Citation Nr: 1607267 Decision Date: 02/25/16 Archive Date: 03/04/16 DOCKET NO. 13-24 904A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of service connection for a heart condition. 2. Entitlement to service connection for high cholesterol. 3. Entitlement to assignment of a 10 percent evaluation under 38 C.F.R. § 3.324, based on multiple, noncompensable, service-connected disabilities, prior to August 5, 2013. 4. Whether new and material evidence has been received to reopen a previously denied claim of service connection for blurred vision. 5. Entitlement to service connection for blurred vision. 6. Whether new and material evidence has been received to reopen a previously denied claim of service connection for hypertension. 7. Whether new and material evidence has been received to reopen a previously denied claim of service connection for an upper respiratory condition, claimed as allergic rhinitis and sinusitis. 8. Entitlement to service connection for an upper respiratory condition, to include as secondary to a service-connected nasal fracture. 9. Whether new and material evidence has been received to reopen a previously denied claim of service connection for an acquired psychiatric disorder, claimed as a major depressive disorder, anxiety, and night sweats. 10. Entitlement to service connection for an acquired psychiatric disorder. 11. Entitlement to service connection for sleep apnea, to include as secondary to a service-connected nasal fracture. 12. Entitlement to service connection for a lung disorder, claimed as chronic obstructive pulmonary disease (COPD and a lung condition with patch. 13. Entitlement to service connection for a prostate condition. 14. Entitlement to service connection for right foot bone spurs. 15. Entitlement to service connection for left foot bone spurs. 16. Entitlement to service connection for right foot corns. 17. Entitlement to service connection for left foot corns. 18. Entitlement to service connection for bilateral hearing loss. 19. Entitlement to service connection for right shoulder arthritis. 20. Entitlement to service connection for left shoulder arthritis. 21. Entitlement to service connection for gastroesophageal reflux disease (GERD). 22. Entitlement to service connection for a right knee disability. 23. Entitlement to service connection for a left knee disability. 24. Entitlement to service connection for tension headaches. 25. Entitlement to service connection for fibromyalgia. 26. Entitlement to service connection for bilateral tinea pedis. 27. Entitlement to a finding of total disability due to individual unemployability, based on service-connected disabilities (TDIU). 28. Entitlement to an initial compensable evaluation for hemorrhoids. 29. Entitlement to a compensable evaluation for residuals of a nasal fracture. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. H. Donnelly, Counsel INTRODUCTION The Veteran served on active duty with the United States Army from May 1979 to October 1986. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Montgomery, Alabama, Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran testified at an October 2015 hearing held before the undersigned Veterans Law Judge at the RO; a transcript of the hearing is associated with the claims file. Based on discussion with the Veteran at the hearing, claims with regard to the lungs have been combined and recharacterized. The Board has additionally recharacterized some claims to reflect the procedural requirement for reopening previously denied claims. Jackson v. Principi, 265 F.3d 1366 (Fed Cir 2001). Finally, the claim with regard to 38 C.F.R. § 3.324 has been recharacterized to reflect that as of August 5, 2013, the Veteran is in receipt of compensation benefits based on a compensable rating for a service-connected disability. The Veteran's file has been scanned, and converted from a hybrid paper and electronic file to a purely electronic file. The Board has reviewed the records and documents maintained in Virtual VA (VVA) and the Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. All issues save those of reopening previously denied claims of service connection for heart disease, a psychiatric disorder, blurred vision, and an upper respiratory condition, as well as service connection for high cholesterol, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. On the record at the October 2015 hearing, prior to the promulgation of a decision in the appeal, the Veteran stated that he wished to withdraw his appeals of service connection for a heart disease and for high cholesterol. 2. Service connection for blurred vision was denied in an unappealed April 2005 rating decision on the grounds that no current service-connectable disability was shown. 3. Evidence regarding blurred vision received since April 2005 was not previously considered by agency decision makers, is not cumulative or redundant of evidence already of record, addresses an unestablished fact, and raises the reasonable possibility of substantiating the claim. 4. Service connection for allergic rhinitis, now claimed as sinusitis or other upper respiratory disability, was denied in an unappealed April 2005 rating decision on the grounds that no nexus between the currently diagnosed condition and service was shown. 5. Evidence regarding an upper respiratory condition received since April 2005 was not previously considered by agency decision makers, is not cumulative or redundant of evidence already of record, addresses an unestablished fact, and raises the reasonable possibility of substantiating the claim. 6. Service connection for a depressive disorder, now claimed as an acquired psychiatric disorder, was denied in an unappealed April 2005 rating decision on the grounds that no nexus between the currently diagnosed condition and service was shown. 7. Evidence regarding an acquired psychiatric disorder received since April 2005 was not previously considered by agency decision makers, is not cumulative or redundant of evidence already of record, addresses an unestablished fact, and raises the reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal to reopen a previously denied claim for service connection for heart disease are met. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.204 (2015). 2. The criteria for withdrawal of an appeal for service connection for high cholesterol are met. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.204 (2015). 3. The April 2005 rating decision denying service connection for blurred vision, a depressive disorder, and allergic rhinitis is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2015). 4. The criteria for reopening of a previously denied claim of service connection for blurred vision are met. 38 U.S.C.A. §§ 5107, 5108 (West 2014); 38 C.F.R. §§ 3.102, 3.156 (2015). 5. The criteria for reopening of a previously denied claim of service connection for an upper respiratory condition are met. 38 U.S.C.A. §§ 5107, 5108 (West 2014); 38 C.F.R. §§ 3.102, 3.156 (2015). 6. The criteria for reopening of a previously denied claim of service connection for an acquired psychiatric disorder are met. 38 U.S.C.A. §§ 5107, 5108 (West 2014); 38 C.F.R. §§ 3.102, 3.156 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawals 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.A. § 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, and may be done in writing by the Veteran or his authorized representative, or on the record at hearing. 38 C.F.R. § 20.204. The Veteran stated on the record at the October 2015 hearing that he wished to withdraw appeals with regard to claims of service connection for a heart condition and high cholesterol. The Veteran has withdrawn these appeals and, hence, there remain no allegations of errors of fact or law for appellate consideration in connection therewith. Accordingly, the Board does not have jurisdiction to review the appeals and they are dismissed. VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Board is granting in full the benefit sought on appeal with regard to the reopenings addressed here. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. Analysis The RO reopened the previously denied claim of service connection for blurred vision in February 2010, and declined to reopen the claims of service connection for a depressive disorder and rhinitis. 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) ("Thus, the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened....") Rating actions from which an appeal is not timely perfected become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). In an April 2005 rating decision, the RO denied service connection for a depressive disorder, blurred vision, and allergic rhinitis. Evidence at the time of that decision consisted of service treatment records, private treatment records from July and August 2004, VA treatment records from November 2003 to September 2004, and a March 2005 VA examination. For a depressive disorder and rhinitis, the RO found that while there was a currently diagnosed disability, no nexus to service was established. No vision disability was diagnosed. Since April 2005, the Veteran has submitted, or VA has obtained on his behalf, additional VA treatment records reflecting a variety of current eye conditions, including possible glaucoma and optic neuritis. This new evidence directly addresses the unestablished fact of a current diagnosis, and requires additional development prior to adjudication. Reopening of the previously denied vision claim is therefore warranted. With regard to the psychiatric disorder and the upper respiratory condition, in both instances the Veteran made statements at his October 2015 hearing which supplied additional information directly related to the nexus question. While he had previously reported that his mental health problems were related to an abusive sergeant, at the hearing he described the alleged incidents in detail and supplied names for those he accused. This additional information, not considered at the time of the April 2005 decision, would permit additional relevant development which could help him substantiate his claim. Reopening is therefore warranted. In the case of rhinitis, the possibility of a secondary nexus to service via his nasal fracture was raised in April 2005. At the hearing, however, he expanded on this allegation, describing his symptoms and how they related to the fracture. He also is currently claiming worsening of the fracture residuals, and indicates that his upper respiratory conditions have been aggravated by such. These allegations must be developed and investigated, and therefore are sufficient to warrant reopening of the previously denied claim. Adjudication of the Veteran's claims does not end with the determination that new and material evidence has been received. These matters must now be addressed on a de novo basis. For the reasons detailed in the remand section, additional development is required for a full and fair adjudication of the underlying service connection claims. ORDER The appeal for service connection of a heart disease is dismissed. The appeal for service connection for high cholesterol is dismissed. Reopening of the previously denied claim of service connection for blurred vision is granted. Reopening of the previously denied claim of service connection for an upper respiratory condition, claimed as allergic rhinitis and sinusitis, is granted. Reopening of the previously denied claim of service connection for an acquired psychiatric disorder, claimed as a major depressive disorder, anxiety, and night sweats, is granted. REMAND Remand is required with regard to the remaining issues to secure compliance with VA's duty to assist the Veteran in substantiating his claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Applicable to all outstanding claims is the need to associate with the claims file complete VA treatment records as well as any available Social Security Administration records. The Veteran has repeatedly stated that he has been treated at the Central Alabama Veterans Health Care System since at least 1986. However, no records prior to 2003 have been obtained. At his October 2015 hearing, he stated he had a pending claim for SSA benefits. The duty to assist requires that VA make all necessary efforts to obtain relevant records in the possession of a Federal agency. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Further, VA records are considered to be constructively of record and VA is charged with knowledge of their contents. Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). On remand, complete VA records from 1986 to the present, and all available SSA records, must be obtained, or an explanation offered as to why those records are not available. Additionally, development actions specific to certain claims must be undertaken. Nasal Fracture, Sleep Apnea, and Upper Respiratory Condition The Veteran has reported a worsening of his fracture residuals, necessitating an updated VA examination. More importantly, however, he testified at his hearing that his nose, apnea, and sinus problems all seemed to be inter-related. He questioned whether the nasal fracture could have caused or aggravated his sleep apnea or the sinus and rhinitis problems he has experienced. Alternatively, his testimony suggests that the sinus complaints may be direct manifestations of the fractured nose. These theories of entitlement have not been addressed by medical professionals, and so remand is required for a medical opinion. Blurred Vision Although it is clear that the Veteran has a refractive error, which VA does not recognize as a service-connectable disability under 38 C.F.R. § 3.303(c), current VA treatment records also reveal a history of optic neuritis and possible glaucoma. The etiology of such is not identified, and so a connection to service remains reasonably possible. Further, service treatment records do show a decrease in vision during service; the Veteran began wearing glasses while on active duty according to entry and separation physicals. A VA examination and nexus opinion is therefore required. 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Right and Left Foot Bone Spurs, Corns, and Tinea Pedis Service treatment records reveal complaints of bilateral foot pain and a fungal infection on the right. He reports current symptomatology and treatment of bilateral foot conditions, and alleges that such are due to too-small boots in service, or wear and tear from activity as a wireman. In light of the in-service occurrences, current disability, and a possible relationship between the two, a VA examination and nexus opinion is required. 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Right and Left Shoulders and Knees Service treatment records show treatment and complaints of bilateral knee problems on several occasions; he was diagnosed with chondromalacia in service. Further, he reports that his in-service duties caused excessive wear and tear on his shoulders. He competently reports current symptoms in each of these joints, and points to diagnoses of arthritis in the shoulders. In light of the evidence of in-service injury, current disability, and a possible relationship between the two, a VA examination and nexus opinion is required. 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Psychiatric Disability and Tension Headaches At his October 2015 hearing, the Veteran reported that he was scheduled to see a psychiatrist or psychologist in the immediate future. It was unclear if such was a private or VA provider. On remand, this must be clarified to ensure that complete records are obtained. Further, an examination is required. The Veteran has supplied detailed accounts of several confrontations with noncommissioned officers in service, and alleges that such have caused or contributed to his psychiatric symptoms. A medical opinion is required to assess this allegation, to include a determination as to the adequacy of the alleged stressful events to support a diagnosis. Additionally, the Veteran associates his headaches with stress, and reports that some occurred in service; service treatment records do document headache complaints that are in some instances not clearly associated with an illness. TDIU and 38 C.F.R. § 3.324 The Board notes that entitlement to these benefits is dependent upon consideration of the impact of service-connected disabilities on a Veteran's employability. Therefore, while the above development may not bear directly upon the matters, they are inextricably intertwined with the pending claims. It would be premature to adjudicate either claim prior to resolution of the other issues. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered) Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify the health care provider he is scheduled to see for his mental health complaints, referred to at the October 2015 hearing. If a private provider is identified, request a properly executed VA form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs, for such. Upon receipt, VA must take appropriate action to contact the identified provider and request complete treatment records. The Veteran should be informed that in the alternative he may obtain and submit the records himself. 2. Associate with the claims file complete VA treatment records from the East and West campuses of the Central Alabama Veterans Health Care System, and all associated clinics, for the period of October 1986 to the present. 3. Schedule the Veteran for a VA nose, larynx and pharynx and/or sinusitis and rhinitis examination. The claims folder must be reviewed in conjunction with the examination; if the examiner does not have access to the complete electronic record, relevant documents must be printed for review. The examiner must: a) Describe in detail all current residuals of the service connected fracture of the nose. b) Opine as to whether any diagnosed sinus or rhinitis condition is at least as likely as not caused or aggravated by the fractured nose, or is otherwise related to military service. 4. Schedule the Veteran for a VA sleep apnea examination. The claims folder must be reviewed in conjunction with the examination; if the examiner does not have access to the complete electronic record, relevant documents must be printed for review. Opine as to whether currently diagnosed sleep apnea is caused or aggravated by the service-connected fractured nose, or is otherwise related to military service. Reports of awakening in service short of breath must be discussed. 5. Schedule the Veteran for a VA Eyes examination. The claims folder must be reviewed in conjunction with the examination; if the examiner does not have access to the complete electronic record, relevant documents must be printed for review. The examiner must identify all current disabilities of the eyes, and must opine as to whether any such are at least as likely as not caused or aggravated by military service. The examiner must discuss whether the need for glasses which developed during service is due to any condition other than a refractive error. 6. Schedule the Veteran for a VA foot examination. The claims folder must be reviewed in conjunction with the examination; if the examiner does not have access to the complete electronic record, relevant documents must be printed for review. The examiner must state whether current diagnoses of bone spurs or corns are warranted, and if so, whether any such are at least as likely as not caused or aggravated by military service. In-service complaints of foot pain and reports of wearing too-small boots when being very active must be discussed. 7. Schedule the Veteran for a VA joints examination. The claims folder must be reviewed in conjunction with the examination; if the examiner does not have access to the complete electronic record, relevant documents must be printed for review. a) The examiner must identify all current disabilities of the right and left shoulders. For each, the examiner must opine as to whether such is at least as likely as not caused or aggravated by military service, to include wear and tear as a wireman. b) The examiner must identify all current disabilities of the left and right knees. For each, the examiner must opine as to whether such is at least as likely as not caused or aggravated by military service. The examiner must specifically discuss whether any current disability is a residual or advancement of in-service chondromlacia. 8. Schedule the Veteran for a VA skin examination. The claims folder must be reviewed in conjunction with the examination; if the examiner does not have access to the complete electronic record, relevant documents must be printed for review. The examiner must state whether a current diagnosis of tinea pedis is warranted, and if so, whether such is at least as likely as not caused or aggravated by military service. The fact of treatment for a fungal infection in service must be discussed. 9. Schedule the Veteran for a VA mental disorders/initial PTSD examination. The claims folder must be reviewed in conjunction with the examination; if the examiner does not have access to the complete electronic record, relevant documents must be printed for review. The examiner must identify all currently diagnosed mental disorders. For each, the examiner must opine as to whether such is at least as likely as not caused or aggravated by military service. The stressful events described by the Veteran at the October 2015 hearing, and their adequacy to support a psychiatric diagnosis, must be discussed. The examiner must comment on the presence of headaches as a psychiatric/stress symptom, and discuss whether the occurrence of such in service represents the onset of a chronic psychiatric or headache condition. 10. All examiners should comment on the impact of the service connected disabilities, individually and in combination, on the Veteran's ability to function in work-related tasks (e.g., sitting, standing, walking, bending, stooping, lifting, cognitive functioning, attendance, etc.). Full and complete rationales are required for all opinions expressed. 11. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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 2014). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs