Citation Nr: 18151397 Decision Date: 11/20/18 Archive Date: 11/16/18 DOCKET NO. 18-17 614 DATE: November 20, 2018 ORDER The application to reopen the claim for service connection for a bilateral foot fungal disability is granted. Entitlement to service connection for a psychiatric disability, to include depression, not otherwise specified (NOS) and posttraumatic stress disorder (PTSD), is denied. REMANDED Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a bilateral ankle disability is remanded. Entitlement to service connection for bilateral pes planus is remanded. Entitlement to service connection for a bilateral foot fungal disability is remanded. Entitlement to an initial disability rating in excess of 20 percent for service-connected spinal stenosis with degenerative joint disease (DJD) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis, pursuant to 38 C.F.R. § 4.16(b) is remanded. FINDINGS OF FACT 1. In a January 1999 decision, the RO denied the Veteran’s claim for entitlement to service connection for a dermatological fungal condition, calluses bilateral feet. The Veteran neither appealed this decision nor submitted new and material evidence within the one-year appeal period. 2. Evidence since the January 1999 decision relates to an unestablished fact necessary to substantiate the claim for service connection for a dermatological fungal condition, calluses bilateral feet and raises a reasonable possibility of substantiating the claim. 3. The Veteran’s psychiatric disability, to include depression, NOS and PTSD, is not due to disease or injury in service. CONCLUSIONS OF LAW 1. The January 1999 decision that denied the claim for entitlement to service connection for dermatological fungal condition, calluses bilateral feet is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.1103 (2018). 2. The evidence received since the January 1999 decision is new and material and sufficient to reopen the claim of service connection for dermatological fungal condition, calluses bilateral feet. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a). 3. The criteria for service connection for a psychiatric disability are not met. 38 U.S.C. §§ 1101, 1110, 1154, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from August 1977 to December 1980. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 and a March 2017 rating decision by the Oakland, California Regional Office (RO) of the Department of Veterans Affairs (VA) in which the RO, inter alia, denied service connection for the claims as set forth below. The Veteran timely filed notice of disagreements (NODs) and a substantive appeal, via a VA Form 9, respectively. 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a dermatological fungal condition, calluses bilateral feet Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran’s claim for entitlement to service connection for dermatological fungal condition calluses, bilateral feet was previously denied in a January 1999 decision. The pertinent evidence then of record consisted of service treatment records (STRs). Service connection was denied on the basis that there was no evidence of continued treatment since discharge. Although notified of the January 1999 denial in a January 1999 notification letter, the Veteran did not appeal that decision, nor did he submit new and material evidence within the remaining appeal period. Accordingly, the January 1999 denial is final as to the evidence then of record, and is not subject to revision the same factual basis. See 38 U.S.C. § 7105(c); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Pertinent evidence added to the claims file since the January 1999 rating decision includes statements made by the Veteran, VA treatment records, and a VA examination. This evidence provides bases for reopening the claim for service connection for dermatological fungal condition, calluses bilateral feet. Specifically, the evidence is new in that it was not before the agency of decision makers at the time of the January 1999 final denial of the claim for service connection, and it is not duplicative or cumulative of evidence previously of record. Moreover, the new evidence submitted is material in that it relates to the basis for the prior denial, i.e., the lack of evidence establishing nerve damage and treatment thereof. Thus, the new and material evidence of the Veteran relates to unestablished facts necessary to substantiate the claim for service connection for dermatological fungal condition, calluses bilateral feet and also raises a reasonable possibility of substantiating the claims. See Shade, 24 Vet. App. at 110. The criteria for reopening the claim for service connection for dermatological fungal condition, calluses bilateral feet have therefore been met. 2. Entitlement to service connection for a psychiatric disability Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). There are particular requirements for establishing service connection for PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection for PTSD specifically requires medical evidence diagnosing this disorder based on examination findings and in accordance with the DSM-IV; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. §§ 3.304 (f), 4.125(a). STRs do not reflect complaint, treatment, or a diagnosis of a psychiatric disability. The December 1980 report of medical examination reflects a normal psychiatric clinical evaluation. Additionally, the Veteran’s self-report of medical history does not reflect any complaints or symptoms of a psychiatric disability. Post-service, VA treatment records reflect that the earliest indication of a psychiatric disability was in 1998 where neuro/psychiatric symptoms were noted as anxiety, depression, and phobias. In 2003, VA treatment records reflect that a depression screen was performed and the screen was positive. A December 2015 VA mental status examination reflects that the Veteran was diagnosed with PTSD, chronic and depressive disorder NOS. The examiner reported that the PTSD was secondary to contract work. In an October 2016 statement, the Veteran reported that he had mental health issues described as anger, depression, isolation, and nervousness. VA treatment records reflect continued treatment for the Veteran’s psychiatric disabilities. Upon review of the evidence of record, the Board finds that service connection for an acquired psychiatric disability, to include depression, NOS and PTSD, is not warranted. The medical evidence of record reflects that the Veteran has a current diagnosis of depression, NOS and PTSD. Therefore, a current disability has been established. Consequently, the issue at hand is whether there exists a relationship between the Veteran’s psychiatric disability and service. As noted, a psychiatric disability was not shown in service nor was such competently and credibly indicated for many years thereafter. The evidence of record first documents psychiatric symptoms in 1998, 18 years after separation from service. While the Veteran has a current psychiatric disability, significantly, neither in the statements submitted in connection with the appeal nor during any treatment at the VA did the Veteran indicate that he had a psychiatric diagnosis or symptoms of a psychiatric disability in service or related thereto. Moreover, VA treatment records reflect that the Veteran’s PTSD is related to contract work. Thus, the weight of the evidence reflects that the current psychiatric disability is not related to service and did not have its onset therein. The Board notes that a VA examination was not conducted in connection with the claim for service connection for a psychiatric disability. In this case, no examination is necessary in order to adjudicate the Veteran’s claim. As indicated in the discussion above, there is no evidence indicating that a psychiatric disability may be associated with service. To the extent that the Veteran has asserted that he has a psychiatric disability that is related to service, such a conclusory generalized lay statement alleging nexus between a current disability and service does not meet the standard to warrant a VA examination. Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010). For the foregoing reasons, entitlement to service connection for a psychiatric disability is not warranted. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a right shoulder disability, left knee disability, bilateral ankle disability, bilateral pes planus, and a bilateral foot fungal disability is remanded. The Board finds that further action on the claims remaining is warranted. STRs reflect that the Veteran was treated for right shoulder injury, a left leg injury, a fungal infection in his feet, and corns in his feet in service. Additionally, the Veteran has made numerous statements indicating that he has a current right shoulder disability, ankle disability, bilateral pes planus, and bilateral foot fungal disability which are due to his active military service. Post-service, VA examinations for the Veteran’s right shoulder, left knee, bilateral foot, and skin were conducted. However, a medical nexus opinion was not provided with the examinations; the examiner reported that an opinion was not requested. The Board notes that the RO reported negative nexus opinions for the Veteran’s right shoulder, bilateral foot, and fungal condition. However, as noted, these opinions were not provided with the VA examinations and are not a part of the claims file. Thus, on remand, the RO should associate with the claims file any medical opinions conducted in connection with the claims for a right shoulder, left knee, bilateral foot, and fungal disability. If an opinion has not been provided, obtain a VA medical nexus opinion as to the claims. A VA examination was not provided for the Veteran’s bilateral ankle. STR’s reflect treatment for a right ankle injury and the Veteran reported continued medical complications in both of his ankles. VA treatment records reflect reports of pain. However, the record does not contain a VA examination with a medical opinion with rationale as to the nature and etiology of any current ankle disabilities. Recently the United States Court of Appeals for the Federal Circuit (Federal Circuit) issued a decision in Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). In that decision, the Federal Circuit found that the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability.” Consequently, a medical opinion by an appropriate physician is also warranted to determine whether the Veteran’s ankle pain causes functional impairment and whether it is related to an in-service disease or injury or had its onset in service. 2. Entitlement to an initial disability rating in excess of 20 percent for service-connected spinal stenosis with DJD In an October 2018 statement, the Veteran’s attorney argued that the Veteran is entitled to a higher disability rating for his back disability due his increasingly worsening back disability. He reported that a July 2018 VA treatment record indicated that Veteran’s cervical/lumbar flexion was to 25 percent, his posture was poor, and his core flexibility strength and core were poor. VA’s duty to assist a Veteran includes providing a thorough and contemporaneous examination when the record does not adequately reveal the current state of the Veteran’s disability. Hart v. Mansfield, 21 Vet. App. 505, 508 (2007) (citing, inter alia, Green v. Derwinski, 1 Vet. App. 121, 124). The record is inadequate and the need for a contemporaneous examination occurs when the evidence indicates that the current rating may be incorrect due to the passage of time and a possible increase in disability. Hart, 21 Vet. App. at 508 (citing, inter alia, Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (“Where the appellant complained of increased hearing loss two years after his last audiology examination, VA should have scheduled the appellant for another examination”). See also 38 C.F.R. § 3.327 (Generally, reexaminations will be required if it is likely that a disability has improved, or if evidence indicates there has been a material change in a disability or that the current rating may be incorrect”). The Veteran’s last VA examination was in December 2016. Since the Veteran is claiming he is experiencing worsening symptoms, and this change in disability would possibly affect his disability rating, the Board finds that a remand is appropriate in order for the Veteran to undergo a new VA examination. Additionally, the VA treatment records indicating worsening symptoms are not of record. The latest date of VA treatment records associated with the claims file is March 2018. Thus, a remand is warranted in order to associate recent VA treatment records with the claims file. 3. Entitlement to a TDIU on an extraschedular basis, pursuant to 38 C.F.R. § 4.16(b) is remanded. The evidence of record reflects that the Veteran’s service-connected back disability may preclude him from securing and following substantially gainful employment taking into consideration his employment history, education, and training. Specifically, the evidence shows that the Veteran’s last date of employment was in June 2013. The Board notes that the Veteran does not meet the minimum percentage requirements for consideration of a TDIU under 38 C.F.R. § 4.16(a) (2017). The Veteran’s back disability is service-connected as noted above. Even when the percentage requirements of 38 C.F.R. § 4.16 (a) are not met, however, a TDIU may be granted on an extraschedular basis in exceptional cases when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service connected disability. 38 C.F.R. § 4.16(b) (2017). The Board cannot award TDIU on this basis in the first instance because 38 C.F.R. § 4.16 (b) requires that the RO first submit the claim to the Director, Compensation Service for consideration of a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). See Bowling v. Principi, 15 Vet. App. 1, 10 (2001), Wages v. McDonald, 27 Vet. App. 233, 236 (2015). As the record includes evidence of unemployability due to his service-connected back disability, the issue of entitlement to a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) should be referred to the Director, Compensation Service for consideration of a TDIU. The matters are REMANDED for the following action: 1. Associate with the claims file any medical nexus opinions for the Veteran’s right shoulder disability, left knee disability, bilateral foot, and skin/fungal condition. Additionally, associate with the claims file all VA treatment records since March 2018. 2. If the medical opinions are not available, request an opinion from an appropriate physician to determine the nature and etiology of any right shoulder, left knee, bilateral foot, and skin/fungal disability. The claims folder, to include a copy of this Remand, must be made available to and reviewed by the physician prior to completion of the opinion, and the opinion must reflect that the claims folder was reviewed. If the physician indicates that an examination is necessary, one should be scheduled. The physician should indicate whether it is at least as likely as not (at least a 50 percent probability) that any right shoulder, left knee, bilateral foot, and skin/fungal disability is related to or had its onset during the Veteran’s military service. The physician must reference the injuries/diagnoses the Veteran had in service. The physician should address the Veteran’s written statements and the other evidence of record. All examination findings/results, along with complete, clearly stated rationale for the conclusions reached, must be provided. 3. Schedule the Veteran for a VA examination with an appropriate physician to determine the etiology of any current bilateral ankle disability. The physician should identify all ankle disabilities that have existed since the date of the claim. The claims folder must be made available to and reviewed by the examiner prior to completion of the opinion, and the opinion must reflect that the claims folder was reviewed. Then, the examiner should indicate whether it is at least as likely as not (at least a 50 percent probability) that bilateral ankle pain is related to or had its onset during the Veteran’s military service, to include the treatment for a right ankle injury. Additionally, the examiner should indicate whether the Veteran experiences functional impairment due to bilateral ankle pain. Then, the physician should indicate whether any impairment, whether or not attributed to a specific diagnosis, is related to an in-service disease or injury or had its onset in service. The examiner should address the Veteran’s written statements and the other evidence of record. 4. Schedule the Veteran for a VA examination to evaluate the current severity of the service-connected spinal stenosis with DJD. All indicated tests and studies should be performed and findings reported in detail. The claims folder must be made available to the examiner for review prior to examination. The examination should be conducted in accordance with the current disability benefits questionnaire. 5. Refer the claim of entitlement to a TDIU to the Director, Compensation Service for consideration of assignment of a TDIU on an extraschedular basis pursuant to 38 C.F.R. §4.16(b) L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Laroche, Natalie