Citation Nr: 18142135 Decision Date: 10/16/18 Archive Date: 10/12/18 DOCKET NO. 13-32 463 DATE: October 16, 2018 ORDER The request to reopen a claim of service connection for a nervous disorder is granted. Entitlement to service connection for schizoaffective disorder, depressive type, and generalized anxiety disorder is granted. Entitlement to an effective date prior to November 30, 2015 for the grant of service connection for right lower extremity peripheral neuropathy, femoral nerve, is dismissed. Entitlement to an effective date prior to November 30, 2015 for the grant of service connection for left lower extremity peripheral neuropathy, femoral nerve, is dismissed. REMANDED Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a kidney disability is remanded. Entitlement to an evaluation in excess of 10 percent for right knee osteoarthritis is remanded. Entitlement to an evaluation in excess of 10 percent for left knee osteoarthritis is remanded. Entitlement to an evaluation in excess of 20 percent disabling for right lower extremity peripheral neuropathy, sciatic nerve, is remanded. Entitlement to an evaluation in excess of 20 percent disabling for left lower extremity peripheral neuropathy, sciatic nerve, is remanded. Entitlement to an evaluation in excess of 10 percent disabling for right lower extremity peripheral neuropathy, femoral nerve, is remanded. Entitlement to an evaluation in excess of 10 percent disabling for left lower extremity peripheral neuropathy, femoral nerve, is remanded. FINDINGS OF FACT 1. A November 1975 administrative decision denied service connection for a nervous disorder. The Veteran did not appeal the decision and new and material evidence was not submitted within a year after the decision. Therefore, the decision is final. 2. Evidence received since the November 1975 administrative decision is relevant and probative as to the issue of service connection for a nervous disorder. 3. The Veteran’s schizoaffective disorder, depressive type, and generalized anxiety disorder are related to his military service. 4. During his February 2018 Board hearing, the Veteran explicitly and unambiguously withdrew his appeal of entitlement to an effective date prior to November 30, 2015 for the grants of service connection for right and left lower extremity peripheral neuropathy, femoral nerve, with full understanding of the consequences of such action. CONCLUSIONS OF LAW 1. The November 1975 administrative decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. The evidence received since the November 1975 administrative decision, which denied service connection for a nervous disorder, is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for entitlement to service connection for schizoaffective disorder, depressive type, and generalized anxiety disorder have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 4. The criteria for withdrawal of entitlement to an effective date prior to November 30, 2015 for the grant of service connection for right lower extremity peripheral neuropathy, femoral nerve, are met. 38 U.S.C. §§ 7104, 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 5. The criteria for withdrawal of entitlement to an effective date prior to November 30, 2015 for the grant of service connection for left lower extremity peripheral neuropathy, femoral nerve, are met. 38 U.S.C. §§ 7104, 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1972 to May 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2011, September 2013, and May 2014 rating decisions by the Department of Veterans Affairs (VA). In February 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. Although the Regional Office (RO) reopened the Veteran’s claim of service connection for a nervous disorder (claimed as for a mental disorder and characterized as for depression not otherwise specified with anxiety) by deciding the issue on the merits, the question of whether new and material evidence has been received to reopen such claim must be addressed in the first instance by the Board because the issue goes to the Board’s jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. The Board has characterized the claim accordingly. While a statement of the case (SOC) has not been issued for the issues of entitlement to increased evaluations for bilateral lower extremity peripheral neuropathy, femoral nerve, after the Veteran’s July 2016 notice of disagreement (NOD), the Board finds that it has jurisdiction over those issues as they were granted in conjunction with the Veteran’s ongoing appeal for increased evaluations for his bilateral lower extremity peripheral neuropathy, sciatic nerve. See March 2016 rating decision. Additionally, the RO adjudicated these issues in a June 2016 supplemental statement of the case, indicating that these issues are now on appeal. Thus, remand pursuant to Manlincon v. West, 12 Vet. App. 238 (1999), is not required. The Veteran filed a substantive appeal (VA Form 9) for the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) and requested a Board hearing for that issue. See February 2018 substantive appeal. Entitlement to TDIU was not discussed in any manner during the February 2018 Board hearing. Thus, the Board cannot take jurisdiction over that issue at this time, and it will be considered in a future Board decision after the Veteran’s requested Board hearing is conducted. New and Material Evidence The issue of service connection for a nervous disorder was denied in a November 1975 administrative decision because the Veteran did not appear for a VA examination. The Veteran was notified of the decision, but he did not appeal it. New and material was not submitted within one year of the decision. Therefore, the November 1975 administrative decision became final. Since that time, the Veteran underwent a private psychological evaluation, wherein the examiner opined diagnosed schizoaffective disorder, depressive type, and generalized anxiety disorder that is at least as likely as not related to his military service. See May 2018 private evaluation. This evidence is clearly “new,” because it postdates the November 1975 administrative decision, and is also “material,” because it cures evidentiary defects which existed at the time of the prior denial, the lack of a current disability and relation to service. Consequently, the issue of service connection for a nervous disorder may be reopened. Service Connection Entitlement to service connection for an acquired psychological disorder. The Veteran underwent a thorough private evaluation in May 2018, wherein the evaluator diagnosed schizoaffective disorder, depressive type, and generalized anxiety disorder. Although the Veteran had a history of abuse in childhood, the evaluator opined that the Veteran did not have a psychiatric disturbance prior to entering the military. The evaluator also noted that the Veteran experienced considerable distress during the military that he felt unable to manage or escape (to include his “recurring fixation” of his nondisclosure of his color-blindness during service) and received mental health treatment during service wherein he was recommended for a hardship discharge with notations of severe dysphoria, anxiety, and difficulty adequately responding to situations in his life. Thus, the evaluator opined Veteran’s psychiatric disorders more likely than not began during his service. See May 2018 private evaluation. The Veteran’s service treatment records (STRs) corroborate his mental health issues during service. See March 1975 STRs. While a VA examiner opined that it was less likely than not that the Veteran’s depression with anxiety was related to his military service and more likely “due to stress in his environment,” his opinion is inadequate because it relies on an incorrect legal standard for asserting that the Veteran had mental health issues prior to service. See May 2011 VA examination. Therefore, the VA examiner’s opinion is given no probative weight. An August 2013 VA examiner’s negative opinion is likewise given no probative weight because it does not provide a rationale for the assertion that the Veteran’s depression and anxiety did not have its onset in service. See August 2013 VA examination. Thus, the preponderance of the evidence reflects that the Veteran’s schizoaffective disorder, depressive type, and generalized anxiety disorder are more likely than not related to his military service, and service connection is warranted. Withdrawal During his February 2018 Board hearing, the Veteran explicitly and unambiguously withdrew his appeal of entitlement to an effective date prior to November 30, 2015 for the grants of service connection for right and left lower extremity peripheral neuropathy, femoral nerve, with full understanding of the consequences of such action. The Board finds that there remain no allegations of errors of fact or law for appellate consideration with respect to these issues. Accordingly, as the Board has no further jurisdiction to review an appeal on these matters, they are dismissed. REASONS FOR REMAND As an initial matter, the record reflects that the Veteran may have applied for Social Security Administration (SSA) disability benefits. See February 2011 Congressional correspondence. Because the Veteran’s SSA records may reasonably contain information relating to the issues on appeal, remand is required to obtain his SSA records. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). 1. Entitlement to service connection for a left hip disability is remanded. The Veteran stated that his hip pain is severe enough that he is not able to stand up. See December 2015 Report of General Information. Although the evidence does not reflect a diagnosed disability, pain with functional impairment may be considered a disability for VA purposes. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Veteran stated his hip pain is due to an abnormal gait associated with his service-connected lower extremity neuropathy and various events during his service, such as barroom brawls, going up and down ladders, slipping and falling on wet decks, and lifting heavy weights and equipment. See February 2018 Board hearing. Because there are medical questions remaining, remand for a VA examination is necessary. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 2. Entitlement to service connection for hypertension and for a kidney disability are remanded. The Veteran’s VA treatment records reflect a diagnosis of hypertension and a past medical history of chronic kidney disease, stage three. See, e.g., October 2013 and December 2013 VA treatment records. The records also reflect his chronic kidney disease may be due to his hypertension. See October 2013 VA treatment records. The Veteran testified that he believes his kidney disability is due to his conceded exposure to tetrachloride in service or the medications prescribed for his service-connected peripheral neuropathy and psychological disorder. See February 2018 Board hearing. Because medical questions remain related to both the Veteran’s kidney disability and hypertension, remand is necessary for VA examinations. See McLendon, 20 Vet. App. at 81. 3. All increased evaluation issues. The Veteran’s most recent VA examination for his knee disabilities occurred in January 2016; the last examination for his bilateral lower extremity peripheral neuropathy disabilities occurred in November 2015. Since that time, he testified that his disabilities have worsened. See February 2018 Board hearing. Because it has been multiple years since the last VA examination, remand for contemporaneous examinations is required to assess the current severity of his service-connected disabilities. See Green v. Derwinski, 1 Vet. App. 121 (1991); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). VA examinations must include joint testing on both active and passive motion, and in weight-bearing and nonweight-bearing circumstances. Correia v. McDonald, 28 Vet. App. 158 (2016). In this case, the VA knee examinations of record do not fully comport with the requirements of Correia. See, e.g., January 2016 VA examination. Thus, remand for a new VA knee examination is necessary on this basis as well. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran’s disabilities from December 2013 to the present. 2. The AOJ should request directly from the SSA all records, including determinations and medical records, regarding any claim for disability benefits. All attempts to fulfill this development should be documented in the claim file. IF the records are unavailable, it should so be noted on the record and the reason for unavailability should be provided. 3. After the development in the two instructions above is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any left hip disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all left hip disabilities present during the appeal period (from October 2013). If there is no left hip disability diagnosed, the examiner should state whether there is pain with functional impairment. (b.) For each left hip disability diagnosed, or for left hip pain with functional impairment, is it at least as likely as not (50% or greater probability) that such disability either was caused or aggravated by the Veteran’s service-connected disabilities, specifically due to an abnormal gait associated with his peripheral neuropathy and/or bilateral knee disabilities? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. (c.) For each left hip disability diagnosed, or for left hip pain with functional impairment, is it at least as likely as not (50% or greater probability) such it was either incurred in or otherwise related to the Veteran’s military service, specifically barroom brawls, going up and down the ladders, slipping and falling, and lifting heavy weights and equipment? Please explain why. 4. After the development in the first two instructions is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any kidney disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all kidney disabilities present during the appeal period (from December 2013). (b.) For each kidney disability diagnosed, is it at least as likely as not (50% or greater probability) that the disability was either caused or aggravated by the Veteran’s service-connected disabilities, specifically due to the medication prescribed for such disabilities, to include peripheral neuropathy and psychological disorders, or by the Veteran’s hypertension? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. (c.) For each kidney disability diagnosed, is it at least as likely as not (50% or greater probability) that such disorder was either incurred in or otherwise related to the Veteran’s military service, specifically his conceded exposure to tetrachloride? Please explain why. 5. After the development in the first two instructions is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of his hypertension. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Is it at least as likely as not (50% or greater probability) that the Veteran’s hypertension was either caused or aggravated by his service-connected disabilities, specifically due to the medication prescribed for such disabilities, to include peripheral neuropathy and psychological disorders, or by the Veteran’s kidney disability(ies)? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. (b.) Is it at least as likely as not (50% or greater probability) that the Veteran’s hypertension was either incurred in or otherwise related to his military service, specifically his conceded exposure to tetrachloride? Please explain why. 6. After the development in the first two instructions is completed, the AOJ should arrange for an orthopedic examination of the Veteran to assess the current severity of his service-connected bilateral knee disabilities. The examiner must review the entire record in conjunction with the examination and note such review was conducted. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. All indicated tests or studies should be completed. Range of motion measurements must be included for active and passive motion, and weight-bearing and non-weight-bearing circumstances. If pain is noted, the point in the range of motion at which pain starts should be clearly noted. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; a rationale based on the fact that the Veteran is not having a flare-up at the time of the examination will not be deemed adequate. 7. After the development in the first two instructions is completed, the AOJ should arrange for an examination of the Veteran to assess the current severity of his service-connected bilateral lower extremity peripheral neuropathy. The examiner must review the entire record (including this remand) in conjunction with the examination and note such review was conducted. The examiner should provide a full description of the disability and report all signs and symptoms associated with the Veteran’s disability, to include for both the sciatic and femoral nerves. 8. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Sandler, Associate Counsel