Citation Nr: 21011915 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 17-20 711 DATE: March 3, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for chondromalacia, right knee, with degenerative joint disease (right knee disorder) is dismissed. Entitlement to service connection for degenerative disc disease, lumbar spine, (low back disorder), as secondary to service-connected right knee disorder, is granted. REMANDED Entitlement to service connection for a gynecological disorder, including residuals of eclampsia, is remanded. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), bipolar disorder and a major depressive disorder, is remanded. FINDINGS OF FACT 1. At her March 2020 hearing before the Board, the Veteran expressed her wish to withdraw the claim of entitlement to an increased rating for right knee disorder. 2. The Veteran’s low back disorder is secondary to her service-connected right knee disorder. CONCLUSIONS OF LAW 1. The criteria have been met to withdraw the claim of entitlement to an increased rating for a right knee disorder. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for entitlement to service connection for a low back disorder, as secondary to service-connected right knee disorder, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1984 to April 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. Concerning the Veteran’s claim for service connection for posttraumatic stress disorder (PTSD), the Board notes that the record reflects various diagnostic impressions, including major depressive disorder, bipolar disorder. Because the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim and reported syndromes and all other information of record, the Board finds that it is more appropriate to characterize her mental health claim broadly, as a single claim of entitlement to service connection for an acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). 1. Withdrawal 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. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In Acree, the United States Court of Appeals for the Federal Circuit held that the withdrawal must be explicit, unambiguous, and done with a full understanding of the consequences of such action by the appellant and the subsequent Board dismissal must include findings as to all three elements. See Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). At her March 2020 hearing before the Board, the Veteran specifically stated that she was no longer pursuing her appeal of entitlement to an increased rating for a right knee disorder. See March 2020 Hearing Transcript. The Veteran further testified that she understood the consequences of withdrawing her claim. Id. The hearing testimony was reduced to writing and contains the Veteran’s name and claim number. The Veteran’s withdrawal was received prior to a decision by the Board on this issue. Having reviewed the record evidence, the Board finds that withdrawal of this claim was explicit, unambiguous, and done with a full understanding of the consequences of such action by the Veteran. See Acree, 891 F.3d at 1009. Accordingly, the criteria for withdrawal of this appeal is satisfied. See 38 C.F.R. § 20.204(b). When a pending appeal is withdrawn, there is no longer an allegation of error of fact or law with respect to the determination that was appealed. Accordingly, the claim of entitlement to an increased rating for a right knee disorder is dismissed. See 38 U.S.C. § 7105(d). 2. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent medical or lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be granted on a secondary basis for a disability which is proximately due to, or the result of, a service connected disability. 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: (a) proximately caused by; or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran asserts that her low back disorder is secondary to her service-connected right knee disorder. See March 2017 VA Form 9. In this regard, the Veteran has been diagnosed with degenerative disc disease of the lumbar spine. See June 2018 Back Conditions Disability Benefits Questionnaire (DBQ). Accordingly, she has a current low back disability. Davidson, 581 F.3d 1313. Following an in-person VA examination, a June 2018 VA medical opinion opined that the Veteran’s low back disorder was at least as likely as not proximately due to or the result of her service-connected right knee condition. The examiner rationalized that the Veteran’s medical history revealed repeated falls related to her right knee, which would have accelerated her development of degenerative disc disease of the lumbar spine. See June 2018 Medical Opinion DBQ. A March 2019 addendum opinion opined it was at least as likely as not that the Veteran’s lower back condition is secondary to her right knee pain. The examiner rationalized that the Veteran’s right knee pain causes her to compensate on her back, which progressed to the development of her current low back condition. See March 2019 VA Clarification. The Board notes that there is a negative etiological opinion of record in the form of a July 2019 addendum opinion. The examiner stated that the Veteran’s right knee chondromalacia with degenerative joint disease does not have the capacity to cause degenerative changes in a separate, unrelated joint. In reaching this conclusion, the examiner’s opinion was limited to the diagnosis of the Veteran’s knee disorder, and did not consider or address the symptoms (i.e., altered gait, compensation) the Veteran experiences on a daily basis as a result of her right knee disorder. Accordingly, the July 2019 opinion forms an inadequate foundation upon which to base a denial of entitlement to service connection for a low back disorder. The Board finds that the evidence supports a finding that the Veteran’s low back disorder was caused by her right knee condition. Accordingly, service connection for a low back disorder, as secondary to service-connected right knee disorder, is granted. See 38 C.F.R. § 3.310. REASONS FOR REMAND 1. Entitlement to service connection for a gynecological disorder, including residuals of eclampsia, is remanded. Initially, the Board notes that the Veteran’s complete service treatment records (STRs) appear to be missing. In this regard, the Veteran underwent a caesarian section (c-section) operation during active duty service. The claims file contains STRs reflecting postpartum treatment, but the STRs pertaining to the operation itself have not been associated with the claims file. On remand, efforts should be undertaken to obtain her complete STRs. Furthermore, the Veteran testified to experiencing irregular bleeding, incontinence, and pain following her in-service eclampsia. See March 2020 Hearing Transcript. The Board notes that the Veteran is already service-connected for tender c-section scar. However, as the Veteran has testified to experiencing other symptoms, the Board finds a VA examination is required to address the nature and etiology of all residuals of the Veteran’s in-service pregnancy with eclampsia. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). 2. Entitlement to service connection for a psychiatric disorder, to include PTSD, a bipolar disorder, and a major depressive disorder, is remanded. The Veteran’s claim was initially denied as a November 2012 VA examiner attributed her PTSD to stressors the Veteran suffered as a child before she entered active duty service. Although the examiner noted the Veteran’s STRs support the likelihood of a military sexual trauma (MST), this event did not aggravate the Veteran’s psychiatric disability or symptoms beyond their natural progressions. See November 2012 Initial PTSD DBQ. The Board notes that the Veteran’s in-service stressor is not limited to the MST. In this regard, the record clearly indicates that another stressor was the way in which the Veteran’s superiors handled her reporting of the MST. Id. (reflecting the Veteran was threatened with assault charges and her assailant was not disciplined). Once VA undertakes the effort to provide an examination, it must obtain a fully adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board’s duty to return an inadequate examination report “if further evidence or clarification of the evidence... is essential for a proper appellate decision.”). Because the VA examiner did not provide an opinion addressing all of the Veteran’s in-service stressors, this claim must be remanded for a new examination. Further, an opinion should be obtained as to whether any current psychiatric disorder, including a bipolar disorder and a major depressive disorder, is related to service. Finally, as this matter is being remanded the Veteran’s updated VA treatment records should be obtained. The matters are REMANDED for the following action: 1. Make arrangements to obtain the Veteran’s updated VA treatment records, dated from July 2019, forward. 2. Obtain the Veteran’s complete service treatment records from the National Personnel Records Center (NPRC) or any other appropriate entity, specifically, all clinical records related to her in-service pregnancy, eclampsia, and c-section surgery. Document all requests for information as well as all responses in the claims file. 3. Schedule the Veteran for a VA gynecological examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible). Any necessary tests or studies must be conducted, and all clinical findings should be reported in detail and correlated to a specific diagnosis. The entire claims file, to include a copy of this REMAND, must be reviewed by the examiner in conjunction with the examination. The examiner should confirm in the examination report that he or she has reviewed the folder in conjunction with the examination. The examiner should answer the following: (a) Identify, by diagnosis, all residuals of the Veteran’s in-service eclampsia and c-section, to include any irregular bleeding, incontinence, adhesions, fibroids, etc. See November 17, 1995 ultrasound showing a fibroid uterus. (b) For each disorder identified, opine as to whether it is at least as likely as not (50 percent probability or greater) that the disorder had its clinical onset during active service or is related to any incident of service, to include the Veteran’s in-service pregnancy, eclampsia, and/or c-section. A supporting rationale for all opinions expressed must be provided. If the examiner is unable to provide any opinion as requested, the examiner should fully explain the reason why such opinion could not be rendered. 4. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the nature and etiology of any psychiatric disorders. Any necessary tests or studies must be conducted, and all clinical findings should be reported in detail and correlated to a specific diagnosis. The entire claims file, to include a copy of this REMAND, must be reviewed by the examiner in conjunction with the examination. The examiner should confirm in the examination report that he or she has reviewed the folder in conjunction with the examination. The examiner should answer the following: (a) Please identify (by diagnosis) each psychiatric disorder found to be present, to include PTSD, major depressive disorder, bipolar disorder, etc. (b) For each psychiatric disorder found, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the psychiatric disorder had its clinical onset during active service or is related to any incident of service, to include the in-service MST and subsequent actions taken by the Veteran’s unit (the Veteran has reported that a stressor was the way in which her superiors handled her reporting of the MST). • In providing this opinion, the examiner should carefully review and consider the Veteran’s service treatment records, as well as her report that her symptoms began during service in approximately 1984. See Disability Report, Adult, Form SSA-3368, dated in May 2005. (c) For each psychiatric disorder found, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that it was either (i) caused by, or (ii) aggravated by the Veteran’s service-connected right knee disorder and/or low back disorder, to include by any chronic pain or functional limitations associated therewith. A supporting rationale for all opinions expressed must be provided. If the examiner is unable to provide any opinion as requested, the examiner should fully explain the reason why such opinion could not be rendered. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. M. Stedman, Associate 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.