Citation Nr: 18150422 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-34 246 DATE: November 15, 2018 ORDER New and material evidence having been received, the claim for service connection for a lower back disability is reopened. To that extent only, the appeal is granted. New and material evidence having been received, the claim for service connection for a left knee disability is reopened. To that extent only, the appeal is granted. An effective date earlier than June 7, 2013 for the award of service connection for lichen simplex chronicus is denied. An effective date earlier than June 7, 2013 for the award of service connection for traumatic brain injury (TBI) with headaches is denied. Service connection for bilateral hearing loss is denied. Service connection for sleep apnea is denied. Service connection for a heart disability is denied. REMANDED Service connection for a left shoulder disability is remanded. Service connection for a right shoulder disability is remanded. Service connection for a lower back disability is remanded. Service connection for a left knee disability is remanded. Service connection for a right knee disability is remanded. An initial compensable rating for lichen simplex chronicus is remanded. An initial rating in excess of 10 percent for residuals of TBI with headaches is remanded. An increased rating for posttraumatic stress disorder (PTSD), currently 50 percent, is remanded. A total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. A September 2009 rating decision denied the claims for service connection for lower back and left knee disabilities. Although the Veteran initiated an appeal, he did not thereafter perfect the appeal. 2. The evidence received since the September 2009 denial relates to unestablished facts necessary to substantiate the claims for service connection for lower back and left knee disabilities, and raises a reasonable possibility of substantiating the claims. 3. A September 2009 rating decision denied the claims for service connection for lichen simplex chronicus and TBI with headaches. Although the Veteran initiated an appeal, he did not thereafter perfect the appeal. 4. VA received the Veteran’s application to reopen the previously denied claims for service connection for lichen simplex chronicus and TBI with headaches on June 7, 2013. 5. The preponderance of the evidence of record is against finding that the Veteran has a current hearing loss disability in either ear for VA purposes. 6. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of sleep apnea. 7. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a heart disability. CONCLUSIONS OF LAW 1. The September 2009 rating decision that denied claims for service connection for lower back and left knee disabilities is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103. 2. New and material evidence has been received to reopen the claims for service connection for lower back and left knee disabilities. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The September 2009 rating decision that denied claims for service connection for lichen simplex chronicus and TBI with headaches is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103. 4. The criteria for an effective date earlier than June 7, 2013 for the awards of service connection for lichen simplex chronicus and TBI with headaches have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400(q)(1)(ii). 5. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.385. 6. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 7. The criteria for service connection for a heart disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Application to Reopen Generally, a final decision issued by the agency of original jurisdiction may not thereafter be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105(c), (d) (2012). However, if new and material evidence is presented or secured with respect to a claim that has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108 (2012). “New evidence” is evidence that has not previously been reviewed by VA adjudicators. “Material evidence” is 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 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) (2018). In determining whether evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The Board must review all of the evidence submitted since the last final disallowance of the claim on any basis in order to determine whether the claim may be reopened. Hickson v. West, 12 Vet. App. 247 (1999). 1. Lower back disability 2. Left knee disability Generally, a final decision issued by the agency of original jurisdiction may not thereafter be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105(c), (d) (2012). However, if new and material evidence is presented or secured with respect to a claim that has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108 (2012). “New evidence” is evidence that has not previously been reviewed by VA adjudicators. “Material evidence” is 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 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) (2018). In determining whether evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The Board must review all of the evidence submitted since the last final disallowance of the claim on any basis in order to determine whether the claim may be reopened. Hickson v. West, 12 Vet. App. 247 (1999). The claims for service connection for lower back and left knee disabilities were originally denied in a September 2009 rating decision. The claims were denied because there was no evidence of a lower back or left knee disability in service and no evidence of a current lower back or left knee disability. Despite the Veteran’s report of having had pain in the lower back and left knee since his service in Iraq, there were no objective findings of a current lower back or left knee disability. Although the Veteran initiated an appeal, he did not thereafter perfect the appeal. There is also no indication that new and material evidence was received within the one year following that decision that would have been pertinent to either issue. 38 C.F.R. § 3.156(b) (2018). Thus, the decision became final. The pertinent evidence received since the September 2009 denial includes VA medical records showing treatment for the lower back and left knee. A February 2016 record shows that x-rays of the lumbar spine revealed retrolisthesis of L4 on L5, minimal disc space narrowing at L4-L5, and a pars defect at L5. A May 2013 record shows that examination of the left knee revealed tenderness at the medial joint line and iliotibial band. Presuming the credibility of the evidence, the record now indicates that the Veteran has currently lower back and left knee disabilities that may be related to service. The evidence is new, not cumulative, and relates to unestablished facts necessary to substantiate the claims. Thus, as new and material evidence has been received, the claims for service connection for lower back and left knee disabilities are reopened. Effective Date Generally, the effective date for an award of service connection is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2018). The effective date for an award of service connection based on the receipt of new and material evidence following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400(q)(1)(ii) (2018). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (2018). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, or a person acting as next friend who is not sui juris may be considered an informal claim. 38 C.F.R. § 3.155 (2018). 3. An effective date earlier than June 7, 2013 for the award of service connection for lichen simplex chronicus 4. An effective date earlier than June 7, 2013 for the award of service connection for TBI with headaches The claims for service connection for lichen simplex chronicus and TBI with headaches were originally denied in a September 2009 rating decision. Although the Veteran initiated an appeal, he did not thereafter perfect the appeal. There is also no indication that new and material evidence was received within the one year following that decision that would have been pertinent to either issue. Thus, the decision became final. VA received the Veteran’s application to reopen the previously denied claims for service connection for lichen simplex chronicus and TBI with headaches on June 7, 2013. An August 2014 rating decision granted service connection for the disorders and assigned an effective date of June 7, 2013, the date of receipt of the application to reopen. While the Board is sympathetic to the Veteran’s situation, the legal authority governing effective dates is clear and specific, and the Board is bound by that authority. The Veteran has been assigned an effective date based on of the date of receipt of his application to reopen the previously claims. The record does not show, and the Veteran does not assert, that he filed an earlier application to reopen either claim. Thus, the Board finds that June 7, 2013 is the appropriate effective date for the awards of service connection for lichen simplex chronicus and TBI with headaches. Accordingly, an effective date earlier than June 7, 2013 for the awards of service connection for lichen simplex chronicus and TBI with headaches is denied. In a case where the law and not the evidence is dispositive, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2018). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2018). Service connection requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 5. Bilateral hearing loss The Veteran asserts that he has bilateral hearing loss due to in-service noise exposure. 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; the 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 (2018). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). Service treatment records do not show any complaints, findings, or diagnoses of hearing loss, and examinations do not show hearing loss disability in either ear as defined by VA. 38 C.F.R. § 3.385. At a March 2014 VA examination, audiometric testing revealed hearing threshold levels of 10, 15, 15, 25, and 15 decibels in the right ear and 10, 15, 15, 25, and 20 decibels in the left ear, at 500, 1000, 2000, 3000, and 4000 Hertz respectively. Maryland CNC speech recognition scores were 98 percent in the right ear and 98 percent in the left ear. The examiner indicated that the Veteran had normal hearing in both ears for VA purposes. Given the above, the VA examination findings show that the Veteran does not have a hearing loss disability in either ear as defined by VA. 38 C.F.R. § 3.385. Thus, the Board finds that the preponderance of the evidence of record is against finding that the Veteran has a current hearing loss disability for VA purposes. As there is no disability that can be related to active service, the Veteran’s claim for service connection for bilateral hearing loss disability must be denied. 38 U.S.C. § 1110; Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board notes that the Veteran is competent to give evidence about observable symptoms such as diminished hearing. Layno v. Brown, 6 Vet. App. 465 (1994). However, he is not competent to self-diagnose hearing loss to an extent recognized as a disability for VA purposes as that requires audiometric and speech recognition testing. Accordingly, service connection for bilateral hearing loss is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 6. Service connection for sleep apnea The Veteran asserts that he has sleep apnea related to active service. Service treatment records do not show any complaints, findings, or diagnoses of sleep apnea. July 2013 private sleep study records do not indicate a diagnosis of sleep apnea. An August 2013 VA medical record shows that the sleep study was normal. Given the above, the Board finds that the preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of sleep apnea. As there is no disability that can be related to active service, the Veteran’s claim for service connection for sleep apnea must be denied. 38 U.S.C. § 1110; Gilpin, 155 F.3d 1353; Brammer, 3 Vet. App. 223. The Board notes that the Veteran is competent to give evidence about observable symptoms such as trouble sleeping. Layno, 6 Vet. App. 465. However, he is not competent to self-diagnose sleep apnea as that requires special diagnostic testing, which in this case was negative. Accordingly, service connection for sleep apnea is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. 7. Service connection for a heart disability The Veteran asserts that he has a heart disability related to active service. Service treatment records do not show any complaints, findings, or diagnoses of a heart problem. VA medical records show that in April 2009 the Veteran complained of anxiety attacks, hypervigilance, chest pain, heart palpitations, and shortness of breath. An April 2009 x-ray of the chest revealed no abnormalities and a June 2009 Holter test was normal. Later VA medical records show that he denied having any chest pain or heart palpitations. Given the above, the Board finds that the preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a heart disability. As there is no disability that can be related to active service, the Veteran’s claim for service connection for a heart disability must be denied. 38 U.S.C. § 1110; Gilpin, 155 F.3d 1353; Brammer, 3 Vet. App. 223. The Board notes that the Veteran is competent to give evidence about observable symptoms such as chest pain. Layno, 6 Vet. App. 465. However, he is not competent to self-diagnose a heart disability as that requires special diagnostic testing, which in this case was negative. Accordingly, service connection for a heart disability is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. REASONS FOR REMAND 1. Service connection for a left shoulder disability is remanded. 2. Service connection for a right shoulder disability is remanded. 3. Service connection for a lower back disability is remanded. 4. Service connection for a left knee disability is remanded. 5. Service connection for a right knee disability is remanded. Having reopened the Veteran’s claims for service connection for lower back and left knee disabilities, the Board finds that further development is needed. The Veteran asserts that he has disabilities of the shoulders, lower back, and knees due to active service. The Veteran was scheduled for a VA general medicine examination in March 2014 but he failed to report to that examination. He has not otherwise been afforded an examination for his claimed disabilities. The record indicates that he has current disabilities of the lower back and knees. While objective evidence of a disability of the shoulders is not of record, the Veteran is competent to report that he has pain in his shoulders. Thus, to afford him every opportunity to substantiate his claims, he should be afforded a VA examination to determine whether he has disabilities of the shoulders, lower back, and knees that are related to service, to include his service in Southwest Asia. 6. An initial compensable rating for lichen simplex chronicus is remanded. Effective June 7, 2013, the Veteran’s lichen simplex chronicus has been assigned a noncompensable (0 percent) rating under Diagnostic Code 7806 for dermatitis and eczema. 38 C.F.R. § 4.118. Effective August 13, 2018, VA revised the regulations pertaining to the evaluation of skin disabilities including dermatitis and eczema. 83 Fed. Reg. 32597 (July 13, 2018). Claims pending prior to the effective date are to be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. Because the Veteran’s claim for a higher initial rating for lichen simplex chronicus was pending prior to the effective date, remand is warranted for consideration of the new rating criteria by the Agency of Original Jurisdiction (AOJ) in the first instance. 7. An initial rating in excess of 10 percent for residuals of TBI with headaches is remanded. A March 2014 VA TBI examination revealed complaints of mild memory loss but no objective evidence of any memory loss on testing. Similarly, a VA psychiatric examination conducted that same day revealed complaints of mild memory loss such as forgetting names, directions, or recent events, but not of impairment of short- and long-term memory. However, the report of a September 2015 private psychiatric examination indicated impairment of short- and long-term memory. As the Veteran’s residuals of TBI may have worsened since the last VA examination in March 2014, he should be afforded a new examination to determine the current severity of his disability. 8. An increased rating for PTSD, currently 50 percent, is remanded. The September 2015 private psychiatric examination revealed suicidal ideation; obsessional rituals which interfere with routine activities; and near-continuous panic or depression affecting the ability to function independently, appropriately and effectively. These symptoms were not present at the March 2014 VA psychiatric examination. As the Veteran’s PTSD may have worsened since the last VA examination, he should be afforded a new examination to determine the current severity of his disability. On another matter, on both the notice of disagreement and appeal to the Board, the Veteran requested an earlier effective date for the award of service connection for PTSD. That issue has not been adjudicated by the AOJ. As adjudication of the raised issue could affect the claim for an increased rating for PTSD, the Board finds that the claims are inextricably intertwined and a decision on the increased rating claim at this time would be premature. Harris v. Derwinski, 1 Vet. App. 180 (1991). Thus, the claim for an earlier effective date should be adjudicated prior to readjudicating the claim on appeal. 9. A TDIU is remanded. As the remand of all the above claims could affect the claim for a TDIU, the Board finds that the claims are inextricably intertwined and a decision on the TDIU claim at this time would be premature. Id. The matters are REMANDED for the following actions: 1. Obtain updated VA treatment records. 2. Adjudicate the claim for an effective date earlier than April 14, 2009 for the award of service connection for PTSD. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of any disability of the shoulders, lower back, and knees, to include as due to an undiagnosed illness. The examiner should review the claims file and note that review in the report. The examiner should ensure that all indicated tests and studies are conducted. The examiner should provide an opinion on whether it is at least as likely as not (50 percent or greater probability) that a disability of the shoulders, lower back, or knees had its onset during active service or within one year thereafter, or is otherwise causally related to such service. The examiner should also provide an opinion on whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a chronic disability of the shoulders, lower back, or knees as a result of an undiagnosed illness associated with service in Southwest Asia. The examiner should discuss the service treatment records and VA medical records. The examiner should also discuss the Veteran’s statements regarding the history and chronicity of symptomatology. The examiner should provide a complete rationale for all conclusions. 4. Schedule the Veteran for VA TBI and psychiatric examinations to determine the severity of his residuals of TBI with headaches and PTSD. The examiners should review the claims file and note that review in the report. The examiners should ensure that all indicated tests and studies are conducted. The examiners should set forth all objective findings, particularly the current severity of symptoms. The TBI examiner should state whether the Veteran has migraines with characteristic prostrating attacks and, if so, the frequency of such attacks during the last several months. The examiners should provide a complete rationale for all conclusions. 5. Then, readjudicate the claims. Specific to the claim for an initial compensable rating for lichen simplex chronicus, readjudication should include consideration of the revised regulations pertaining to the evaluation of skin disabilities effective August 13, 2018. Specific to the claims for an initial rating in excess of 10 percent for residuals of TBI with headaches and an increased rating for PTSD, readjudication should include consideration of the evidence added to the claims file since the issuance of the July 2016 statement of the case. If any decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. W. Kim, Counsel