it meets the criteria for a written withdrawal. 38 C.F.R. §§ 19.55(b)(1). At his July 2020 hearing before the undersigned VLJ, the Veteran reiterated his request to withdraw the appeal of these claims. He indicated that he had discussed the matter with his attorney and understood the consequences of withdrawing the appeal of these issues. The Board therefore finds that the Veteran’s withdrawal of his appeal of these issues is explicit, unambiguous, and made with a full understanding of the consequences of such action. Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018).at the July 2020. Hence, there remains no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal with respect to the applications to reopen the previously denied claims of service connection for a right knee disability and a right shoulder disability and they are dismissed. Claims to Reopen 1. Whether new and material evidence has been received to reopen a previously denied claim of service connection for a low back disability. 2. Whether new and material evidence has been received to reopen a previously denied claim of service connection for PTSD. The Veteran contends that service connection is warranted for a low back disability and PTSD as they are related to events that occurred during active duty service. The claim for service connection for a low back disability was initially denied in a February 1990 rating decision based on a finding that the evidence did not establish a current disability. The claim for service connection for PTSD was initially denied in a February 2009 rating decision as the evidence did not establish a corroborated stressor. The Veteran did not appeal either decision nor was new and material evidence received within one year of notification of the decisions. The Veteran does not contend otherwise. The reflects that the Veteran thereafter sought reopening of his claims. In an October 2011 rating decision, the RO determined that new and material evidence had not been received to reopen the previously denied claim of service connection for PTSD is final. Although the Veteran was duly notified of these decisions and his appellate rights, he did not perfect an appeal nor was new and material evidence received within the applicable time period. Thus, the decisions are final and not subject to revision on the same factual basis. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. A claim which has been finally denied in an unappealed rating decision or Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). 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 decision makers. 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). Regarding the claim for service connection for a low back disability, the evidence received since the last final rating decision includes April 2020 and July 2020 private medical opinions identifying a possible relationship between the Veteran’s reported in-service fall and back injury and his current lumbar osteoarthritis and degenerative disc disease. This new medical evidence is material as it relates to previously unestablished facts in the claim—the presence of a current low back disability and a nexus between the disability and an injury during service. Thus, new and material evidence has been received and reopening of the claim is granted. The Board also finds that new and material evidence has been received to reopen the claim for service connection for PTSD. Following the initial denial of the claim in February 2009, the Veteran continued to pursue service connection and was denied on several occasions, most recently in October 2011. The evidence received since the October 2011 rating decision includes a July 2015 statement from a friend who served on active duty with the Veteran who corroborated the Veteran’s reported non-combat stressors. The record also contains a July 2020 private opinion from a psychologist linking the Veteran’s current PTSD to racial tension and trauma experienced during active service at Loring Air Force Base (AFB). Given the bases for the prior denials, this new evidence is material as it corroborates some of the Veteran’s reported non-combat stressors and links his current PTSD to the reported stressors. Reopening of the claim is therefore warranted. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted on a secondary basis for a disability which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the nonservice-connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. In cases of aggravation of a veteran’s nonservice-connected disability by a service-connected disability, such veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.322. 3. Entitlement to service connection for PTSD. 4. Entitlement to service connection for OSA. 5. Entitlement to service connection for erectile dysfunction. 6. Entitlement to SMC for loss of use of a creative organ. The Veteran contends that service connection is warranted for an acquired psychiatric disorder diagnosed as PTSD due to non-combat stressors during active military service. In statements submitted in support of his claim, the Veteran reports that he was exposed to racial trauma, multiple threats of physical harm, and an overall stressful environment due to racial tensions at Loring AFB during active duty. At his July 2020 hearing, he testified that during his period of active service, there was an environment of racial tension at Loring AFB which resulted in hostility and multiple fights between the Black and White soldiers, as well as an incident in approximately January 1981 when he was personally threatened with physical harm based on his race. The Veteran is therefore is seeking service connection for PTSD based on non-combat stressors. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). As set forth above, the record contains evidence corroborating the Veteran’s reported stressors as well as clinical evidence diagnosing the Veteran as having PTSD and linking that disability to the in-service stressor. Thus, the Board finds that all the elements for service connection are met and the claim for entitlement to service connection for PTSD disorder is granted. The record establishes a competent diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a). VA records contain diagnoses of PTSD dating from at least November 2007 and the condition was also identified by a private psychologist in July 2020. The private psychologist also determined that the Veteran’s PTSD was directly due to in-service racial trauma and tension experienced by the Veteran during his period of active service at Loring AFB, to include specific incidents of witnessed and threatened racial violence. Thus, the only question remaining for the Board is to determine whether there is credible supporting evidence that the Veteran’s in-service stressors occurred. Where a determination is made that the veteran did not “engage in combat with the enemy,” or the claimed stressor is not related to combat, the Veteran’s lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must contain service records or other corroborative evidence which substantiates or verifies the veteran’s testimony or statements as to the occurrence of the claimed stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). The Board finds that the Veteran’s in-service stressors are corroborated by the July 2015 statement from a servicemember who was present at Loring AFB during the same period as the Veteran. In the statement, the servicemember notes that Loring AFB had a high level of racial tension and he remembers that the Veteran was a frequent target of racism and racist attacks. The Veteran (and other soldiers) felt the need to carry sticks with them for protection from the White soldiers and many Black soldiers were attacked in the underground tunnels that ran beneath the base. The Veteran has consistently reported that he narrowly avoided a physical attack in those same tunnels in early 1981 and has experienced nervousness, suspicion, hypervigilance, and fear since that event. The Board finds that the Veteran’s credible reported stressors of racial trauma, hostility, and tension are corroborated by the July 2015 lay statement and all the elements of service connection for PTSD are met. Service connection is therefore granted. The Board also finds that service connection is warranted for OSA and erectile dysfunction as secondary to the service-connected PTSD. The Veteran has consistently reported having trouble sleeping due to PTSD symptoms and OSA was diagnosed at the VA Medical Center (VAMC) following a June 2017 sleep study. The Veteran also requested medication for erectile dysfunction as early as April 2008 and it was added to his medication list in July 2009 at the VAMC. In August 2020, a private physician provided a statement linking the Veteran’s OSA and erectile dysfunction to his PTSD; the statement was accompanied by a well-reasoned rationale. The competent evidence therefore establishes that OSA and erectile dysfunction were incurred secondary to PTSD and service connection is warranted for both conditions on a secondary basis. Additionally, the Board finds that SMC for the loss of use of a creative organ is warranted. SMC is available if a veteran, as a result of a service-connected disability, has lost the use of a creative organ. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a). The Board has determined that entitlement to service connection is warranted for erectile dysfunction. As the Veteran has service-connected erectile dysfunction, which is the loss of use of a creative organ as a result of a service-connected disability, SMC is granted. REASONS FOR REMAND 1. Whether new and material evidence has been received to reopen a previously denied claim of service connection for a GI disability. 2. Entitlement to service connection for a low back disability. The Board finds that additional development is necessary before a decision can be rendered with respect to the remaining claims on appeal. Specifically, VA examinations and medical opinions are required by the duty to assist to determine the nature and etiology of the claimed GI and low back disabilities. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of the claimed GI disability, to include gastroesophageal reflux disease (GERD) and gastritis. After examining the Veteran and reviewing the record, the examiner should identify all current GI disabilities. The examiner should then provide an opinion, with supporting rationale, as to whether it is at least as likely as not that any current GI disability had its inception during active service or is otherwise related to an in-service injury or disease, to include the Veteran’s treatment for gastroenteritis in April 1983 and complaints of stomach pain with a viral syndrome directly after service in July 1983. The Veteran contends that he has experienced epigastric and GI symptoms since 1983 during active duty. Service records document in-patient treatment for gastroenteritis in April 1983 and complaints of stomach pain associated with a viral syndrome soon after discharge in July 1983. The Veteran’s digestive system was normal at the April 1983 separation examination. The record documents consistent post-service treatment for GI complaints in May 1991 at the VAMC when he was treated for peptic ulcer disease. An upper GI in February 1992 was negative for abnormalities, but a September 2014 EGD confirmed the presence of inactive gastritis. The Veteran has also received regular treatment for GERD at the VAMC since approximately 1992. In June 2020, a private physician diagnosed the Veteran with GERD and mild gastritis, but provided a speculative opinion in support of service connection, stating that the Veteran’s current conditions “could be” connected to his complaints during service. In providing the requested opinion, the examiner should consider the Veteran’s description of his in-service symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? 2. Schedule the Veteran for a VA examination to determine the nature and etiology of the claimed low back disability, to include arthritis, degenerative disc disease, and any associated lower extremity radiculopathy. After examining the Veteran and reviewing the record, the examiner should identify all current low back disabilities. The examiner should then provide an opinion, with supporting rationale, as to whether it is at least as likely as not that any current low back disability had its inception during active service or is otherwise related to an in-service injury or disease, to include the Veteran’s March 1980 lumbar strain. The Veteran contends that his current lumbar degenerative joint and disc disease is related to an injury during service. Service records show that the Veteran fell on his back at the gym on March 10, 1980, and incurred a lumbar strain. He was placed on a temporary profile for two weeks, but his physical restrictions were lifted early on March 18, 1980, when he sought treatment for an injury related to a playing basketball. The examining doctor noted that the Veteran was playing basketball despite his limited duty profile and it was “obvious” the Veteran was not in much back pain. The Veteran’s spine was normal at the April 1983 separation examination and he denied experiencing recurrent back pain. The earliest clinical record documenting post-service complaints of low back pain dates from June 2009 at the VAMC. At that time, the Veteran denied any prior injury to the spine. The Veteran was referred for physical therapy in September 2009 and reported a history of low back pain during the past year. The Veteran has continued to receive treatment for low back pain and a June 2020 MRI indicated multilevel degenerative joint disease and degenerative disc disease. The record also contains private statements in support of the claim dated in April 2020 and July 2020. Both private physicians provided speculative opinions, finding that the Veteran’s military injury to the spine could have resulted in his current arthritis due to residual soft tissue weakness. (Continued on the next page)   In providing the requested opinion, the examiner consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? K. Conner Veterans Law Judge Board of Veterans’ Appeals M. Riley, Attorney for the Board Department of Veterans Affairs 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.