Citation Nr: 1801605	
Decision Date: 01/10/18    Archive Date: 01/23/18

DOCKET NO.  14-09 676	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for bilateral hearing loss.

2. Entitlement to service connection for bilateral hearing loss. 

3. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for tinnitus. 

4. Entitlement to service connection for tinnitus. 

5. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for bilateral knee condition.

6. Entitlement to service connection for bilateral knee condition, to include as secondary to his service-connected back and feet conditions.  

7. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for bilateral carpel tunnel syndrome.

8. Entitlement to service connection for bilateral wrist condition. 

9. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for skin condition.

10. Entitlement to service connection for skin condition. 

11. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for bilateral shoulder condition.

12. Entitlement to service connection for bilateral shoulder condition.

13. Entitlement to service connection for acquired psychiatric disorder, to include depression and anxiety, as secondary to bilateral feet condition and knee condition. 

14. Entitlement to service connection for headaches, to include as secondary to acquired disorder.

15. Entitlement to an initial disability rating in excess of 10 percent for residual of bunionectomy in the left foot. 

16.  Entitlement to an initial disability rating in excess of 10 percent for residual of bunionectomy in the right foot.

17. Entitlement to an initial disability rating in excess of 10 percent for back disability. 

18.  Entitlement to a total disability rating based on individual unemployability (TDIU).

 
 

REPRESENTATION

Veteran represented by:	South Carolina Division of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Veteran, B.G. and R.M. 


ATTORNEY FOR THE BOARD

S. Solomon, Associate Counsel 


INTRODUCTION

The Veteran served on active military duty from August 1978 to August 1981. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied the claim to reopen service connection for skin condition.  Also on appeal is the July 2014 and May 2015 rating decisions issued by RO in Columbia, South Carolina. 

The Veteran testified at Travel Board hearing in November 2016 and transcript of the hearing is of record. 

During his hearing, the Veteran testified that he is unable to work because of his disabilities.  See hearing transcript at 24-25.  To that end, his testimony raises the issue of TDIU.  A claim for a TDIU is part of an increased or initial rating claim when such claim is expressly raised by a veteran or reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009).  

Furthermore, the Veteran contends that his bilateral knee condition maybe secondary to his feet and back condition.  See hearing transcript at 21.  Also, his representative asserts that his acquired psychiatric disorder maybe secondary to his feet condition and his headaches may be secondary to his anxiety.  Id. 19.  Based on this evidence, the Board has expanded the claims for service connection for bilateral knee condition, acquired psychiatric disorder, and headaches as indicated above. See Clemons v. Shinseki, 23 Vet. App. 1 (2009).  

The issues of entitlement to service connection for bilateral hearing loss, bilateral knee condition, bilateral wrist condition, skin condition, bilateral shoulder condition, acquired psychiatric disorder, and headaches, the claim for increase rating for bilateral feet condition and back condition, as well as entitlement for TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACTS

1. The Veteran did not timely appeal the July 2013 rating decision that denied service connection for hearing loss, tinnitus, bilateral carpel tunnel syndrome, bilateral shoulder condition, and bilateral knee condition; this rating decision became final.

2.  Evidence received since July 2013, relates to a previously unestablished element of each claim and raises a reasonable probability of substantiating the claims.

3.  The Veteran did not timely appeal the August 2011 rating decision that denied service connection for skin rash; this rating decision became final. 

4. Evidence received since August 2011, relates to a previously unestablished element of the service connection for skin condition claim and raises a reasonable probability of substantiating the claim. 

5. Tinnitus is etiologically related to service.


CONCLUSIONS OF LAW

1. The July 2013 rating decision that denied claim for service connection for bilateral hearing loss is final.  38 U.S.C. § 7104 (b) (2012); 38 C.F.R. § 20.1103 (2017).

2. New and material evidence has been received, and the claim for service connection for bilateral hearing loss may be reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017).

3. The July 2013 rating decision that denied claim for service connection for tinnitus is final.  38 U.S.C. § 7104 (b) (2012); 38 C.F.R. § 20.1103 (2017).

4. New and material evidence has been received, and the claim for service connection for tinnitus may be reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017).

5. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).

6. The July 2013 rating decision that denied claim for service connection for bilateral knee condition is final.  38 U.S.C. § 7104 (b) (2012); 38 C.F.R. § 20.1103 (2017).

7. New and material evidence has been received, and the claim for service connection for bilateral knee condition may be reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017).

8. The July 2013 rating decision that denied claim for service connection for bilateral carpel tunnel syndrome (wrist condition) is final.  38 U.S.C. § 7104 (b) (2012); 38 C.F.R. § 20.1103 (2017).

9. New and material evidence has been received, and the claim for service connection for bilateral wrist condition may be reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017).

10. The July 2013 rating decision that denied claim for service connection for bilateral shoulder condition is final.  38 U.S.C. § 7104 (b) (2012); 38 C.F.R. § 20.1103 (2017).

11. New and material evidence has been received, and the claim for service connection for bilateral shoulder condition may be reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017).

12. The August 2011 rating decision that denied claim for service connection for skin condition is final.  38 U.S.C. § 7104 (b) (2012); 38 C.F.R. § 20.1103 (2017).

13. New and material evidence has been received, and the claim for service connection for skin condition may be reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. The Duties to Notify and Assist

Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.   Ordinarily, the Board must ensure that the required notice and assistance provisions of the VCAA have been properly applied.  In this case, however, the Board is only rendering a final decision with respect to entitlement to reopen the previously denied claims and service connection claim for tinnitus.  To that end, the Board is granting in full the aspects of the claims addressed in this instant decision.  Therefore, the Board need not discuss whether there has been compliance with the VCAA, as any noncompliance ultimately amounted to no more than harmless error. 38 C.F.R. § 20.1102 (2017). See also Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

II. New and Material

In general, the RO's determination not appealed within one year becomes a final decision, which may only be reopened with a showing of new and material evidence. 38 U.S.C.A. §§ 5108; 7105 (2012).  

 "New" evidence means evidence not previously submitted to the RO.  On the other hand, "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 already of record at the time of the last 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)(2017).  This is a "low threshold" in which the phrase "raises a reasonable possibility" should be interpreted as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110, 121 (2010).

Here, the August 2011 rating decision denied service connection for skin rash for lack of current disability and in-service incident.  Because the Veteran did not appeal the denial within one year, it became final.  Similarly, the July 2013 rating decision, which denied entitlement for service connection for hearing loss, tinnitus, bilateral carpel tunnel syndrome, bilateral shoulder condition, and bilateral knee condition, became final because it was not appealed within one year. These claims were denied because the evidence weight against a nexus between the Veteran's current conditions and his military service.    

Since these rating decisions, the Veteran testified before the Board in November 2016.  Because his testimony was not considered during the August 2011 and July 2013 rating decisions, it constitutes new evidence.  Furthermore, to the extent the Veteran testified about having current disability and in-service incidents that led to his current conditions, his testimony is material evidence that goes towards substantiating the claims.    

Therefore, in light of the low threshold for reopening claims noted above, the Board finds that new and material evidence has been received, and the Veteran's claims for entitlement to service connection for bilateral hearing loss, tinnitus, bilateral knee condition, bilateral wrist condition, skin condition, and bilateral shoulder condition are reopened.

III. Tinnitus

The Veteran contends that he has tinnitus that is caused by noise trauma he experienced in service. 

Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).

Tinnitus is "a noise in the ear, such as ringing, buzzing, roaring, or clicking." See Dorland's Illustrated Medical Dictionary 1956 (31st ed. 2007).  Because of its inherently subjective nature, a layman such as the Veteran is considered competent to report the observable manifestations of tinnitus. See Charles v. Principi, 16 Vet. App. 370  (2002) (holding that tinnitus is subjective and the kind of condition lay testimony is competent to describe).   

Tinnitus is an organic disease of the nervous system and therefore a chronic disease. Fountain v. McDonald, 27 Vet. App. 258, 272 (2015).  Service connection is available for tinnitus based on a continuity of symptomatology.  See Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013); 38 C.F.R. § 3.307, 3.309 (2017).  

The Veteran has diagnosis of tinnitus and therefore his claim meets the first element of a service connection claim.  See VA July 2012 examination.  

With respect to the second element, the Veteran reported that the ringing in his ear started in the military.  See hearing transcript at pg. 12-13.  The Veteran military occupational specialty was air defense artillery, short range gunnery crewman, which has a high probability of noise exposure. The Board finds the Veteran's statement credible and highly probative.  Therefore, the second element of a service connection claim is satisfied. 

Finally, the Veteran has provided competent and credible testimony regarding continuity of his symptoms from incurrence of the tinnitus in service to the present.  On this basis, service connection is granted.


ORDER

The claim for service connection for bilateral hearing loss is reopened; the appeal is granted to this extent only.

The claim for service connection for tinnitus is reopened.

Service connection for tinnitus is granted. 

The claim for service connection for bilateral knee condition is reopened; the appeal is granted to this extent only.

The claim for service connection for bilateral wrist condition is reopened; the appeal is granted to this extent only.

The claim for service connection for bilateral shoulder condition is reopened; the appeal is granted to this extent only.

The claim for service connection for skin condition is reopened; the appeal is granted to this extent only.




REMAND

The Board regrets further delay, but additional development is necessary to adjudicate the remaining claims. 

During the hearing, the Veteran has indicated that he has applied for social security benefits.  See hearing transcript at 24.  Review of the record shows Social Security Administration (SSA) records have not been obtained.  VA has a duty to obtain relevant records from a Federal department or agency, including, but not limited to, records from Federal agencies such as the SSA. 38 C.F.R. § 3.159 (c)(2) (2017); See Murincsak v. Derwinski, 2 Vet. App. 363, 370-372 (1992).  Therefore, a remand is necessary to obtain outstanding SSA records before the Board can adjudicate all of the remaining claims. 

A. Bilateral knee condition

The Veteran underwent VA examination in April 2015, where the examiner rendered negative nexus opinion.  During the November 2016 hearing, the Veteran testified that his knee condition has gotten worse since the April 2015 VA examination. See hearing transcript at 14.   He also indicated that his knee condition maybe related to his service connected feet condition and back condition.  Because the record does not have a nexus opinion that considered the assertion that his bilateral knee condition could be related to his feet or back condition, a remand is necessary. 

B.  Bilateral wrist condition 

Review of the record reflects that the Veteran was not provided VA examination with respect to his service connection claim for bilateral wrist condition. The VA's duty to assist includes providing a medical examination when certain criteria are met; here, the evidence of record raises the duty to assist by providing such an examination.  See 38 U.S.C. § 5103A (d) (2012); 38 C.F.R. § 3.159 (c) (4) (2017).  For this reason, a remand for an examination is warranted.  

C. Skin Condition

The Veteran was scheduled for a VA examination with respect to his skin condition in April 2011.  The Veteran did not appear for his examination.  The Board finds that the Veteran has shown good cause for this examination to be rescheduled.   As noted above, VA has a duty to provide examination when necessary to adjudicate a claim. See 38 U.S.C.A. § 5103A (d)(2012); 38 C.F.R. § 3.159 (c) (4) (2017).   

D. Shoulder Condition

With respect to the claim for bilateral shoulder condition, the Veteran's VA medical treatment record shows that he sought treatment for bilateral shoulder pain.  Furthermore, he testified that he has been diagnosed with arthritis of the shoulder.  See hearing transcript at 7.  VA has not obtained an examination for this condition.  Therefore, upon remand, the Veteran should be afforded VA examination. See 38 U.S.C. § 5103A (d) (2012); 38 C.F.R. § 3.159 (c) (4) (2017).   

E. Acquired Psychiatric Disorder 

The Veteran underwent VA examination in May 2015, where the examiner concluded that he does not have a diagnosis for psychiatric condition.  However, VA primary care note record from October 2013 indicates that the Veteran may have mild depression.  A medical opinion that considers this record is necessary before the Board can adjudicate the claim. 

F. Headaches

The Veteran contends that he has headaches that are secondary to his acquired psychiatric disorder. See hearing transcript at 22.  The Veteran has not been provided with a VA examination with respect to this claim. Therefore, upon remand, the Veteran should be afforded VA examination regarding his. See 38 U.S.C. § 5103A (d) (2012); 38 C.F.R. § 3.159 (c) (4) (2017).  Furthermore, to the extent he states that his headaches are secondary to his anxiety, this claim is inextricably intertwined with the claim for acquired psychiatric disorder.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two claims are "inextricably intertwined" when they are so closely tied together that a final decision on one claim cannot be rendered until a decision on the other).

G. Rating:  Bilateral Feet and Back condition

The Veteran underwent VA examination for his bilateral feet condition and back condition in April 2015.  During the hearing, the Veteran testified that his conditions have worsened since last examination.  See hearing transcript at 15.  The duty to conduct a contemporaneous examination is triggered when the evidence indicates there has been a material change in disability or that the current rating may be incorrect. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997).  For this reason, a contemporaneous examination is necessary before the Board can adjudicate the claims.  

H. TDIU

As to TDIU, this issue is intertwined with the claims for service connection and initial higher ratings, and must also be remanded.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two claims are "inextricably intertwined" when they are so closely tied together that a final decision on one claim cannot be rendered until a decision on the other).

Accordingly, the case is REMANDED for the following action:

1. Take the necessary steps to obtain the Veteran's complete SSA records, including any administrative decision(s) on his application for disability benefits and all underlying medical records which are in SSA's possession. A copy of any request(s) sent to SSA, and any reply, to include any records obtained from SSA, must be included in the claims file. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records.

2. Update VA medical records. 

3. After completion of directives #1 and #2, schedule the Veteran for a VA examination to determine the etiology of his bilateral knee condition.  The examiner should review the claims file in its entirety and provide an opinion answering the following question:

A. Is the Veteran's bilateral knee condition at least as likely as not (a 50 percent or greater probability) etiologically related to the Veteran's active military service?  

B. In the alternative, is the Veteran's bilateral knee condition at least as likely as not (50 percent or greater probability) caused by his service-connected bilateral feet disabilities; and

C. Is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral knee condition has been aggravated by his service-connected bilateral feet disabilities. 

D. In the alternative, is the Veteran's bilateral knee condition at least as likely as not (50 percent or greater probability) caused by his service-connected back condition; and

E. Is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral knee condition has been aggravated by his service-connected back condition. 

The term "aggravated" in the above context means a permanent worsening of his symptoms, and not temporary or intermittent flare-ups, which resolve and return to the baseline level disability. 

The examiner should consider and comment on the Veteran's lay statements. 

The examiner should review all relevant/pertinent evidence, to include treatment for bilateral knee condition noted in August and September 1979 in the Veteran's service treatment records (STRs). 

 A complete rationale should be provided for all opinions.  If an opinion cannot be provided without resorting to speculation, the examiners must explain why this is the case.

4. After completing directive #1 and#2, schedule the Veteran for VA examination to ascertain the current nature and likely etiology of his bilateral wrist condition.  The examiner should review the claims file in its entirety and provide an opinion answering the following question:

Does the Veteran have wrist condition? 

If so, is it at least as likely as not (a 50 percent or greater probability) that his wrist condition is etiologically related to the Veteran's active military service?

The examiner should consider and comment on the Veteran's lay statements. 

The examiner should review all relevant/pertinent evidence, to include treatment for right hand noted in May 1979 in the Veteran's service treatment records (STRs) 

 A complete rationale should be provided for all opinions.  If an opinion cannot be provided without resorting to speculation, the examiners must explain why this is the case.

5. After completing directive #1 and#2, schedule the Veteran for VA examination to ascertain the current nature and likely etiology of his skin condition.  The examiner should review the claims file in its entirety and provide an opinion answering the following question:

Is it at least as likely as not (a 50 percent or greater probability) that his skin condition is etiologically related to the Veteran's active military service?

 A complete rationale should be provided for all opinions.  If an opinion cannot be provided without resorting to speculation, the examiners must explain why this is the case.

6. After completing directive #1 and#2, schedule the Veteran for VA examination to ascertain the current nature and likely etiology of his bilateral shoulder condition.  The examiner should review the claims file in its entirety and provide an opinion answering the following question:

Does the Veteran have bilateral shoulder condition?

If so, is it at least as likely as not (a 50 percent or greater probability) that his bilateral shoulder condition is etiologically related to the Veteran's active military service?

The examiner should consider and comment on the Veteran's assertion that he was diagnosed with bilateral shoulder arthritis. 

A complete rationale should be provided for all opinions.  If an opinion cannot be provided without resorting to speculation, the examiners must explain why this is the case.

7. After completing directive #1 and#2, schedule the Veteran for psychiatric VA examination.  The examiner should review the claims file in its entirety and provide an opinion answering the following question:

Does the Veteran have acquired psychiatric disorder, to include depression or anxiety?

If so, is it at least as likely as not (a 50 percent or greater probability) that his acquired psychiatric disorder is etiologically related to the Veteran's active military service?

In the alternative, is the Veteran's acquired psychiatric disorder at least as likely as not (50 percent or greater probability) caused by his service-connected bilateral feet disabilities; and

Is it at least as likely as not (50 percent or greater probability) that the Veteran's acquired psychiatric disorder has been aggravated by his service-connected bilateral feet disabilities. 

Or, is the Veteran's acquired psychiatric disorder at least as likely as not (50 percent or greater probability) caused by his service-connected back condition; and

Is it at least as likely as not (50 percent or greater probability) that the Veteran's acquired psychiatric disorder has been aggravated by his service-connected back condition. 

The term "aggravated" in the above context means a permanent worsening of his symptoms, and not temporary or intermittent flare-ups, which resolve and return to the baseline level disability. 

The examiner should consider and comment on the Veteran's lay statements and the October 2013 primary care note that showed the Veteran has mild depression.

A complete rationale should be provided for all opinions.  If an opinion cannot be provided without resorting to speculation, the examiners must explain why this is the case.

8. After completing directive #1, #2 and #7, schedule the Veteran for VA examination to determine the etiology or nature of his headaches.  The examiner should review the claims file in its entirety and provide an opinion answering the following question:

Is it at least as likely as not (a 50 percent or greater probability) that his headache is etiologically related to the Veteran's active military service?

In the alternative, is the Veteran's headaches at least as likely as not (50 percent or greater probability) caused by an acquired psychiatric disorder; and

Is it at least as likely as not (50 percent or greater probability) that the Veteran's headaches have been aggravated by an acquired psychiatric disorder. 

The term "aggravated" in the above context means a permanent worsening of his symptoms, and not temporary or intermittent flare-ups, which resolve and return to the baseline level disability. 

The examiner should consider and comment on the Veteran's lay statements.

A complete rationale should be provided for all opinions.  If an opinion cannot be provided without resorting to speculation, the examiners must explain why this is the case.

9. After completion of directives #1 and #2, schedule the Veteran for a VA examination to determine the current severity of his bilateral feet condition.  The examiner should provide findings regarding all related symptoms and describe the severity of these symptoms. It is imperative that the record be made available to the examiner for review in connection with the examination. Any medically indicated tests should be accomplished. All findings should be described in detail. 

A complete rationale should be provided for all opinions.  If an opinion cannot be provided without resorting to speculation, the examiners must explain why this is the case.

10. After completion of directives #1 and #2, schedule the Veteran for a VA examination to determine the current severity of his back condition.  The examiner should provide findings regarding all related symptoms and describe the severity of these symptoms. It is imperative that the record be made available to the examiner for review in connection with the examination. Any medically indicated tests should be accomplished. All findings should be described in detail. 

A complete rationale should be provided for all opinions.  If an opinion cannot be provided without resorting to speculation, the examiners must explain why this is the case.

11. Provide the Veteran a TDIU application, VA Form 21-8940, and advise him to complete and return it with the necessary information to assist him in substantiating his derivative TDIU claim.

Also send the Veteran and his representative a letter explaining how to establish entitlement to a TDIU and requesting that he furnish any other information and/or evidence pertinent to this derivative TDIU claim.

12.  The AOJ must review the claims file and ensure that the foregoing development actions have been completed in full.  If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action.  

13.  Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case to him and his representative and allow the applicable time for response.  Then, return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matter or 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. §§ 5109B, 7112 (2012).




______________________________________________
Nathaniel J. Doan
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs