Citation Nr: 21040828 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 18-17 106 DATE: July 7, 2021 ORDER Entitlement to an evaluation in excess of 30 percent disabling for bilateral flat feet with degenerative changes bilateral great toes, has been withdrawn. New and material evidence has been received to reopen a claim for service connection for an acquired psychiatric disorder. New and material evidence has been received to reopen a claim for service connection for a right knee condition. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for a right knee condition is remanded. Entitlement to service connection for a left knee condition is remanded. FINDINGS OF FACT 1. The claim for an evaluation in excess of 30 percent disabling for bilateral flat feet with degenerative changes bilateral great toes was withdrawn on the record during a hearing held on August 17, 2020. 2. An unappealed October 1994 rating decision denied service connection for an acquired psychiatric disorder (nervous condition) on the grounds that no current disability was shown. 3. Evidence received since then is new and material and raises a reasonable possibility of substantiating the claim for service connection for an acquired psychiatric disorder. 4. An unappealed March 2006 rating decision denied service connection for a right knee condition on the grounds that no nexus to service was shown. 5. Evidence received since then is new and material and raises a reasonable possibility of substantiating the claim for service connection for a right knee condition. CONCLUSIONS OF LAW 1. The claim for entitlement to an evaluation in excess of 30 percent disabling for bilateral flat feet with degenerative changes bilateral great toes has been withdrawn. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The October 1994 rating decision denying service connection for an acquired psychiatric disorder (nervous condition) is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. 3. New and material evidence has been received to reopen the previously denied claim of service connection for an acquired psychiatric disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The March 2006 rating decision denying service connection for a right knee condition is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. 5. New and material evidence has been received to reopen the previously denied claim of service connection for a right knee condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from March 1979 to January 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision by the Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran testified at an August 2020 hearing held before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. The Veteran's claims for prior nervous condition and anxiety disorder have been recharacterized to broadly reflect that the scope of the claim includes any acquired psychiatric disorder. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Withdrawal Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. An appeal may be withdrawn by the appellant or their representative so long as the Veteran and/or claimant is identified, the file number is included, and there is a clear statement of withdrawal identifying the issue withdrawn. 38 C.F.R. §§ 19.55, 20.205. During the August 2020 hearing, the issue of an evaluation in excess of 30 percent disabling for bilateral flat feet with degenerative changes bilateral great toes was withdrawn on the record by the Veteran and his attorney; the requirements for withdrawal are met. As the Veteran has withdrawn his appeal on this issue, there remains no allegation of error of fact or law for appellate consideration. Accordingly, the Board has no further jurisdiction in this matter, and the appeal must be dismissed. New and Material In the September 2015 decision on appeal, the RO reopened the previously denied claims and considered the merits in confirming and continuing the denials of service connection for the right knee and an acquired psychiatric disorder. However, irrespective of the RO's action, the Board must decide whether the Veteran has submitted new and material evidence to reopen the claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Jackson v. Principi, 265 F.3d 1366 (Fed Cir 2001). Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 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(a). Acquired Psychiatric Disorder Service connection for the acquired psychiatric disorder, originally claimed as a nervous condition, was previously denied in an October 1994 rating decision based on a lack of in-service event and no current condition. The Veteran did not appeal. He submitted a statement seeking to open a service connection claim for an anxiety disorder in March 2013. In an April 2014 rating decision, the AOJ denied service connection for an anxiety disorder and post-traumatic stress disorder, noting no current diagnoses, and found that evidence was not new and material to reopen a claim for a psychiatric condition. Within a year of that denial, the Veteran filed a claim of service connection for anxiety disorder in August 2014. In the June 2015 decision on appeal, the AOJ found that the claim remained opened since the prior denials but confirmed and continued the previous denial on the grounds that no nexus to service was shown. Although they did not specifically reopen the psychiatric condition claim, as this denial was made on the merits, it appears that they considered it reopened. Evidence received since the October 1994 rating decision includes VA medical records, VA examinations, and hearing testimony indicating a current condition and a possible nexus between an alleged acquired psychiatric condition and the Veteran's military service. Accordingly, reopening is warranted. Right Knee Service connection for a right knee condition was previously denied in a March 2006 rating decision based on a lack of nexus; the Veteran did not appeal this decision. He again filed for service connection in August 2014. In the June 2015 decision on appeal, the AOJ reopened the claim, but continued the denial on the same grounds. Evidence received since the March 2006 rating decision includes VA medical records, a VA examination and medical opinion, and hearing testimony which raise the possibility of a nexus between a right knee condition and the Veteran's military service. Accordingly, reopening is warranted. REASONS FOR REMAND Acquired Psychiatric Condition The Veteran contends that he developed an acquired psychiatric disorder following an in-service incident where he fell 90 feet repelling from a helicopter. In VA mental disorder examinations from February 1993 and April 2014, the Veteran was not found to have any current diagnoses for an acquired psychiatric disorder. However, during the August 2020 Board hearing, he explained that he had not understood what type of symptoms to report during examination. Here, he described symptoms including nightmares and panic attacks. He stated that he has experienced nightmares since the fall. Additionally, VA treatment records indicate a potential link between various pain complaints and psychiatric symptoms. The Veteran's representative reported during the hearing that she was going to provide a memorandum from the Veteran's VA treatment provider describing his current acquired psychiatric condition, which she stated included panic disorder, trauma-related nightmares, chronic insomnia, hypnopompic hallucinations, and a history of phobias. Although it does not appear that such a memorandum was ever associated with the Veteran's file, his VA treatment records do indicate that the Veteran has been consistently receiving treatment for psychiatric conditions. His records include various diagnoses. As such, the Veteran should be afforded a new VA examination specifically confirming any current acquired psychiatric disorder diagnosis and considering whether there is a nexus to service. Right and Left Knee Conditions The Veteran also contends that he developed right and left knee conditions following the in-service fall from the helicopter. During the Board hearing, the Veteran specifically stated that his knees have been hurting since his fall, and that his knees were hurting more since the fall than before it. Although he acknowledged that he also experienced a work-related meniscal tear in his right knee following service, he reported that his pain is greater in the left knee. The Veteran was previously afforded a VA knee conditions examination in May 2015. At this time, a specific diagnosis related to his knees was not provided. However, he was described as having knee complaints and pain, with abnormal range of motion within the knees. The examiner provided a negative nexus opinion related to the Veteran's in-service knee complaints and treatment. Similarly, the Veteran received a negative nexus opinion in an addendum medical opinion from June 2016 addressing whether he had a knee condition secondary to his service-connected flat feet. However, the Veteran's in-service fall and related reports of chronic pain since then have not been addressed or considered in a VA medical opinion. Upon remand, the Veteran should be afforded a new VA knee examination both confirming any knee diagnoses and addressing whether there is a nexus to service, specifically considering the Veteran's 90-foot fall from a helicopter and his reported knee pain since this event. Furthermore, during the hearing, the Veteran reported that he had been trying to find records from private provider Dr. K, related to his knee injury. Although the record already contains partial records from this provider, the Veteran indicated an interest in obtaining additional records. Accordingly, the Veteran should be provided the appropriate private record request forms, so that additional attempts to made to obtain these records may be made. The matters are REMANDED for the following action: 1. Contact the Veteran and request properly releases for any relevant private treatment records related to his claims. Upon receipt of such, VA must take appropriate action to contact the identified providers and request complete treatment records. The Veteran should be informed that in the alternative he may obtain and submit the records himself. 2. Schedule the Veteran for a VA mental disorders examination. The claims file must be reviewed in conjunction with such. The examiner must identify all currently diagnosed psychiatric disorders, and for each, must opine as to whether it is at least as likely as not caused or aggravated by service or a service-connected disability. The examiner must discuss the role, if any, of the Veteran's 90-foot fall from a helicopter, as well as any other reported stressor event provided by the Veteran. The role of pain from service-connected disabilities should also be addressed. A full and complete rationale must be provided for any opinion reached. 3. Schedule the Veteran for VA joints examination to determine the etiology of a bilateral knee condition. The claims file must be reviewed in conjunction with such. The examiner must identify all diagnoses, and for each, must opine as to whether it is at least as likely as not caused or aggravated by service. The examiner must consider the Veteran's 90-foot fall from a helicopter, and his reports of chronic knee pain since then. A full and complete rationale must be provided for any opinion reached. 4. Thereafter, and after any additional development deemed necessary, readjudicate the issues on appeal. If the determinations remand unfavorable to the Veteran, a supplemental statement of the case should be furnished. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.P. Faris 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.