Citation Nr: 1804010 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-02 632 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a left eye disability. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a respiratory disability to include asthma. 3. Entitlement to service connection for a left eye disability. 4. Entitlement to service connection for a respiratory disability to include asthma. 5. Entitlement to service connection for an acquired psychiatric disability. 6. Entitlement to service connection for rheumatoid arthritis. 7. Entitlement to service connection for a right ankle disability. 8. Entitlement to service connection for a left ankle disability. 9. Entitlement to a rating in excess of 10 percent for a lumbar spine disability for the period prior to January 27, 2015. 10. Entitlement to a rating in excess of 40 percent for a lumbar spine disability for the period since January 27, 2015. 11. Entitlement to an increased compensable rating for a neuropathy of the right upper extremity disability for the period prior to August 31, 2015. 12. Entitlement to a rating in excess of 20 percent for a neuropathy of the right upper extremity disability for the period since August 31, 2015. 13. Entitlement to an increased compensable rating for a neuropathy of the left upper extremity disability for the period prior to August 31, 2015. 14. Entitlement to a rating in excess of 20 percent for a neuropathy of the left upper extremity disability for the period since August 31, 2015. 15. Entitlement to a rating in excess of 20 percent for bilateral orchialgia. 16. Entitlement to an initial evaluation in excess of 10 percent for radiculopathy of the right lower extremity. 17. Entitlement to an initial evaluation in excess of 10 percent for radiculopathy of the left lower extremity. 18. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: S. F. Raymond Smith, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from March 1971 to February 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2012, March 2013 and October 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In the March 2013 rating decision, the RO, in part, denied the Veteran's claim for service connection for a respiratory disability (asthma) without first addressing whether new and material evidence had been presented to reopen the claim. The Board points out that regardless of what the RO or AMC has done, the Board must address the question of whether new and material evidence to reopen the claim has been received because the issue goes to the Board's jurisdiction to reach the underlying claims and adjudicate them on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). In other words, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In the October 2015 rating decision, the RO granted an increased 40 percent disability rating for the Veteran's lumbar spine disability, effective January 27, 2015 and granted increased 20 percent disability ratings for the Veteran's neuropathy of the right and left upper extremities, effective August 31, 2015. The Board notes that the increase from 10 to 40 percent for the lumbar spine disability and the increases from noncompensable to 20 percent ratings for the neuropathy of the bilateral upper extremities disabilities did not constitute full grants of the benefits sought. Accordingly, the issues of entitlement to a rating in excess of 40 percent for a lumbar spine disability for the period since January 27, 2015 and entitlement to ratings in excess of 20 percent for neuropathy of the bilateral upper extremities for the period since August 31, 2015 remain in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). In August 2016 the Veteran testified at a videoconference hearing in front of the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claim file. The issues of entitlement to service connection for a left eye disability, a respiratory disability to include asthma, an acquired psychiatric disability, rheumatoid arthritis, a right ankle disability and a left ankle disability and the issues of entitlement to a rating in excess of 10 percent for a lumbar spine disability for the period prior to January 27, 2015, entitlement to a rating in excess of 40 percent for a lumbar spine disability for the period since January 27, 2015, entitlement to an increased compensable rating for a neuropathy of the right upper extremity disability for the period prior to August 31, 2015, entitlement to a rating in excess of 20 percent for a neuropathy of the right upper extremity disability for the period since August 31, 2015, entitlement to an increased compensable rating for a neuropathy of the left upper extremity disability for the period prior to August 31, 2015, entitlement to a rating in excess of 20 percent for a neuropathy of the left upper extremity disability for the period since August 31, 2015, entitlement to a rating in excess of 20 percent for bilateral orchialgia, entitlement to an initial evaluation in excess of 10 percent for radiculopathy of the right lower extremity, entitlement to an initial evaluation in excess of 10 percent for radiculopathy of the left lower extremity and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an unappealed March 1994 rating decision, the RO, in part, denied service connection for a left eye disability and a sinus disability. 2. Evidence received since the March 1994 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for a left eye disability. 3. Evidence received since the March 1994 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for a respiratory disability to include asthma. CONCLUSIONS OF LAW 1. The March 1994 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.113 (2017). 2. New and material evidence has been received since the March 1994 denial, and the claim of entitlement to service connection for a left eye disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. New and material evidence has been received since the March 1994 denial, and the claim of entitlement to service connection for a respiratory disability to include asthma is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claim to Reopen The Veteran filed claims for service connection for a left eye disability and a sinus disability which were denied in a March 1994 rating decision. The left eye disability was denied on the basis that the evidence failed to show that the Veteran's left eye disability was related to his service while the sinus disability was denied on the basis that the Veteran did not have a current sinus disability. The Veteran was notified of this decision but did not appeal. As the Veteran did not appeal the March 1994 rating decision, that decision is now final based on the evidence then of record. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Veteran sought to reopen his claims for service connection for a left eye disability and a respiratory disability (asthma) in February 2011. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). See also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as 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) (2017). In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. As indicated by the regulation cited above, and by judicial case law, "new" evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not duplicative or "merely cumulative" of other evidence then of record. This analysis is undertaken by comparing the newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). Here, the last final denial of the claims is the March 1994 rating decision. Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). A. Left Eye Evidence received since the March 1994 rating decision includes an August 2012 correspondence from a private physician who noted that the Veteran had a left eye disability when entering service which worsened in the years the Veteran was on active duty. The prior denial of service connection for a left eye disability was based on a lack of evidence that there was a relationship between the Veteran's left eye disability and his service as the rating decision noted that the Veteran had a preexisting left eye disability which was not permanently aggravated by service. The private physician's August 2012 correspondence indicated that the Veteran had a current preexisting left eye disability that was worsened by his service. Hence, this evidence raises a reasonable possibility of substantiating the Veteran's claim for service connection. As noted above, for purposes of determining whether the claim should be reopened, the evidence is presumed to be credible. Under these circumstances, the Board concludes that the criteria for reopening the claim for service connection for a left eye disability have been met. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. B. Respiratory Disability Evidence received since the March 1994 rating decision includes an August 2015 correspondence from a private physician in which he indicated that the Veteran has a diagnosis dyspnea and chronic cough. The prior denial of service connection for a sinus disability was based on a lack of evidence of a current insomnia disability. The August 2015 correspondence from a private physician provided evidence of a current respiratory disability as a diagnosis of dyspnea was provided. Hence, this evidence raises a reasonable possibility of substantiating the Veteran's claim for service connection. As noted above, for purposes of determining whether the claim should be reopened, the evidence is presumed to be credible. Under these circumstances, the Board concludes that the criteria for reopening the claim for service connection for a respiratory disability to include asthma have been met. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for a left eye disability is reopened. New and material evidence has been received to reopen the claim of entitlement to service connection for a respiratory disability to include asthma is reopened. REMAND The Board finds that more development is necessary prior to final adjudication of the claims remaining on appeal. Regarding the Veteran's reopened claimed left eye disability, the Veteran's December 1970 entrance examination noted amblyopia of the left eye. The Veteran underwent a VA examination in August 1993. The examiner noted that the Veteran had an anisometropic amblyopia of the left eye. However, no etiology opinion was provided. As noted above, in an August 2012 correspondence, a private physician indicated that the Veteran had a left eye disability when entering service which worsened in the years the Veteran was on active duty. Notably, a pre-existing injury or disease will be considered to have been aggravated by active military, naval or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). As a result, the Board finds that further development is warranted so an examiner can provide an opinion as to whether any left eye disability that preexisted his service was not aggravated beyond its natural progression during service. See 38 U.S.C. § 1153 (2012) (providing that a pre-existing disease or injury will be considered to have been aggravated by active service where there is an increase in disability during service absent a finding that the increase was due to the natural progress of the disease). Regarding the Veteran's acquired psychiatric disability, the Board notes that in a June 2011 correspondence, a private physician opined that the Veteran had a diagnosis of depression and anxiety that were secondary to his service-connected disabilities The Veteran underwent a VA examination in July 2012. The examiner determined that it was less likely than not that the Veteran's psychiatric disability was proximately due to or the result of his service-connected disabilities. However, the examiner did not address whether the Veteran's service-connected disabilities have aggravated his acquired psychiatric disabilities. As such the Board finds that the evidence currently of record is insufficient to resolve the claim for an acquired psychiatric disability include as secondary to service-connected disabilities and that further medical clarification in connection with this claim is warranted. Regarding, the remaining claims, the Board notes that a remand is necessary due to the submission of additional evidence which requires the issuance of a Supplemental Statement of the Case (SSOC). Notably, the additional evidence includes voluminous VA treatment records as well as multiple VA examinations that have taken place since the last SSOC issued in November 2015 (pertaining to the Veteran's service connection claims) and the last SOC issued in October 2015 (pertaining to the Veteran's increased rating claims). The additional evidence submitted since the last SSOC and SOC contains pertinent findings related to the Veteran's remaining claims. On remand, the agency of original jurisdiction should issue a new SSOC that considers the evidence received since the October 2015 SOC and November 2015 SSOC. In reaching this conclusion, the Board observes that the Veteran filed his substantive appeals after February 2, 2013. For all substantive appeals received on or after February 2, 2013, if, either at the time or after the AOJ receives a substantive appeal, the claimant or the claimant's representative submits evidence to either the AOJ or the Board for consideration in connection with the issues on appeal, such evidence shall be subject to initial review by the Board unless the claimant or the claimant's representative requests in writing that the AOJ initially review such evidence. Section 501 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154 (amending 38 U.S.C. § 7105 by adding new paragraph (e)). However, as some of the additionally submitted evidence does not appear to have been submitted by either the Veteran or his accredited representative, the claim must be remanded for the RO for readjudication with consideration of the newly received evidence. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disabilities on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. 2. Schedule the Veteran for a VA examination to determine the etiology of the claimed left eye disability. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. After the record review and examination of the Veteran, the VA examiner should determine: (i) Is it at least as likely as not (50 percent or greater probability) that the Veteran currently has a left eye disability that is etiologically related to his active service? (ii) Is it clear and unmistakable (undebatable) that a left eye disability preexisted the Veteran's enlistment into service? (iii) If so, is it clear and unmistakable (undebatable) that any preexisting left eye disability was not permanently aggravated beyond its natural progress during the Veteran's active service. In formulating this opinion, the examiner should specifically address the significance, if any, of the August 2012 private correspondence which opined that the Veteran had a left eye disability when entering service which worsened in the years the Veteran was on active duty. Adequate reasons and bases for any opinion must be provided. All studies deemed appropriate in the medical opinion of the examiner should be performed, and all the findings should be set forth in detail. The claims file should be made available to the examiner, who should review the entire claims folder in conjunction with this examination. 3. Schedule the Veteran for a VA examination to determine the etiology of the claimed acquired psychiatric disability. Based on a review of the record and an examination of the Veteran, the examiner should determine whether the nature, extent of severity, and etiology of any psychiatric disorder(s) which may have been present at any time during the pendency of this appeal. The examiner should provide a diagnosis for any psychiatric disorder that existed during the pendency of this claim. Following review of the claims file, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such psychiatric disorder is related to any incident of the Veteran's active duty service. The examiner should also provide an opinion as to whether if it is at least as likely as not (at least a 50 percent probability) that any such psychiatric disorder is caused or aggravated by his service-connected disabilities. If the examiner finds that the Veteran has an acquired psychiatric disability that has been permanently aggravated/worsened by his service-connected disabilities, to the extent feasible, the degree of worsening should be identified. All opinions expressed by the examiner must be accompanied by a complete rationale. In making this determination, the examiner should specifically address the June 2011 private physician's opinion that the Veteran's depression and anxiety are secondary to his service-connected disabilities. Adequate reasons and bases for any opinion rendered must be provided. All studies deemed appropriate in the medical opinion of the examiner should be performed, and all the findings should be set forth in detail. The claims file should be made available to the examiner, who should review the entire claims folder in conjunction with this examination. 4. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. 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). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs