Citation Nr: 21010652 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 16-34 713 DATE: February 25, 2021 ORDER The request to reopen the claim for service connection for diverticulitis previously claimed as stomach condition (gastritis/pancreatitis) is dismissed. New and material evidence has been received for service connection for a knee condition, and the request to reopen the claim is granted. New and material evidence has been received for service connection for severe arthritis, and the request to reopen the claim is granted. New and material evidence has been received for service connection for back pain and the request to reopen the claim is granted. New and material evidence has been received for service connection for granulomatous calcifications, also claimed as bronchitis, and the request to reopen the claim is granted. New and material evidence has been received for service connection for recurring pneumonia and the request to reopen the claim is granted. New and material evidence has been received for service connection for depression and the request to reopen the claim is granted. Entitlement to service connection for mental health passive aggressive personality is denied. REMANDED Entitlement to service connection for knee condition is remanded. Entitlement to service connection for severe arthritis, to include rheumatoid arthritis, is remanded. Entitlement to service connection for back pain is remanded. Entitlement to service connection for an eye condition is remanded. Entitlement to service connection for granulomatous calcifications also claimed as bronchitis is remanded. Entitlement to service connection for pneumonia is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include a depressive disorder and/or posttraumatic stress disorder (PTSD) is remanded FINDINGS OF FACT 1. On October 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, during sworn hearing testimony before the undersigned, that a withdrawal of this appeal is requested. 2. Since the last final rating decision in September 2006, new and material evidence has been submitted to reopen a claim for service connection for a knee condition. 3. Since the last final rating decision in September 2006, new and material evidence has been submitted to reopen a claim for service connection for severe arthritis, to include rheumatoid arthritis. 4. Since the last final rating decision in September 2006, new and material evidence has been submitted to reopen a claim for service connection for back pain. 5. Since the last final rating decision in September 2006, new and material evidence has been submitted to reopen a claim for service connection for granulomatous calcifications also claimed as bronchitis. 6. Since the last final rating decision in September 2006, new and material evidence has been submitted to reopen a claim for service connection for pneumonia. 7. Since the last final rating decision in September 2006, new and material evidence has been submitted to reopen a claim for service connection for depression, previously claimed as bipolar affective disorder mixed with psychotic features. 8. A personality disorder may not be service connected as a matter of law. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for diverticulitis previously claimed as stomach condition (gastritis/pancreatitis) by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for reopening the service connection claim for a knee condition have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 3. The criteria for reopening the service connection claim for severe arthritis, to include rheumatoid arthritis have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 4. The criteria for reopening the service connection claim for back pain have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 5. The criteria for reopening the service connection claim for granulomatous calcifications also claimed as bronchitis have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 6. The criteria for reopening the service connection claim for pneumonia have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 7. The criteria for reopening the service connection claim for depression, previously claimed as bipolar affective disorder mixed with psychotic features. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 8. The criteria for service connection for mental health passive aggressive personality are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1973 to June 1977 in the United States Air Force, to include active duty service in the Vietnam Era. As noted below the Board is reopening the Veteran’s claim for entitlement to service connection for depression, previously claimed as bipolar affective disorder mixed with psychotic features. However, the new and material evidence includes medical records showing the Veteran may have a diagnosis of a depressive disorder and PTSD. Therefore, the Board has recharacterized that issue on appeal as stated above in the Remand section. Withdrawn Claims The request to reopen the claim for service connection for diverticulitis previously claimed as stomach condition (gastritis/pancreatitis) is dismissed. 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 appellant has withdrawn the request to reopen the claim for service connection for diverticulitis and, hence, there remain no allegations of errors of fact or law for appellate consideration. The withdrawal occurred on the record during the October 2020 Board hearing. The Veteran affirmatively responded to the undersigned’s questions on whether he wanted to withdraw the claim and understood that by doing so no decision would be made by VA. Accordingly, the Board does not have jurisdiction to review the appeal with respect to this issue and it is dismissed. Reopened Claims 1. New and material evidence has been received for service connection for a knee condition and the request to reopen the claim is granted. 2. New and material evidence has been received for service connection for severe arthritis, to include rheumatoid arthritis, and the request to reopen the claim is granted. 3. New and material evidence has been received for service connection for back pain and the request to reopen the claim is granted. 4. New and material evidence has been received for service connection for granulomatous calcifications, also claimed as bronchitis, and the request to reopen the claim is granted. 5. New and material evidence has been received for service connection for recurring pneumonia and the request to reopen the claim is granted. 6. New and material evidence has been received for service connection for an acquired psychiatric disability, to include depression and PTSD and the request to reopen the claim is granted. The Veteran’s initial claims for entitlement to service connection for arthritis, knee condition, depression, bronchitis, arthritis, low back pain, and pneumonia were most recently denied in a September 2006 rating decision. The basis of all the denials was essentially the same; no nexus to service. The question before the Board is whether new and material evidence has been submitted to reopen the claims. Since the previous final decision, the Veteran has submitted medical evidence, and sworn testimony before the undersigned providing further evidence that his claimed disabilities were first indicated during active duty service or otherwise etiologically related to active duty service. He specifically testified that his treating physicians have related his current disabilities to service. The Board finds this evidence is “new” in that it had not been previously submitted. Moreover, the evidence is “material” because it relates to an unestablished fact necessary to substantiate the Veteran’s claim; that is whether the Veteran’s disabilities have a nexus to active duty service. The evidence is neither cumulative nor redundant of the evidence of record at the time of the June 1997 and September 2006 rating decision and raises a reasonable possibility of substantiating the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). De novo consideration of the claim is addressed in the remand below. Service Connection Entitlement to service connection for mental health passive aggressive personality is denied. The Veteran contends that he has a personality disorder that is etiologically related to active duty service. 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). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran has been diagnosed with a personality disorder. However, developmental defects and personality disorders are not diseases or injuries for compensation purposes (see 38 C.F.R. § 3.303 (c)), and hence do not constitute disabilities for which service connection may be awarded. Therefore, the Board concludes that the Veteran does not have a current diagnosis of a disability for VA purposes and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). REASONS FOR REMAND 1. Entitlement to service connection for a knee condition is remanded. 2. Entitlement to service connection for severe arthritis, to include rheumatoid arthritis, is remanded. 3. Entitlement to service connection for back pain is remanded. 4. Entitlement to service connection for an eye condition is remanded. 5. Entitlement to service connection for granulomatous calcifications also claimed as bronchitis is remanded. 6. Entitlement to service connection for recurring pneumonia is remanded. 7. Entitlement to service connection for an acquired psychiatric disorder, to include a depressive disorder and/or PTSD is remanded. The Board cannot make a fully-informed decision on the above issues of entitlement to service connection because no VA examiner has adequately opined whether these conditions are etiologically related to active duty service. With respect to the Veteran’s claimed knee condition and arthritis, a February 2012 examination for arthritis notes that the Veteran was diagnosed with bilateral chondromalacia of the knees in April 1984 and arthritis, also diagnosed post-service. However, the rational provided in support of the negative medical opinion relies solely on the fact that the Veteran was diagnosed after service. With respect to the Veteran’s claimed granulomatous calcifications, a February 2012 examination only addresses bronchitis, finding that it was more likely due to a history of smoking as opposed to noted in-service pneumonia. However, any diagnosed granulomatous calcifications have not been addressed by any VA examiner. Additionally, this examination does not address the Veteran’s contentions that he has recurrent pneumonia, resulting in recent hospitalization, related to his noted in-service pneumonia treatment. With respect to the Veteran’s claimed depression, the Board notes that the Veteran’s February 2012 VA mental disorder examination does not indicate any depressive disorder or PTSD. However, recent VA treatment records document possible diagnoses of both conditions. Further examination is necessary to determine the full scope of the Veteran’s diagnoseable psychiatric disabilities. Finally, the record does not include specific VA examinations for any back condition, to include back pain, and eye condition with medical opinions regarding any nexus to active duty service. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all treatment providers who treated him for the claimed disabilities since 2015. Take all appropriate action to obtain those records. 2. After completion of the above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any knee or back disabilities. Copies of all pertinent records must be made available to the examiner for review. Based on an examination, review of the record, and any tests or studies deemed necessary the examiner should provide opinions as to the following: (a) Identify all diagnosed knee and back disabilities. (b) For each diagnosed knee or back disability, is it at least as likely as not related to an in-service injury, event, or disease, to include the motorcycle accident the Veteran sustained during active duty service? (c) If no specific knee or back disability is diagnosed, the examiner must consider whether any pain results in functional impairment of earning capacity. For any identified functional impairment of the knees or back, the examiner must opinion whether it is at least as likely as not related to an in-service injury event, or disease. The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. If an opinion cannot be provided, the examiner should indicate why. Provide a rationale to support the opinion(s). 2. Schedule the Veteran for a VA examination to determine the nature and likely etiology of any diagnosed arthritis, including rheumatoid. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is it at least as likely as not that any diagnosed arthritis is related to service, including the motorcycle accident the Veteran sustained during active duty service? Provide a rationale to support the opinion(s). 4. Schedule the Veteran for a VA examination to determine the nature and likely etiology of any diagnosed eye disability. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is it at least as likely as not that any diagnosed eye disability is related to service, including the duties associated with the Veteran’s service as a Weapons Technician? In providing the requested opinion, consider the Veteran’s description of his in-service experience going back and forth from a dark room to daylight, the sense of blindness he would experience as a result, and his post-service decline of his sight. 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/her 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? Provide a rationale to support the opinion(s). 5. Schedule the Veteran for a VA examination to determine the nature and likely etiology of any diagnosed lung disability, to include bronchitis, pneumonia or granulomatous calcifications. The examiner must review the claims file. The examiner is asked to provide a response to the following: Identify all diagnosed lung/respiratory disabilities. Is it at least as likely as not that any diagnosed lung/respiratory disabilities is related to service, including any lung condition treated during active duty service, to include any pneumonia? Provide a rationale to support the opinion(s). 6. Schedule the Veteran for a VA examination with an appropriate clinician regarding the likely etiology of any and all acquired psychiatric disorders. Copies of all pertinent records must be made available to the examiner for review. The examiner is asked to answer the following question: (a) Identify all diagnosed psychiatric disorders. (b) If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to the verified in-service stressor. The examiner must identify the specific stressor considered. (c) For any other acquired psychiatric disorders diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to the Veteran’s service. A complete rationale must be provided for all opinions offered. In answering this question, the examiner must specifically consider the Veteran’s descriptions of in-service trauma, to include during his sworn testimony. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.S. McLeod 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.