Citation Nr: 18151344 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 15-46 205 DATE: November 16, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for an acquired psychiatric disorder is reopened. New and material evidence having been received, the claim of entitlement to service connection for a low back disability is reopened. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include depression and posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for left hip degenerative joint disease, to include as secondary to service-connected left ankle and left knee disabilities, is remanded. Entitlement to service connection for a right foot condition, to include as secondary to service-connected left ankle is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to a disability rating in excess of 10 percent for left ankle strain is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. In an unappealed April 1974 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for a back disorder. 2. In an unappealed April 1977 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for a nervous disorder. 3. Additional evidence has been received since the April 1974 rating decision that relates to an unestablished fact necessary to substantiate the previously denied claim of entitlement to service connection for a back disorder. 4. Additional evidence has been received since the April 1977 rating decision that relates to an unestablished fact necessary to substantiate the previously denied claim of entitlement to service connection for a psychiatric disorder. CONCLUSIONS OF LAW 1. The April 1974 rating decision that denied entitlement to service connection for a back disorder is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.302. 2. The April 1977 rating decision that denied entitlement to service connection for a nervous disorder is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.302. 3. As new and material evidence has been received, the criteria for reopening the claim for service connection for a back disorder have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. As new and material evidence has been received, the criteria for reopening the claim for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 8, 1973 to August 28, 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. Concerning the Veteran’s claim for service connection for a nervous condition and PTSD, the Board notes that the record reflects various diagnostic impressions, including depression. Because the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim and reported syndromes and all other information of record, the Board finds that it is more appropriate to characterize his mental health claims broadly, as a single claim of entitlement to service connection for an acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). New and Material Evidence Initially, the Board notes that whenever a claim to reopen is filed, regardless of how it was characterized by the agency of original jurisdiction, the Board must make an independent determination as to whether new and material evidence has been received. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). In general, VA rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.302. A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as evidence not previously submitted to agency decision makers. 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 must 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). For the purpose of determining whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). If it is determined that new and material evidence has been submitted, the claim will be reopened. When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). VA must evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). 1. Back Condition An April 1974 rating decision denied service connection for a back disorder because the RO found that there was no evidence the Veteran’s disorder was related to his active duty service. The Veteran was notified of the decision and of his appellate rights by letter dated April 24, 1974. The Veteran did not appeal the April 1974 rating decision. Accordingly, the April 1974 rating decision is final with respect to the claim for a back disorder. Since the April 1974 rating decision, new evidence added to the file includes a November 2010 statement from the Veteran’s former spouse asserting that the Veteran had back problems ever since active service. The Veteran also described an in-service back injury in a May 2015 statement. These statements are presumed credible in determining whether they constitute new and material evidence. They relate to unestablished facts necessary to substantiate the claim, and are not cumulative or redundant of evidence in the file at the time of the April 1974 rating decision. They also raise a reasonable possibility of substantiating the claim. Accordingly, they constitute new and material evidence. See 38 C.F.R. § 3.156(a). In light of the above, the claim for a back condition is reopened. 2. Nervous Disorder An April 1977 rating decision denied service connection for a nervous disorder because the Veteran’s disorder was deemed a constitutional abnormality. The Veteran was notified of the April 1977 rating decision and of his appellate rights by letter dated April 22, 1977. He did not appeal the April 1977 rating decision. Thus, the April 1977 rating decision is final with respect to the Veteran’s claim for a nervous condition. Since the April 1977 rating decision was issued, relevant evidence added to the file includes a September 2015 letter from a private psychologist concluding that trauma during active service contributed to the Veteran’s current diagnoses of PTSD and depression. The September 2015 letter relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. At the time of the April 1977 rating decision, there was no favorable medical opinion of record regarding the claim for a psychiatric disorder. Thus, the September 2015 letter is not cumulative or redundant of evidence previously of record. Accordingly, it constitutes new and material evidence, and the claim for an acquired psychiatric disorder is reopened. See 38 C.F.R. § 3.156(a). REASONS FOR REMAND Low Back, Left Hip, and Right Foot Disabilities The Veteran’s complete service treatment records (STRs) have not been associated with the claims file. In this regard, the only STRs associated with the claims file are from the Veteran’s May 1973 hospitalization. The Veteran’s military personnel records indicate that he made frequent visits to sick call during his active duty service. Although the Veteran’s claims for these disabilities are based primarily on secondary service connection, the Board finds that additional efforts must nevertheless be made to obtain the Veteran’s STRs before they can be addressed on the merits. Accordingly, on remand, the Veteran’s complete STRs should be obtained and associated with the claims file, to the extent possible. Psychiatric Disorder The Veteran underwent a VA examination in November 2015 to determine to assess whether he had PTSD or another acquired psychiatric disorder related to service. The examiner opined that the Veteran’s diagnosed unspecified udisorder was less likely than not related to his military service. See November 2015 Initial PTSD DBQ. The Board finds that further opinion is warranted. The only explanation provided by the examiner was that the Veteran had a long history of mood symptoms, but became “really depressed” following a myocardial infarction in 2014. Regardless of whether there was an increase in symptoms in 2014, the examiner must still directly address whether the Veteran’s in-service adjustment issues, as documented in the available service treatment records, are linked to his current diagnosis of unspecified depressive disorder. Further, records of the Veteran’s in-service hospitalization reflect that he was seen for psychiatric treatment. Records of such treatment are not in the file. As psychiatric treatment records may be stored separately from other service treatment records, a request should be made for any separately held psychiatric treatment records, using the appropriate request code. See VBA Manual M21-1, III.iii.2.D.3.a. Hypertension The Veteran asserts his hypertension is secondary to his acquired psychiatric disorder. In support of his claim, the Veteran submitted an article which documented the increased chance of developing hypertension for people with depression. See May 2015 Correspondence. As the Veteran’s claim of entitlement to service connection for hypertension is inextricably intertwined with his service connection claim for an acquired psychiatric disorder, it is being deferred pending the development requested herein. See 38 C.F.R. § 4.16(a); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered); Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996) (claims are inextricably intertwined when they have common parameters, such as when the outcome of one may affect the outcome of the other. And to avoid piecemeal adjudication of these types of claims, they should be considered together). Evaluation of Left Ankle Strain The Veteran must be provided with a new examination that complies with Correia v. McDonald, 28 Vet. App. 158 (2016). The United States Court of Appeals for Veterans Claims (Court) held that for Department of Veterans Affairs (VA) examinations to be adequate for rating musculoskeletal disabilities, they must record range of motion testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of motion of the opposite undamaged joint. Correia, 28 Vet. App. 158 at 169-70 (citing 38 C.F.R. § 4.59). If the examiner is unable to conduct the required testing, or concludes that the required testing is not necessary, he or she should clearly explain why what that is so. Id. at 170. The VA examination reports of December 2013, November 2014, and November 2015 provides range of motion results for the left ankle, but does not specify the type of testing on which these results were based (i.e. active or passive, weight-bearing or nonweight-bearing), or show whether the testing required under Correia was conducted. If only active range of motion testing was performed, and the other tests were deemed not necessary or possible, the examiner did not state this in the report. As these are determinations that require medical judgment, the Board may not make its own independent finding on this issue. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). As such, additional development is required concerning these claims. Additionally, the Veteran must be provided with a new examination that complies with Sharp v. Shulkin, 29 Vet. App. 26 (2017). In this regard, VA examiners are required to obtain information from the Veteran as to the severity, frequency, and duration of flare-ups, as well as precipitating and alleviating factors, and the extent of functional impairment. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). VA examiners are also required to estimate the additional loss of range of motion during a flare-up based on all procurable information from the record, as well as the Veteran’s own statements. Sharp, 29 Vet. App. at 34-35. If an estimate cannot be provided without resort to speculation, it must be clear whether this is due to a lack of knowledge among the medical community at large, or insufficient knowledge of the specific examiner. Id. at 36. The November 2014 and November 2015 VA examination reports noted the Veteran reported flare-ups of his left ankle. Despite noting the Veteran’s flare-ups, the examiners did not obtain the information required under Sharp. TDIU Since the TDIU claim is inextricably intertwined with the service connection claims and increased rating claim, it is also being deferred pending the development requested herein. See 38 C.F.R. § 4.16(a); Harris, 1 Vet. App. at 183; Ephraim, 82 F.3d 399. Finally, as this matter is being remanded, the Veteran’s updated VA treatment records should be obtained. The matters are REMANDED for the following action: 1. Additional efforts must be made to obtain any outstanding service treatment records for the Veteran. The Veteran served in the U.S. Marine Corps Reserve. As the (National Personnel Records Center (NPRC) provided negative responses to recent records requests, a request should be made to the Marine Forces Reserve in New Orleans and/or the Headquarters of the U.S. Marine Corps in Quantico, or any other repository that the AOJ determines might hold such records. The Veteran should also be notified that there are missing service treatment records, and invited to submit any such records in his possession. If additional efforts to obtain the Veteran’s service treatment records are unsuccessful, the Veteran must be informed of this fact, including what efforts have been made to obtain them, in accordance with VA regulation. See 38 C.F.R. § 3.159. 2. Submit a request to the NPRC for any outpatient psychiatric treatment records that may have been held separately from the other service treatment records, using the appropriate request code (i.e. C01-V or other request code, as deemed warranted). See VBA Manual M21-1, III.iii.2.D.3.a. If a negative response is received, a specific request for the Veteran’s psychiatric treatment records must be submitted to the Marine Forces Reserve and/or U.S. Marine Corps Headquarters, as discussed in the preceding instruction. (Of course, a request need not be submitted to the NPRC if the Veteran’s in-service psychiatric treatment records are obtained through requests to the Marine Corps Reserve etc.) 3. Add to the file any outstanding VA treatment records for the Veteran dated since December 2017. 4. A supplemental opinion from the examiner who conducted the November 2015 VA PTSD examination should be obtained, as specified below. If that examiner is not available or an opinion cannot be obtained from that examiner within a reasonable time frame, another medical professional with appropriate expertise may render the opinion. The examiner is asked to provide an opinion as whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s currently diagnosed unspecified depressive disorder, or any other psychiatric disorder apart from a personality disorder, is linked to the adjustment issues the Veteran exhibited in service (as documented in the service treatment records), notwithstanding any reported increase in symptoms after service, including following a myocardial infarction in 2014. The examiner must provide a complete explanation in support of the conclusion reached. (Please note: the November 2015 opinion is not sufficient to make an informed decision, as it does not directly address whether the Veteran’s in-service adjustment issues may be related to his current psychiatric disorder, but instead focuses on the fact that there was a reported increase in symptoms in 2014. The fact that there was an increase in 2014 does not in itself preclude a relationship between the underlying psychiatric condition and disease or injury incurred in active service) 5. Arrange for a VA examination to assess the severity of the Veteran’s service-connected left ankle disability. The examination must include range-of-motion testing of the left ankle in active motion, passive motion, weight-bearing, and nonweight-bearing, to the extent possible. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, the examiner should provide an explanation. The examiner must elicit as much information as possible from the Veteran regarding the severity, frequency, and duration of flare ups, their effect on functioning, and precipitating and alleviating factors. If the examination is not performed during a flare up, the examiner must provide an estimate of additional loss of range of motion during a flare up. If the examiner is unable to provide such an estimate, the examiner must explain why the available information, including the Veteran’s own statements, is not sufficient for that purpose. All pertinent examination findings must be set forth in the examination report. 6. Then, readjudicate the claims for service connection for a psychiatric disorder, low back disability, left hip disability, right foot disability, and hypertension, the evaluation of the service-connected left ankle disability, and the issue of entitlement to a TDIU. J. RUTKIN Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. M. Stedman, Associate Counsel