Citation Nr: 1602300 Decision Date: 01/20/16 Archive Date: 01/27/16 DOCKET NO. 06-28 789 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for schizoaffective disorder. 2. Entitlement to service connection for a schizoaffective disorder, to include as secondary to service connected gastroparesis. 3. Entitlement to an initial evaluation in excess of 10 percent for degenerative joint disease of the right knee. 4. Entitlement to an initial evaluation in excess of 10 percent for patellar subluxation and instability of the right knee. 5. Entitlement to an initial evaluation in excess of 10 percent for degenerative joint disease of the left knee. 6. Entitlement to an initial evaluation in excess of 10 percent prior to September 27, 2013, and 20 percent beginning on September 27, 2013, for instability of the left knee. 7. Entitlement to a compensable initial evaluation for idiopathic gastroparesis. 8. Entitlement to service connection for bilateral hearing loss. 9. Entitlement to service connection for a back disability, to include as secondary to service-connected bilateral knee disabilities. 10. Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD J. Acosta, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from October 1971 to March 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2006, August 2007 and January 2012 rating decisions of the Waco, Texas Regional Office (RO) of the Department of Veterans Affairs (VA). In a rating action dated August 2007, the RO granted service connection for degenerative joint disease of each knee, and assigned a 10 percent rating for each knee. A February 2008 rating decision assigned separate 10 percent evaluations for instability of the left knee and for patellar subluxation and instability of the right knee. In December 2010, the Board remanded the claims for an increased rating for bilateral knee disabilities. In an April 2012 decision, the Board denied the claims for higher evaluations for the Veteran's service-connected bilateral knee disabilities. The Veteran filed a timely appeal to the United States Court of Appeals for Veterans Claims (Court) which, by Order dated February 2013, granted a Joint Motion for Partial Remand (Joint Motion). The Board remanded these claims in August 2013 and they have since been returned to the Board. In the duration, the Veteran has perfected claims as to whether new and material evidence has been received to reopen a claim of entitlement to service connection for schizoaffective disorder, and entitlement to a compensable initial evaluation for idiopathic gastroparesis. The issues of entitlement to an initial evaluation in excess of 10 percent for degenerative joint disease of the right knee; entitlement to an initial evaluation in excess of 10 percent for patellar subluxation and instability of the right knee; entitlement to an initial evaluation in excess of 10 percent for degenerative joint disease of the left knee; entitlement to an initial evaluation in excess of 10 percent prior to September 27, 2013, and 20 percent beginning on September 27, 2013, for instability of the left knee; entitlement to service connection for bilateral hearing loss; and entitlement to service connection for a back disability, to include as secondary to service-connected bilateral knee disabilities; are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's idiopathic gastroparesis is manifested by symptoms of pain, vomiting, material weight loss, and other symptom combinations productive of severe impairment of health. 2. The Veteran is unemployable due to his service-connected disabilities. 3. In an unappealed decision dated in May 2002, the RO denied service connection for a psychiatric disability, on the basis that there was no evidence of an incurrence in service. 4. The evidence added to the record since the May 2002 rating decision, when viewed by itself or in the context of the entire record, relates to an unestablished fact that is necessary to substantiate the claim of service connection for schizophrenia. 5. The Veteran's schizophrenia is aggravated by his service-connected idiopathic gastroparesis, which causes him to vomit up his psychiatric medication. CONCLUSIONS OF LAW 1. The criteria for the maximum rating of 60 percent for idiopathic gastroparesis have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.124a, Diagnostic Code 7346 (2015). 2. The May 2002 rating decision denying service connection for a psychiatric disability is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.1103 (2015). 3. New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for schizophrenia has been received and the claim is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015). 4. The criteria for a TDIU have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25 (2015). 5. The criteria for service connection for schizophrenia secondary to service-connected idiopathic gastroparesis are met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2014), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). Since the Board is reopening and granting the Veteran's appeals for service connection a schizoaffective disability, entitlement to the maximum rating for the Veteran's idiopathic gastroparesis, and granting entitlement to a TDIU there is no need to discuss whether the Veteran has received sufficient notice or assistance with regard to these claims, given that any error would be harmless. Regulation Governing the Change of Diagnostic Codes The RO granted service connection for idiopathic gastroparesis and assigned a noncompensable rating. The condition was assigned a hyphenated Diagnostic Code of 7399-7308. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned, or if the disability is unlisted and must be rated analogously to a closely related disability; the additional code is shown after the hyphen. 38 C.F.R. §§ 4.20, 4.27 (2015). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case" and the Board can choose the diagnostic code to apply so long as it is supported by reasons and bases as well as the evidence. Butts v. Brown, 5 Vet. App. 532, 538 (1993). It is permissible to switch Diagnostic Codes to reflect more accurately a claimant's current symptoms. See Read v. Shinseki, 651 F. 3d 1296, 1302 (Fed. Cir. 2011) (holding that service connection for a disability is not severed when the DC associated with it is changed to determine more accurately the benefit to which a veteran may be entitled). Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Increased Rating Disability ratings are determined by comparing a veteran's present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2015). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2015). After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2015). The Veteran's entire history is considered when assigning disability ratings. 38 C.F.R. § 4.1 (2014); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A review of the recorded history of a disability is necessary in order to make an accurate rating. 38 C.F.R. §§ 4.2, 4.41 (2015). The regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating Criteria - Idiopathic Gastroparesis Diagnostic Code 7308 refers to postgastrectomy syndromes which list symptoms of epigastric distress, and mild circulatory symptoms, it does not address the Veteran's recurrent severe symptoms of pain, vomiting and nausea, and weight loss. However under Diagnostic Code 7346, governing evaluations of a Hernia Hiatal, the rating schedule provides consideration of symptoms of pain, vomiting, material weight loss and severe impairment of health. Therefore, since Diagnostic Code 7346 more closely encompasses all of the Veteran's symptoms and is more closely analogous, and involves the identical anatomical location, the Board finds that the most appropriate Diagnostic Code to evaluate the Veteran's gastroparesis is DC 7346. Under Diagnostic Code 7346 a 10 percent rating is warranted when there is two or more of the symptoms for the 30 percent evaluation of less severity; a 30 percent rating is warranted when there is persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health; and a 60 percent rating is warranted when there are symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. Merits The Board finds that a 60 percent rating for the Veteran's idiopathic gastroparesis. The VA examiner in July 2014 VA examination notes in the pertinet parts that the Veteran symptoms include recurring episodes of severe symptoms which occur 4 or more times a year and last 10 days or more. He goes on to state that the symptoms include weight loss, recurrent nausea of 4 or more episodes a year with episodes lasting more than 10 days, recurrent vomiting with 4 or more episodes a year with episodes a year lasting more than 10 days. The examiner concluded that these episodes are incapacitating. The Board finds that the Veteran has met the requirements of pain, vomiting, material weight loss, and symptom combination productive of severe impairment of health. Thus, a 60 percent rating is warranted. Turning to the period for which the 60 percent is warranted, the Board notes, that the examiner and VA treatment records indicate that the Veteran's symptoms have remained the same since his discharge from service. In evaluating the VA treatment notes that Board notes that an October 2001 note which describes recurrent nausea and vomiting, a March 2005 note contains evidence that he Veteran has lost 20 pounds due to his nausea and vomiting, and a January 2011 treatment note concludes that the Veteran's symptoms have significantly impacted his life. Thus, the Board finds that evidence substantiates that the Veteran is entitled to a 60 percent rating for the entirety of the period on appeal. -TDIU- TDIU is governed by 38 C.F.R. § 4.16 , providing that such a rating may be assigned where the scheduler rating is less than total, and when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (2015). Merits With the increased rating of 60 percent for the Veteran's idiopathic gastroparesis, the Board now turns to the issue of a TDIU. The Veteran service connected disabilities are currently included a 60 percent rating for idiopathic gastroparesis, 20 percent for instability, left knee, status post medial meniscectomy and lateral retinacular release, 10 percent for degenerative joint disease for the right knee, 10 percent for degenerative joint disease for the left knee, and 10 percent for right knee patellar subluxation and instability. The Veteran's educational history includes a high school diploma and some college credit. His occupational history includes 20 years of experience as a surveyor and two years doing maintenance. The Veteran has met the scheduler criteria for TDIU with the increased rating of 60 percent for his idiopathic gastroparesis. The only remaining issue is whether the Veteran was able to secure or follow a substantially gainful occupation as a result of service connected disabilities; the evidence demonstrates that he cannot. This evidence includes a February 2007 VA examination wherein the examiner commented that the veteran has not worked since 2003 because of pain in his knees and stomach problems, a May 1994 statement from the Veteran that he was turned down multiple jobs due to history of left knee disability and surgery, a June 2006 VA treatment note wherein a clinician wrote that the Veteran was unemployed due to disability of the knees and GI problem. Most recently, the Veteran was provided an examination to address his knees in September 2013, and in this examination, the VA examiner wrote: The Veteran's medial and later meniscal tear with displaced medial meniscus of the left knee, degenerative arthritis of the bilateral knees, and chondromalacia of both knees would prevent him from squatting, climbing a ladder or stairs, walking up or down hills, walking long distances or standing for prolong periods. Additionally, he is unable to sit for prolong periods due to stiffness and pain. Finally, he has difficult ambulation and relies upon bilateral knee braces and a cane for stability. The Veteran worked as a surveyor for 20 years, but can no longer do this line of work due to his bilateral knee conditions. He would not be able to work an administrative job due to increased pain and stiffness with sitting for prolong periods and his ambulatory problems would present great difficulty with any movement required during duty hours and with coming to and from the work site. Therefore, it is at least as likely as not that the veteran's service connected bilateral knee chondromalacia and degenerative arthritis with left knee medial and lateral meniscal tears make him unemployable. Considering the foregoing, the Board finds that the Veteran's service-connected disabilities have rendered him unemployebable. His inability to stand or sit for long periods of time excludes all employment. Moreover, the Veteran recurrent and long episodes of vomiting and nausea with incapacitating episodes likewise exclude gainful employment. Thus, the Board finds that a total disability rating due to individual unemployability is appropriate. New and Material Evidence New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2015). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). If VA determines that new and material evidence has been added to the record, the claim is reopened, and VA must evaluate the merits of the Veteran's claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140 (1991); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996). Merits The Veteran was denied service connection in a May 2002 rating decision because there was no competent evidence that the Veteran's mental disability was related to active service. The Veteran has since submitted evidence in the form of a May 2002 VA treatment note wherein a VA clinician provided an opinion that the Veteran's psychiatric disability was being aggravated by his service-connected idiopathic gastroparesis because he continued to vomit up the medication prescribed to control his psychiatric symptoms. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. 38 C.F.R. § 3.156(a) (2015); Shade v. Shinseki, supra. The May 2002 nexus statement is new in that it was not previously of record. It is also material because it relates to unestablished facts necessary to substantiate the Veteran's claim for a schizoaffective disability. Specifically, due to the prior lack of evidence showing a nexus, this new evidence is material because it resolves an element that was previously not shown, a nexus to a service-connected disability. See Shade, supra. Accordingly, the Board finds that new and material evidence has been submitted, and the claim for service connection for chronic headaches, to include migraines, is reopened. 38 U.S.C.A. § 5108 (West 2014). Secondary Service Connection Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a) (2015). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.310(b) (2013); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. Merits The Veteran is currently service connected for idiopathic gastroparesis and has a current diagnosis for a schizoaffective disorder/schizophrenia from an August 2009 VA contracted neuropsychological evaluation. The remaining issue is whether the Veteran's idiopathic gastroparesis aggravates his schizophrenia. The Board finds that a May 2002 VA treatment note, made while the Veteran was in the process of being admitted to a psychiatric hospital, is probative on this issue. The VA clinician noted that the Veteran's psychotic symptoms are exacerbated due to his persistent vomiting and inability to keep down his psychiatric medication. The Board notes that the Veteran's idiopathic gastroparesis examination discussed above, notes that the Veteran has periods of severe vomiting which last for more than 10 days. Thus, the Board finds that both these examination provide probative and competent evidence which establishes that the Veteran's schizophrenia is aggravated by his idiopathic gastroparesis in that he is unable to take his psychiatric medication due to his recurrent vomiting. Therefore, the Board finds that service connection for schizophrenia as secondary to idiopathic gastroparesis is warranted. ORDER Entitlement to a 60 percent evaluation for idiopathic gastroparesis is granted. New and material evidence having been received, the request to reopen the previously denied claim for service connection for schizoaffective disability is granted. Entitlement to secondary service connection for schizophrenia is granted. Entitlement to TDIU is granted, subject to the statutes and regulations governing the payment of monetary benefits. REMAND Knee Disabilities - Outstanding SSA Records Regrettably, a remand is necessary for further evidentiary development of the Veteran's appeals for entitlement to increased rating for his bilateral knee disabilities. Although the April 2012 Board decision found that the Veteran's Social Security Administration (SSA) records would not need to be collected because they related only to the Veteran's psychiatric disability and not his knees; the Board notes that a VA examiner in a December 2011 examination of the Veteran's stomach noted that the Veteran was on "SS disability due to knee and psychiatric problems." VA's duty to assist the Veteran particularly applies to relevant evidence known to be in the possession of the Federal Government, such as VA or Social Security records. See 38 C.F.R. § 3.159(c)(2). Therefore, because the records from the SSA may contain pertinent information to all the Veteran's claims, VA is obligated to obtain them. See 38 C.F.R. §§ 3.159(c)(2), (c)(3) (2015); Bell v. Derwinski, 2 Vet. App. 611 (1992) (because VA is deemed to have constructive knowledge of all VA records and such records are considered evidence of record at the time a decision is made and by analogy this applies to SSA records). Back disability - No Secondary Service Connection Opinion The Board finds that the March 2013 VA examination of the Veteran lower back disability is in part inadequate. The Veteran has complained that his low back disability has been aggravated by his service-connected bilateral knee disabilities. However, the March 2013 VA examination does not provide an opinion on whether the Veteran's back disability was caused by or aggravated by his service-connected knee disabilities. Thus, the Board finds a new VA examination is warranted. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). Bilateral Hearing Loss - No Audio Threshold Obtained and No Explanation The Board finds that the March 2011 VA audiological examination was, in part, inadequate. The VA examiner in the March 2011 VA examination reports that no consistent pure tone thresholds could be subjectively obtained from patient for rating purposes, even with repeated instruction during test procedures, and thus, in the section to report pure tone thresholds, wrote, "CND [could not be determined]." The examiner then goes on to rely on a April 12, 2010, audio examination results to find that the Veteran does not meet VA regulatory threshold for hearing loss. The Board cannot determine without further rationale why the audiologist in April 12, 2010, was able to determine hearing loss thresholds while the March 2011 audiologist could not. No explanation is provided other than cryptic remarks that "No consistent pure tone thresholds could be subjectively obtained from patient for rating purposes, even with repeated instruction during test." The Board thus finds that a new VA examination is warranted. See Barr v. Nicholson, supra (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). Accordingly, the case is REMANDED for the following action: 1. Request from SSA all of the records related to the Veteran's claim for Social Security Administration disability benefits, including medical records and copies of any decisions or adjudication, and associate them with the claims folder. All negative responses should be properly documented in the claims file, to include preparing a memorandum of unavailability and following the procedures outlined in 38 C.F.R. § 3.159(e), if appropriate 2. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his disabilities. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. If the records are unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159. 3. After the above development is accomplished, schedule the Veteran for appropriate VA examinations for his back and his bilateral hearing loss. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner(s) as part of the examination. A notation to the effect that this review has taken place should be made in the evaluation report. All tests, studies, and evaluations should be performed as deemed necessary by the examiner(s), and the results of any testing must be included in the examination report. (A) The examiner conducting the back examination, after taking a detailed history from the Veteran regarding his back disability and service-connected bilateral knee disabilities and considering the pertinent information in the record in its entirety, the VA examiner should opine whether it is at least as likely as not, i.e. 50 percent probability or greater, that the Veteran's back disability was caused by or is aggravated by the Veteran's service-connected bilateral knee disabilities or is otherwise etiologically related to the Veteran's active service. (B). The audiological examiner, after considering the pertinent information in the record in its entirety, and conducting audiological testing, the VA examiner should identify any audiological disability. The examiner is asked to opine as to whether it is at least as likely as not i.e. 50 percent probability or greater, that audiological disability was incurred or aggravated by his active duty. If audiological thresholds cannot be obtained, the examiner should provide an explanation detailing why such results could not be obtained. For any negative opinion, the examiner must identify the medical reasons as to why the evidence does not provide sufficient proof of a relationship between the Veteran's current identified disabilities and his period of military service. 4. Ensure that the examination report complies with this remand and the questions presented in this request. If the report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 5. After completing the requested actions and any additional notification and/or development deemed warranted, readjudicate the issues. If the benefits sought on appeal are not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded the appropriate time period for response. 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs