Citation Nr: 18152232 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 16-15 643 DATE: November 21, 2018 ORDER New and material evidence having been received, the appeal to reopen a claim of entitlement to service connection for right ear hearing loss is granted. New and material evidence having been received, the appeal to reopen a claim of entitlement to service connection for a low back disability is granted. New and material evidence having been received, the appeal to reopen a claim of entitlement to service connection for a right knee disability is granted. Service connection for right ear hearing loss is granted. Service connection for major depressive disorder with anxious distress features is granted. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a gastrointestinal disability is remanded. Entitlement to service connection for a right wrist disability is remanded. Entitlement to a compensable evaluation for the service-connected status post, fracture right fifth metacarpal, is remanded. Entitlement to an evaluation in excess of 30 percent prior to October 1, 2014 and in excess of 20 percent from October 1, 2014 for the service-connected status post arthroscopy, left shoulder dislocation, is remanded. Whether the reduction of the rating for the service-connected status post arthroscopy, left shoulder dislocation, from 30 percent to 20 percent, effective from October 1, 2014, was proper. Entitlement to a compensable evaluation for left ear hearing loss is remanded. FINDINGS OF FACT 1. An April 1996 rating decision, in part, denied entitlement to service connection for right ear hearing loss; the Veteran did not appeal this denial in a timely manner, and no new and material evidence was submitted within the appeal period as to this issue; however, evidence received since the final April 1986 rating decision is new, relates to an unsubstantiated issue necessary to substantiate the claim for a right ear hearing loss, and raises a reasonable possibility of substantiating the claim. 2. An October 2011 rating decision, denied a claim to reopen entitlement to service connection for a lower back condition; the Veteran did not appeal this denial in a timely manner, and no new and material evidence was submitted within the appeal period as to this issue; however, evidence received since the final October 2011 rating decision is new, relates to an unsubstantiated issue necessary to substantiate the claim for a low back disability, and raises a reasonable possibility of substantiating the claim. 3. A May 2004 rating decision, in part, denied entitlement to service connection for a right knee condition; the Veteran did not appeal this denial in a timely manner, and no new and material evidence was submitted within the appeal period as to this issue; however, evidence received since the final May 2004 rating decision is new, relates to an unsubstantiated issue necessary to substantiate the claim for a right knee disability, and raises a reasonable possibility of substantiating the claim. 4. Resolving reasonable doubt in the Veteran’s favor, his right ear hearing loss is at least as likely as not related to active service. 5. Resolving reasonable doubt in the Veteran’s favor, major depressive disorder with anxious distress features, is at least as likely as not related to active service. CONCLUSIONS OF LAW 1. The April 1996 rating decision which, in part, denied entitlement to service connection for right ear hearing loss, is final; however, new and material evidence has been received sufficient to reopen the previously denied claim of service connection for right ear hearing loss. 38 U.S.C. §§ 5108, 7105 (c) (2012); 38 C.F.R. §§ 3.104, 3.156 (a), 20.302, 20.1103, 20.1105 (2017). 2. The October 2011 rating decision which denied a claim to reopen entitlement to service connection for a lower back condition, is final; however, new and material evidence has been received sufficient to reopen the previously denied claim of service connection for a low back disability. 38 U.S.C. §§ 5108, 7105 (c) (2012); 38 C.F.R. §§ 3.104, 3.156 (a), 20.302, 20.1103, 20.1105 (2017). 3. The May 2004 rating decision which, in part, denied entitlement to service connection for a right knee condition, is final; however, new and material evidence has been received sufficient to reopen the previously denied claim of service connection for a right knee disability. 38 U.S.C. §§ 5108, 7105 (c) (2012); 38 C.F.R. §§ 3.104, 3.156 (a), 20.302, 20.1103, 20.1105 (2017). 4. The criteria for service connection for a right ear hearing loss disability are met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). 5. The criteria for service connection for major depressive disorder with anxious distress features are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1992 to May 1995, to include service in the Southwest Asia theater of operations during the Persian Gulf War. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, and July 2014 and February 2015 rating decisions by the RO in Montgomery, Alabama. The January 2005 rating decision increased the evaluation assigned for status post arthroscopy, left shoulder, with residual weakness and decreased range of motion, from 10 percent to 20 percent, effective September 23, 2004. In February 2005, the Veteran timely filed a notice of disagreement as to the evaluation assigned for this disability. Accordingly, a May 2005 statement of the case (SOC) was issued and the Veteran timely perfected an appeal thereafter. Thereafter, a June 2006 rating decision increased the rating for the left shoulder disability to 30 percent, effective from September 23, 2004, the date of the claim for increase, and held that it had awarded the highest schedular evaluation assignable, and had considered entitlement to an extraschedular evaluation pursuant to 38 C.F.R. § 3.321 (b)(1), but found that such a rating was not warranted for this disability, and concluded that this constituted a full grant of the benefit sought on appeal. But see AB v. Brown, 6 Vet. App. 35, 38 (1993). Nevertheless, the Board is the final arbiter of its jurisdiction. Accordingly, in the circumstances presented in this case, the Board has characterized the increased rating claim on appeal with respect to the Veteran’s left shoulder disability to encompass the appeal period based on the September 23, 2004 claim for increase. The Board has recharacterized the claim for service connection for depression and anxiety as single claim for any acquired psychiatric disorder other than PTSD. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Entitlement to service connection for PTSD was denied in a final November 1999 rating decision and a claim to reopen entitlement to service connection for PTSD was denied in a final June 2003 rating decision. These rating decisions only addressed PTSD and did not address any psychiatric disability other than PTSD. Further, the Veteran’s current claim did not reference PTSD, nor is such a claim raised by the record, and as psychiatric disorders other than PTSD are manifested by a distinct factual basis than PTSD, the threshold question of whether new and material evidence has been received need not be addressed. See Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996); Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). In September 2017, the Veteran’s representative requested a 90 day extension of time to submit additional evidence or argument in support of the appeal. As the requested 90 day extension has now elapsed and the Veteran’s representative has submitted evidence and argument in support the appeal, the Board may proceed with appellate review. However, the record also reflects VA associated VA treatment records with the record in March 2017 subsequent to the March 2016 SOC which addressed the evaluation assigned for the Veteran’s left shoulder disability; however, as this claim is remanded below, there is no prejudice to the Veteran in this regard. New and Material Evidence VA may reopen and review a claim, which has been previously denied, if new and material evidence is received, or submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 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. 38 C.F.R. § 3.156 (a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Additionally, the law should be interpreted to enable reopening of a claim, rather than to preclude it. Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. Whether new material evidence has been received in order to reopen a claim of entitlement to service connection for a right ear hearing loss With respect to the claim for right ear hearing loss, an April 1986 rating decision, in part, denied the claim as right ear hearing loss for VA purposes was not shown by the evidence of record, and the Veteran was notified of the decision later the next month. The Veteran did not appeal the denial of the claim and no new and material evidence was received within the appeal period. Thus, the April 1986 rating decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In October 2014, the Veteran, in part, filed a claim to reopen the claim of entitlement to service connection for right ear hearing loss. A February 2015 rating decision, in pertinent part, reopened the claim but denied the claim on the merits and the Veteran’s appeal of this denial forms the basis of the present appeal. New evidence added to the record since the April 1986 rating decision, includes a January 2015 hearing loss and tinnitus disability benefits questionnaire (DBQ) which demonstrated right ear hearing loss for VA purposes. That fact goes to the issue of whether the Veteran has a current disability, specifically right ear hearing loss for VA purposes. Thus, this evidence is both new as it has not been previously considered by VA, and material, as it raises a reasonable possibility of substantiating the Veteran’s claim. Accordingly, the claim to reopen service connection for a back disability is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). The reopened claim is addressed further in the remand section. 2. Whether new material evidence has been received in order to reopen a claim of entitlement to service connection for a low back disability An April 1996 rating decision denied the claim for a lower back condition as it was not incurred in or nor aggravated by service, and the Veteran was notified of the decision later the next month. The Veteran did not appeal the denial of the claim and no new and material evidence was received within the appeal period. Thus, the April 1996 rating decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Thereafter, May 2004 and January 2011 rating decisions declined claims to reopen. The claim was again denied in an October 2011 rating decision which determined the claim because new and material evidence had not been submitted. Evidence at that time included the report of a September 2011 VA examination which diagnosed mild compression fracture of L1 the examiner which the examiner determined was less likely than not related to service as there was no evidence in the Veteran’s service treatment records of any history for complaint, evaluation, or treatment for any lumbar back disorder. In October 2014, the Veteran, in part, filed a claim to reopen the claim of entitlement to service connection for low back disability. New evidence added to the record since the October 2011 rating decision includes additional VA treatment records. Specifically, a March 2013 VA treatment record documented, in part, degenerative arthritis of the back and a November 2016 VA treatment record documented a diagnosis of degenerative arthritis of the lower back. The Board finds that this new evidence goes to the issue of whether the Veteran has a current low back disability which is related to his service, especially in light of the fact that a diagnosis of degenerative arthritis of the lower back allows for additional presumptions of chronicity and continuity of symptomatology to establish service connection. Further, since the claim was adjudicated on the merits in the initial April 1996 rating decision, an August 2010 private medical record noted degenerative joint disease was seen at T-12-L1 and L4-5 which were consistent with airborne activities resulting in axial compression trauma and the same physician provided an August 2011 private medical letter which found, in part, the degenerative changes were consisted with what would be expected from the type of compression forces common in multiple landings during low altitude jump maneuvers. Thus, this evidence is both new as it has not been previously considered by VA, and material, as it raises a reasonable possibility of substantiating the Veteran’s claim. Accordingly, the claim to reopen service connection for a right knee disability is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). The reopened claim is addressed further in the remand section. 3. Whether new material evidence has been received in order to reopen a claim of entitlement to service connection for a right knee disability With respect to the claim for a right knee disability, a May 2004 rating decision, in part, denied the claim for a right knee condition as it was not incurred in or nor aggravated by service, and the Veteran was notified of the decision later the same month. The Veteran did not appeal the denial of the claim and no new and material evidence was received within the appeal period. Thus, the May 2004 rating decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In October 2014, the Veteran, in part, filed a claim to reopen the claim of entitlement to service connection for a right knee disability. New evidence added to the record since the May 2004 rating decision, includes additional VA treatment records. Specifically, a November 2016 VA treatment record documented that the Veteran had previous injuries to the right knee when he was a paratrooper, that his right knee was a little bit unstable, and endorsed a diagnosis of degenerative arthritis of the bilateral knee. Without addressing the merits of this evidence, the Board finds that this new evidence goes to the issue of whether the Veteran has a current right knee disability which is related to his service, and it is presumed credible for the limited purpose of reopening the claim. Thus, this evidence is both new as it has not been previously considered by VA, and material, as it raises a reasonable possibility of substantiating the Veteran’s claim. Accordingly, the claim to reopen service connection for a right knee disability is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). The reopened claim is addressed further in the remand section. Service Connection 4. Entitlement to service connection for right ear hearing loss For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2017). The Board concludes that the Veteran has a current diagnosis of right ear hearing loss disability for VA purposes that is related to in-service noise exposure. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The January 2015 hearing loss and tinnitus DBQ noted findings consistent with 38 C.F.R. § 3.385. Service connection for left ear hearing loss was granted in April 1996 based, in part, on a finding that the Veteran was exposed to noise during service. There is no evidence of intercurrent causes for the now demonstrated right ear hearing loss. The evidence shows that the Veteran presently has right ear hearing loss disability for VA purposes, with no evidence of an intercurrent cause. See Hensley v. Brown, 5 Vet. App. 155 (1993). Resolving doubt in the Veteran’s favor, the Board finds the Veteran’s right ear hearing loss is in fact related to service. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for right ear hearing loss is warranted. 5. Entitlement to service connection for an acquired psychiatric disorder other than PTSD The Veteran has a current acquired psychiatric disorder, best characterized as major depressive disorder with anxious distress features, that is etiologically related to his active service. 38 U.S.C. §§ 1110, 5107(b); Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303 (a). A January 2017 private examiner endorsed a diagnosis of major depressive disorder with anxious distress features. The Board recognizes that VA treatment records documented that depression screenings, including those in September 2015 and November 2016, were negative. The January 2017 private examiner found the Veteran’s major depressive disorder severe, recurrent with anxious distress features, more likely than not began in service and was also aggravated by his service-connected medical conditions of status post left shoulder dislocation, tinnitus, status post fracture right fifth metacarpal and left hearing loss. After review of the record, the Board finds that the evidence is at least in equipoise with regard to the issue of entitlement to service connection for an acquired psychiatric disorder. The January 2017 private opinion is considered highly probative, as it is consistent with other evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Specifically, the evidence reflect the Veteran’s brother was murdered in July 1992 during his active service, his father submitted a September 2016 statement which generally reported the Veteran’s psychiatric problems onset during service, and notably, an undated service treatment record, but which is associated with the record with an April 1993 examination report, documented the Veteran was currently receiving mental health treatment for emotional stress. Further, is no contrary evidence of record. The Board finds that the evidence is in equipoise as to whether the Veteran’s major depressive disorder with anxious distress features is related to service. Service connection for major depressive disorder with anxious distress features, is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. REASONS FOR REMAND 1. Entitlement to service connection for a low back disability is remanded. 2. Entitlement to service connection for a right knee disability is remanded. As the Board has reopened the back and right knee claims, the AOJ must adjudicate the claim on the merits in the first instance. See Bernard v. Brown, 4 Vet. App. 384 (1993). Adequate medical opinions are needed before the Board can make fully-informed decisions. The September 2011 examiner did not address the diagnosis of degenerative arthritis of the lumbar spine and did not address if any identified low back disability was related in-service parachute jumps. The Veteran must also be afforded an examination to determine the current nature and likely etiology of any diagnosed right knee disability, to include whether it is related to in-service parachute jumps. 38 C.F.R. § 3.159 (c)(4). 3. Entitlement to service connection for a left knee disability is remanded. The Veteran must also be afforded an examination to determine the current nature and likely etiology of any diagnosed left knee disability, to include whether it is related to in-service parachute jumps. 38 C.F.R. § 3.159 (c)(4). 4. Entitlement to service connection for a gastrointestinal disability is remanded. The Veteran had service in the Southwest Asia theater of operations during the Persian Gulf War from October 1994 to December 1994. Most recently, a November 2016 VA treatment record documented the Veteran reported his stomach had been doing relatively good and he had not had any significant problem with indigestion but he did continue using omeprazole on an as needed basis. Although not proximate to the current claim, received by VA in October 2014, a September 2008 VA treatment record documented omeprazole was prescribed for severe gastritis. The Veteran had not been afforded an examination with respect to a gastrointestinal disability; however, the Board finds that the evidence indicates that the Veteran may have a functional gastrointestinal disorder, but the evidence of record is not adequate to make a determination as to whether the Veteran is entitled to service connection for such a condition under the provisions of 38 C.F.R. § 3.317 or on a direct incurrence basis. Therefore, the matter must be remanded so that the Veteran may be provided a VA examination. 4. Entitlement to service connection for a right wrist disability is remanded. A January 2015 wrist conditions DBQ found the Veteran had a history of a healed right wrist fracture prior to military service but did not provide a further opinion. However, the Veteran’s October 1991 examination, conducted in conjunction with his enlistment into active service, did not note any defects or diagnoses with respect to his right wrist, and thus, the presumption of soundness applies. Nonetheless, some evidence, as described above, suggests the Veteran’s right wrist disability may have preexisted his service. To rebut the presumption of soundness, the evidence must be clear and unmistakable, thus, the Board finds that the claim must be remanded to have a VA examiner provide an opinion regarding the likelihood that any identified right wrist disability preexisted the Veteran’s service, and if preexisting, the likelihood that the identified right wrist disability worsened during service. A medical opinion is needed to decide the claim. 38 C.F.R. § 3.159 (c)(4). 5. Entitlement to a compensable evaluation for service-connected status post, fracture right fifth metacarpal, is remanded. A January 2015 hand and finger conditions DBQ does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26 (2017). The examiner found pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time, but was unable to describe any additional loss in terms of range of motion. Similarly, the January 2015 examiner was unable to determine without mere speculation if pain, weakness, fatigability or incoordination significantly limited functional ability with flare-up; however, the examiner did not attempt to elicit relevant information from the Veteran regarding the frequency or severity of the reported flare-ups. A new examination is needed. 6. Entitlement to an evaluation in excess of 30 percent prior to October 1, 2014 and in excess of 20 percent from October 1, 2014 for service-connected status post arthroscopy, left shoulder dislocation, is remanded. As discussed above, the Board has found the proper appeal period for the evaluation of the Veteran’s status post arthroscopy, left shoulder dislocation stems from a January 2005 rating decision promulgated based on a September 23, 2004 claim for increase, thus the claim is remanded to the AOJ to readjudicate the claim in the first instance with consideration of the expanded temporal period. Further, the most recent the June 2014 shoulder and arm conditions DBQ is inadequate for rating purposes. Sharp, 29 Vet. App. at 34-36. Thus, another examination addressing these deficiencies is warranted. 7. Whether the reduction of the rating for service-connected status post arthroscopy, left shoulder dislocation, from 30 percent to 20 percent, effective from October 1, 2014, was proper is remanded. The issue of whether the reduction of the Veteran’s disability rating of his left shoulder disability from 30 percent to 20 percent, effective October 1, 2014, was proper, is inextricably intertwined with the increased rating claim remanded above. Accordingly, the Board must defer adjudication of the issue. See Harris v. Derwinski, 1 Vet. App. 180 (1991). 8. Entitlement to a compensable evaluation for service-connected left ear hearing loss is remanded. In light of the grant of service connection for right ear hearing loss, the evaluation of the left ear hearing loss is remanded so that pertinent findings for both ears can be considered in assigning the proper rating. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records for the period since 2015. 2. Ask the Veteran to complete a VA Form 21-4142 for any private providers he’s seen since 2015. Thereafter, take all appropriate action to obtain the records. 3. After completion of the above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diagnosed low back, right and left knee disabilities. (a.) For any diagnosed back or knee disability, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, to include as due to parachute jumps. (b.) Further, if arthritis of the low back or either knee is diagnosed, provide an opinion whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diagnosed gastrointestinal disability. (a.) The examiner must opine whether the Veteran has a gastrointestinal disability that is at least as likely as not related to an in-service injury, event, or disease, to include environmental exposures during his active service in Southwest Asia. (b.) If the Veteran does not have a diagnosis of a gastrointestinal disability, whether any of the Veteran’s gastrointestinal symptoms are a “qualifying chronic disability” resulting from an undiagnosed illness or part of a medically unexplained chronic multi-symptom illness. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diagnosed right wrist disability. (a.) The examiner must opine whether any identified right wrist clearly and unmistakably (undebatable) preexisted the Veteran’s service. If the examiner finds it did clearly and unmistakably preexist service, the examiner must opine whether it was clearly and unmistakably not aggravated by service. (b.) If the examiner finds that any identified right wrist disability either did not preexist service, or was not aggravated by service, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. (c.) Further if arthritis of the right wrist is diagnosed, provide an opinion whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right fifth metacarpal and left shoulder disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating each disability under the rating criteria. The examiner must 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 each disability and discuss the effect of each disability 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). 7. After undertaking any other development deemed appropriate, readjudicate the issues on appeal, specifically to include any development necessary in light of the grant of service connection for right ear hearing loss and the evaluation for the Veteran’s left shoulder disability based on a September 23, 2004 claim for increase. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Espinoza, Counsel