Citation Nr: A24029747 Decision Date: 06/06/24 Archive Date: 06/06/24 DOCKET NO. 200429-85612 DATE: June 6, 2024 ORDER The appeal for service connection for left shin splints is dismissed. The appeal for service connection for right shin splints is dismissed. The appeal for service connection for hiatal hernia is dismissed. The appeal for service connection for headaches is granted. REMANDED The appeal for service connection for left knee disability is remanded. FINDINGS OF FACT 1. In a written statement received January 29, 2024, the Veteran's representative withdrew the Veteran's appeal for service connection for left shin splints. 2. In a written statement received January 29, 2024, the Veteran's representative withdrew the Veteran's appeal for service connection for right shin splints. 3. In a written statement received January 29, 2024, the Veteran's representative withdrew the Veteran's appeal for service connection for hiatal hernia. 4. The Veteran's headaches are secondary to his service-connected depressive disorder. CONCLUSIONS OF LAW 1. The criteria for dismissal of the claim for service connection for left shin splints by the appellant's authorized representative have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for dismissal of the claim for service connection for right shin splints by the appellant's authorized representative have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 3. The criteria for dismissal of the claim for service connection for hiatal hernia by the appellant's authorized representative have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 4. The criteria for service connection for headaches have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1990 to December 1994. The Appeals Modernization Act (AMA) became effective February 19, 2019. This law creates a new framework, or modernized review system, for veterans dissatisfied with VA's decisions on their claims to seek review. The review framework that was in place before the AMA is referred to as the legacy system. In an October 2017 claim, the Veteran sought service connection for multiple conditions including bilateral shin splints, hiatal hernia, bilateral knee condition, and a neck disorder with headaches. In a February 2018 rating decision issued under the legacy system, a Department of Veterans' Affairs (VA) Regional Office (RO) denied service connection for left shin splints, right shin splints, hiatal hernia, left knee condition, right knee condition, neck condition, and tension headaches. In June 2018 the Veteran submitted a new claim for service connection for multiple conditions including shin splints, hiatal hernia, bilateral knee condition, and headaches. In a November 2018 rating decision issued under the legacy system, the RO denied service connection for conditions including left shin splints, right shin splints, hiatal hernia, left knee condition, right knee condition, and tension headaches. In January 2019 the Veteran opted the above-listed matters into the modernized review system by submitting a Rapid Appeals Modernization Program (RAMP) election form and selecting the supplemental claim lane. In a July 2019 RAMP supplemental claim rating decision, the RO found that new and material evidence had not been submitted with respect to the left shin splint, right shin splint, and headache claims; denied service connection for hiatal hernia, left knee disability, and right knee disability; and granted service connection for degenerative arthritis of the cervical spine. This is the decision on appeal. In April 2020 the Veteran filed a Notice of Disagreement (NOD), VA Form 10182, Decision Review Request: Board Appeal, to appeal to the Board of Veterans' Appeals (Board) the denials of service connection for left shin splints, right shin splints, hiatal hernia, left knee strain, and tension headaches. The Veteran elected the Hearing docket. The Veteran was scheduled for a Board hearing in February 2024 and notified in a December 2023 letter. In a letter received January 27, 2024, letter, the Veteran's representative wrote that the Veteran withdrew his request for a Board hearing for matters to be addressed in hearings scheduled in February 2024. As the Veteran elected the Hearing docket, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) (here the July 2019) decision on appeal, as well as any evidence submitted by the Veteran or his representative within 90 days following receipt of the withdrawal. See 38 C.F.R. §?20.302(a). The Board cannot consider (1) evidence submitted during the period after the AOJ issued the decision on appeal and before the date of receipt of the withdrawal, or (2) evidence submitted more than 90 days following receipt of the withdrawal. See 38 C.F.R. §?20.302(b). 1. Service connection for left shin splints 2. Service connection for right shin splints 3. Service connection for hiatal hernia 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 Veteran, or by his or her authorized representative. Id. In a January 2024 statement, the Veteran's representative wrote that the Veteran was withdrawing his appeals for service connection for left shin splints, right shin splints, and hiatal hernia. The January 2024 statement constitutes a valid withdrawal because it satisfies the requirements in 38 C.F.R. § 20.205. See Hembree v. Wilkie, 33 Vet. App. 1, 8 (2020). The statement contains the Veteran's name and the last four digits of the file number. The statement identifies the matters for which the appeal is withdrawn and communicates that the appeal as to those matters is withdrawn. Accordingly, the Board does not have jurisdiction to review the appeals for service connection for left shin splints, right shin splints, and hiatal hernia. The appeals as to those issues are dismissed. 4. Service connection for headaches The Veteran is seeking service connection for headaches. His contentions include that his headaches are secondary to (caused or aggravated by) one or more of his service-connected conditions, including his cervical spine arthritis, his low back arthritis, and his depressive disorder. Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a); but see Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023). For "aggravation of non-service-connected disabilities" it is enough to show that a non-service-connected disability would have been less severe but-for a service-connected disability, either because there is an etiological link (to include worsening of functionality) between the two, or because the service-connected disability resulted in the inability to treat the non-service-connected disability. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. In Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc), the Federal Circuit explained that positive and negative evidence does not have to be in exact equipoise before the benefit of the doubt should be given to the claimant. Rather, a claimant is entitled to the benefit of the doubt when the evidence is in approximate balance, that is, "nearly equal." The Federal Circuit explained that evidence is not in approximate balance or nearly equal when the evidence "persuasively favors one side or the other." In the July 2019 rating decision, the RO made the favorable finding that VA treatment records show the Veteran's complaints of headaches. The Board is bound by that finding. 38 C.F.R. § 3.104(c). The Veteran has not contended that his current headaches began during his service. He has stated that he began to experience headaches a few years after his service. Thus, the Board will focus on the theory of secondary service connection only. On VA examination in December 2017, the Veteran reported that he began to have headaches several years after service. He described his headache episodes and symptoms. The examiner expressed the opinion that the Veteran's headaches were tension headaches, and that the etiology of the headaches was unknown. The examiner expressed the opinion that the headaches were less likely than not associated with any neck condition that occurred during service. He stated there is "insufficient evidence to support the fact that the Veteran's current occasional episodes of mild tension headaches are associated with any neck or thoracis condition." This opinion does not contain an adequate rationale as it does not explain why the evidence of record is insufficient. Notably, the examiner did not provide an opinion with respect to the Veteran's service connected depression. In April 2024 a private clinician M. M., DNP, CNP, reported having reviewed the Veteran's records. Dr. M. expressed the opinion that the Veteran's tension headaches are secondary to his depression. In explanation, she noted that the Veteran's service-connected depression had a 30-year history. She cited to medical studies supporting relationships between depression and headaches. The studies indicated relationships of correlation, causation, and aggravation. Dr. M. opined that it is at least as likely as not, and in fact, highly probable, that the Veteran's tension headaches are secondary to his service-connected depressive disorder. Dr. M. supported her positive secondary nexus opinion with rationale. She did not discuss in detail the manifestations of the Veteran's depressive disorder and headaches over time. The rationale she provided, however, included citation to and summary of relevant medical studies. Her rationale supplies persuasive weight for her opinion. The Board finds that this opinion is entitled to more probative weight than the VA examiner's opinion. Thus, service connection for the Veteran's headaches is granted. REASONS FOR REMAND 1. Service connection for left knee disability The Veteran is seeking service connection for a left knee disability. His contentions include that his left knee disability is secondary to (caused or aggravated by) his service-connected low back condition. He contends that his low back disability affects his body mechanics, including gait, and that those effects in turn led to or aggravated his left knee disability. The Veteran's service-connected low back condition is chronic low back pain with arthritis and levoscoliosis. Associated with that disability, he also has service-connected left hip arthritis and femoral nerve and sciatic nerve radiculopathies of the left lower extremity. In a July 2019 rating decision, the RO made a favorable finding that a June 2019 VA examination showed a diagnosis of left knee strain. The Board is bound by that finding. See 38 C.F.R. § 3.104(c). One of the effects of the AMA is to narrow the set of circumstances in which the Board must remand appeals to the agency of original jurisdiction (AOJ) (in this case the RO) for further development instead of immediately deciding them directly. Nevertheless, even under the AMA, the Board still has a duty to remand issues when necessary to correct a pre-decisional duty-to-assist error, or to correct any other error in satisfying a regulatory or statutory duty. 38 C.F.R. § 20.802(a). In the June 2019 VA knee examination, the examiner expressed an opinion that the Veteran's left knee strain was less likely than not proximately due to or the result of his low back disability. The examiner did not express an opinion as to whether the Veteran's left knee strain is aggravated by his low back disability. The RO did not obtain an addendum opinion or other opinion addressing the secondary aggravation question. The failure to obtain such opinion was a pre-decisional duty-to-assist error. To correct that error, the Board is remanding the left knee matter for further evidence and opinion to be obtained. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination to address the etiology of any currently diagnosed left knee disability. The examiner must review the Veteran's claims file and provide opinion as to the following: Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any currently diagnosed left knee disability, to include left knee strain, is proximately caused by or the result of the Veteran's service connected low back disability? Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any currently diagnosed left knee disability, to include left knee strain, is aggravated (worsened) by the Veteran's service connected low back disability? Specifically, would the left knee condition have been less severe but for the service-connected disability, either because there is an etiological link or because the service connected disability resulted in the inability to treat the left knee disability? The examiner must specifically address the theory that the Veteran's service connected low back disability alters his gait and puts additional strain on his left knee. A complete rationale is required for all opinions. Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. J. Kunz, 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.