Citation Nr: 18146487 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 15-41 093A DATE: October 31, 2018 ORDER New and material evidence has been received to reopen a previously denied claim for service connection for an acquired psychiatric disorder. Entitlement to an increased (compensable) evaluation for a service-connected scar of the left great toe is denied. Entitlement to an increased (compensable) evaluation for a service-connected scar of the right great toe is denied. REMANDED Whether new and material evidence has been received to reopen a previously denied claim for service connection for a disability of the prostate is remanded. Whether new and material evidence has been submitted to reopen a claim for service connection for urethral stricture is remanded. Entitlement to service connection for a claimed disability of the lower back is remanded. Entitlement to an increased evaluation for bilateral pes planus, currently rated as 30 percent disabling, is remanded. Entitlement to an increased evaluation for right great toe hallux rigidus with degenerative changes, currently rated as 10 percent disabling, is remanded. Entitlement to an increased evaluation for left great toe status post bunionectomy and arthroplasty of the first metatarsophalangeal joint, currently rated as 10 percent disabling, is remanded. Entitlement to service connection for a sleep disorder is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. In January 1999, VA issued a rating decision denying service connection for an acquired psychiatric disorder; the Veteran appealed that decision, which became the subject of subsequent proceedings before the Board and the Agency of Original Jurisdiction, but the Veteran later moved to withdraw his appeal and the Board dismissed the appeal in August 2001. 2. Since January 1999, evidence has been received which was unavailable to VA at the time of that decision and which has a tendency to undermine the unfavorable opinions of a VA examiner, dated May 1995 and December 1998, on which the VA relied when it denied the Veteran’s most recent prior request to reopen his claim for service connection for an acquired psychiatric disorder. 3. During the relevant appeal period, the Veteran’s service-connected surgical scars of the toes have not been painful or unstable; both are linear scars measuring six centimeters and six and one-half centimeters in length, respectively; and neither causes functional limitation. CONCLUSIONS OF LAW 1. The January 1999 rating decision denying a request to reopen a previously denied claim for service connection for an acquired psychiatric disorder is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. The evidence of mental illness received since January 1999 is new and material and the claim for service connection for an acquired psychiatric disorder is reopened. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.102, 3.156, 20.204. 3. The criteria an increased (compensable) rating for a scar of the left great toe have not been met. 38 U.S.C. § 1155, 5107, 38 C.F.R. § 4.130, Diagnostic Codes (DCs) 7802, 7804, 7805 and 7806. 4. The criteria an increased (compensable) rating for a scar of right great toe have not been met. 38 U.S.C. § 1155, 5107, 38 C.F.R. § 4.130, Diagnostic Codes (DCs) 7802, 7804, 7805 and 7806). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1979 to October 1985. Several claims are being remanded in order to ensure that VA satisfies its duties to assist the Veteran. It is necessary to remand the claims for service connection to obtain copies of missing and potentially relevant inpatient service treatment records identified by the Veteran. Because these records, as described by him, relate to events that took place during military service, there is no reason to suppose that they would affect the separate question of what rating should be assigned to disabilities for which service connection has already been granted. Thus, the Veteran’s statements concerning the inpatient service treatment records do not prevent the Board from deciding the increased rating claims for surgical scars of the bilateral toes. As the Board will explain, there were some inadequacies in the VA examination reports concerning the Veteran’s bilateral pes planus, hallux rigidus of the right great toe with degenerative changes, and left toe status post bunionectomy. Pursuant to its duty to assist, those claims will be remanded with instructions to arrange a new examination. Because the same examination reports do include enough information to address the severity of his scars, additional development of these issues is not required. Claim to Reopen Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). One exception to the general rule of finality is 38 U.S.C. § 5108, which provides that, if new and material evidence is presented with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. “New evidence means evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to establish 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(a). Appellate review of a rating decision is initiated by a notice of disagreement (NOD) and completed by the filing of a substantive appeal after a statement of the case (SOC) has been furnished. 38 U.S.C. § 7105(a); 38 C.F.R. § 20.200. Failure to file an NOD within one year from the date of notice of the decision or perfect a timely appeal after issuance of the SOC renders a rating decision final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Procedural Background In September 1993, the Agency of Original Jurisdiction (AOJ) received the Veteran’s original claim for service-connected compensation for a psychiatric disorder. The AOJ denied the claim in a rating decision issued in September 1994. The Veteran appealed the denial of his claim and, in September 1997, the Board denied service connection for a psychiatric disorder on the grounds that the claim was not well grounded. The Veteran made no attempt to appeal the Board’s ruling to the United States Court of Appeals for Veterans Claims. Instead, he filed a new request with the AOJ, received in March 1998, asking that his previously denied claim for service connection for a psychiatric disorder – then characterized as depression – be reopened and granted. In January 1999, the AOJ denied the request to reopen the psychiatric claim. Once again, the Veteran initiated an appeal of the unfavorable rating decision. After further proceedings, including a Board remand for further development in August 2000, the Veteran filed a statement indicating his desire to withdraw his appeal. Treating this statement as a motion to withdraw, the Board issued a decision dismissing the Veteran’s appeal in August 2001. At the time of the January 1999 AOJ decision, the available evidence included limited service treatment records, and private records of psychiatric hospitalization during the years immediately after the Veteran’s discharge from active duty. Also associated with the claims file were examination reports and medical opinions from a VA psychiatrist. According to the first of these reports, dated March 1995, the Veteran had no psychiatric diagnosis. The examiner explained that, in his opinion, the post-service series of psychiatric hospitalization was a temporary emotional reaction to the stress of discovering that his wife was pregnant with the child of another man and his wife’s subsequent decision to seek a divorce. The second report, dated December 1998 and written by the same psychiatrist, repeated the conclusion that the Veteran had no mental illness without revisiting the examiner’s earlier explanation that the post-service hospitalizations concerned a temporary reaction to specific personal problems. Between January 1999 and the dismissal of the Veteran’s appeal in August 2001, the AOJ obtained additional mental health treatment records. A group of records, which was apparently received in September 2000, noted diagnoses of schizoaffective disorder on at least five different occasions between October 1991 and June 1998. Analysis In this case, the issue of whether new and material evidence has been submitted to reopen the Veteran’s psychiatric claim may depend on interpretation of 38 C.F.R. §§ 3.156(b) and 20.204(c). According to 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 . . .” This language suggests that new and material evidence has been submitted in this case because, at the time of the June 1999 rating decision, the available evidence did not include some of the mental health treatment notes indicating a diagnosis of schizoaffective disorder in the late 1990s. This evidence “relates to an unestablished fact necessary to substantiate the claim” because it tends to undermine the March 1995 and December 1998 medical opinions suggesting that the Veteran did not have a mental illness. But subsection (b) of the regulation provides that “[n]ew and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed . . . will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.” The Veteran did file a timely appeal of the January 1999 rating decision and the AOJ obtained the progress notes concerning schizoaffective disorder while that appeal was pending. If the Board must consider this evidence “as having been filed in connection with the claim which was pending at the beginning of the appeal period” – i.e., the claim denied by the AOJ in January 1999 – then it must consider the possibility that the Veteran’s appeal pushed back the date of the “last prior final denial” until the August 2001 Board decision dismissing the appeal. If this interpretation is correct, then the progress notes indicating the presence of schizoaffective disorder were available to the AOJ at the time of the last prior final denial of the claim sought to be reopened and any subsequent medical records reflecting a current diagnosis for a mental illness are cumulative and redundant of evidence of record in August 2001. Before embracing this conclusion, the Board has considered the regulation concerning withdrawals of appeals. “Withdrawal of an appeal will be deemed a withdrawal of the Notice of Disagreement and, if filed, the substantive appeal, as to all issues to which the withdrawal applies.” 38 C.F.R. § 20.204(c). The United States Court of Appeals for Veterans Claims most recently addressed the interpretation of 38 C.F.R. §§ 3.156(b) and 20.204(c) in the memorandum decision Bell v. Shulkin, No. 16-4073, 2018 U.S. App. Vet. Claims LEXIS 194 (February 21, 2018). In Bell, the appellant appealed the denial of a claim for service connection for depression. Id. at *1-2. Within one year after the AOJ decision, the appellant expressly withdrew her appeal and later submitted previously unavailable medical evidence suggesting that the appellant’s depression was the secondary result of fibromyalgia. She also filed a new claim for service connection for depression. The AOJ later granted service connection for fibromyalgia and for depression secondary to fibromyalgia. In a motion alleging clear and unmistakable error (CUE), the appellant later argued that the effective date for service connection for depression should extend back to the claim which she withdrew during the first year after the AOJ’s decision denying her claim. Id. The Board declined to assign an earlier effective date based on CUE and the appellant appealed that decision to the Court. Explaining its reasons for vacating the Board decision, the Court wrote: “Moreover, based on certain passages in the decision on appeal, it is unclear whether the Board was fully cognizant of how § 3.356(b) operates. According to the Board, ‘had the veteran continued the appeal this evidence would have been considered in connection with the prior appeal under 38 C.F.R. § 3.156(b) . . . . The fact that the appeal was withdrawn does not render the prior decision not final.’ R. at 10 (some capitalization altered). Peculiar syntax notwithstanding, this misstates the law. When an appeal is withdrawn, it is ‘deemed a withdrawal of the NOD.’ 38 C.F.R. § 20.204(c) (2015). The effect of the November 2013 withdrawal was the same as if Ms. Bell had never filed an NOD in the first place. But § 3.156(b) is implicated when evidence is submitted during the appeal period regardless of whether an NOD is filed. See Young v. Shinseki, 22 Vet. App. 461, 469 (2009) (VA cannot ignore new evidence and then wait to deem an RO decision final in the absence of a timely NOD). Simply put, Ms. Bell’s withdrawal of her NOD did not affect the Board’s duty under § 3.156(b) to address any evidence submitted within the appeal period.” Id. at *6-7. Based this reasoning, after the Veteran in this case withdrew his appeal of the January 1999 AOJ decision denying service connection for a psychiatric disorder in April 2001, the procedural posture of the case was the same “as if [the Veteran] had never filed an NOD in the first place.” Id. This language suggests that January 1999 – and not August 2001 – is the date of the “last prior final denial of the claimed sought to be reopened” for the purpose of the Veteran’s request to reopen his previously denied claim. 38 C.F.R. § 3.156(a). According to the interpretation used by the Court in Bell, this withdrawal does not change the duty to address new and material evidence “submitted within the appeal period.” But the new and material evidence in this case – the progress notes indicating treatment for schizoaffective disorder in the late 1990s – was not received until September 2000. In other words, the AOJ did not receive new and material evidence within one year of the January 1999 rating decision. Although not a precedential decision, the Board finds that Bell includes a persuasive interpretation of 38 C.F.R. §§ 3.156(b) and 20.204(c). Moreover, when a statute or regulation is ambiguous, the Board must generally adopt the interpretation most favorable ot the Veteran. See Hudgens v. Gibson, 26 Vet. App. 558, 567 (2014). Accordingly, the progress notes indicating treatment for schizoaffective disorder, received by the AOJ in September 2000, are new and material evidence because they tend to discredit the unfavorable medical opinions provided by the VA examiner in March 1995 and December 1998 and because they were unavailable to the agency decisionmakers in January 1999 – the time of the last prior final denial of the claim sought to be reopened. Under these circumstances, the Board will grant the request to reopen the previously denied claim for service connection for an acquired psychiatric disorder. Increased Rating for Surgical Scars Scars may be rated under DC 7804, which provides for a 30 percent rating for five or more scars that are unstable or painful, a 20 percent rating for three or four scars that are unstable or painful, and a 10 percent rating for one or two scars that are unstable or painful. 38 C.F.R. § 4.118. Note 1 provides that an unstable scar is one with frequent loss of covering of skin over the scar. Note 2 provides that if a scar is both painful and unstable, 10 percent may be added to the rating. 38 C.F.R. § 4.118, DC 7804. Under DC 7805, scars may also be rated based on any disabling effect(s) not considered in a rating provided under diagnostic codes 7800-04. 38 C.F.R. § 4.118, DC 7805. The AOJ arranged for an examination of the Veteran’s feet in October 2011. According to the examiner’s report, the Veteran had scars on his bilateral great toes, status post bunionectomy, which were secondary to his service-connected pes planus. Both scars were linear. The examiner measured the scars and indicated that the right toe scar was six centimeters long and that the let toe scar was six and one-half centimeters long. According to the examiner, neither scar caused disfigurement of the head, face, or neck. The scars were not painful or unstable. There was another VA foot conditions examination in March 2015. The examiner indicated that the Veteran still had scars at the top of each great toe. Neither scar was painful or unstable. Neither scar had a total area equal to or greater than 39 square centimeters (six square inches). The Board has reviewed the available post-service medical treatment records. These records, however, do not reflect any treatment for the Veteran’s scars during the relevant appeal period (October 17, 2014 to the present). Post-service VA treatment records indicate that the left toe surgical scar was painful in the year after the Veteran’s left toe implant arthroplasty in January 2003. Indeed, prior to August 2010, the Veteran had a 10 percent rating for his left toe scar. The Board has considered the Veteran’s written statements. In his notice of disagreement, he indicated that he was seeking an increased rating for his scars. But he did not explain why she believed he was eligible for a percent rating. The same notice of disagreement also indicates that the Veteran was seeking an earlier effective date for his award of compensation for scars, as well as pes planus, right great toe hallux valgus, and left great toe status post bunionectomy. But as the AOJ noted in the deferred decision, dated October 2015, these effective dates were assigned ina January 2012 rating decision, which the Veteran did not appeal. None of the Veteran’s statements include any suggestions that either of his scars is painful or unstable. The Board has considered the possibility of using other Diagnostic Codes which can potentially be applicable when evaluating a skin disability. Specifically, the Board has considered rating the scars by analogy under DC 7806 (dermatitis and eczema), but the measurements of the scars provided by the VA examiner do not meet the criteria for a compensable rating i.e., that the scars must cover at least 5 percent of the entire body or at least 5 percent of exposed areas. Moreover, there is no evidence indicating that the Veteran uses medications, such as corticosteroids or other immunosuppressive drugs, to treat his scars. The Veteran has also not alleged that his scars should be rated as disfiguring, and the Board notes that disfigurement criteria are considered only when the scar at issue impacted the head, face or neck. For these reasons, the preponderance of the evidence is that, for the entire relevant appeal period, the Veteran’s service-connected surgical scars have most closely approximated the criteria for the currently assigned zero percent ratings. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply and the claim must be denied. 38 U.S.C. § 5107(a). REASONS FOR REMAND Concerns Applicable to Service Connection Claims Generally During a telephone conversation in April 2013, the Veteran told a VA employee that he was hospitalized for 30 days when stationed at Fort Campbell, Kentucky during 1983 or 1984. These records are not available in the claims file and it is unclear whether the AOJ made an appropriate request to obtain them. The next VA decision document to be issued, a rating decision dated February 2014, relied on a service treatment records received in 1994. Unfortunately, these records are accompanied by a note indicating that agency personnel were unable to determine the facility of the Veteran’s claimed inpatient treatment. According to a VA rating decision, dated September 1994, “Other than dental records only minimal service records have been received.” On remand, the AOJ should make new attempts to obtain complete copies of the Veteran’s service treatment records, including records related to his claimed inpatient hospitalization at Fort Campbell and records concerning a separate claimed hospitalization in Nuremberg, Germany. Issues which Require New Examinations or Medical Opinions As noted, there is significant medical evidence suggesting that the Veteran had a serious mental illness for at least ten years after his discharge from the Army. But the AOJ has apparently obtained copies of all post-service VA treatment records from March 2003 to July 2018 and the most recent psychiatric diagnosis is one of depression in March 2003. Under these circumstances, it is appropriate to remand the Veteran’s psychiatric claim with instructions to arrange a new VA mental disorders examination to clarify the nature of his current psychiatric disorder, if any. The Board must also remand the remaining increased rating claims for a new VA foot conditions examination report. According to the most recent report, received in March 2015, the examiner declined to respond to the question on the examination form asking her to describe the extent of any limited functional ability during “flare-ups” or periods when the Veteran’s symptoms are at their worst. According to the examiner, because the Veteran was not experiencing a flare-up at the time of the examination, she was unable to answer this question without speculating. This response is a violation of the Court’s holding in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), which explained that, if an examination does not take place during a flare-up, VA examiners have a duty to elicit information from the Veteran when attempting to describe functional loss associated with pain during flare-ups. The March 2015 VA examination report also appears to be incomplete. The examiner responded “yes” to the question “Does the Veteran have any other pertinent physical findings, complications, conditions, signs or symptoms related to any conditions listed in the Diagnosis section above?” But the space beneath the follow-up question, “If yes, describe (brief summary)” was apparently overlooked by the examiner. Thus, the issue will be remanded to obtain an adequate examination report. The matters are REMANDED for the following action: 1. The AOJ should make reasonable efforts to obtain copies of the Veteran’s complete service treatment records, including in-service clinical inpatient records from the military hospital in Fort Campbell, Kentucky for 30 days and from the military hospital in Nuremberg, Germany for a similar period. In his September 1986 claim for benefits, the Veteran indicated that the hospitalization in Germany took place in March or April 1985 and the Fort Campbell hospitalization was in June 1982. In a more recent written statement, he suggested that the Fort Campbell hospitalization took place in 1983 or 1984. The Veteran has also mentioned a period of 30-day hospitalization at the Cadet Officer Training School in New Jersey. The AOJ should write to the Veteran and invite him to clarify the dates and facilities corresponding to each of these periods of hospitalization. The AOJ's efforts to obtain the missing hospital records should include an appropriate PIES request for clinical records. If the AOJ’s efforts to obtain inpatient hospital records are unsuccessful, the AOJ should describe in writing all the efforts to obtain the missing records and further explain why additional efforts would be futile. In the event the requested development is unsuccessful, the AOJ should also write to the Veteran and notify him of the results of the AOJ's requests for records. 2. Schedule the Veteran for a VA foot conditions examination to ascertain the current severity of the Veteran’s service-connected bilateral pes planus, left great toe status post bunionectomy and arthroplasty of the first metatarsophalangeal joint, and right great toe hallux rigidus with degenerative changes. The electronic claims file must be made available to and be reviewed by the examiner. All indicated testing should be accomplished and all symptomatology associated with these service-connected foot disabilities should be identified. In addition to all the findings identified on the appropriate examination form, the examiner should indicate whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flare-ups. If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. 3. Schedule the Veteran for an examination with a qualified mental health professional to determine the nature and etiology of his claimed acquired psychiatric disorder. The entire claims file must be made available to and be reviewed by the examiner, and it must be confirmed that such records were available for review. After examining the Veteran and reviewing the relevant records, the examiner should identify all diagnosed mental illnesses and provide an opinion on the question of whether it is at least as likely as not (50 percent probability or more) that the Veteran's current psychiatric disorder, to include depression, schizoaffective disorder, or schizophrenia, had its onset during active duty service or was otherwise caused or aggravated beyond its normal progression by any in-service disease, injury, or event. The examiner should specifically discuss the private medical treatment records indicating several psychiatric hospitalizations during the years immediately after the Veteran’s discharge from active duty, the Veteran’s indication that he experienced depression and excessive worry on a report of medical history form, dated August 1985, and the diagnosis of schizoaffective disorder more than ten years after his discharge from active duty. A complete rationale should be provided for all opinions requested. 4. After the requested development has been completed, the AOJ should review the claims file to ensure compliance with the directives of this remand. If any medical report is deficient in any manner, the AOJ must implement corrective procedures at once. 5. The AOJ should then consider the need for other appropriate development, including if appropriate additional VA examinations or opinions, to help decide the Veteran’s requests to reopen previously denied claims for service connection for urethral stricture and for a disability of the prostate as well as pending claims for service connection for headaches, hypertension, and a sleep disorder. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Nye, Associate Counsel