Citation Nr: 18151928 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-35 860 DATE: November 20, 2018 ORDER The petition to reopen the claim of service connection for an acquired psychiatric disorder is granted. The petition to reopen the claim of service connection for erectile dysfunction is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for a bilateral foot condition is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for acid reflux is remanded. Entitlement to a disability rating in excess of 10 percent for a cervical strain is remanded. Entitlement to a disability rating in excess of 10 percent for a lumbar strain is remanded. Entitlement to a disability rating in excess of 10 percent for a right hip strain is remanded. Entitlement to a disability rating in excess of 10 percent for a left hip strain is remanded. Entitlement to a disability rating in excess of 10 percent for left lower extremity radiculopathy is remanded. Entitlement to a disability rating in excess of 10 percent for right lower extremity radiculopathy is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Service connection for specific acquired psychiatric conditions (depression and substance abuse) secondary to the Veteran’s lower back condition were previously denied in an unappealed April 2012 rating decision; evidence that was not previously before decision makers at that time and that raises a reasonable possibility of substantiating the Veteran’s new claim for an acquired psychiatric condition has subsequently been received. 2. Service connection for erectile dysfunction secondary to a lower back condition was previously denied in an unappealed February 2010 rating decision; evidence that was not previously before decision makers at that time and that raises a reasonable possibility of substantiating the claim has subsequently been received. CONCLUSIONS OF LAW 1. The criteria to reopen the claim of service connection for an acquired psychiatric condition have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104(a), 3.156(a), 3.160(d), 20.200, 20.302, 20.1103. 2. The criteria to reopen the claim of service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104(a), 3.156(a), 3.160(d), 20.200, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1993 to October 1995. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision. New and Material Evidence Previously denied claims may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Evidence is new if it has not been previously submitted to agency decision makers. Id. Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative with or redundant of evidence already 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. Id. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Moreover, in Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010), the U.S. Court of Appeals for Veterans Claims (Court) clarified that the phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. After considering all information including the lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 1. The petition to reopen the claim of service connection for an acquired psychiatric condition The Veteran previously claimed and was denied service connection for psychiatric conditions (depression and substance abuse disorder) acquired as a result of his service in an April 2012 rating decision. The Veteran neither submitted new and material evidence nor a notice of disagreement (NOD) within a year of that decision; therefore, the April 2012 rating decision is final and binding based on the evidence of record at that time. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), (b), 3.156(a), (b), 3.160(d), 20.1103. New and material evidence regarding the Veteran’s psychiatric condition has been received since the April 2012 decision. In particular, the Veteran has claimed that he suffers from posttraumatic stress disorder (PTSD) and in September 2015 provided a description of the way he perceives himself as being traumatized by the motor vehicle accident he was involved with during service. He was also afforded an additional VA examination in February 2016 that provided additional information on the etiology of his condition. The Board finds that this is the type of evidence that stands a reasonable possibility of substantiating the claim, or would do so in combination with VA assistance. Consequently, it is appropriate to reopen the claim of service connection for an acquired psychiatric condition, to include PTSD, depression, and substance abuse disorder. To this extent only, the claim is granted. 2. The petition to reopen the claim of service connection for erectile dysfunction The Veteran previously claimed and was denied service connection for erectile dysfunction secondary to or associated with his lumbar spine disability in a February 2010 rating decision. The Veteran neither submitted new and material evidence nor a notice of disagreement (NOD) within a year of that decision; therefore, the February 2010 rating decision is final and binding based on the evidence of record at that time. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), (b), 3.156(a), (b), 3.160(d), 20.1103. Since that time, the Veteran has filed a new claim for service connection for erectile dysfunction and has not limited it to an association with the lumbar spine disability. Thus, there is a reasonable possibility that this claim may be established with VA assistance in developing other theories of entitlement. There is also evidence in the record that the Veteran’s lumbar spine disability may have advanced to the point that it resulted in neurological disabilities such as erectile dysfunction as evidenced by the Veteran’s bilateral lower extremity radiculopathy becoming service connected effective July 2015. Thus, there is also a reasonable possibility that the Veteran’s claim may be substantiated on the same or similar theory that he originally proposed in 2012 when combined with VA assistance. Consequently, it is appropriate to reopen the claim of service connection for erectile dysfunction. To this extent only, the claim is granted. REASONS FOR REMAND For all the claims on appeal, remand is necessary to associate updated VA treatment records with the claims file. In this regard, the record shows that after the most recent Statement of the Case (SOC) was issued to the Veteran, he was hospitalized for treatment for psychiatric conditions and substance abuse at a VA treatment facility, meaning that there are additional VA treatment records that are relevant to at least one of the claims on appeal. Moreover, these medical records may contain records of intake examinations, medications provided, or special diets administered that may provide information necessary for making an accurate decision on all the Veteran’s claims. For some of the Veteran’s claims, there are additional reasons that require them to be remanded. These reasons are explained directly below. 1. Entitlement to service connection for an acquired psychiatric condition This matter has been reopened. The evidence of record suggests at least the possibility that the Veteran’s acquired psychiatric condition may have been caused or aggravated either directly by his service, because depression and excessive worry and an adjustment disorder are noted in his service treatment records from June 1995, or secondary to his service-connected physical disabilities which cause chronic pain. The February 2016 VA examination addresses only the issue of PTSD. Consequently, an addendum opinion addressing direct and secondary service connection for all of the Veteran’s diagnosed psychiatric conditions is required. 2. Entitlement to service connection for erectile dysfunction This matter has been reopened. A VA examination to determine whether the Veteran has this condition, and if he does have this condition whether it is at least as likely as not caused or aggravated by the Veteran’s service or a service-connected condition is necessary. In this regard, the Board notes that the Veteran was noted to have a testicular mass in June 1995. The record also reflects that the Veteran’s lumbar spine condition has begun to manifest with other associated neurological conditions, including radiculopathy of the lower extremities. Therefore, an opinion as to whether the Veteran’s claimed erectile dysfunction is caused or aggravated by his lumbar spine condition is also required. Finally, in the event that the Veteran’s psychiatric condition is service-connected, there is evidence that the Veteran suffered some sexual side effects as a result of some of the psychiatric medications that he has been prescribed according VA treatment records from August 2007. Consequently, an examination and opinion addressing these theories is necessary. 3. Entitlement to service connection for a bilateral foot condition At his May 1993 examination in preparation for entering service, the Veteran was noted to have mild asymptomatic pes planus. By June 1995, the Veteran’s service treatment records documented pain in the Veteran’s feet due to flat footedness. Other service treatment records in April and October 1994 document disorders of the Veteran’s toes. The February 2016 VA examination addresses only the question of whether the Veteran’s foot conditions are a consequence of his back condition. However, an additional examination is required as to determine whether there is clear and unmistakable evidence that the Veteran’s flat footedness was not permanently worsened as a result of his service and as to whether it is at least as likely as not that any foot pain or disability the Veteran is currently experiencing was caused by the toe problems documented in his service treatment records. 4. Entitlement to increased ratings for the cervical spine, lumbar spine, and bilateral hip conditions The February 2016 VA examinations for these conditions do not contain all of the necessary information required by recent court decisions. Correia v. McDonald, 28 Vet. App. 158, 168 (2016); Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The examinations do not contain passive range of motion measurement. Similarly, while the examiner stated that an opinion could not be provided without resort to speculation, the examiner did not indicate that the speculation was due to lack of knowledge within the medical community. Consequently, additional examinations as to these conditions is necessary. 5. Entitlement to increased ratings for bilateral lower extremity radiculopathy and TDIU These matters are inextricably intertwined with other matters remanded for examinations. In the case of the bilateral lower extremity radiculopathy claims, the Veteran’s lumbar spine examination may provide further relevant evidence regarding his bilateral lower extremity radiculopathy. A determination as to whether to grant TDIU necessarily requires the other disabilities for which the Veteran seeks an increased rating to be adjudicated first. Consequently, these matters are remanded. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records for the period from June 2016 to the Present, to include the records relating to the Veteran’s recent hospitalizations in January-February 2018 and March-April 2018. 2. Obtain an addendum opinion from an appropriate clinician as to whether is at least as likely as not that any of the Veteran’s diagnosed psychiatric disorders were caused or by or are aggravated by his service, to include the June 1995 notations of an adjustment disorder and depression and excessive worry noted at the time of his separation from service or the in-service motor vehicle accident that resulted in his physical disabilities. Additionally, the clinician should opine as to whether it is at least as likely as not that any of the Veteran’s psychiatric disabilities have been aggravated by the Veteran’s ongoing service-connected physical disabilities, to include any chronic pain caused by those disabilities. In the event that any of the requested opinions cannot be provided without an additional examination, the Veteran should be scheduled for an additional examination. 3. Schedule the Veteran for an examination of the current severity of his cervical, lumbar, bilateral hip, and bilateral lower extremity radiculopathy conditions. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to these service-connected disabilities alone and discuss the effect of the Veteran’s service connected disabilities on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page)   This examination should also include an examination to determine the nature, severity, and etiology of the Veteran’s claimed erectile dysfunction and bilateral foot conditions. With respect to the claimed erectile dysfunction condition, the clinician should opine as to whether this condition is at least as likely as not caused or aggravated by Veteran’s service, to include the June 1995 notation of a testicular mass. Alternatively, the clinician should opine as to whether this condition was caused or aggravated by the Veteran’s service-connected lumbar strain or an acquired psychiatric disability, in the event that service connection is established for a psychiatric disability. With respect to the Veteran’s foot condition, the clinician should indicate whether the Veteran continues to have pes planus as the Veteran was noted to have mild asymptomatic pes planus when he entered active service in 1993. By June 1995, the Veteran’s service treatment records note that he was suffering from foot pain due to flat footedness. Therefore, the clinician should opine whether there is clear and unmistakable evidence (obvious and manifest) that the Veteran’s pes planus was not aggravated (worsened beyond the natural course of its progression) by the Veteran’s service. The clinician should also opine as to whether the any claimed foot condition was at least as likely as not caused or aggravated by the Veteran’s in-service conditions related to his toes that are documented in April and October 1994. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues of entitlement to increased ratings for bilateral lower extremity radiculopathy and entitlement to TDIU. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Steven H. Johnston, Associate Counsel