Citation Nr: 18143296 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 15-18 487 DATE: October 18, 2018 ORDER New and material evidence not having been received, the application to reopen the claim for service connection for a lumbar spine disability, claimed as upper thoracic back pain with degenerative disc disease, is denied. New and material evidence not having been received, the application to reopen the claim for service connection for peripheral neuropathy of the right lower extremity is denied. New and material evidence not having been received, the application to reopen the claim for service connection for peripheral neuropathy of the left lower extremity is denied. Entitlement to a rating greater than 10 percent for middle ear disease with otitis media, postoperative, is denied. REMANDED Entitlement to service connection for heart disease, to include ischemic heart disease (IHD), is remanded. Entitlement to service connection for peripheral vestibular disorder with labyrinthitis is remanded. Entitlement to service connection for Meniere’s syndrome is remanded. Entitlement to service connection for facial nerve paralysis is remanded. Entitlement to a rating greater than 30 percent for bilateral hearing loss, to include the propriety of the reduction from 30 percent to 10 percent, effective May 1, 2016, is remanded. Entitlement to an initial rating greater than 30 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total rating based on individual unemployability due to service connected disability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's claims of entitlement to service connection for a lumbar spine disability and for peripheral neuropathy of the right and left lower extremities were denied in a January 2000 rating decision. The Veteran did not appeal that rating decision nor was new and material evidence received within one year of notice of the decision. 2. The evidence received since the January 2000 final rating decision does not relate to an unestablished fact necessary to substantiate the claim for service connection for a lumbar spine disability, claimed as upper thoracic back pain with degenerative disc disease. 3. The evidence received since the January 2000 final rating decision does not relate to an unestablished fact necessary to substantiate the claim for service connection for peripheral neuropathy of the right lower extremity. 4. The evidence received since the January 2000 final rating decision does not relate to an unestablished fact necessary to substantiate the claim for service connection for peripheral neuropathy of the left lower extremity. 5. The Veteran is currently in receipt of the maximum schedular rating authorized for middle ear disease with otitis externa and factors warranting extraschedular consideration for that disability are not shown. CONCLUSIONS OF LAW 1. The January 2000 rating decision that denied the claims for service connection for a lumbar spine disability and for peripheral neuropathy of the right and left lower extremities is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2018). 2. New and material evidence has not been received to warrant reopening the previously denied claim of entitlement to service connection for a lumbar spine disability, claimed as upper thoracic back pain with degenerative disc disease. 38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. New and material evidence has not been received to warrant reopening the previously denied claim of entitlement to service connection for peripheral neuropathy of the right lower extremity. 38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. § 3.156 (2018). 4. New and material evidence has not been received to warrant reopening the previously denied claim of entitlement to service connection for peripheral neuropathy of the left lower extremity. 38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. § 3.156 (2018). 5. The criteria for a rating in excess of 10 percent for middle ear disease with otitis externa have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.7, 4.87, Diagnostic Code 6210 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1966 to January 1968. His service included service aboard the U.S.S. Patapsco. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from March 2014, December 2014, August 2015, November 2015 and February 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office. In March 2016, the Veteran’s representative submitted additional evidence on behalf of the Veteran which was after the dates that his substantive appeals were filed. However, that evidence was accompanied by a written waiver of review by the Agency of Original Jurisdiction (AOJ) in the first instance. I. New and Material The RO initially denied the Veteran's claims for service connection for degenerative disc disease of the lumbar spine and for peripheral neuropathy of the right and left lower extremities, claimed as secondary to exposure to Agent Orange, in November 1999. The RO continued the denial in a January 2000 rating decision. The Veteran did not appeal these decisions and they are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.1103, 20.200. In light of finality of the November 1999 and January 2000 rating decisions, new and material evidence must be received in order to reopen the claims and consider them on the merits. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); Evans v. Brown, 9 Vet. App. 273 (1996). Moreover, the Board must determine whether new and material evidence has been submitted regardless of the RO's actions. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). New evidence is defined as existing evidence not previously submitted to agency decisionmakers, while material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156 (a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The assertion of a new theory of entitlement to service connection for the same disease or injury that was previously the subject of a final decision does not constitute a new distinct claim for benefits, see Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir 2008); however, evidence offered in support of a new theory of entitlement can be sufficient to warrant reopening of the claim if it meets the definitions of new and material evidence. Id. A. Lumbar Spine Disability The evidence on file at the time of the adverse decision in January 2000 includes the Veteran’s service treatment records which show that he was treated in May 1966 for right spinous muscle strain. He was admitted overnight to a medical facility at that time for bedrest and he was given an injection of lidocaine. Those records also show that he was seen in September 1966 complaining of left kidney pain and swelling in the lumbar area. He said at that time that he had recently been hit in the area by a surfboard. He was assessed as having hematoma erector spinae muscle on the left. His January 1968 separation examination report shows that he had a normal clinical evaluation of the spine. Also on file in January 2000 are emergency room records from a private hospital in December 1985 showing that the Veteran was admitted for severe low back pain after falling down some snowy steps and landing on a fence post on his right side. He complained at that time of numbness in his right foot and leg, and he denied having a prior history of significant back pain. Lumbar spine x-rays at that time revealed degenerative narrowing at L4-5, and L5-S1 discs and small reactive osteophytes. In addition, a February 1987 private hospital record shows that the Veteran had been admitted for severe low back and right leg pain of two weeks duration. Tests revealed a large herniated disc at L4-5 and a laminectomy was performed. The evidence further includes a statement dated in May 1987 from the Veteran asserting that he injured his back in a fall in 1985. In addition to the evidence outlined above, the RO received a lumbar spine assessment from VA in October 1991 containing the Veteran’s complaints of low back pain and right leg symptoms dating back to a 1985 work injury when he fell down some stairs and landed on a fence post. That record also stated that the Veteran had been pain free right after undergoing the laminectomy in February 1987, but that the pain returned approximately four months later. There are also lumbar spine x-ray reports, a lumbar spine computed tomography report, and a bone imaging report, dated in May 1999 and June 1999, showing degenerative disc disease and degenerative joint disease of the lumbar spine. Evidence received after January 2000 includes a February 2006 VA general examination report containing the Veteran’s complaint of upper back pain. He said that his upper back problems started when his legs gave out on him and he fell on his upper back. He was diagnosed as having upper thoracic back pain due to degenerative disc and degenerative joint disease. In addition, the evidence includes various VA outpatient records reflecting the Veteran’s continuing complaints of back pain. It also includes an April 2015 VA examination report containing the Veteran’s report that he collapsed in service after trying to carry a very large cooking kettle and underwent a spinal tap. After examining the Veteran and relaying his medical history, the examiner opined that the Veteran’s thoracolumbar degenerative changes were less than likely incurred in or caused by the treatment for pain as noted in his service treatment records. The Board finds that the evidence received after January 2000 does not raise a reasonable possibility of substantiating the claim for service connection for upper thoracic back pain with degenerative disc disease since it does not relate such a disability to service. 38 C.F.R. § 3.303. Although the Veteran’s report at the April 2015 VA examination of injuring his back while carrying a large cooking kettle and undergoing a spinal tap in service had not been previously considered, the April 2015 VA examiner did consider it, but nevertheless negated a nexus between the Veteran’s present back disability and service. He based his opinion on his examination of the Veteran and review of his claims file, including his service treatment records. This negative opinion does not raise a reasonable possibility of substantiating the previously denied claim for service connection for a lumbar spine disability, claimed as upper thoracic back pain with degenerative disc disease. Similarly, neither the February 2006 VA general examination report nor the VA outpatient records relate the Veteran’s complaints and treatment for back pain to service. In short, nothing added to the record since the prior final decision in January 2000 relates to a previously unestablished fact and does not cure any prior evidentiary defect with respect to the claim for service connection for a back disability, claimed as upper thoracic back pain with degenerative disc disease. The Board has considered the Veteran’s representative’s March 2016 argument that the April 2015 VA examiner, in rendering a negative nexus opinion, did not properly explain x-ray findings in December 1985 which she said showed a pre-existing back disability. First, those x-ray findings were on file at the time that the January 2000 adverse decision was rendered and thus do not constitute new and material evidence. Second, the Veteran’s representative’s lay argument regarding how the VA examiner interpreted and evaluated those findings goes to the underlying merits of the claim for service connection and is beyond the scope of the present issue regarding whether new and material evidence has been received to reopen the claim. Accordingly, in the absence of new and material evidence, the Veteran's application to reopen the claim for service connection a lumbar spine disability, claimed as upper thoracic back pain with degenerative disc and joint disease, is not reopened. 38 C.F.R. § 3.156.   B. Peripheral Neuropathy of the Right and Left Lower Extremities As an initial matter, the Board notes that the Veteran's service aboard the U.S.S. Patapsco on the inland waterways of Vietnam entitles him to the presumption of exposure to herbicides. 38 U.S.C. § 1116 (a)(1) (2012); 38 C.F.R. § 3.307 (a)(6)(iii); Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008); Gray v. McDonald, 27 Vet. App. 313 (2015); See also Vietnam Era Navy Ship Agent Orange Exposure Development Site, http://vbaw.vba.va.gov/bl/21/rating/VENavyShip.htm (Updated June 15, 2016). A presumption of service connection is available with respect to certain listed conditions where a veteran is shown to have been exposed to herbicides during service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. Among the listed conditions is early-onset peripheral neuropathy. 38 C.F.R. § 3.309 (e). In order to warrant service connection for peripheral neuropathy on the basis of presumed Agent Orange exposure, the early-onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307 (a)(6)(ii). The evidence on file at the time of the January 2000 adverse rating decision includes the Veteran’s service treatment records. Those records are devoid of complaints or treatment regarding neurological issues of the lower extremities. Those records also contain the Veteran’s January 1968 separation examination report showing that he had a normal clinical evaluation of the lower extremities and a normal neurological evaluation. The evidence additionally includes a May 1999 VA physiatry record noting that the Veteran had a variety of lower extremity complaints including different sensations that began three to four years earlier. Evidence received after January 2000 includes a February 2006 VA general examination report containing the Veteran’s complaint of neurologic symptoms in both lower extremities, including numbness. Those symptoms were noted to date as far back as the early 1990s. The examiner relayed the Veteran’s report that he had neuropathy, but he went on to note that he did not see where that had actually been diagnosed. The examiner diagnosed the Veteran as having unusual symptoms of leg paresthesias and weakness not documented on examination. Also on file is an undated VA problem list dated in February 2006, which does not include peripheral neuropathy. In addition, there is a February 2014 VA medical entry which notes that the Veteran reported having a history of peripheral neuropathy, but that this had not actually been confirmed. The Board finds that the evidence received since the January 2000 rating decision does not raise a reasonable possibility of substantiating the claim for service connection for peripheral neuropathy of the lower extremities since it neither confirms a diagnosis of peripheral neuropathy nor relates such a disability to service. 38 C.F.R. § 3.303. Thus, in the absence of new and material evidence, the Veteran's claim for service connection for peripheral neuropathy of the right and left lower extremities is not reopened. 38 C.F.R. § 3.156. II. Rating Greater than 10 Percent for Middle Ear Disease with Otitis Externa The Veteran's service-connected middle ear disease with otitis externa, post-operative, is rated as 10 percent disabling under 38 C.F.R. § 4.87, Diagnostic Code 6210, for otitis externa. Under that code, a maximum 10 percent rating is warranted for swelling, dry and scaly or serous discharge, and itching requiring frequent and prolonged treatment. Id. As the Veteran already has the highest possible schedular rating of 10 percent under Code 6210 for bilateral chronic otitis externa, a schedular rating over 10 percent is not warranted. 38 C.F.R. § 4.87, Code 6210. Moreover, there are no other diagnostic codes that are potentially applicable which might afford a higher rating on an alternative basis. Furthermore, as is shown in the remand below, consideration of the Veteran’s claims for service connection for peripheral vestibular disorder with labyrinthitis, Meniere’s syndrome and bilateral hearing loss require further development. Thus, any symptoms associated with those claimed disabilities are not included in the present increased rating claim. Regarding the Veteran’s representative’s assertion in March 2016 that the Veteran should be granted a 100 percent extraschedular rating under 38 C.F.R. 3.321(b) for middle ear disease with chronic otitis externa, post-operative, neither she nor the Veteran have presented any evidence or argument to support that assertion. Moreover, aside from a January 2012 VA outpatient record showing that the Veteran was prescribed Azithromycin for right mastoid pain and left ear otitis media, there is no medical evidence showing treatment for this disability during the appeal period. Consequently, the Board finds that here is no evidence of exceptional or unusual circumstances to warrant remand to refer this claim for extraschedular consideration. 38 C.F.R. § 3.321 (b)(1). Reasons for Remand A. Service Connection for Heart Disease, Including IHD As noted above, the Veteran's service aboard the U.S.S. Patapsco on the inland waterways of Vietnam entitles him to the presumption of exposure to herbicides. A presumption of service connection is available with respect to certain listed conditions where a veteran is shown to have been exposed to herbicides during service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. Among the listed conditions is ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction (MI); atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina). 38 C.F.R. § 3.309 (e). The question to be resolved regarding this issue is whether the Veteran has heart disease, to include ischemic heart disease. His representative argues that he is entitled to presumptive service connection for ischemic heart disease under 38 C.F.R. § 3.309 (e) because of evidence showing that he has unstable angina and old inferior MI. She asserts that a VA examiner’s opinion in December 2013 that the Veteran does not have IHD is inadequate in light of evidence suggesting that the Veteran had an old inferior MI and unstable angina. While it is clear from the December 2013 VA examination report that the examiner considered the pertinent evidence including findings suggesting an old MI and unstable angina, it is not clear whether the examiner discounted those findings or simply did not consider them in the context of determining whether the Veteran has ischemic heart disease. Moreover, as the Veteran’s representative pointed out in her March 2016 argument, the December 2013 VA examiner did not examine the Veteran, but rather based the opinion provided on a record review. Accordingly, the Board finds that in order to properly resolve this issue, the Veteran must be afforded the opportunity to attend a VA cardiovascular examination for the purpose of determining whether he has heart disease, including IHD. B. Peripheral Vestibular Disorder with Labyrinthitis and Meniere’s The Veteran has a somewhat complicated audiological history with evidence showing pre-service ear trouble, in-service ear infections, and post-service ear trouble and surgery. As is indicated above, the Veteran is presently service connected for middle ear disease with otitis externa, post-operative, tinnitus, and bilateral hearing loss. The RO denied the Veteran’s claims for service connection for peripheral vestibular disorder with labyrinthitis and for Meniere’s disease in August 2015 on the basis that he was not clinically diagnosed as having those disabilities. However, additional evidence received in 2017 includes an April 2017 private medical facility summary showing that the Veteran has Meniere’s disease that is active. There are also VA outpatient records on file that contain complaints of dizziness and labyrinthitis episodes. Accordingly, the Board finds that the evidence is sufficient to afford the Veteran a VA examination in order to verify the claimed diagnoses and determine their etiology. 38 U.S.C. 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). C. Bilateral Hearing Loss and Facial Nerve Paralysis The Veteran’s claim for an increased rating for bilateral hearing loss, to include the propriety of the reduction from 30 to 10 percent effective May 1, 2016, is inextricably intertwined with the service connection claims above for peripheral vestibular disorder with labyrinthitis and Meniere’s. This is in light of pertinent rating criteria that directs that ratings for Meniere’s not be combined with ratings for hearing impairment, tinnitus, or vertigo. 38 C.F.R. 4.87, Code 6205, Note. Rather, the adjudicator is to use whatever method results in a higher overall evaluation. Id. Accordingly, the claim for an increased rating for bilateral hearing loss, to include the propriety of the reduction from 30 to 10 percent effective May 1, 2016, must be deferred pending resolution of the service connection claims for peripheral vestibular disorder with labyrinthitis and Meniere’s. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The claim for service connection for facial nerve paralysis is also inextricably intertwined with the pending claims for service connection for peripheral vestibular disorder with labyrinthitis and Meniere’s. This is in light of the Veteran’s representative’s March 2016 contention that the Veteran’s facial nerve paralysis is secondary to his service connected middle ear disease or to another peripheral vestibular disorder. Thus, this issue must be deferred pending resolution of the claims for service connection for peripheral vestibular disorder with labyrinthitis and Meniere’s. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). D. PTSD The pertinent criteria for evaluating PTSD include behavioral observations such as speech, memory, demeanor, thinking and mood. 38 C.F.R. 4.130, Code 9411. In July 2015, the Veteran was afforded a VA PTSD examination so as to assess the severity of his PTSD. Unfortunately, the July 2015 VA PTSD examination report does not contain any behavioral observations. Consequently, the Board cannot properly assess the current severity of this disability under VA’s Schedule for Rating Mental Disorders. Id. Thus, the Veteran must be afforded a new VA PTSD examination that includes mental status findings. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  E. TDIU Due to the potential impact that these pending service connection and increased rating claims may have on the Veteran's claim for a TDIU, the issue of TDIU is deferred pending resolution of these pending claims. The matters are thus REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claim file. 2. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any currently present heart disability, to specifically include whether he has ISD. The claims file must be made available to, and reviewed by the examiner. Any indicated studies must be performed. Based on the examination results and review of the record, the examiner should determine whether the Veteran has IHD; to include acute, subacute, and/or old MI; atherosclerotic cardiovascular disease and/or coronary artery disease; or stable, unstable, or Prinzmetal’s angina. For any heart disability identified that is not considered IHD as listed above, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any such disability is etiologically related to the Veteran’s active service. The rationale for all opinions expressed must be provided. 3. Then, schedule the Veteran for a VA Ear, Nose, and Throat (ENT) examination to determine the nature and etiology of any currently present ENT disability, claimed as peripheral vestibular disorder with labyrinthitis and Meniere’s. The claims file must be made available to and reviewed by the examiner. Any indicated studies must be performed. Based on the examination results and review of the record, the examiner should first identify all currently present ENT disabilities, to specifically include peripheral vestibular disorder with labyrinthitis and/or Meniere’s. Then, for all such identified disabilities, the examiner should provide an opinion as to whether such disability clearly and unmistakably existed prior to the Veteran’s active service, and if so, whether such disability was clearly and unmistakably NOT aggravated by such service. The examiner should note that the Veteran lay statements alone are not a sufficient basis to support a finding that a disability clearly and unmistakably existed prior to service. For any disability found to NOT clearly and unmistakably exist prior to service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any such disability had its onset during active service, or is otherwise etiologically related to such service. For any disability found to NOT clearly and unmistakably exist prior to service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any such disability was caused or chronically worsened by a service-connected disability, to specifically include bilateral hearing loss disability, tinnitus, or middle ear disease with otitis externa. The rationale for all opinions expressed must be provided. 4. Confirm that the VA examination reports and all medical opinions provided comport with this remand and undertake any other development determined to be warranted. 5. Then, readjudicate the remaining claims on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Shawkey, Counsel