Citation Nr: 21023094 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 19-26 791 DATE: April 20, 2021 ORDER The appeal as to whether new and material evidence has been received to reopen the previously-denied claim of entitlement to service connection for right knee degenerative joint disease (DJD) is dismissed. The appeal as to whether new and material evidence has been received to reopen the previously-denied claim of entitlement to service connection for rhinitis (claimed as sinus problems) is dismissed. The appeal as to whether new and material evidence has been received to reopen the previously-denied claim of entitlement to service connection a skin disorder is dismissed. The appeal as to entitlement to service connection for bilateral hearing loss is dismissed. The appeal as to entitlement to service connection for high cholesterol is dismissed. The appeal as to entitlement to service connection for a prostate condition is dismissed. The appeal as to entitlement to service connection for urinary incontinence is dismissed. The appeal as to entitlement to service connection for high blood pressure is dismissed. The appeal as to entitlement to service connection for residuals of a traumatic brain injury (TBI) is dismissed. The appeal as to entitlement to an initial compensable rating for gastroesophageal reflux disease (GERD) is dismissed. The appeal as to entitlement to effective date earlier than December 12, 2017, for the award of service connection for GERD is dismissed. The appeal as to entitlement to an effective date earlier than May 16, 2017 for the award of a 50 percent rating for PTSD is dismissed. Reconsideration of the previously-denied claim of entitlement to service connection for left knee DJD is warranted. Reconsideration of the previously-denied claim of entitlement to service connection for headaches is warranted. Reconsideration of the previously-denied claim of entitlement to service connection for sleep apnea is warranted. Reconsideration of the previously-denied claim of entitlement to service connection for erectile dysfunction (ED) is warranted. Entitlement to service connection for headaches is granted. From April 1, 2019, restoration of a 50 percent rating for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for sleep apnea, to include as secondary to PTSD, is remanded. Entitlement to service connection for ED, to include as secondary to PTSD, is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to a rating in excess of 50 percent for PTSD is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In September 2020, the Board notified the Veteran and his representative of the presence of a potential jurisdiction defect as to certain issues on appeal. The Veteran and his representative did not present any written argument and additional evidence relevant to jurisdiction or request a hearing to present oral argument on the jurisdictional question. 2. The Veteran and his representative have not identified any question of law or fact for Board review with respect to the appeal as to the issue of whether new and material evidence has been received to reopen the previously-denied claim of entitlement to service connection for right knee DJD. 3. The Veteran and his representative have not identified any question of law or fact for Board review with respect to the appeal as to the issue of whether new and material evidence has been received to reopen the previously-denied claim of entitlement to service connection for rhinitis. 4. The Veteran and his representative have not identified any question of law or fact for Board review with respect to the appeal as to the issue of whether new and material evidence has been received to reopen the previously-denied claim of entitlement to service connection for a skin disorder. 5. The Veteran and his representative have not identified any question of law or fact for Board review with respect to the appeal as to the issue of entitlement to service connection for bilateral hearing loss. 6. The Veteran and his representative have not identified any question of law or fact for Board review with respect to the appeal as to the issue of entitlement to service connection for high cholesterol. 7. The Veteran and his representative have not identified any question of law or fact for Board review with respect to the appeal as to the issue of entitlement to service connection for a prostate condition. 8. The Veteran and his representative have not identified any question of law or fact for Board review with respect to the appeal as to the issue of entitlement to service connection for urinary incontinence. 9. The Veteran and his representative have not identified any question of law or fact for Board review with respect to the appeal as to the issue of entitlement to service connection for high blood pressure. 10. The Veteran and his representative have not identified any question of law or fact for Board review with respect to the appeal as to the issue of entitlement to service connection for residuals of TBI. 11. The Veteran and his representative have not identified any question of law or fact for Board review with respect to the appeal as to the issue of entitlement to an initial compensable rating for GERD. 12. The Veteran and his representative have not identified any question of law or fact for Board review with respect to the appeal as to the issue of entitlement to effective date earlier than December 12, 2017, for the award of service connection for GERD. 13. The Veteran and his representative have not identified any question of law or fact for Board review with respect to the appeal as to the issue of entitlement to effective date earlier than May 16, 2017, for the award of a 50 percent rating for PTSD. 14. The Veteran filed a claim for VA compensation benefits in July 2011. A June 2013 rating decision denied entitlement to service connection for, among other things, a left knee disability, headaches, sleep apnea, and ED. A rating decision issued on September 2, 2014 confirmed and continued these denials. On September 30, 2014, the AOJ received additional relevant service department records that existed and had not been associated with the claims file when VA first decided the claim, and the Veteran had provided sufficient information for VA to identify and obtain the records from the appropriate official source at the time of his original claim. 15. A headache disorder was not noted when the Veteran was examined, accepted, and enrolled for service in 2004. 16. The Veteran’s headache disorder clearly and unmistakably pre-existed service. 17. There is not clear and unmistakable evidence that the Veteran’s headache disorder was not aggravated by active service. 18. The Veteran’s current headache disorder has been present since service. 19. The evidence does not demonstrate improvement in the Veteran’s PTSD with respect to his ability to function under the ordinary conditions of life and work. CONCLUSIONS OF LAW 1. The criteria for dismissal of the appeal as to whether new and material evidence has been received to reopen the previously-denied claim of entitlement to service connection for right knee DJD are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.104. 2. The criteria for dismissal of the appeal as to whether new and material evidence has been received to reopen the previously-denied claim of entitlement to service connection for rhinitis are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.104. 3. The criteria for dismissal of the appeal as to whether new and material evidence has been received to reopen the previously-denied claim of entitlement to service connection for a skin disorder are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.104. 4. The criteria for dismissal of the appeal as to entitlement to service connection for bilateral hearing loss are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.104. 5. The criteria for dismissal of the appeal as to entitlement to service connection for high cholesterol are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.104. 6. The criteria for dismissal of the appeal as to entitlement to service connection for a prostate condition are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.104. 7. The criteria for dismissal of the appeal as to entitlement to service connection for urinary incontinence are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.104. 8. The criteria for dismissal of the appeal as to entitlement to service connection for high blood pressure are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.104.. 9. The criteria for dismissal of the appeal as to entitlement to service connection for residuals of TBI are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.104.. 10. The criteria for dismissal of the appeal as to entitlement to an initial compensable rating for GERD are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.104. 11. The criteria for dismissal of the appeal as to entitlement to an effective date earlier than December 12, 2017, for the award of service connection for GERD are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.104. 12. The criteria for dismissal of the appeal as to entitlement to an effective date earlier than May 16, 2017, for the award of a 50 percent rating for PTSD are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.104. 13. Reconsideration of the previously-denied claim of entitlement to service connection for left knee DJD is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.156(c). 14. Reconsideration of the previously-denied claim of entitlement to service connection for headaches is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.156(c). 15. Reconsideration of the previously-denied claim of entitlement to service connection for sleep apnea is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.156(c). 16. Reconsideration of the previously-denied claim of entitlement to service connection for ED is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.156(c). 17. The presumption of soundness is not rebutted; the criteria for direct service connection for headaches are met. 38 U.S.C. §§ 1110, 1111, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 18. The criteria for restoration of a 50 percent rating for PTSD effective April 1, 2019 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 3.344, 4.3, 4.10. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1990 to June 1991 and from June 2004 to August 2005, including service in Southwest Asia, with additional National Guard service including verified active duty for training (ACDUTRA) from January 1976 to May 1976 and from March 1981 to May 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from September 2017, March 2018, April 2018, May 2018, August 2018, and January 2019 decisions by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). The AOJ rejected the Veteran’s attempt to opt into the VA’s modernized appeals system with respect to certain issues on appeal. See June 2019 VA Form 20-0995; July 2019 Correspondence. Thus, the Board will address this issue under VA’s legacy appeals system. 1. The appeal as to whether new and material evidence has been received to reopen the previously-denied claim of entitlement to service connection for right knee DJD is dismissed. 2. The appeal as to whether new and material evidence has been received to reopen the previously-denied claim of entitlement to service connection for rhinitis is dismissed. 3. The appeal as to whether new and material evidence has been received to reopen the previously-denied claim of entitlement to service connection a skin disorder is dismissed. 4. The appeal as to entitlement to service connection for bilateral hearing loss is dismissed. 5. The appeal as to entitlement to service connection for high cholesterol is dismissed. 6. The appeal as to entitlement to service connection for a prostate condition is dismissed. 7. The appeal as to entitlement to service connection for urinary incontinence is dismissed. 8. The appeal as to entitlement to service connection for high blood pressure is dismissed. 9. The appeal as to entitlement to service connection for residuals of TBI is dismissed. 10. The appeal as to entitlement to an initial compensable rating for GERD is dismissed. 11. The appeal as to entitlement to effective date earlier than December 12, 2017, for the award of service connection for GERD is dismissed. 12. The appeal as to entitlement to an effective date earlier than May 16, 2017, for the award of a 50 percent rating for PTSD is dismissed. All questions of law or fact necessary to a decision by the Secretary of the VA under a law that affects the provision of benefits by the Secretary to veterans or their dependents or survivors are subject to review on appeal to the Board. 38 C.F.R. § 20.104(a). The Board has authority to determine its own jurisdiction to decide a particular case. When the Board, on its own initiative, raises a question as to a potential jurisdictional defect, all parties to the proceeding and their representative(s), if any, will be given notice of the potential jurisdictional defect(s) and granted a period of 60 days to present written argument and additional evidence relevant to jurisdiction and to request a hearing to present oral argument on the jurisdictional question(s). The Board may dismiss any case over which it determines it does not have jurisdiction. 38 C.F.R. § 20.104(c). The Veteran is represented by counsel. See, e.g., February 2018 VA Form 21-22a. On September 22, 2020, the Board notified the Veteran and his representative of a potential jurisdictional defect with respect to certain of the issues before the Board. Specifically, the Board explained that the substantive appeals as to certain appealed issues were defective because they contained no arguments relating to errors of fact or law made by the AOJ in reaching its determinations. The Board noted that the attorney has not submitted any argument as these issues, including in the substantive appeals. See September 2020 BVA Letter. The Board explained that on January 14, 2020 and May 1, 2020, the attorney requested an additional 90 days (plus an additional 30 days for mail processing) to submit additional evidence and argument. However, while additional evidence was received the attorney has not submitted an appellate brief. The Board explained that the Veteran had the option to present written argument and additional evidence relevant to jurisdiction, and/or request a hearing before ethe Board to present oral argument on the jurisdictional question. See id. More than sixty days have elapsed since the Veteran and his representative were notified of this jurisdictional defect. However, no additional argument or evidence has been received. The Board has carefully reviewed the filings submitted by the Veteran and his attorney. Here, there is no identified question of law or fact for Board review as to the issues of (1) whether new and material evidence has been received to reopen the previously-denied claim of entitlement to service connection for right knee DJD; (2) whether new and material evidence has been received to reopen the previously-denied claim of entitlement to service connection for rhinitis; (3) whether new and material evidence has been received to reopen the previously-denied claim of entitlement to service connection for a skin disorder; (4) entitlement to service connection for bilateral hearing loss; (5) entitlement to service connection for high cholesterol; (6) entitlement to service connection for a prostate condition; (7) entitlement to service connection for urinary incontinence; (8) entitlement to service connection for high blood pressure; (9) entitlement to service connection for residuals of TBI; (10) entitlement to an initial compensable rating for GERD; (11) entitlement to effective date earlier than December 12, 2017, for the award of service connection for GERD; and (12) entitlement to an effective date earlier than May 16, 2017, for the award of a 50 percent rating for PTSD. Thus, as there is no issue of law or fact for Board review, the appeal as to these issues must be dismissed. The Board acknowledges that the September 2020 letter identified a defective substantive appeal as to issues in addition to those addressed above. However, the Board’s review has identified argument as relevant to these issues, although it was not included in or attached to any substantive appeal. See May 2019 Notice of Disagreement (NOD). Additionally, the evidence submitted with the April 2018 NOD reasonably raises the issues of secondary service connection for sleep apnea and ED. The Board will address these issues below, as well as any issues reasonably related to these issues. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (entitlement to a TDIU may be raised as part and parcel of an increased rating claim on appeal). 13. Reconsideration of the previously-denied claim of entitlement to service connection for left knee DJD is warranted. 14. Reconsideration of the previously-denied claim of entitlement to service connection for headaches is warranted. 15. Reconsideration of the previously-denied claim of entitlement to service connection for sleep apnea is warranted. 16. Reconsideration of the previously-denied claim of entitlement to service connection for ED is warranted. Initially, the Board observes that it is necessary to address the issue of decision finality, as an August 2019 Statement of the Case (SOC) explained that new and material evidence had not been received sufficient to reopen the claims of entitlement to service connection for sleep apnea and ED. Normally, VA may not reopen a finally-denied claim unless new and material evidence is submitted or received. 38 C.F.R. §§ 3.104, 3.156. However, at any time after VA issues a decision on a claim, if VA receives and associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, so long as these records existed when VA first decided the claim and the claimant provided sufficient information for VA to identify and obtain the records from the respective official source. 38 C.F.R. § 3.156(c). In July 2011, the Veteran filed a claim seeking entitlement to service connection for, among other things, PTSD, sleep apnea, a left knee disability, headaches, and ED. See July 2011 VA Form 21-526 at 1. The Veteran reported that he had served with the Alabama National Guard and identified his unit. See id. at 3. The AOJ attempted to obtain records from the Mississippi Military Department and the VA Records Management Center. See July 2011 Federal Third Party Guard Record; July 2011 Request for Information; July 26, 2011 Email Correspondence. The VA Records Management Center reported that it did not have the Veteran’s service treatment records (STRs) and stated that the request had been flagged and that if these records were found they would be immediately provided to the AOJ. See July 28, 2011 Email Correspondence; see also September 2011 Request for Information. The AOJ requested that the Veteran provide copies of his STRs if he had them in his possession. See, e.g., June 2013 Development Letter. In June 2013, the AOJ received some of the Veteran’s personnel records, but was informed by the Alabama Army National Guard that his records were not associated with his last unit of record. See June 2013 Third Party Correspondence; June 2013 Personnel Records. The AOJ provisionally denied his claim in June 2013, noting that STRs had been received but that no memorandum was of record regarding the Veteran’s claimed PTSD stressors. See June 2013 Rating Decision. In July 2013, the AOJ received a reply from the Retired Activities Branch of the Alabama Army National Guard stating that their system was down and they could not access records. See July 2013 Third Party Correspondence. In July 2014, a memorandum was associated with the record noting that a requested PTSD memorandum had not been received and directing that a final rating decision be issued. See July 2014 Deferred Rating Decision. In September 2014, the AOJ granted service connection for a mental condition for treatment purposes and confirmed and continued the previous denials of service connection for PTSD, sleep apnea, left knee DJD, headaches, and ED, as well as other disabilities. See September 2014 Rating Decision. The decision did not show that any new service records had been received. See id. The Veteran was notified of this decision on September 2, 2014. See September 2014 Notification Letter. The Veteran did not appeal the June 2013 or September 2014 rating decisions and he did not submit new and material evidence within one year of the issuance of those decisions. However, the claims file shows that the Veteran’s STRs and personnel were associated with the record as of September 30, 2014. See STRs; Personnel Records. Thus, the question as to whether those decisions are final turns on the date that the AOJ obtained the Veteran’s complete STRs. In this regard, if the Veteran’s complete STRs were of record as of September 2, 2014, then the September 2014 rating decision would be final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. However, if additional relevant service records were subsequently associated with the claims file, reconsideration of those claims would be warranted. 38 C.F.R. § 3.156(c). Here, the evidence of record is in conflict as to whether the AOJ was in possession of the Veteran’s complete STRs as of the issuance of the September 2014 rating decision. In this regard, the record plainly demonstrates that the AOJ was unable to secure these records in a timely fashion. Moreover, while the June 2013 rating decision mentions that active duty and National Guard STRs were considered, the April 2017 rating decision explicitly states that these records (including line of duty determinations) were not received until September 30, 2014. See April 2017 Rating Decision (Evidence). In resolving this ambiguity, the Board will afford the Veteran the benefit of the doubt. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. While June 2013 rating decision notes that STRs were of record, the April 2017 rating decision explicitly lists two separate entries concerning the receipt of service records, with one set being received on September 30, 2014. This is consistent with the receipt of additional service records warranting reconsideration. Moreover, the explanations in the June 2013 and September 2014 rating decisions avoid mentioning any specifics of the Veteran’s service, suggesting that the AOJ may not have had access to these facts. See also July 2012 Examination Request (noting that STRs for Gulf War period were unavailable). Thus, as additional relevant service records were received subsequent to the June 2013 and September 2014 rating decisions, reconsideration of these decisions is warranted. Accordingly, the issue of whether new and material evidence was received to reopen previously-denied claims of entitlement to sleep apnea and ED is dismissed as moot. The Board acknowledges that the Veteran failed to report for the examination scheduled by the AOJ in July 2012. However, even had the Veteran reported, he would have been afforded an examination without the benefit of STRs. In any event, the rules governing reconsideration are not limited by reason of a veteran failing to report, and the Board will not impose such a rule. 17. Entitlement to service connection for headaches is granted. The Veteran argues that his headaches began in service and that he has a positive line of duty determination. See May 2019 NOD. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence showing (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A veteran is presumed to be in sound condition where he or she is examined, accepted, and enrolled in service, except for defects noted at service entry. See 38 U.S.C. § 1111, 38 C.F.R. § 3.304(b). Where a defect is not noted at service entry, the presumption of soundness is not rebutted unless there is clear and unmistakable evidence that a disability pre-existed service and was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). A periodic 1995 medical examination during the Veteran’s National Guard service shows his report of frequent headaches with tender sinus area that he treated with over-the-counter medication. See November 1995 Report of Medical Examination. The Veteran was activated in June 2004. A pre-deployment health assessment conducted in June and July 2004 does not note any headache disorder. A positive line of duty determination shows that in July 2004, he was treated for a swollen neck and chronic headaches and had a non-malignant mass excised from his neck. Over the next year, he was prescribed numerous medications, including verapamil, Tylenol #3, Imitrex, Midrin, and Augmentin. The etiology of his headaches was noted as “unclear.” See STRs. In September 2017, the Veteran presented for a VA examination. The examiner diagnosed the Veteran with tension headaches and noted his report of headaches since 2004, with his headaches improving somewhat after cervical fusion in 2011. The examiner opined that the Veteran’s headaches clearly and unmistakably pre-existed service, as they were noted on a 1995 examination report. Moreover, he opined that there was “no evidence” that these headaches worsened beyond their natural progression and noted that in February 2005 he was treated for a headache secondary to sinusitis. See September 2017 VA Headaches Examination Report and Medical Opinion. Since the Veteran’s headaches were not noted at service entry, the presumption of soundness attaches and is not rebutted unless there is clear and unmistakable evidence that they pre-existed service and were not aggravated by service. Here, the examiner’s conclusion that the Veteran’s headaches clearly and unmistakably pre-existed service is supported by his citation to a 1995 examination report. However, his statement that there is “no evidence” of worsening is clearly erroneous. Notably, there is a positive line of duty determination that the Veteran’s headaches were incurred in the line of duty, and this evidence contradicts the examiner’s conclusion that these headaches were clearly and unmistakably not aggravated beyond the natural progression. Moreover, the evidence shows that the Veteran’s in-service headaches were of “unclear etiology” and he required numerous prescription medications, while his pre-service headaches were treated with over-the-counter medications. Thus, the presumption of soundness is not rebutted. Additionally, the examiner’s opinion that the Veteran’s current headaches manifested prior to service necessarily links his current headaches with his headaches in service. Accordingly, as all the elements of direct service connection for headaches are met, the appeal as to this issue is granted. Restoration of Rating 18. From April 1, 2019, reinstatement of a 50 percent rating for PTSD is granted. The Veteran argues that the reduction of his PTSD rating from 50 percent to 30 percent was improper because his condition did not improve. See May 2019 NOD. Congress has provided that a veteran’s disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. See 38 U.S.C. § 1155. The United States Court of Appeals for Veterans Claims has consistently held that when a RO reduces a veteran’s disability rating without following the applicable regulations, the reduction is void ab initio. See, e.g., Greyzck v. West, 12 Vet. App. 288 (1999). Where a rating has been in effect more than five years, benefits will not be reduced based upon an examination that is less full and complete than the examination on which payments were authorized or continued. Ratings on account of diseases subject to temporary or episodic improvement, such as manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. See 38 C.F.R. § 3.344. These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of a veteran’s disability. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating reduction case not only must it be determined that an improvement in a disability has actually occurred, but also that the observed improvement actually reflects an improvement in a veteran’s ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342 (2000). The Veteran was initially granted service connection for PTSD and assigned an initial 30 percent rating based on the information included in a November 2015 VA psychiatric examination report. In September 2017, the Veteran’s was awarded an increased 50 percent rating for PTSD based on a May 2017 review psychiatric examination. Pursuant to a January 2019 rating decision, the AOJ reduced the Veteran’s rating from 50 percent to 30 percent based upon a December 2018 VA psychiatric examination report. As noted above, VA regulations provide that a reduction will not be reduced on any one examination for diseases subject to temporary or episodic improvement. Here, the Veteran’s PTSD is a psychiatric disease, and thus it is akin to the exemplar diseases listed in the regulation. Thus, as the reduction was effectuated based on only one examination, it is invalid. Moreover, the examination report does not reflect an actual change in the level of disability. Instead, the examiner noted that the Veteran’s symptom reporting was consistent with over-reporting. Indeed, the examiner stated that the testing results were not valid, which indicates that the evidence did not reliably show an improvement in disability. Thus, as the criteria for a reduction are not met, the Veteran’s 50 percent rating for PTSD is restored effective April 1, 2019. REASONS FOR REMAND 19. Entitlement to service connection for sleep apnea, to include as secondary to PTSD, is remanded. The Veteran has a current diagnosis of obstructive sleep apnea. See, e.g., April 29, 2013 VA Treatment Note. He is in receipt of service connection for PTSD. Moreover, attached to the Veteran’s April 2018 NOD was a journal article suggesting a relationship between PTSD and obstructive sleep apnea. See April 2018 Correspondence. Additionally, at the November 2016 VA psychiatric examination, he reported feeling smothered by the CPAP device. The duty to provide the Veteran an examination and secure a medical opinion has been triggered. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). On remand, he should be afforded an examination and an opinion should be obtained. To ensure that the opinion is adequate, the examiner should also address direct service connection. Updated VA and private treatment records should also be secured. 20. Entitlement to service connection for ED, to include as secondary to PTSD, is remanded. The Veteran has a current diagnosis of ED and he is in receipt of service connection for PTSD. See, e.g., April 29, 2013 VA Treatment Note. Moreover, attached to the Veteran’s April 2018 NOD was a journal article suggesting a relationship between PTSD ED. See April 2018 Web / HTML Documents. The duty to provide the Veteran an examination and secure a medical examination has been triggered. See McLendon, 20 Vet. App. 79 (2006). To ensure that the opinion is adequate, the examiner should also address direct service connection. On remand, he should be afforded an examination and an opinion should be obtained. 21. Entitlement to service connection for a left knee disability is remanded. Remand is necessary for an addendum opinion. In this regard, the September 2017 examiner failed to address whether the Veteran’s left knee disability is directly related to his injury during his period of service from November 1990 to June 1991. See September 2017 Knee Examination Report and Medical Opinion. Additionally, the examiner’s opinion addressing the Veteran’s period of service form June 2004 to August 2005 is inadequate, as the examiner did not address the correct legal standard. On remand, these deficiencies should be addressed. 22. Entitlement to a rating in excess of 50 percent for PTSD is remanded. The Board acknowledges that rating reduction claims are separate from increased rating claims. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). While the Veteran only submitted evidence and argument with respect to the appeal of his rating reduction, this also reasonably applies to his appeal as to an increased rating for PTSD. See August 2018 Lay Statement. As noted above, the December 2018 examiner noted that accurate testing could not be completed. On remand, the Veteran should be afforded another examination so that an accurate disability picture can be secured. The Veteran is advised that the duty to assist is not a one-way street and that if he does not cooperate with the examiner his claim may be denied. See Wood v. Derwinski, 1 Vet. App. 190 (1991). 23. Entitlement to a TDIU is remanded. Action on this claim is deferred pending the implementation of the Board’s award of service connection for headaches and the development directed for the increased rating claim on appeal. The matters are REMANDED for the following action: 1. Secure complete VA treatment records. 2. With any necessary assistance from the Veteran, secure outstanding relevant private treatment records. 3. After completing #1 and #2, schedule the Veteran for an examination to ascertain the current severity of his PTSD. The examiner should review the claims file. All findings should be reported in detail. 4. After completing #1 and #2, schedule the Veteran for an examination to determine the nature and etiology of his sleep apnea. The examiner should review the claims file. Any necessary testing should be performed. The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea: (a) had its onset during service or is otherwise etiologically related to the Veteran’s active duty service; (b) is proximately due to service-connected PTSD; or (c) has been aggravated (worsened beyond natural progression) by service-connected PTSD. Please address each sub-part of this question separately. In addressing this question, the examiner should discuss the journal article submitted by the Veteran. See April 2018 Correspondence; April 2018 Web/HTML Documents. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles. 5. After completing #1 and #2, schedule the Veteran for an examination to determine the nature and etiology of his ED. The examiner should review the claims file. Any necessary testing should be performed. The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s ED: (a) had its onset during service or is otherwise etiologically related to the Veteran’s active duty service; (b) is proximately due to service-connected PTSD; or (c) has been aggravated (worsened beyond natural progression) by service-connected PTSD. Please address each sub-part of this question separately. In addressing this question, the examiner should discuss the journal article submitted by the Veteran. See April 2018 Correspondence; April 2018 Web/HTML Documents. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles. 6. After completing #1 and #2, refer the claims file to an examiner for preparation of an addendum opinion. No further examination of the Veteran is necessary unless the examiner deems otherwise. The examiner should address the following: (a) Please opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s left knee disability had its onset in or is otherwise etiologically related to the Veteran’s active duty service from November 1990 to June 1991, to include as a result of the 1991 Humvee accident reported by the Veteran. (b) Please opine whether the Veteran’s left knee disability clearly and unmistakably pre-existed his period of active duty service commencing in in June 2004. (c) If the answer to sub-part (b) is yes, please opine whether the Veteran’s left knee disability was clearly and unmistakably not aggravated by his period of active duty service commencing in in June 2004. (d) If the Veteran’s left knee disability did not clearly and unmistakably pre-exist service, or clearly and unmistakably pre-existed service but was clearly and unmistakably not aggravated during service, please opine as to whether it is at least as likely as not (50 percent probability or more) that such disability had its onset in or is otherwise etiologically related to the Veteran’s active duty service from June 2004 to August 2005. Please answer each sub-part of this question separately. In addressing sub-parts (b) and (c), the examiner is advised that the absence of evidence of aggravation is not clear and unmistakable evidence of absence. If the answer to parts (b) and (c) are yes, the examiner should discuss some affirmative evidence and/or medical principle showing that the disability pre-existed service or was not aggravated by service, as opposed to stating that there was no affirmative evidence of aggravation or service incurrence. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.M. Badaczewski, 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.