Citation Nr: 18141967 Decision Date: 10/12/18 Archive Date: 10/12/18 DOCKET NO. 14-09 781 DATE: October 12, 2018 ORDER New and material evidence having been received; the claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression and anxiety, is reopened. New and material evidence has not been received and the Veteran’s claim of entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression and anxiety, is remanded. Entitlement to service connection for gout is remanded. Entitlement to an initial rating in excess of 10 percent disabling for left knee disability is remanded. Entitlement to an initial rating in excess of 10 percent disabling for right knee disability is remanded. Entitlement to an initial rating in excess of 20 percent disabling for lumbar spine disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The claim for service connection for an acquired psychiatric disorder was denied in an unappealed April 2014 rating decision. 2. Evidence submitted since the April 2014 rating decision includes information that was not previously considered by VA and that establishes a fact necessary to substantiate the claim for service connection for an acquired psychiatric disorder, and therefore creates a reasonable possibility of substantiating the claim. 3. The claim for service connection for bilateral hearing loss was denied in unappealed May 2011 and January 2013 rating decisions. 4. Evidence submitted since the January 2013 rating decision, when considered by itself or in connection with the evidence previously of record, does not relate to unestablished facts necessary to substantiate the claim, nor does it raise a reasonable possibility of substantiating whether the Veteran’s has a bilateral hearing loss disability for VA purposes. CONCLUSIONS OF LAW 1. The April 2014 rating decision which denied the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103 (2018). 2. New and material evidence has been received since the April 2014 rating decision and the requirements to reopen the claim of entitlement to service connection for an acquired psychiatric disorder have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. The January 2013 rating decision which denied the Veteran’s claim of entitlement to service connection for bilateral hearing loss, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103 (2018). 4. The evidence received since the January 2013 rating decision is not new and material, and the claim of entitlement to service connection for bilateral hearing loss is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156, 4.85 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1976 to August 1979. This matter is before the Board of Veterans’ Appeals (Board) on appeal from April 2012 (increased ratings for bilateral knee), June 2012 (increased rating for lumbar spine) and March 2015 (service connection for gout; new and material for an acquired psychiatric disorder and bilateral hearing loss) rating decisions by a Department of Veterans Affairs Regional Office (RO). In May 2018, the Veteran testified at a Travel Board hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. With regard to the bilateral hearing loss claim, the Board notes that additional VA treatment records were received following the last adjudication by the RO in the December 2015 statement of the case (SOC), including VA medical records. As discussed more fully below, the Board has reviewed these records and observes that they are not material to the hearing loss claim in the decision below. Lastly, the Board notes that a claim for a TDIU has been raised by the record and is part of the current appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). New and Material VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of an appellant. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence is evidence not previously submitted to agency decision makers. Material evidence is 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). 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 (2010). Moreover, in determining whether that low threshold is met, consideration need not be limited to 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. 1. Acquired Psychiatric Disorder The Veteran’s claim for service connection for an acquired psychiatric disorder was originally denied in an April 2014 rating decision. The denial was based on a finding that no in-service stressor could be verified to support a claim for PTSD. The Veteran did not perfect a timely substantive appeal and the April 2014 rating decision became final as to the evidence then of record, and is not subject to review on the same factual basis. 38 U.S.C. § 7105(b)(2)(c); 38 C.F.R. §§ 3.104, 20.302(a), 20.1103. Evidence considered at the time of the April 2014 rating decision included VA medical records which the RO noted only contained a diagnosis for PTSD and an April 2014 memorandum in which VA issued a formal finding of a lack of information required to corroborate the reported in-service stressors. Since the April 2014 rating decision, evidence added to the claims file includes additional diagnoses for depression and anxiety. See August 2013, June 2017, and July 2017 VA medical records. In this regard, the Board notes that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Additionally, in August 2014, the Veteran submitted VA Form 21-0781 in which he asserted that his in-service stressor event occurred at Ft. Irwin, California. Further, during a May 2018 Board hearing the Veteran testified that his diagnosed depression was secondary to his service-connected disabilities, including lumbar spine and bilateral knee disabilities. Specifically, the Veteran asserted that his depression was secondary to pain and functional limitations caused by his service-connected disabilities. The Board finds that such evidence constitutes new and material evidence under the definition set forth in 38 C.F.R. § 3.156(a); specifically, the new evidence shows the Veteran has been diagnosed with additional psychiatric disorders which he asserts are secondary to his service-connected disabilities. Additionally, the Veteran provided VA with additional evidence in which to verify his reported in-service stressor event. Given that the above evidence addresses facts necessary to substantiate the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder, the Board finds that the low threshold for reopening the claim has been met. Shade v. Shinseki, 24 Vet. App. 110 (2010). Therefore, the claim of entitlement to service connection for an acquired psychiatric disorder is reopened. 2. Bilateral Hearing Loss With regard to hearing loss, the Board notes that specific to claims for service connection, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran’s claim for service connection for bilateral hearing loss was originally denied in a May 2011 rating decision. The denial was based on a finding that the Veteran did not meet the audiometric criteria for hearing loss pursuant to 38 C.F.R. § 3.385. The record further shows that the claim was reconsidered and a January 2013 rating decision continued the denial of service connection for bilateral hearing loss upon a finding that the evidence submitted was not new and material because it continued to not show evidence of a current hearing loss disability within the parameters of 38 C.F.R. § 3.385. The Veteran did not perfect a timely substantive appeal and the January 2013 rating decision became final as to the evidence then of record, and is not subject to review on the same factual basis. 38 U.S.C. § 7105(b)(2)(c); 38 C.F.R. §§ 3.104, 20.302(a), 20.1103. Since the January 2013 rating decision (final disallowance), additional evidence has been received in the form of VA treatment records which are new because they have not been previously submitted. However, the new evidence is not material because it does not raise the possibility of substantiating the claim for service connection for bilateral hearing loss. Specifically, the new evidence does not have any tendency to establish a current hearing loss disability in accordance with 38 C.F.R. § 3.385, which was the basis of the prior final denial. In short, the evidence received after the January 2013 rating decision is new to the file, but is not material. See Shade, 24 Vet. App. at 118. Accordingly, the Board finds that new and material evidence has not been received regarding service connection for bilateral hearing loss as there continues to be no evidence of a bilateral hearing loss disability for VA compensation purposes. Reopening of service connection for bilateral hearing loss is thereby not warranted. See 38 C.F.R. § 3.156(a). REASONS FOR REMAND Initially, the Board finds that an additional remand is necessary in order to comply with the duty to assist as mandated by 38 U.S.C. § 5103A. During the May 2018 Board hearing, the Veteran testified that he was currently in receipt of Social Security Administration (SSA) benefits. The Board notes that where there has been a determination with regard to SSA benefits, the records concerning that decision must be obtained, if relevant. Golz v. Shinseki, 590 F.3d 1317, 1321 (2010). As the record suggests the Veteran may be in receipt of SSA benefits in relation to the service connection claims on appeal, the Board finds that attempts to obtain and associate with the claims file any outstanding SSA records should be made. The Board further finds that additional development is needed prior to further disposition of the following claims: 1. Acquired psychiatric disorder. As noted above, the medical evidence shows multiple diagnosed psychiatric disorders including PTSD, major depression and anxiety. As further noted above, the Veteran asserts that his diagnosed depression is secondary to his service-connected disabilities, to include his lumbar spine and bilateral knee disabilities. In this regard, the Board notes that an April 2017 private medical record noted that the Veteran’s psychiatric disorder was likely multifactorial. However, the Veteran has not been provided with a VA examination to determine the nature and etiology of his diagnosed psychiatric disorders. VA’s duty to assist a claimant includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4). Accordingly, a VA examination is necessary to adequately adjudicate this issue on appeal. The Board further notes that with regard to his service connection claim for PTSD, in an April 2014 memorandum VA issued a formal finding of a lack of information required to corroborate the reported in-service stressors. However, in August 2014 the Veteran submitted VA Form 21-0781 in which he reported that his in-service stressor event occurred at Ft. Irwin, California. Therefore, further efforts should be made to corroborate the Veteran’s asserted in-service stressor event. 2. Gout. At a May 2018 Board hearing, the Veteran testified that his gout was secondary to his service-connected bilateral knee disability. The evidence of record does show that the Veteran has had gout attacks involving his right knee. See July 2017 VA medical record. Accordingly, the Board finds that a VA examination is necessary to determine the nature and etiology of the Veteran’s gout condition, to include whether the service-connected bilateral knee disability aggravates the condition. 3. Bilateral Knee and Lumbar Spine Disability. During the May 2018 Board hearing, the Veteran testified that his bilateral knee and lumbar spine disabilities had worsened resulting in being prescribed a wheelchair due to the severity of those disabilities. VA medical records do show the Veteran uses a wheelchair as a mode of transportation. The Veteran last underwent a VA bilateral knee examination in January 2012. Since then, the Board notes that VA medical record do document a worsening bilateral knee condition. See May 2012, August 2013, February 2014 VA medical records and June 2016 VA X-ray study. Additionally, the Board notes that the Veteran last underwent a VA lumbar spine examination in April 2012. However, the RO returned the examination report on two occasions due to incomplete findings. First, in June 2012, the examiner was asked to clarify contradictory ROM findings, specifically with regard to extension. In December 2015, the claims file was again returned as a January 2012 VA examiner noted that the Veteran reported flare-ups, but did not provide an opinion as to whether pain significantly limited functional ability. The Board notes that all addendum examination reports were provided by different VA examiners. Given the Veteran’s assertion that his bilateral knee and lumbar spine disabilities have worsened since his prior VA examinations, and recently added medical records evidencing that his conditions may have worsened, a remand is warranted for new VA examinations. The Board further finds that due to the patchwork of VA lumbar spine examinations and addendums over a several-year period, each provided by different VA examiners including examiners who did not personally examine the Veteran, a new VA examination is necessary to adequately adjudicate that issue on appeal. Lastly, entitlement to a TDIU is inextricably intertwined with the Veteran’s claims on appeal. The matters are REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran’s VA treatment facilities, and all private treatment records from the Veteran not already associated with the file. 2. Identify and obtain any outstanding SSA records. If these records are unavailable, a formal finding of unavailability should be prepared and associated with the claims file. 3. Ask the Veteran to provide information necessary to make attempts to verify his reported PTSD stressor of witnessing an accident and assisting in the recovery. If the necessary information is provided, attempts to verify the reported stressor should be made. 4. After completion of steps 1-3, schedule the Veteran for a VA examination with a psychiatrist or a psychologist. The examiner must determine whether the Veteran currently suffers from an acquired psychiatric disorder, to include PTSD, depression and/or anxiety. All necessary special studies or tests, to include psychological testing and evaluation, should be accomplished. The examiner should provide the following information: (a) Provide a full multiaxial diagnosis. Specifically, state whether each criterion for a diagnosis of PTSD is met. Otherwise, provide a diagnosis for any acquired psychiatric disorder. (b) If a diagnosis of PTSD is appropriate, identify each stressor event upon which the diagnosis is based. (c) With respect to any psychiatric disorder found upon examination or identified during a review of the claims folder, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that each such psychiatric disability was caused by active duty service. (d) With respect to any psychiatric disorder found upon examination or identified during a review of the claims folder, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that each such psychiatric disability was caused or aggravated (permanently worsened beyond normal progression) by a service-connected disability, to include lumbar spine and bilateral knee disabilities. The examiner should review pertinent documents in the Veteran’s claims file in connection with the examination. All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 5. After completion of steps 1-3, schedule the Veteran for a VA examination to determine the nature and etiology of his gout. The examiner should provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s gout is etiologically related to his periods of service? (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s gout was caused or aggravated (permanently worsened beyond normal progression) by the Veteran’s service-connected conditions, to include a bilateral knee disability? Please explain why or why not. The examiner should review pertinent documents in the Veteran’s claims file in connection with the examination. All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 6. Then, schedule the Veteran for an examination by an appropriate examiner to determine the nature and severity of his service-connected bilateral knee disability. The examiner should review pertinent documents in the Veteran’s claims file and this Remand in connection with the examination. All indicated studies should be completed, and all pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The examiner should conduct range of motion studies and assess any functional impairment due to such factors as pain and weakness, and express this functional impairment in terms of further loss of motion. The examiner should test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. 7. Then, schedule the Veteran for an examination by an appropriate examiner to determine the nature and severity of his service-connected lumbar spine disability. The examiner should review pertinent documents in the Veteran’s claims file and this Remand in connection with the examination. All indicated studies should be completed, and all pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The examiner should conduct range of motion studies and assess any functional impairment due to such factors as pain and weakness, and express this functional impairment in terms of further loss of motion. The examiner should test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. 8. Thereafter, the RO should readjudicate the claims on appeal, to include the claim for a TDIU. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Lamb, Associate Counsel