Citation Nr: 21022067 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 17-28 464 DATE: April 14, 2021 ORDER The appeal for entitlement to service connection for a dental disorder is dismissed. The application to reopen a claim of service connection for a psychiatric disorder, including posttraumatic stress disorder (PTSD), is granted. Service connection for depressive disorder is granted. The application to reopen a claim of service connection for low back disability is granted. REMANDED Service connection for low back disorder. Service connection for pseudofolliculitis barbae. Service connection for a throat disorder. Service connection for a left knee disorder, including as secondary to service-connected left ankle disorder. Entitlement to a rating in excess of 10 percent evaluation for left ankle disability. FINDINGS OF FACT 1. At the December 2020 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew the issue of entitlement to service connection for a dental disorder. 2. Evidence has been received that relates to unestablished facts necessary to substantiate the Veteran’s claim of entitlement to service connection for a psychiatric disorder. 3. The Veteran’s depressive disorder is related to his active service. 4. Evidence has been received that relates to unestablished facts necessary to substantiate the Veteran’s claim of entitlement to service connection for low back disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of entitlement to service connection for a dental disorder have been met. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. § 20.205 (2020). 2. The November 2016 rating decision that denied the Veteran’s psychiatric disability claim is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2020). 3. New and material evidence has been received to reopen the claim of service connection for psychiatric disability. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156(a) (2020). 4. The criteria for service connection for depressive disorder have been met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. § 3.303 (2020). 5. The October 2013 decision that denied the Veteran’s application to reopen his low back claim is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2020). 6. New and material evidence has been received to reopen the claim of service connection for low back disability. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156(a) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from March 1976 to July 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned Veterans Law Judge in December 2020. Duties to Notify and Assist Neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran offered testimony before the undersigned Veterans Law Judge at a Board hearing in December 2020. The Board finds that all requirements for hearings have been met. 38 C.F.R. § 3.103(c)(2) (2020); Bryant v. Shinseki, 23 Vet. App. 488 (2010). Dental Disorder 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. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.205. In the present case, at the December 2020 Board hearing, the Veteran withdrew the issue of entitlement to service connection for a dental disorder. The Board finds this withdrawal was done with a full understanding of the consequences, as the record reveals that the Veteran has an understanding of the VA claims process, the VLJ explained that new claim would have to be filed later if the Veteran wished to address this claim, and the Veteran withdrew the issue in the presence of his attorney. See Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Hence, there remain no allegations of errors of fact or law for appellate consideration as to this issue. Accordingly, the Board does not have jurisdiction to review the issue, and it is dismissed. Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2020). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2020). In addition, service connection for certain chronic diseases, including arthritis may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2020); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2020); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Secondary service connection may be granted for a disability, which is proximately due to, the result of, or aggravated by, an established service-connected disorder. 38 C.F.R. § 3.310 (2020); Allen v. Brown, 7 Vet. App. 439 (1995). Psychiatric disability In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing 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 of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (2020). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. In a November 2016 rating decision, the RO denied service connection for psychiatric disability (PTSD). The Veteran did not appeal or submit new and material evidence within one year. The November 2016 rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Evidence submitted after the November 2016 decision includes a December 2020 private psychiatric evaluation indicating a diagnosis of depressive disorder and also an opinion linking the depressive disorder to the Veteran’s active service. The evidence, including the December 2020 private psychiatric evaluation, is new because it was not previously submitted to VA. The evidence is material because it relates to unestablished facts necessary to establish the claim-evidence of a nexus to service. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156(a). Further, new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened. Justus, 3 Vet. App. at 513. Moreover, when considering the new evidence in conjunction with the evidence already of record, combined with VA assistance including an examination, it raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. Accordingly, for all of the above reasons, the Veteran’s claim is reopened. The Board finds that the evidence of record supports a finding of service connection for depressive disorder. First, the December 2020 private psychiatric evaluation reflects a current diagnosis of a depressive disorder. As for PTSD, the December 2020 private psychologist specifically indicated that the Veteran did not endorse “cardinal symptoms of PTSD” during the evaluation and there is no other diagnosis of PTSD of record. Second, an April 1977 death certificate indicates that during service, the Veteran’s wife was in a fatal automobile accident. Service treatment records indicate the Veteran sought mental health treatment for insomnia due to personal problems. Third, the December 2020 private examiner has linked the Veteran’s depressive disorder to his active service. The Board finds that the December 2020 private psychologist’s opinion is of significant probative value. The December 2020 opinion contained a comprehensive review of the Veteran’s medical history, including specific references to the Veteran’s service treatment records (STRs) indicating that the Veteran had received counseling for insomnia and personal problems during active service. The December 2020 private psychologist offered a well-reasoned explanation for the opinions provided. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion). Based on the foregoing, and resolving any doubt in the Veteran’s favor, service connection for the Veteran’s depressive disorder is warranted. Low back The Veteran was originally service connected for a low back disorder in February 1987. In October 2013 the RO denied the Veteran’s application to reopen his claim of service connection for low back disability. The Veteran did not appeal or submit new and material evidence within one year. The October 2013 decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Evidence submitted after the October 2013 decision includes a November 2020 private physician’s opinion linking the Veteran’s low back disability to his active service. The evidence is new because it was not previously submitted to VA. The evidence is also material because it relates to unestablished facts necessary to establish the claim-evidence of a nexus to service. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156(a). Further, new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened. Justus, 3 Vet. App. at 513. Moreover, when considering the new evidence in conjunction with the evidence already of record, combined with VA assistance including an examination, it raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. Accordingly, for all of the above reasons, the Veteran’s low back claim is reopened. REASONS FOR REMAND As for the issues of service connection for low back disorder and service connection for a left knee disorder, including as secondary to service-connected left ankle disorder, the Board finds that the medical evidence of record is not sufficient to adjudicate those claims. In this regard, although in November 2020 a private physician provided an opinion linking those conditions to the Veteran’s service, the Board notes that it is unclear if the opinions were based on a review of the entire record. For example, there was no reference to a February 1985 VA general medical examination conducted shortly following service containing clinical findings related to the spine and knees. In the same manner, although the Veteran has undergone VA examinations that have provided negative nexus opinions, those examinations did not adequately consider the Veteran’s lay statements and other evidence of record added subsequent to those examinations. Further, the left knee examiner did not render an opinion on the secondary aspect of the Veteran’s left knee claim. As such, additional VA examinations are warranted. As for the claims of service connection for pseudofolliculitis barbae and a throat condition, the Veteran has provided additional testimony at his Board hearing that warrants another VA examination for those conditions. In this regard, the Veteran has indicated that his throat condition is essentially a claim for a gastrointestinal disability. Additionally, the Veteran has indicated that he currently has and has had a beard and facial hair disability since service. Accordingly, additional VA examinations are necessary. As for the issue of entitlement to an increased rating for left ankle disability, remand is required for a current examination. When a claimant asserts, or the evidence shows, that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); Snuffer v. Gober, 10 Vet. App. 400 (1997). It appears that the Veteran last underwent a left ankle VA examination in 2012. At the December 2020 Board hearing the Veteran indicated that his left ankle disability had worsened since his last VA ankle examination. As such, a VA examination with current findings should be obtained.] The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment on and after December 13, 2018. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant non-VA medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the appellant which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with the appropriate examinations for his low back and left knee claims. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran’s low back disability or left knee disability had its onset in service or is etiologically related to the Veteran’s active service. The examiner must also provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran has a left knee disability that is caused or aggravated by his service-connected left ankle disability. The examiner must consider and discuss the Veteran’s lay statements wherein he has indicated that he has had low back and left knee problems continuously since service. The examiner should also discuss, as appropriate, the November 2020 private opinion linking the Veteran’s low back and left knee disability to the Veteran’s active service. 4. After any additional records are associated with the claims file, provide the Veteran with the appropriate examinations for his throat disability claim. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran has any residual disability related to his inservice complaints of throat trouble, to include in November 1978 when the Veteran sought treatment following the swallowing of a fish bone. 5. After any additional records are associated with the claims file, provide the Veteran with the appropriate examinations for his pseudofolliculitis barbae claim. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must specifically state whether the Veteran has a current diagnosis of pseudofolliculitis barbae. 6. After any additional records are associated with the claims file, provide the Veteran with a VA examination to determine the current severity of the service-connected left ankle disability. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must utilize the appropriate Disability Benefits Questionnaire. 7. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2020). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David Nelson 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.