Citation Nr: 21042229 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 19-36 126A DATE: July 12, 2021 ORDER The appeal pertaining to the application to reopen the claim of entitlement to service connection for a gastrointestinal disorder is dismissed. New and material evidence having been received, the application to reopen the claim of entitlement to service connection for a left knee disorder is granted. New and material evidence having been received, the application to reopen the claim of entitlement to service connection for a respiratory disorder, to include sleep apnea, is granted. Service connection for osteoarthritis of the left knee is granted. REMANDED Entitlement to a compensable rating for allergic rhinitis is remanded. Entitlement to a rating in excess of 20 percent for status post meniscal tear with osteoarthritis of the right knee is remanded. Propriety of the assignment of the separate rating for instability of the right knee, evaluated as 10 percent disabling as of November 21, 2013, is remanded. Entitlement to service connection for a respiratory disorder, to include sleep apnea, to include as due to exposure to herbicide agents and/or as secondary to service-connected allergic rhinitis, is remanded. Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents, is remanded. FINDINGS OF FACT 1. At the March 2021 Board of Veterans Appeals (Board) hearing, prior to the promulgation of a decision, the Veteran withdrew his appeal as to the application to reopen the claim of entitlement to service connection for a gastrointestinal disorder. 2. In a final decision issued in September 2008, the Agency of Original Jurisdiction (AOJ) denied service connection for a left knee disorder, characterized as osteoarthritis. 3. Evidence associated with the record since the final denial in September 2008 is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a left knee disorder. 4. In a final decision issued in May 2008, the AOJ denied service connection for a respiratory disorder, characterized as sleep apnea. 5. Evidence associated with the record since the final denial in May 2008 is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claim of entitlement to service connection for sleep apnea. 6. Resolving all doubt in the Veteran's favor, his current left knee disorder, diagnosed as osteoarthritis, is proximately due to his service-connected status post meniscal tear with osteoarthritis of the right knee. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal pertaining to the application to reopen the claim of entitlement to service connection for a gastrointestinal disorder by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The September 2008 rating decision that denied service connection for a left knee disorder, characterized as osteoarthritis, is final. 38 U.S.C. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2008). 3. New and material evidence has been received to reopen the claim of entitlement to service connection for a left knee disorder have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. The May 2008 rating decision that denied service connection for a respiratory disorder, characterized as sleep apnea, is final. 38 U.S.C. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2007). 5. New and material evidence has been received to reopen the claim of entitlement to service connection for sleep apnea have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 6. The criteria for service connection for osteoarthritis of the left knee have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1965 to August 1992, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in February 2015 by a Department of Veterans Affairs (VA) Regional Office. In March 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. At such time, the undersigned held the record open for 60 days for the submission of additional evidence, which was received in May 2021. 38 U.S.C. § 7105(e)(1). Withdrawn Claim 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a gastrointestinal 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. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. At the March 2021 hearing, prior to the promulgation of a decision, the Veteran withdrew the application to reopen the claim of entitlement to service connection for a gastrointestinal disorder. In this regard, the Board finds that such withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the Veteran. Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018), DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Therefore, there remain no allegations of errors of fact or law for appellate consideration with regard to such issue. Accordingly, the Board does not have jurisdiction to review the appeal of such issue and it is dismissed. Application to Reopen Previously Denied Claims Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The 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 Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. 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). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a left knee disorder. By way of background, VA received the Veteran's original claim for service connection for a left knee disorder in September 1992, which the AOJ denied in an unappealed rating decision issued in November 1993 on the basis that the Veteran's service treatment records (STRs) were negative for a diagnosis or treatment for a chronic left knee disorder, and the evidence did not show that osteoarthritis manifested to a compensable degree within the one-year presumptive period following his discharge. Subsequent rating decisions issued in June, 2007, May 2008 and September 2008 continued the denial of service connection because the evidence did not show that a left knee disorder was related to the Veteran's military service or his service-connected right knee disability. In September 2008, the Veteran was advised of the decision and of his appellate rights, but he did not enter a notice of disagreement with such decision. Furthermore, no new and material evidence was physically or constructively received within one year of the issuance of the decision, and no relevant service department records have since been received. Therefore, the September 2008 rating decision is final. 38 U.S.C. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2008). Since the issuance of the September 2008 rating decision, additional evidence, to include post-service treatment records, a February 2015 VA examination report, a March 2021 Disability Benefits Questionnaire (DBQ) completed by a private physician, and lay statements, to include the Veteran's testimony at the March 2021 Board hearing, has been received. In particular, the March 2021 DBQ reflects a favorable nexus opinion relating a current diagnosis of left knee osteoarthritis to the Veteran's service-connected right knee disability. As such newly received evidence speaks to one of the bases of the prior denial, namely, whether a current disorder is secondary to a service-connected disability, the Board finds such is not cumulative or redundant of the evidence of record at the time of the September 2008 rating decision and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a left knee disorder. Therefore, new and material evidence has been received, and such claim is reopened. 3. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a respiratory disorder, to include sleep apnea. VA received the Veteran's original claim for service connection for a respiratory disorder in October 2006. In a rating decision issued in June 2007, the AOJ denied service connection for pneumonia and breathing problems, to include sleep apnea, on the basis that the evidence did not reflect treatment for such conditions in service or demonstrate a nexus between a current disability and service. In April 2008, the AOJ continued the denial of service connection because the evidence did not show that sleep apnea was related to the Veteran's military service or his service-connected allergic rhinitis. In May 2008, the Veteran was advised of the decision and of his appellate rights, but he did not enter a notice of disagreement with such decision. Furthermore, no new and material evidence was physically or constructively received within one year of the issuance of the decision, and no relevant service department records have since been received. Therefore, the May 2008 rating decision is final. 38 U.S.C. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2007). Since May 2008, additional evidence, to include post-service treatment records, a February 2015 VA examination report, general medical literature, and lay statements, has been received. Notably, the general medical literature submitted by the Veteran's representative reflects that, in patients with allergic rhinitis, obstructive sleep apneas are longer and more frequent during a period of symptomatic nasal obstruction than when symptoms are absent. As such newly received evidence speaks to one of the bases of the prior denial, namely, whether the Veteran's current sleep apnea is secondary to a service-connected disability, the Board finds such is not cumulative or redundant of the evidence of record at the time of the May 2008 rating decision and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a sleep apnea. Therefore, new and material evidence has been received, and such claim is reopened. Service Connection Claim 4. Entitlement to service connection for a left knee disorder, to include as secondary to service-connected right knee disability. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). The Veteran contends he has a current left knee disorder related to his in-service duties or, in the alternative, is caused or aggravated by his service-connected right knee disability. In this regard, while there is no favorable opinion relating the Veteran's current left knee disorder, diagnosed as osteoarthritis, to his military service, the private physician who completed the March 2021 DBQ opined that his left knee osteoarthritis is "likely caused by his service-connected right knee disabilities" due to compensation and favoring one side over the other. Notably, the evidence does not demonstrate an opinion to the contrary. Consequently, the Board resolves all doubt in the Veteran's favor and finds his left knee disability, diagnosed as osteoarthritis, is proximately due to his service-connected status post meniscal tear with osteoarthritis of the right knee. Therefore, service connection for such disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 5. Entitlement to a compensable rating for allergic rhinitis. 6. Entitlement to a rating in excess of 20 percent for status post meniscal tear with osteoarthritis of the right knee. 7. Entitlement to an initial rating in excess of 10 percent for instability of the right knee. The Veteran contends the severity of his service-connected allergic rhinitis and right knee disability warrant ratings higher than those currently assigned. At the March 2021 hearing, he testified that both disabilities had increased in severity since the most recent VA examinations conducted in February 2015. In particular, he testified that he experienced runny eyes, drainage, sinus pressure, and breathing challenges in connection with his allergic rhinitis, and increased pain, swelling, and instability in his right knee. Therefore, as the evidence suggests that the Veteran's allergic rhinitis and right knee symptomatology may have increased in severity since the February 2015 VA examinations, a remand is necessary in order to afford him appropriate VA examinations in order to assess the current nature and severity of such service-connected disabilities. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Additionally, as the Veteran reported receiving private treatment for his allergic rhinitis and right knee disability, he should be provided an opportunity to submit, or authorize VA to obtain, any outstanding private treatment records for consideration in his appeal. 8. Entitlement to service connection for a respiratory disorder, to include sleep apnea, to include as due to exposure to herbicide agents and as secondary to service-connected allergic rhinitis. The Veteran contends his current respiratory disorder, characterized as sleep apnea, which he reported was formally diagnosed in 2005, had its onset in service, is related to his acknowledged in-service exposure to herbicide agents, and/or is secondary to his service-connected allergic rhinitis. Lay statements submitted by the Veteran, his spouse, and his daughter reflect their reports of cessation of breathing during sleep, daytime tiredness, and snoring during and since service. In regard to the secondary aspect of his claim, as noted above, he submitted general medical literature reflecting that patients with allergic rhinitis suffer longer and more frequent obstructive sleep apneas during a period of symptomatic nasal obstruction. A February 2015 VA examination reflects a diagnosis of obstructive sleep apnea; however, no etiological opinion was provided. Given the aforementioned competent lay statements, the Veteran's acknowledged in-service exposure to herbicide agents, and the general medical literature highlighted above, the Board finds a remand is warranted to obtain an etiological opinion. Additionally, as the Veteran reported receiving private treatment for his sleep apnea, he should be provided an opportunity to submit, or authorize VA to obtain, any outstanding private treatment records for consideration in his appeal. 9. Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents. The Veteran asserts his hypertension had its onset in service or, in the alternative, is related to his acknowledged in-service exposure to herbicide agents. In February 2015, a VA examiner opined the Veteran's hypertension was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner based the opinion on the absence of documentation for sustained high blood pressure while in the military. However, the VA examiner did not provide an opinion as to whether the Veteran's hypertension manifested within one year of his separation from service, or is related to his acknowledged in-service exposure to herbicide agents. In this regard, while hypertension is not acknowledged to be presumptively related to exposure to herbicide agents, the National Academy of Sciences (NAS) Institute of Medicine (IOM) has concluded there is "sufficient" evidence of an association to exposure to Agent Orange. Update 11 (2018). According to NAS, "[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. As a result, the Board finds a remand is warranted for an addendum opinion addressing such matters. Additionally, as the Veteran reported receiving private treatment for his hypertension, he should be provided an opportunity to submit, or authorize VA to obtain, any outstanding private treatment records for consideration in his appeal. The matters are REMANDED for the following actions: 1. Provide the Veteran an opportunity to submit, or authorize VA to obtain, any private treatment records pertaining to his allergic rhinitis, right knee disability, sleep apnea, and hypertension. After securing any necessary authorization from the Veteran, obtain all outstanding private treatment records. Make at least two (2) attempts. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 2. Afford the Veteran an appropriate examination to determine the current nature and severity of his service-connected allergic rhinitis. The record, to include a copy of this Remand, must be made available to the examiner, and all indicated tests and studies should be accomplished. The examiner should describe the nature and severity of all manifestations of the Veteran's allergic rhinitis, to include the functional effects associated with such disability. A rationale for any opinion offered should be provided. 3. Afford the Veteran an appropriate VA examination to determine the current nature and severity of his service-connected right knee disability. The record, to include a copy of this Remand, must be made available to the examiner, and all indicated tests and studies should be accomplished. (A) The examiner should identify the current nature and severity of all manifestations of the Veteran's right knee disability. (B) The examiner should record the range of motion of the right knee on flexion and extension as observed on clinical evaluation in terms of degrees. The examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If there is clinical evidence of pain on motion, or any of the other above-noted symptoms, the examiner should indicate the degree of range of motion at which such pain begins, as well as whether such results in any loss of range of motion. The examiner should also record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (C) It is also imperative that the examiner comment on the functional limitations caused by repeated use over time and flare-ups. In this regard, the examiner should indicate whether, and to what extent, the Veteran's range of motion is additionally limited following repeated use over time or during flare-ups, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. (D) If the Veteran endorses experiencing flare-ups, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. (E) The examiner should also comment as to what extent the Veteran's right knee disability results in recurrent subluxation, lateral instability, and/or patellar instability. (F) The examiner should also indicate whether there is dislocated or removed semilunar cartilage and, if so, the nature of the symptoms associated with such meniscus impairment. (G) The examiner should comment upon the functional impairment resulting from the Veteran's right knee disability. A rationale for any opinion offered should be provided. 4. Forward the record to the January 2015 VA examiner, or an appropriate substitute if unavailable, for an addendum opinion addressing the etiology of any current respiratory disorder other than allergic rhinitis, to include sleep apnea. Following a review of the record, the clinician should address the following inquiries: (A) Is it at least as likely as not (i.e., a 50 percent or greater probability) that any current respiratory disorder other than allergic rhinitis, to include sleep apnea, had its onset in, or is otherwise related to, his military service, to include his acknowledged in-service exposure to herbicide agents? The clinician should specifically address the lay statements submitted by the Veteran, his spouse, and his daughter reflecting their reports of cessation of breathing during sleep, daytime tiredness, and snoring during and since service. (B) If the clinician provides a negative response to (A), is it at least as likely as not (i.e., a 50 percent or greater probability) that any current respiratory disorder other than allergic rhinitis, to include sleep apnea, is caused or aggravated by his allergic rhinitis? For any aggravation found, the clinician should state, to the best of his or her ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. The clinician should specifically address the general medical literature submitted by the Veteran reflecting that patients with allergic rhinitis suffer longer and more frequent obstructive sleep apneas during a period of symptomatic nasal obstruction. A rationale for any opinion offered should be provided. 5. Forward the record to the February 2015 VA examiner, or an appropriate substitute if unavailable, for an addendum opinion addressing the etiology of the Veteran's hypertension. Following a review of the record, the clinician should address the following inquiry: Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's hypertension had its onset in, or is otherwise related to, his military service, to include his acknowledged in-service exposure to herbicide agents, or manifested within one year of his separation from service in August 1992 (i.e., by August 1993)? In rendering such opinion, the clinician should clearly address the NAS IOM Update 11 (2018) in which hypertension was upgraded from its previous classification in the category of "limited or suggestive" evidence of an association with exposure to Agent Orange to the category of "sufficient" evidence of an association. In this regard, according to NAS, "[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. M. Celli, 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.