Citation Nr: 1331500 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 07-33 563 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a low back disorder, including as secondary to service connected bilateral feet and ankle disorders. 2. Whether new and material evidence was received to reopen a claim for service connection for a psychiatric disorder. 3. Entitlement to service connection for a psychiatric disorder (claimed as depression), including as secondary to service connected bilateral feet and ankle disorders. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from July 1976 to July 1979 and from January 1991 to March 1991. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from May 2006 and October 2009 rating decisions issued by the Regional Office (RO) in North Little Rock, Arkansas. The Veteran's claim for service connection for a low back disorder was previously before the Board in April 2007, at which time the Board denied the claim. The Veteran appealed the Board's decision to the Court of Appeals for Veterans Claims (Court). In October 2011, the parties entered into a Joint Motion for Remand (JMR), and agreed to vacate the Board's decision and remand the claim to the Board; the JMR was implemented by the Court in October 2011. In June 2012 the Board remanded the Veteran's claim in accordance with the directives set forth in the JMR. The case has now been returned to the Board. The Veteran's application to reopen the claim for service connection for a psychiatric disorder is before the Board for the first time. The Veteran testified at a hearing before the undersigned Veterans Law Judge in April 2013. A transcript of that hearing is in the Virtual VA file. The issues of entitlement to service connection for a psychiatric disorder and entitlement to service connection for a low back disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Service connection for mood disorder not otherwise specified (NOS) (claimed as depression) was denied in a June 2008 rating decision. The Veteran was notified of this decision and his appellate rights, but he did not timely appeal this decision, nor was additional evidence received within one year of this rating decision. 2. The evidence received since the June 2008 rating decision relates to an unestablished fact and raises a reasonable possibility of substantiating the claim of service connection for a psychiatric disorder. CONCLUSIONS OF LAW 1. The RO's rating decision in June 2008 denying service connection for a psychiatric disorder is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2012). 2. New and material evidence has been received to reopen the claim of service connection for a psychiatric disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board considered the regulations pertaining to the VA's statutory duty to assist the Veteran with the development of facts pertinent to his claim. Given the favorable action taken on the claim that is decided herein below, the Board finds that no further assistance in developing the facts pertinent to that claim is required at this time. Additional development required with respect to the Veteran's other claims is addressed in the "remand" section of this decision. New and Material Evidence In a June 2008 rating decision, the RO denied service connection for the Veteran's psychiatric disorder because it was not shown to be related to service or a service connected disability. The evidence considered at that time included service treatment records, VA treatment records through June 2008, and an April 2008 VA examination report. The Veteran did not timely file a notice of disagreement (NOD) with this decision; rather, his NOD was not timely and was accepted as a new claim for service connection for depression. 38 C.F.R. § 20.302(a). Additionally, no new evidence relevant to the claim was received within one year of the rating decision. 38 C.F.R. § 3.156(b). It then became final. Although the RO granted the application to reopen, the Board has a jurisdictional responsibility to consider whether it was proper for the claim to be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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 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). Evidence received since the June 2008 rating decision includes more recent VA treatment records (including electronically stored records), written statements submitted by the Veteran, lay statements, the Veteran's testimony at the April 2013 hearing, and the report of a June 2010 VA examination. At the time of the VA examination in April 2008, the Veteran reported that he was under a lot of stress due to various problems, and the examiner concluded that it was not possible to determine what role the Veteran's service connected disabilities played in his mood disorder due to his various physical conditions and his extensive history of substance abuse. At that time, the Veteran had recently stopped working and was able to complete chores and tasks, although he at times had to stop and rest. More recent treatment records identify the Veteran's physical health as one of the stressors that may be contributing to his depression, although the particular physical problems were not identified. He had not worked since the prior rating decision was issued and he felt that this was due to his feet and back problems. Additionally, his physical problems with his feet and ankles appear to have gotten worse since June 2008 and he now used a cane, brace, and at times crutches. The Veteran submitted written statements to the effect that his feet and ankles hurt all the time, and he was not able to sleep without medication due to the pain in his feet and ankles. He had difficulty with chores due to pain in the feet and ankles. When the pain starts, he feels depressed and angry. He submitted a lay statement from a relative indicating that the Veteran could hardly walk, even with a cane, and often complained about foot pain and appeared depressed due to many stresses in his life. At his hearing, the Veteran testified about his foot and ankle pain and how his physical condition limited his activities. He had to use a cane, walker, or crutches, had difficulty doing chores and activities of daily living, and was unable to do things he used to enjoy. He felt very depressed about his physical limitations. In another written statement, he again described his foot and ankle pain and difficulty standing and walking. The Veteran's testimony and written statements about his foot and ankle pain and the feelings that he experiences when he is pain, the testimony about how the Veteran's restricted activities due to physical problems including foot and ankle pain made him feel depressed, the lay statements documenting observations of foot and ankle pain and depression, and more recent treatment records suggesting that physical problems (which may include his service connected foot and ankle disabilities) may play some type of role in the Veteran's depression, are new because they were not of records at the time of the prior examination. Prior to that time, the Veteran had not clearly articulated how his foot disabilities and his depression were related. The evidence is material because it addresses an element of service connection that was found to be absent in the prior decision, specifically, a nexus between the Veteran's mental health condition and his service connected disability. Reopening of the claim for entitlement to service connection for a psychiatric disorder is therefore warranted. ORDER The application to reopen the claim for entitlement to service connection for a psychiatric disorder is granted. REMAND The Board finds that additional development is needed with respect to the Veteran's service connection claims. Specifically, the Board finds that the examinations of record provide insufficient information to enable decision to be made. With respect to the Veteran's claim for secondary service connection for the Veteran's back, the original examination in September 2007 did not address the question of whether the Veteran's low back disability was aggravated by his service connected foot and ankle disorders. For this reason, a new examination was ordered which took place in August 2012. At that time, the examiner opined that it was not likely that the low back disability was related to, aggravated by, or resulted from military service and/or the service connected disability of the feet, with the rationale being that there was no medical evidence to connect the low back disability to the Veteran's feet "in any conceivable manner." Significantly, however, the examiner did not address the Veteran's altered gait, which resulted from his bilateral foot and ankle disabilities. The September 2007 the examiner noted a "minimally altered gait," and medical evidence since that time indicates that the Veteran has since developed an altered gait, leg length discrepancy, and hip malalignment. Additionally, the Veteran has been prescribed a brace for his foot/ankle and there is a notation in the medical record that use of the brace could aggravate the Veteran's low back problems. Given that, as a matter of common sense, it is conceivable that an altered gait could affect the back, the Board finds that the August 2012 VA examiner did not provide an adequate rationale for his conclusion that the Veteran's low back disorder was caused or aggravated by his bilateral foot and ankle disabilities, and an addendum opinion is necessary to address this question. With respect to the Veteran's psychiatric disorder, the Veteran was examined in June 2010. At that time, the examiner stated that he "did not find evidence that the Veteran's depression was specifically related to his [service connected] conditions," citing the Veteran's long history of depression and substance abuse. It is unclear if the examiner considered whether the Veteran's mood disorder was aggravated by his foot and ankle pain and physical limitations due to foot and ankle pain. The examiner should address this in an addendum opinion. Accordingly, the case is REMANDED for the following action: 1. Contact the examiner who performed the August 2012 VA examination of the Veteran's back, or, if he is unavailable, a similarly situated examiner, and request an addendum opinion. The examiner should specifically address whether it is at least as likely as not (at least 50 percent likely) that the Veteran's bilateral foot and ankle disability, including any resultant altered gait and/or use of a brace due to the foot/ankle disabilities, caused or aggravated, i.e., permanently worsened, the Veteran's low back disorder. A complete rationale should be provided. 2. Contact the examiner who performed the June 2010 VA psychiatric examination, or if he is unavailable, a similarly situated examiner, and request an addendum opinion specifically addressing aggravation. The examiner should explain whether it is at least as likely as not (at least 50 percent likely) that the Veteran's service connected foot and ankle disabilities aggravated, i.e., permanently worsened, his psychiatric disorder. The examiner should address the Veteran's contentions that foot and ankle pain and limitation of activities due to foot and ankle pain worsen his depression. A complete rationale should be provided. 3. After completion of the above development, the Veteran's claims should be readjudicated. If the determinations remain unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) and given an opportunity to respond thereto. Thereafter, if indicated, the case should be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ J. HAGER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs