Citation Nr: 18144495 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 15-23 328 DATE: October 25, 2018 ORDER New and material evidence having been received, the claim for service connection for headaches is reopened. REMANDED Entitlement to service connection for headaches, to include as secondary to a service-connected disability is remanded. Entitlement to a rating higher than 30 percent for a psychiatric disorder diagnosed as anxiety disorder not otherwise specified (NOS) is remanded. Entitlement to a compensable rating for bilateral hearing loss is remanded. Entitlement to a rating higher than 10 percent for sinusitis prior to October 8, 2014, is remanded. Entitlement to a rating higher than 50 percent for sinusitis after October 8, 2014, is remanded. Entitlement to a rating higher than 30 percent for rhinitis prior to October 8, 2014, is remanded. Entitlement to a compensable rating for rhinitis after October 8, 2014, to include whether a reduction in rating was proper, is remanded. Entitlement to a rating higher than 50 percent for obstructive sleep apnea is remanded. Entitlement to a compensable rating for hemorrhoids is remanded. Entitlement to a compensable rating for residuals of appendectomy with carcinoid of the appendix and scar is remanded. Entitlement to a compensable rating for a scar of the right middle finger is remanded. Entitlement to a total disability rating based on individual unemployability due to the service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. An unappealed October 2006 rating decision denied entitlement to service connection for headaches. 2. The evidence received since the October 2006 rating decision is new and raises a reasonable possibility of substantiating the claim for entitlement to service connection for headaches. CONCLUSION OF LAW New and material evidence has been received sufficient to reopen a claim of entitlement to service connection for headaches. 38 U.S.C. §5108; 38 C.F.R. §3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1975 to March 1998. The Veteran had requested a Board hearing, but withdrew the request in a June 2018 statement. The Board notes that a March 2018 statement of the case characterized the claims for higher ratings for sinusitis as a claim for a rating higher than 50 percent, and a claim for an effective date earlier than October 8, 2014 for the 50 percent rating for sinusitis. The Veteran’s claim for a rating higher than 10 percent for sinusitis was initially denied in April and June 2013 rating decisions. The Veteran subsequently appealed the denial of a higher rating in a February 2014 timely notice of disagreement. In November 2014, the RO increased the rating to 50 percent, effective October 8, 2014. Because this decision did not constitute a total grant, the issue of entitlement to a higher initial rating remained on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). Essentially, with this rating action, the Veteran's rating became a “staged” rating, but his initial notice of disagreement remained pending, as this was not a full grant of the benefit sought on appeal. While the Veteran subsequently disagreed with the effective date for the 50 percent rating for sinusitis, this disagreement was already contemplated by the initial, pending notice of disagreement, i.e. whether the Veteran was entitled to a higher rating for his sinusitis since July 26, 2012. The Board thus finds that it is appropriate to recharacterize his appeal as entitlement to a rating higher than 10 percent prior to October 8, 2014. Importantly, the Veteran is not prejudiced by this because the evidence and analysis for the claims are the same and a remand is not necessary for the RO to consider the recharacterized claim. Similarly, while the March 2018 statement of the case characterized the claim for rhinitis as a claim for a compensable disability rating, April and June 2013 rating decisions denied a rating higher than 30 percent for rhinitis and the Veteran submitted a timely notice of disagreement in February 2014. Thereafter by a rating decision in November 2014, the RO decreased the Veteran’s disability rating for rhinitis to 0 percent. The Veteran disagreed with the RO’s action. Because his initial notice of disagreement remained pending, the issue has been recharacterized to reflect this history of the claims. 1. Whether new and material evidence has been received to reopen a claim for service connection for headaches. Generally, if a claim for service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to VA. 38 C.F.R. §3.156 (a). Material evidence means existing 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 prior 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. The Court of Appeals for Veterans Claims has held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran’s claim for service connection for headaches was originally denied in October 2006. The RO denied the claim on the basis that the service records failed to document a chronic headache disorder and there was no evidence that the claimed disorder was incurred in or aggravated by service. In correspondence dated October 2006, the Veteran was informed of the decision and of his appellate rights, but he did not appeal that decision and it became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (b); 20.302, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. The Veteran submitted a request to reopen his claim in January 2013. The evidence received since the October 2006 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. Essentially, the Veteran requested to reopen his claim for service connection for headaches secondary to his service-connected sinusitis. VA treatment records in 2013 noted reports that medication taken for the Veteran’s service-connected sinusitis caused headaches. Additionally, a VA examination report in October 2012 associated the Veteran’s headaches with sinusitis. Although “a new theory of causation for the same disease or injury that was the subject of a previously denied claim cannot be the basis of a new claim under 38 U.S.C. § 7104 (b),” any evidence supporting the Veteran’s new theory of causation constitutes new and material evidence, and the claim must then be reopened under 38 U.S.C. § 5108. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). The Board finds that this assertion, along with the 2012 VA examination report and VA treatment records, is new and material to the element of establishing a nexus, which was not established at the time of the October 2006 VA rating decision. As a result, this claim is reopened. 38 U.S.C. §§ 1110, 1310, 5108; 38 C.F.R. §§ 3.156 (a), 3.303, 3.310. REASONS FOR REMAND 1. Entitlement to service connection for headaches, to include as secondary to a service-connected disability is remanded. The Veteran claims that his headaches were caused or aggravated by the service-connected sinusitis. As noted, VA treatment records in 2013 noted reports that medication taken for the Veteran’s service-connected sinusitis caused headaches. Additionally, a VA examination report in October 2012 associated the Veteran’s headaches with sinusitis. As such, the Board finds that additional development is needed to determine the existence and etiology of the claimed headaches. See 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310; McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to a rating higher than 30 percent for a psychiatric disorder is remanded. 3. Entitlement to a compensable rating for bilateral hearing loss is remanded. The Veteran contends that he is entitled to a rating higher than 30 percent for his service-connected psychiatric disorder. In support of the claim for a higher rating, the Veteran points to evidence added to the record since his most recent VA examination in October 2012. Specifically, an October 2014 VA Mental Disorders Disability Benefits Questionnaire (DBQ) report written by the private psychologist, which supports a finding that the Veteran’s psychiatric disorder met the criteria for a higher rating as the psychologist found that his psychiatric symptoms were productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Veteran also asserts entitlement to a compensable rating for bilateral hearing loss. VA treatment records after 2016 suggest that his hearing problems may have worsened since he was last examined in November 2012. VA’s General Counsel has indicated that, when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997). In light of medical evidence that suggests the Veteran’s psychiatric disorder and hearing loss may have increased in severity and as the most recent examinations of record are now six years old, new examination to evaluate the severity of the Veteran’s disabilities is warranted. 4. Entitlement to a rating higher than 10 percent for sinusitis prior to October 8, 2014, is remanded. 5. Entitlement to a rating higher than 50 percent for sinusitis after October 8, 2014 is remanded. 6. Entitlement to a rating higher than 30 percent for rhinitis prior to October 8, 2014, is remanded. 7. Entitlement to a compensable rating for rhinitis after October 8, 2014, to include whether a reduction in rating was proper, is remanded. 8. Entitlement to a compensable rating for hemorrhoids is remanded. 9. Entitlement to a compensable rating for residuals of appendectomy with carcinoid of the appendix and scar is remanded. 10. Entitlement to a compensable rating for a scar of the right middle finger is remanded. 11. Entitlement to a rating higher than 50 percent for obstructive sleep apnea is remanded. 12. Entitlement to a TDIU is remanded. Concerning the remaining claims for increased ratings for sinusitis, rhinitis, hemorrhoids, residuals of appendectomy with carcinoid of the appendix and scar, a scar of the right middle finger, obstructive sleep apnea and TDIU, the Board finds that a remand is necessary in order to obtain outstanding Social Security Administration (SSA) records. An October 2014 VA Mental Disorders DBQ report, and VA treatment records in 2015, show that the Veteran is in receipt of disability benefits from SSA, due at least in part, to his service-connected disabilities and that the records should be obtained as relevant to the appeal. As the SSA’s decision and the records upon which the agency based its determination may be relevant to VA’s adjudication of the Veteran’s pending claims, VA is obliged to attempt to obtain and consider those records. 38 U.S.C. § 5103A (c)(3); 38 C.F.R. § 3.159 (c)(2). As such, a remand is necessary in order to obtain all medical records concerning the Veteran’s claim for SSA disability benefits. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010); Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992) (where VA has actual notice of the existence of records held by the SSA which appear relevant to a pending claim, VA has a duty to assist by requesting those records from the SSA). The Veteran contends that his service-connected psychiatric disorder renders him unemployable. As such, the claim for entitlement to a TDIU is inextricably intertwined with the claim for an increased rating for a psychiatric disorder. Thus, adjudication of the TDIU claim is deferred. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Contact the Social Security Administration for the purpose of obtaining all additional medical records relied upon and any final decision made in conjunction with the Veteran’s claim disability benefits. All such available documents should be associated with the claims folder. Any negative responses must be documented. 2. Relevant ongoing VA treatment records dated after May 2017 should be obtained and associated with the claims file. If possible, the Veteran should get these records himself. 3. Schedule the Veteran for a VA examination to determine whether the Veteran’s headaches are related to service or a service-connected disorder. The claims folder must be made available to the examiner for review before the examination. All indicated tests should be done and all findings must be reported in detail. Following review of the claims file, the examiner must address the following: a. Is it at least as likely as not (50 percent probability or higher) that any diagnosed chronic headache disability found to be present is the result of the Veteran’s service? b. Is it at least as likely as not (50 percent probability or higher) that any diagnosed chronic headache disability found to be present is caused or aggravated (made permanently worse beyond the natural progression of the disease) by a service-connected disability, to include sinusitis? If a headache disability has been aggravated by a service connected disability, the examiner should attempt to quantify the degree of aggravation beyond the baseline level of disability. The examiner should consider all evidence, including lay statements regarding onset and continuity of symptoms, and must provide a complete rationale for all opinions expressed. 4. Schedule the Veteran for a VA psychiatric examination to address the extent and severity of his service-connected psychiatric disability. The claims file must be made available to the examiner. All necessary tests are to be conducted. The examiner must address all symptomatology caused by the Veteran’s psychiatric disorder and its impact on his occupational and social functioning. The examiner is asked to specifically comment on the effects of the Veteran’s service-connected psychiatric disorder on his ability to function in an occupational environment. Please provide a rationale for all opinions given. 5. Schedule the Veteran for a VA audiological examination in order to determine the current level of severity of his bilateral hearing loss disability. The claims file must be made available to the examiner. All necessary tests are to be conducted. The examiner is asked to specifically comment on the effects of the Veteran’s service-connected hearing impairment on his ability to function in an occupational environment. JOHN J CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Azizi-Barcelo, Tatiana