Citation Nr: 21021718 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 16-54 174 DATE: April 13, 2021 ORDER Entitlement to a rating in excess of 10 percent for status post left knee arthroscopy with resection of medial plica is dismissed. New and material evidence having been received, the claim for entitlement to service connection for post-traumatic stress disorder (PTSD) is reopened. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. Entitlement to service connection for a low back condition, to include as secondary to service-connected status post left knee arthroscopy with resection of medial plica, is remanded. Entitlement to service connection for a right ankle condition, to include as secondary to service-connected status post left knee arthroscopy with resection of medial plica, is remanded. FINDINGS OF FACT 1. At the July 2020 hearing, prior to the promulgation of a decision, the Veteran withdrew from appeal the issue of entitlement to a rating in excess of 10 percent for status post left knee arthroscopy with resection of medial plica. 2. In an unappealed July 2012 rating decision, service connection for PTSD was denied. 3. Evidence added to the record since the prior final denial relates to unestablished facts necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal as to the issue of entitlement to a rating in excess of 10 percent for status post left knee arthroscopy with resection of medial plica have been met. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 20.204. 2. The July 2012 rating decision denying service connection for PTSD is final. 38 U.S.C. § 7104, 7105; 38 C.F.R. §§ 20.302, 20.1103. 3. New and material evidence has been received sufficient to reopen the Veteran’s claim for entitlement to service connection for PTSD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from October 2001 to June 2004. At a July 2020 hearing, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the proceeding has been associated with the claims file. During the course of the appeal, the Veteran submitted a December 2019 supplemental claim regarding the claims on appeal in the modernized review system. However, as this was submitted after certification to the Board and the Supplemental Statement of the Case (SSOC) was issued prior to February 19, 2019, it did not represent an acceptable opt-in to the modernized review system. As such, the claims on appeal will be administered in the legacy system. The Board notes that the claims on appeal were denied in a January 2016 rating decision that also denied an increased rating for a left knee scar. The Veteran did not appeal the left knee scar rating in his January 2016 Notice of Disagreement (NOD). However, the Agency of Original Jurisdiction (AOJ) included the left knee scar increased rating claim in the October 2016 Statement of the Case (SOC) and September 2017 SSOC. The Board notes however that jurisdiction has not been conferred to the Board as the claim was not appealed in the NOD. Further, the Veteran did not express any desire to continue his left knee scar claim at the July 2020 hearing. Accordingly, the claim is not currently before the Board. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Rating 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 Veteran or by his or her authorized representative in writing or on the record at a hearing on appeal. Id. 1. Entitlement to a rating in excess of 10 percent for status post left knee arthroscopy with resection of medial plica is dismissed. In the present case, at the July 2020 hearing, the Veteran stated specifically that he wished to withdraw his left knee increased rating appeal. The undersigned VLJ discussed the implications of a withdrawal and the Veteran confirmed his desire to withdraw the issue. His statement constitutes a valid withdrawal of the appeal of the claim for a rating in excess of 10 percent for status post left knee arthroscopy with resection of medial plica as it is explicit, unambiguous, and done with a full understanding of the consequences of such action. See Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011); Acree v. O’Rourke, 891 F.3d 1009, fn. 2 (Fed. Cir. 2018). As the Veteran has withdrawn the appeal of this issue, there remain no allegations of errors of fact or law for appellate consideration with regard to the issue. Accordingly, the Board does not have jurisdiction to review the issue on appeal, and the appeal is dismissed. New and Material Evidence Generally, a claim which has been denied in an unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). An 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 VA Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means evidence not previously submitted. Material evidence means existing evidence that by itself or when considered with previous evidence relates to an unestablished fact 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 decision and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). If the evidence is new, but not material, the inquiry ends, and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” The Court further held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. Id. 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). As a final matter before turning to the specific facts of the Veteran’s case, the Board notes that it has considered the applicability of 38 C.F.R. § 3.156(b), which provides that when new and material evidence is received prior to the expiration of the appeal period it will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no evidence pertaining to the Veteran’s claim was received prior to the expiration of the appeal period stemming from the July 2012 rating decision denying service connection. See Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Thus, 38 C.F.R. § 3.156(b) is not applicable. By way of background, the Veteran’s claim for service connection for PTSD was originally denied in a July 2012 rating decision. The decision denied service connection based on no stressor statement and no current diagnosis of PTSD. The Veteran did not submit any additional relevant evidence within the year following the rating decision, nor did he perfect an appeal within the required timeframe. Therefore, the decision is final. 38 C.F.R. § 3.109. The Veteran filed his claim to reopen in July 2015. In a January 2016 rating decision, the AOJ found no new and material evidence had been submitted to warrant a reopening of the claim. At the time of the July 2012 rating decision, the evidence included the Veteran’s service treatment records (STRs) which contained no complaints, symptoms, treatment, or diagnosis of PTSD or any psychiatric concerns. Subsequently, evidence added to the record since the July 2012 decision includes a stressor statement, several buddy statements, VA treatment records, two Disability Benefits Questionnaires (DBQs), and hearing testimony. The stressor statement described traumatic in-service incidents; the buddy statements described the Veteran’s post-service symptom presentation; the VA treatment records reflected a history of PTSD and attempts at psychiatric treatment; the DBQs found that he met the criteria for a PTSD diagnosis and that he had additional psychiatric diagnoses; and at the hearing, he described his in-service experiences and post-service symptoms. 2. New and material evidence having been received, the claim for entitlement to service connection for PTSD is reopened. The Board finds that the evidence added to the record subsequent to the July 2012 rating decision constitutes new and material evidence, particularly to include the lay statements describing in-service stressors and medical treatment records and DBQs reflecting PTSD symptomology. The July 2012 decision denied the claim based on no stressor statement and no PTSD diagnosis and the additional evidence provided a stressor statement and indications of PTSD symptoms. As such, the Board finds that evidence added to the record since the prior final denial relates to unestablished facts necessary to substantiate the Veteran’s claim. Accordingly, the service connection claim is therefore reopened. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. The Board finds that a VA examination is needed to determine whether the Veteran’s PTSD is the result of his active duty service. Additionally, there are numerous other psychiatric diagnoses in the claims file. The Board has expanded the claim as characterized above to ensure all relevant symptomology that may be associated with active service is considered. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). The Veteran has identified several in-service stressors, including pressure during post-9/11 service aboard an aircraft carrier, an incident where a fellow service-member was blown off the flight line of the aircraft carrier and the Veteran’s guilt over being unable to stop it, fear of getting sucked into the turbine of a jet, and a motor vehicle accident (MVA). He competently and credibly described his in-service experiences and current symptoms at the July 2020 hearing. The DBQs of record are Review PTSD DBQs, not Initial PTSD DBQs. As such, no opinions were provided as to whether the Veteran’s identified stressors were sufficient to support a diagnosis of PTSD and whether they in fact caused his current symptomology. Additionally, other psychiatric conditions were diagnosed but the symptoms attributable to each condition were not identified or differentiated. VA treatment records reflected a diagnosis of rule out PTSD and PTSD by history only. The Board finds that the medical evidence of record does not provide a sufficient basis to determine the service connection claim. As such, remand is needed to obtain a VA examination and opinion. Additionally, following issuance of the October 2016 SOC and September 2017 SSOC, VA treatment records were added to the record which reflected hospitalization for psychiatric symptoms and substance abuse. A January 2021 psychiatric assessment determined that the Veteran met the diagnostic criteria for PTSD. A VA mental disorders (other than PTSD) examination was conducted in February 2020 in connection with a claim for service connection for insomnia. The Veteran was diagnosed with alcohol use disorder, stimulant use disorder, and adjustment disorder with mixed anxiety and depressed mood. These medical records, which reflect PTSD symptomology and other separate psychiatric diagnoses with similar or overlapping symptomology have not been considered by the AOJ in the first instance. As such, remand is also needed so that all evidence of record may be considered in connection with the Veteran’s claim. 2. Entitlement to service connection for a low back condition, to include as secondary to service-connected status post left knee arthroscopy with resection of medial plica, is remanded. The Veteran has contended either that his low back condition is the result of an in-service April 2002 MVA or is secondary to his service-connected left knee disability. Reports of mid-back pain were first noted in a May 2012 VA treatment record. A VA examination was conducted in November 2015. The Veteran described back pain which limited his ability to stand for prolonged periods and to sit at certain angles. His pain worsened when he drove, used the restroom, washed dishes, and ironed his shirts. Such symptoms interfered with his daily activities including standing and walking. A physical examination yielded normal results and an x-ray demonstrated no loss of height of vertebral bodies. The examiner determined that the Veteran did not have a current low back diagnosis. The claimed condition was found to be less likely than not proximately due to or the result of the service-connected left knee disability as the physical examination and x-ray results of the lumbar spine were unremarkable. Following complaints of low back pain and radiculopathy since the April 2002 MVA, a lumbar MRI was conducted in January 2016 which revealed disc desiccation and minimal disc bulge at the L5-S1 vertebrae causing mild neural foraminal narrowing without spinal canal narrowing or nerve root compression. Clinicians noted that the Veteran’s gait and station were abnormal due to left knee and back pain. Another VA opinion was obtained in May 2016. The examiner noted the in-service MVA and back complaints since that time and the January 2016 MRI results. However, the examiner determined that there was no pathology to render a diagnosis of a low back condition. The examiner concluded that the claimed condition was less likely as not proximately due to or the result of the service-connected left knee disability. In April 2017, the Veteran was prescribed Gabapentin for his chronic low back pain. He was subsequently referred for several rounds of chiropractic treatment, as well. The Board finds that the opinions of record do not form an adequate basis upon which to determine the claim. As such, a new VA examination and opinion are needed regarding the Veteran’s low back condition claim. Despite the lack of diagnosis by the VA examiners, the Veteran has reported ongoing symptomology. Further, the MRI demonstrated relevant findings and his symptoms have been treated with prescribed medications. The Veteran has outlined specific functional impairments caused by his low back condition symptomology, as well. Although pain itself can be a disability for VA purposes, such symptomology must amount to a functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018); Wait v. Wilkie, 33 Vet. App. 8, 17 (2020). Neither of the VA examiners discussed the Veteran’s reported symptomology and whether such symptomology resulted in functional impairment of earning capacity. Further, no opinion was provided regarding a direct theory of causation from the 2002 MVA and no opinion was provided regarding aggravation from the service-connected left knee disability. As such, a VA opinion is needed to determine whether the Veteran has a current low back condition or whether his reported symptoms result in functional impairment of earning capacity, and if so, whether such diagnosis or impairment is the result of the 2002 MVA or was caused or aggravated by the service-connected left knee disability. Additionally, VA treatment records reflected that the Veteran was referred for chiropractic treatment in January 2018, April 2018, and December 2019 in Yuma, Arizona, and Imperial Valley, California. The records of such treatment are not within the claims file. As such, efforts should be made upon remand to obtain all outstanding relevant records of treatment. 3. Entitlement to service connection for a right ankle condition, to include as secondary to service-connected status post left knee arthroscopy with resection of medial plica, is remanded. The Veteran has contended that his right ankle condition was caused or aggravated by his service-connected left knee disability. In a June 2015 VA treatment record, the Veteran reported left knee pain. The clinician stated that he favored his left knee and as a result, his right ankle and foot were hurting. A VA examination was conducted in November 2015. The Veteran reported an onset of symptoms in 2014 when he began having more problems with his service-connected left knee. His symptoms were worse in the morning and the ankle had begun to give out on him. He experienced flare-ups from prolonged walking and standing which resulted in dull pain. Functional impact was determined to be pain during the day, swelling at the end of the day, and pain with prolonged walking and standing. A physical examination was normal, and an x-ray was unremarkable. The examiner determined that there was no current diagnosis of a right ankle condition. As such, the claimed condition was less likely than not proximately due to or the result of the service-connected left knee disability. The Board finds that a new VA examination and opinion are needed before a decision may be rendered on the claim. The Veteran has outlined specific functional impairments caused by his right ankle condition symptomology which were not considered by the examiner. See Saunders v. Wilkie, 886 F.3d at 1368; Wait v. Wilkie, 33 Vet. App. at 17. Further, no opinion regarding aggravation was provided. As such, a new examination and opinion are needed which determine whether the Veteran’s reported right ankle symptom amounts to a functional impairment of earning capacity and whether such impairment was proximately caused or aggravated by the service-connected left knee disability. The matters are REMANDED for the following action: 1. Obtain any necessary authorizations and releases from the Veteran and associate with the claims file any outstanding chiropractic care treatment records, specifically to include records of treatment authorized in January 2018, April 2018, and December 2019 from providers in Yuma, Arizona, and Imperial Valley, California. Document all attempts to obtain such records in the claims file. 2. Schedule the Veteran for a VA examination with an appropriate medical professional to determine the etiology of any acquired psychiatric disorder, including PTSD. The claims folder should be provided to and reviewed by the examiner. The examiner is asked to address the following: (a.) Determine all current psychiatric diagnoses and differentiate which symptoms are attributable to which diagnosis, to the extent possible. Specific attention is directed to the September 2015 and July 2016 DBQs, January 2021 PTSD assessment, and February 2021 VA mental disorders VA examination. (b.) Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current psychiatric disorder diagnosed is the result of active service, or if PTSD is diagnosed, whether it is at least as likely as not that the identified service stressor incidents are adequate to support a diagnosis of PTSD and that the Veteran’s symptoms are related to the claimed stressors. (c.) Provide a comprehensive rationale for all opinions with consideration given to all evidence of record, including the Veteran’s military service history, his post-service medical records, and his lay statements. 3. Schedule the Veteran for a VA examination with an appropriate medical professional to determine the etiology of his low back condition. The claims folder should be provided to and reviewed by the examiner. (a.) List any current diagnoses of the low back or any symptomology causing a functional impairment of earning capacity. Special attention is directed to the Veteran’s lay reports at the November 2015 VA examination. (b.) After a review of the examination findings and the entire evidence of record, the examiner is asked to render an opinion as to whether the Veteran’s low back condition or symptomology is at least as likely as not (probability of 50 percent or greater) related to his active duty service, to include the April 2002 MVA. (c.) The examiner is also asked to render an opinion as to whether the Veteran’s low back condition or symptomology is at least as likely as not (probability of 50 percent or greater) proximately caused or aggravated (i.e., worsened beyond natural progression) by his service-connected left knee disability. If aggravation is found, the examiner should quantify the degree of such aggravation, if possible. The examiner should address mechanical changes due to the Veteran’s abnormal gait and station caused by his left knee disability. (d.) A full rationale for all opinions expressed should be provided. The examiner should focus specifically on whether the incident in service or the service-connected left knee disability resulted in any current symptomology in the low back resulting in functional impairment of earning capacity. Special attention is directed to the Veteran’s lay statements regarding the onset of symptoms and his current complaints. 4. Schedule the Veteran for a VA examination with an appropriate medical professional to determine the etiology of his right ankle condition. The claims folder should be provided to and reviewed by the examiner. (a.) List any current diagnoses of the right ankle or any symptomology causing a functional impairment in earning capacity. Special attention is directed to the Veteran’s lay reports at the November 2015 VA examination. (b.) After a review of the examination findings and the entire evidence of record, the examiner is asked to render an opinion as to whether the Veteran’s right ankle condition or symptomology is at least as likely as not (probability of 50 percent or greater) proximately caused or aggravated (i.e., worsened beyond natural progression) by his service-connected left knee disability. If aggravation is found, the examiner should quantify the degree of such aggravation, if possible. The examiner should address mechanical changes due to the Veteran’s abnormal gait and station caused by his left knee disability. (c.) A full rationale for all opinions expressed should be provided. The examiner should focus specifically on whether the service-connected left knee disability resulted in any current symptomology in the right ankle resulting in functional impairment in earning capacity. Special attention is directed to the Veteran’s lay statements regarding the onset of symptoms and his current complaints. 5. After the above development and any additionally indicated development has been completed, readjudicate the issue on appeal. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Rachel E. Jensen, 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.