Citation Nr: 18151845 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-19 862 DATE: November 20, 2018 ORDER As new and material evidence has not been received, the claim for service connection for a bilateral knee disorder is not reopened. As new and material evidence has not been received, the claim for service connection for a bilateral ankle disorder is not reopened. REMANDED The issue of entitlement to a rating in excess of 10 percent prior to January 7, 2014, and in excess of 50 percent on and after January 7, 2014, for a not otherwise specified depressive disorder is remanded. The issue of entitlement to a rating in excess of 40 percent for sacroiliac arthroplasty with sacroiliac joint dysfunction and lumbosacral spine limitation of motion is remanded. The issue of entitlement to a rating in excess of 20 percent for right hip degenerative arthritis with tendinitis and sacroiliitis is remanded. The issue of entitlement to a rating in excess of 10 percent for left hip degenerative arthritis with tendinitis and sacroiliitis is remanded. The issue of entitlement to a compensable rating for recurrent aphthous stomatitis ulcer is remanded. The issue of entitlement to a total rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. A January 2011 rating decision denied service connection for a bilateral knee disability. The Veteran did not submit a timely notice of disagreement and the January 2011 rating decision is final. 2. The additional evidence received since the January 2011 rating decision is either cumulative or redundant; does not relate to unestablished facts necessary to substantiate the claim; and does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for a bilateral knee disability. 3. A January 2011 rating decision denied service connection for a bilateral ankle disability. The Veteran did not submit a timely notice of disagreement and the January 2011 rating decision is final. 4. The additional evidence received since the January 2011 rating decision is either cumulative or redundant; does not relate to unestablished facts necessary to substantiate the claim; and does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for a bilateral ankle disability. CONCLUSIONS OF LAW 1. The January 2011 rating decision that denied service connection for a bilateral knee disability is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence to reopen the claim for service connection for a bilateral knee disability has not been presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The January 2011 rating decision that denied service connection for a bilateral ankle disability is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 4. New and material evidence to reopen the claim for service connection for a bilateral ankle disability has not been presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1983 to April 1987 and from June 1987 to April 1990. In his September 2016 written brief, the Veteran’s attorney asserted that “based on the evidence, the Veteran should be awarded individual unemployability.” When entitlement to a TDIU is raised during the process of rating an underlying disability, it is part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the issue of entitlement to TDIU is part of this appeal. Applications to Reopen Claims of Service Connection A rating decision is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error where a notice of disagreement or material evidence was not received within one year of notification of the decision. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.300, 20.1103. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing 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 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. There is a low threshold to raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010); Evans v. Brown, 9 Vet. App 273 (1996); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Bilateral Knee Disability A January 2011 rating decision denied service connection for a bilateral knee disability “because the medical evidence of record fails to show that this disability has been clinically diagnosed.” The Veteran did not submit a timely notice of disagreement and the January 2011 rating decision is final. The evidence considered by the Department of Veterans Affairs (VA) in reaching the January 2011 rating decision includes service medical and personnel records, VA clinical and examination records, and written statements from the Veteran. The service medical records state that the Veteran was seen for right knee trauma. Clinical documentation dated in July 1986 reports that the Veteran reported having fallen from his bed and injuring the right knee the previous day. Impressions of traumatic right prepatellar bursitis were advanced. In his May 2010 informal claim for service connection, the Veteran advanced that his knees were affected by the abnormal gait associated with the service connected right hip and left hip disabilities. The report of an October 2010 VA joints examination states that the Veteran exhibited normal knees. New and material evidence pertaining to the issue of entitlement to service connection for a bilateral knee disability was not received by VA or constructively in its possession within one year of written notice to the Veteran of the January 2011 rating decision. Therefore, that decision became final. 38 C.F.R. § 3.156(b). The additional evidence received since the January 2011 rating decision includes VA examination and treatment records, private clinical documentation, and written statements from the Veteran. The report of a May 2014 VA knee examination states that no knee disability was found. The remainder of the documentation does not reflect that a recurrent knee disability has been diagnosed or otherwise identified. The Board finds the additional evidence received since the January 2011 rating decision is cumulative or redundant of the evidence of record and does not raise a reasonable possibility of substantiating the claim. The evidence does not suggest that the Veteran has a recurrent knee disability. As new and material evidence has not been received, the Board concludes the claim for service connection for a bilateral knee disability has not been reopened. Bilateral Ankle Disability A January 2011 rating decision denied service connection for a bilateral ankle disability “because the medical evidence of record fails to show that this disability has been clinically diagnosed.” The Veteran did not submit a timely notice of disagreement and the January 2011 rating decision is final. The evidence considered by VA in reaching the January 2011 rating decision includes service medical and personnel records, VA clinical and examination records, and written statements from the Veteran. The service medical records do not refer to an ankle disability. In his May 2010 informal claim for service connection, the Veteran advanced that his ankles were affected by the abnormal gait associated with the service connected right hip and left hip disabilities. The report of an October 2010 VA joints examination states that the Veteran exhibited normal ankle. New and material evidence pertaining to the issue of entitlement to service connection for a bilateral ankle disability was not received by VA or constructively in its possession within one year of written notice to the Veteran of the January 2011 rating decision. Therefore, that decision became final. 38 C.F.R. § 3.156(b). The additional evidence received since the January 2011 rating decision includes VA examination and treatment records, private clinical documentation, and written statements from the Veteran. The additional documentation does not reflect that a recurrent ankle disability has been diagnosed or otherwise identified. The Board finds the additional evidence received since the January 2011 rating decision is cumulative or redundant of the evidence of record and does not raise a reasonable possibility of substantiating the claim. The evidence does not suggest that the Veteran has a recurrent ankle disability. As new and material evidence has not been received, the Board concludes the claim for service connection for a bilateral ankle disability has not been reopened. REASONS FOR REMAND 1. The issue of entitlement to a rating in excess of 10 percent prior to January 7, 2014, and in excess of 50 percent on and after January 7, 2014, for the service connected not otherwise specified depressive disorder is remanded. The Veteran asserts that a rating in excess of 50 percent is warranted for the service connected depressive disorder as the disability has been found by a private psychologist to render him unemployable. The report of a May 2014 VA psychiatric examination states that the Veteran was diagnosed with a “depressive disorder due to chronic pain.” The examiner found that the service connected psychiatric disability was productive of “occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.” A March 2016 VA Form 21-0960P-2, Mental Disorders (Other than PTSD and Eating Disorders) Disability Benefits Questionnaire from H. Henderson Galligan, Ph.D., states that the Veteran was diagnosed with a “depressive disorder due to another medical condition with depressed features.” Dr. Henderson Galligan determined that the diagnosed depressive disorder was productive of “occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking and/or mood.” VA’s duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). When VA undertakes to obtain an evaluation, it must ensure that the evaluation is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Given the clinical findings reflecting an increase in severity of the service connected psychiatric disability since the May 2014 VA psychiatric examination, the Board of Veterans’ Appeals (Board) finds that further VA psychiatric evaluation is needed to determine the current nature and severity of the service connected psychiatric disability. Clinical documentation dated after September 2016 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran’s claims. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). 2. The issue of entitlement to a rating in excess of 40 percent for sacroiliac arthroplasty with sacroiliac joint dysfunction and lumbosacral spine limitation of motion is remanded. The report of a May 2014 VA spine examination shows that the Veteran has been diagnosed with both thoracolumbar spine ankylosing spondylitis and lumbosacral spine degenerative disc disease. However, the examiner indicated that the Veteran did not have thoracolumbar spine intervertebral disc syndrome with incapacitating episodes, notwithstanding the diagnosis of disc disease. Moreover, the Veteran stated that during flare-ups he was immobile. He stated that the flare ups occur about three times per year, and last for 10 to 12 days. In light of the diagnosis of degenerative disc disease, and the Veteran’s report of immobilization during flare ups that reportedly last almost two weeks, a new VA examination is warranted to assess whether the Veteran’s service-connected disability includes disc disease and, if so, whether it is manifested by incapacitating episodes. 3. The issues of entitlement to a rating in excess of 20 percent for right hip degenerative arthritis with tendinitis and sacroiliitis and a rating in excess of 10 percent for left hip degenerative arthritis with tendinitis and sacroiliitis are remanded. The May 2014 VA examination report does not sufficiently address additional functional loss during flare ups, or specify whether the joints were tested for pain in both active and passive motion, in weight-wearing and nonweight-bearing. See Sharp v. Shulkin, 29 Vet. App. 26 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016). Accordingly, a new examination is warranted. The issue of entitlement to a compensable rating for recurrent aphthous stomatitis ulcers is remanded. A VA examination was last performed in May 2014, and is well over four years old. Thus, a new examination is warranted to assess the current level of severity of the Veteran’s ulcers. Further, the May 2014 VA examination report indicates that the Veteran’s ulcers, which are sores that occur in the mouth, are more appropriately evaluated as a skin condition. The Veteran’s ulcers have been rated thus far by analogy to loss of the tongue under Diagnostic Code 7202, which does not appear to have criteria relevant, let alone closely analogous, to the Veteran’s disability. See 38 C.F.R. § 4.114 (2017). On remand, the agency of original jurisdiction (AOJ) should consider whether the Veteran’s ulcers are more appropriately evaluated under one of the diagnostic codes pertaining to skin conditions. 4. The issue of entitlement to a TDIU is remanded. Entitlement to TDIU requires an accurate assessment of the impairment associated with the Veteran’s service-connected disabilities, and thus is inextricably intertwined with the other issues being remanded. The matters are REMANDED for the following action: 1. Send the Veteran VA Form 21-8940, Application for Increased Compensation Based on Unemployability, and request that he fill out and return the form. 2. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider who has treated him for the service connected psychiatric, sacroiliac, right hip, left hip and oral ulcer disabilities. Make two requests for the authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile. 3. Obtain the Veteran’s VA treatment records dated after September 2016. 4. Schedule the Veteran for a VA psychiatric examination to assist in determining the current severity of the not otherwise specified depressive disorder. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should include an assessment of the impact of the Veteran’s depressive disorder on his occupational functioning. 5. Schedule the Veteran for a VA spine examination to assist in determining the current severity of the service connected lumbosacral spine disability. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. In addition to all other pertinent findings, the examiner is asked to state whether the Veteran has intervertebral disc syndrome in light of the diagnosis of degenerative disc disease. If so, the examiner should indicate whether it is manifested by incapacitating episodes, and the frequency and duration of such episodes. An incapacitating episode is a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. The examiner should also discuss the impact of the Veteran’s lumbosacral spine disability on his occupational functioning, including in terms of factors such as the ability to sit, stand, walk, bend, and lift and carry objects. 6. Schedule the Veteran for a VA hip examination to assist in determining the current severity of service-connected right hip degenerative arthritis with tendinitis and sacroiliitis and left hip degenerative arthritis with tendinitis and sacroiliitis. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Provide ranges of motion for weight-bearing and nonweight-bearing and passive and active motion of the right hip and the left hip, to the extent possible. If one or more of such tests is deemed not possible or unnecessary, the examiner must provide an explanation. (b) In addition, the examiner must elicit as much information as possible from the Veteran regarding the severity, frequency, and duration of flare ups, if any, as well as 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 statements, is not sufficient for that purpose. (c) The examiner should also discuss the impact of the Veteran’s bilateral hip disabilities on his occupational functioning, including in terms of factors such as the ability to sit, stand, walk, bend, and lift and carry objects. 7. Schedule the Veteran for a VA examination to assess the current severity of the service connected recurrent aphthous stomatitis ulcers. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. 8. In re-evaluating the Veteran’s ulcers, consider whether they are more properly evaluated under a diagnostic code applicable to skin conditions (in light of the May 2014 VA examination report), or diagnostic code pertaining to conditions of the mouth other than DC 7202. 9. Review the private examination reports and evaluations dated in 2016 by Dr. Henderson-Galligan, Dr. Young, and S. Barnes, Consultant. J. Rutkin Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel