Citation Nr: 18151054 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 16-50 370 DATE: November 16, 2018 ORDER New and material evidence has been received to reopen a claim for service connection for a left knee disability. New and material evidence has been received to reopen a claim for service connection for an acquired psychiatric disorder to include depressive disorder, not otherwise specified (NOS). REMANDED Entitlement to a compensable evaluation for bilateral hearing loss is remanded. Entitlement to service connection for a right shoulder disability to include as secondary to a service-connected lumbar spine disability is remanded. Entitlement to service connection for a left knee disability to include as secondary to a service-connected lumbar spine disability is remanded. Entitlement to service connection for an acquired psychiatric disorder to include depressive disorder NOS to include as secondary to a service-connected lumbar spine disability is remanded. Entitlement to service connection for chronic pain syndrome is remanded. FINDINGS OF FACT 1. In an unappealed July 2012 rating decision, the RO, in part, denied service connection for an acquired psychiatric disability and a left knee disability. The Veteran did not timely perfect an appeal of these determinations, and no new and material evidence was received within one year of notice of this decision. 2. Evidence received since the June 2012 rating decision including an October 2016 private treatment record noting pain from a meniscal tear is not cumulative or redundant of evidence previously of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a left knee disability. 3. Evidence received since the June 2012 rating decision including a July 2016 VA treatment record noting depression associated with chronic pain is not cumulative or redundant of evidence previously of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disorder disability. CONCLUSIONS OF LAW 1. The July 2012 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.113 (2017). 2. New and material evidence has been received since the July 2012 denial, and the claim of entitlement to service connection for a left knee disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. New and material evidence has been received since the July 2012 denial, and the claim of entitlement to service connection for an acquired psychiatric disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from April 1983 to April 1986 and from April 1986 to May 2007. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In the December 2014 rating decision, the RO, in part, reopened and then denied the Veteran’s claims for service connection for a left knee disability and an acquired psychiatric disorder. The Board points out that regardless of what the RO or AMC has done, the Board must address the question of whether new and material evidence to reopen the claim has been received because the issue goes to the Board’s jurisdiction to reach the underlying claims and adjudicate them on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). In other words, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). REASONS FOR REMAND The Board finds that more development is necessary prior to final adjudication of the claims remaining on appeal. Notably the last VA examination for the Veteran’s bilateral hearing loss disability took place in August 2014. However, the Veteran has indicated that his service-connected bilateral hearing loss disability had worsened since his last VA examination. Notably, in an February 2017 correspondence, the Veteran’s representative noted that the Veteran claimed that his condition had worsened as the severity to the impairment of his earning capacity had increased. Given that the Veteran indicated that his service-connected bilateral hearing loss had worsened and he appears to be receiving continued treatment for this disability, the Board is of the opinion that a new VA examination would be probative. Although a new VA examination is not warranted based merely upon the passage of time [see Palczewski v. Nicholson, 21 Vet. App. 174 (2007)], the Court has held that where a veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, the VA must provide a new examination. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Therefore, to ensure that the record reflects the current severity of the Veteran’s service-connected bilateral hearing loss disability, a contemporaneous examination is warranted, with findings responsive to the applicable rating criteria. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered contemporaneous”). Regarding the Veteran’s claim for service connection for a left knee disability, the Board notes that the Veteran contends that he has a left knee disability that is due to his service to include as secondary to his service-connected lumbar spine disability. The Veteran underwent a VA examination in April 2012. The examiner determined that the Veteran’s left knee disability was not due caused by or the result of his lumbar spine disability. However, the examiner did not address whether the Veteran’s service-connected lumbar spine disability has aggravated his left knee disability. As such the Board finds that the evidence currently of record is insufficient to resolve the claim for a left knee disability to include as secondary to a service-connected lumbar spine disability and that further medical clarification in connection with this claim is warranted. Regarding the Veteran’s claim for service connection for a right shoulder disability, the Board notes that the Veteran contends that this disability is secondary to his service-connected lumbar spine disability. Notably, a July 2016 VA treatment report noted that the Veteran had right shoulder pain while an October 2016 correspondence from a private physician noted that the Veteran had injured his shoulder in service. The Board notes that the Veteran has yet to undergo a VA examination regarding his claimed right shoulder disability. As a result, the Board finds that further development is warranted so an examiner can provide an opinion as to whether the Veteran has a current right shoulder disability that is related to his active duty service to include as being caused or aggravated by his service-connected lumbar spine disability. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4). Regarding the Veteran’s claim for chronic pain syndrome, the Veteran contends that he has chronic pain syndrome as a result of overcompensation for his service-connected orthopedic disabilities. The Board notes that the Veteran has yet to undergo a VA examination for this claimed disability. Additionally, in an October 2016 correspondence, a private physician noted that the Veteran had “chronic pain conditions” from rotator cuff and meniscal tears as well as back pain during his military service. Notably, the Veteran is service-connected for a lumbar spine disability and a left shoulder disability and his claim for service connection for a left knee and right shoulder disabilities are being remanded for additional development. As a result, the Board finds that the evidence currently of record is insufficient to resolve the claim for a chronic pain syndrome disability and that further medical clarification in connection with this claim is warranted. Regarding the Veteran’s reopened claim for service connection for an acquired psychiatric disorder to include depressive disorder NOS, the Board notes that the Veteran underwent a VA examination in April 2012 where the examiner opined that it was less likely than not that the Veteran’s depressive disorder NOS was not related to and was not aggravated by his service-connected lumbar spine disability. The examiner did not provide an etiology opinion regarding the Veteran’s acquired psychiatric disability and his service on a direct basis. The Veteran additionally underwent a VA examination in August 2014 where the VA examiner noted that the Veteran was found to have no mental disorders that conformed with DSM-IV criteria as his sole condition was deemed to be malingering which was not a mental disorder. However, in a subsequent July 2016 VA psychiatry note, the treating VA physician noted that the Veteran had continued receiving treatment for depression and sleep disorders that were both associated with chronic pain issues and intrusive thoughts from his time in the military when he was deployed to Kuwait during the Gulf War. As a result, the Board finds that the Veteran’s claim for service connection for an acquired psychiatric disorder to include depressive disorder NOS is inextricably intertwined with his claim for a chronic pain syndrome disability being remanded herein. See Henderson v. West, 12 Vet. App. 11 (1998), citing Harris v. Derwinski, 1 Vet. App. 180 (1991), for the proposition that where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources, the claims are inextricably intertwined. Additionally, the Board also finds that a new VA examination is warranted in order to provide an opinion regarding whether the Veteran’s current an acquired psychiatric disorder to include depressive disorder NOS was related to his service as the evidence currently of record is insufficient to resolve the claim. The matters are REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated her for the disabilities on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. 2. After the development requested above has been completed to the extent possible, the Veteran should also be scheduled for VA examination before an appropriate physician to determine the current level of severity of his service-connected bilateral hearing loss disability. The Veteran’s claims file and a copy of this remand must be provided to the examiner for review in conjunction with this examination, and the examination reports should reflect review of these items. All necessary tests and studies should be performed, and the examiner should describe in detail all symptomatology associated with the Veteran’s bilateral hearing loss disability. The examiner should also provide an opinion concerning the impact of the Veteran’s service-connected bilateral hearing loss disability on his ability to work. 3. Schedule the Veteran for a VA examination to determine the etiology of the claimed left knee disability. Based on a review of the record and an examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s left knee disability is related to any incident of the Veteran’s active duty service. The examiner should also provide an opinion as to whether if it is at least as likely as not (at least a 50 percent probability) that the Veteran has a current left knee disability that is caused or aggravated by his service-connected lumbar spine disability. If the examiner finds that the Veteran has a left knee disability that has been permanently aggravated/worsened by his service-connected lumbar spine disability, to the extent feasible, the degree of worsening should be identified. All opinions expressed by the examiner must be accompanied by a complete rationale. Adequate reasons and bases for any opinion rendered must be provided. All studies deemed appropriate in the medical opinion of the examiner should be performed, and all the findings should be set forth in detail. The claims file should be made available to the examiner, who should review the entire claims folder in conjunction with this examination. 4. Schedule the Veteran for a VA examination to determine the etiology of the claimed right shoulder disability. Based on a review of the record and an examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a current right shoulder disability that is related to any incident of the Veteran’s active duty service. The examiner should also provide an opinion as to whether if it is at least as likely as not (at least a 50 percent probability) that the Veteran has a current right shoulder disability that is caused or aggravated by his service-connected lumbar spine disability. If the examiner finds that the Veteran has a right shoulder disability that has been permanently aggravated/worsened by his service-connected lumbar spine disability, to the extent feasible, the degree of worsening should be identified. All opinions expressed by the examiner must be accompanied by a complete rationale. All studies deemed appropriate in the medical opinion of the examiner should be performed, and all the findings should be set forth in detail. The claims file should be made available to the examiner, who should review the entire claims folder in conjunction with this examination. 5. Schedule the Veteran for a VA examination to determine the etiology of the claimed chronic pain syndrome disability. Based on a review of the record and an examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a current chronic pain syndrome disability (independent of pain associated with service-connected disabilities) which had its onset during the Veteran’s active duty service, or is otherwise caused or aggravated by an event during service or caused or aggravated by a service-connected disability. All opinions expressed by the examiner must be accompanied by a complete rationale. All studies deemed appropriate in the medical opinion of the examiner should be performed, and all the findings should be set forth in detail. The claims file should be made available to the examiner, who should review the entire claims folder in conjunction with this examination. 6. Schedule the Veteran for a VA examination to determine the etiology of the claimed acquired psychiatric disorder to include depressive disorder NOS. Based on a review of the record and an examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a current acquired psychiatric disorder to include depressive disorder NOS that is related to any incident of the Veteran’s active duty service. The examiner should also provide an opinion as to whether if it is at least as likely as not (at least a 50 percent probability) that the Veteran has a current acquired psychiatric disorder to include depressive disorder NOS that is caused or aggravated by a service-connected disability (To include chronic pain syndrome if this has been deemed related to service or a service-connected disability). If the examiner finds that the Veteran has an acquired psychiatric disorder disability that has been permanently aggravated/worsened by a service-connected disability, to the extent feasible, the degree of worsening should be identified. All opinions expressed by the examiner must be accompanied by a complete rationale. Adequate reasons and bases for any opinion rendered must be provided. All studies deemed appropriate in the medical opinion of the examiner should be performed, and all the findings should be set forth in detail. The claims file should be made available to the examiner, who should review the entire claims folder in conjunction with this examination. 7. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to   respond. Thereafter, the case should be returned to the Board for appellate review, if in order. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD James A. DeFrank, Counsel