Citation Nr: 18157189 Decision Date: 12/12/18 Archive Date: 12/11/18 DOCKET NO. 16-23 238 DATE: December 12, 2018 ORDER The appeal as to the claim of entitlement to service connection for bilateral tinnitus is granted. The appeal as to the claim of entitlement to service connection for bilateral hearing loss is denied. The appeal as to the claim of entitlement to service connection for a gall bladder disorder is denied. The appeal as to the claim of entitlement to service connection for a headache disorder is denied. The Board, having determined that new and material evidence has been received, concludes that reopening of the claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, anxiety, and bipolar disorder, is granted. The Board, having determined that new and material evidence has been received, concludes that reopening of the claim of entitlement to service connection for residuals of a head injury, is granted. The Board, having determined that new and material evidence has been received, concludes that reopening of the claim of entitlement to service connection for a lumbar spine disorder, to include degenerative disc disease and stenosis, is granted. The appeal as to the claim of whether new and material evidence has been received to reopen the claim of entitlement to service connection for right elbow disorder is denied. The appeal as to the claim of whether new and material evidence has been received to reopen the claim of entitlement to service connection for left elbow disorder is denied. The appeal as to the claim of whether new and material evidence has been received to reopen the claim of entitlement to service connection for right knee disorder is denied. The appeal as to the claim of whether new and material evidence has been received to reopen the claim of entitlement to service connection for left knee disorder is denied. The appeal as to the claim of whether new and material evidence has been received to reopen the claim of entitlement to service connection for right ankle disorder is denied. The appeal as to the claim of whether new and material evidence has been received to reopen the claim of entitlement to service connection for a left ankle disorder is denied. The appeal as to the claim of whether new and material evidence has been received to reopen the claim of entitlement to service connection for a heart disorder is denied. REMANDED The appeal as to the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression, anxiety, and bipolar disorders, is remanded. The appeal as to the claim of entitlement to service connection for a head injury is remanded. The appeal as to the claim of entitlement to service connection for a lumbar spine disorder, to include degenerative disc disease and stenosis, is remanded. The appeal as to the claim of entitlement to service connection for right leg length discrepancy (LLI) is remanded. The appeal as to the claim of entitlement to service connection for left leg discrepancy (LLI) is remanded. The appeal as to the claim of entitlement to service connection for a sleep disorder, to include as secondary to a claimed acquired psychiatric disorder, is remanded. The appeal as to the claim of entitlement to a total disability rating based upon individual unemployability (TDIU), due to service-connected disabilities, is remanded. FINDINGS OF FACT 1. The Veteran’s current bilateral tinnitus is etiologically related to his active service. 2. No hearing loss disability has been presented at any time during the pendency of the claim. 3. The Veteran does not have a gall bladder disorder. 4. The Veteran does not have a headache disorder. 5. A February 2009 rating decision denied the claim of entitlement to service connection for an acquired psychiatric disorder, residuals of a head injury, lumbar spine disorder, right elbow disorder, left elbow disorder, right knee disorder, left knee disorder, right ankle disorder, left ankle disorder, and a heart disorder; the Veteran did not appeal the decision and it became final. 6. Evidence subsequently received is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for an acquired psychiatric disorder, entitlement to service connection for residuals of a head injury, and entitlement to service connection for a lumbar spine disorder. 7. The claims of entitlement to service connection for an acquired psychiatric disorder, residuals of a head injury, and a lumbar spine disorder are reopened. 8. The evidence received subsequent to the February 2009 rating decision, by itself, or in conjunction with the previously considered evidence, does not relate to an established fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim of entitlement to service connection for a right elbow disorder, left elbow disorder, right knee disorder, left knee disorder, right ankle disorder, left ankle disorder, or a heart disorder. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for bilateral tinnitus have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 2. The criteria for establishment of entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2018). 3. The criteria for establishing entitlement to service connection for a gall bladder disorder have not been met. 38 U.S.C. §§ 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 4. The criteria for establishing entitlement to service connection for a headache disorder have not been met. 38 U.S.C. §§ 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 5. The February 2009 rating decision that denied the claim of entitlement to service connection for an acquired psychiatric disorder is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2018). 6. New and material evidence has been presented to reopen a claim of entitlement to service connection for an acquired psychiatric disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 7. The February 2009 rating decision that denied the claim of entitlement to service connection for residuals of a head injury is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2018). 8. New and material evidence has been presented to reopen a claim of entitlement to service connection for residuals of a head injury. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 9. The February 2009 rating decision that denied the claim of entitlement to service connection for a lumbar spine disorder is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2018). 10. New and material evidence has been presented to reopen a claim of entitlement to service connection for a lumbar spine disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 11. The February 2009 rating decision that denied the claim of entitlement to service connection for a right elbow disorder is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2018). 12. New and material evidence has not been presented to reopen a claim of entitlement to service connection for a right elbow disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 13. The February 2009 rating decision that denied the claim of entitlement to service connection for a left elbow disorder is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2018). 14. New and material evidence has not been presented to reopen a claim of entitlement to service connection for a left elbow disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 15. The February 2009 rating decision that denied the claim of entitlement to service connection for a right knee disorder is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2018). 16. New and material evidence has not been presented to reopen a claim of entitlement to service connection for a right knee disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 17. The February 2009 rating decision that denied the claim of entitlement to service connection for a left knee disorder is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2018). 18. New and material evidence has not been presented to reopen a claim of entitlement to service connection for a left knee disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 19. The February 2009 rating decision that denied the claim of entitlement to service connection for a right ankle disorder is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2018). 20. New and material evidence has not been presented to reopen a claim of entitlement to service connection for a right ankle disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 21. The February 2009 rating decision that denied the claim of entitlement to service connection for a left ankle disorder is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2018). 22. New and material evidence has not been presented to reopen a claim of entitlement to service connection for a left ankle disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 23. The February 2009 rating decision that denied the claim of entitlement to service connection for a heart disorder is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2018). 24. New and material evidence has not been presented to reopen a claim of entitlement to service connection for a heart disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Marine Corps from November 1979 to October 1982. His service was under honorable conditions. These matters are on appeal from an August 2015 rating decision. The Veteran's claim has been developed and adjudicated as entitlement to service connection for a depressive disorder. In addition, the evidence of record demonstrates the Veteran has diagnoses of PTSD, depression, anxiety, and bipolar disorders. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record. In light of Clemons, the issue has been recharacterized (as stated on the cover page) to encompass all psychiatric diagnoses. Service Connection – Legal Criteria Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (finding service connection presupposes a current diagnosis of the condition claimed). The requirement that a current disability be present is satisfied, "when a claimant has a disability at the time a claim for VA disability compensate on is filed or during the pendency of that claim . . . even though the disability resolves prior to the Secretary's adjudication of the claim." McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary 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 Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 1. Entitlement to service connection for bilateral tinnitus. The Veteran contends that his current bilateral tinnitus began during active service and has continued to the present. Specifically, he asserts that he was exposed to moderate acoustic trauma coincident to his duties in the United States Marine Corps, as a vehicle driver. He also asserts that in 1980 or 1981, he took Nitrostat, and his current tinnitus began. The Veteran further reported that he experienced ringing in his ears since service. Service treatment records are negative for complaints of, treatment for, or a diagnosis of tinnitus. Post-service records include the report of an August 2014 VA examination report during which the Veteran reported ringing in his ears since 1980 or 1981. He also denied post-service recreational noise exposure. Upon examination and review of the record the examiner diagnosed bilateral tinnitus. The examiner opined that it was “less likely” than not that the Veteran’s current bilateral tinnitus was caused by or a result of service. In providing this opinion, the examiner found that the Veteran was possibly exposed to excess noise. The examiner also noted that the Veteran took Nitrostat during service, however, he indicated that he did not know if the medication was ototoxic. The August 2014 VA opinion is inadequate to adjudicate the claim. In this regard, the examiner failed to acknowledge the lay assertions of record regarding the Veteran’s in-service noise exposure due to his military occupational specialty and ringing in his ears since service. Such statements are competent evidence regarding his in-service noise exposure and observable symptoms that he experienced ever since military service. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Charles v. Principi, 16 Vet. App. 370 (2002). Moreover, although the Veteran’s service treatment records are silent for any complaints of, treatment for, or a diagnosis of tinnitus; the Board cannot reject lay evidence simply because it is not accompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1371 (Fed. Cir. 2007). Accordingly, the August 2014 VA opinion is of no probative value. In sum, the Board finds that the evidence of record supports a grant of service connection for bilateral tinnitus. The clinical evidence of record establishes that the Veteran has a current diagnosis of bilateral tinnitus. Moreover, the Board finds that the Veteran’s report of military noise exposure is consistent with the circumstances of his service. Tinnitus is a subjective sensation, which lay evidence is competent to describe, to include the time of onset. In addition, the Veteran has presented credible written statements regarding his in-service incurrence of noise exposure and tinnitus. Accordingly, service connection for tinnitus is warranted. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for bilateral hearing loss. The Veteran contends that his current bilateral hearing loss disability began during active service because of his duties as a vehicle driver. In this regard, the Agency of Original Jurisdiction (AOJ) conceded that the Veteran’s Military Occupational Specialty (MOS) is moderately probable for inservice noise exposure. Thus, noise exposure is conceded. For the purposes of applying the laws administered by VA, hearing impairment is considered a disability when the auditory threshold level in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Service treatment records are negative for complaints, treatment, or a diagnosis of right or left hearing loss. Following service, the Veteran’s original claim for VA compensation for hearing loss disability was received in August 2013. Post-service treatment records include an August 2014 VA examination report. At the time, the Veteran reported that he was exposed to acoustic trauma during service. The audiological examination report notes the following puretone thresholds in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 20 20 15 LEFT 20 15 20 35 25 The examiner stated that the Veteran’s speech audiometry revealed a speech recognition score of 96 percent, bilaterally. Upon review of the claims file, the examiner noted that the Veteran had normal hearing of the right ear, and slight sensorineural hearing loss at 3000 Hz of the left ear. Overall, the examiner concluded that such slight hearing loss of the left ear did not meet the criteria for a disability for VA purposes. There is no medical evidence of record showing that the Veteran has ever had sufficient hearing impairment in either ear to qualify as a disability for VA compensation purposes. See 38 C.F.R. § 3.385. The Board recognizes that the Veteran might sincerely believe that he has a bilateral hearing loss disability that is related to his active service. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on his symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Although the Veteran is competent to report his symptoms, he does not possess the medical expertise required to provide the numerical data necessary to assign a diagnosis of a specific medical disability or to provide a competent opinion concerning the etiology of such a disability. In any event, the Veteran's lay opinion is clearly of less probative value than the VA medical opinion against the claim. The Veteran has not provided VA with any competent evidence to demonstrate a current diagnosis of bilateral hearing loss or to contradict the opinion of the VA examiner of record. Accordingly, the Board must conclude that service connection is not warranted for this claimed disability. The Board has duly considered the benefit of the doubt doctrine. However, for the reasons explained above, the Board has determined that the preponderance of the evidence is against the Veteran's claim, so that doctrine is not applicable to this claim. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 3. Entitlement to service connection for a gall bladder disorder. See argument Below at Number 4 4. Entitlement to service connection for a headache disorder. The Veteran contends that his gall bladder and headache disorders are related to active service. Service treatment records are negative for complaints of, treatment for, or diagnoses of a gall bladder and/or headache disorder. Post-service records include an April 2015 VA outpatient treatment note, which includes the Veteran’s reported history of gall bladder surgery; he does not assert that this claimed history is the result of active service, nor does the evidence of record demonstrate this fact. Overall, post-service VA and private treatment records are negative for complaints of, treatment for, or diagnoses of a gall bladder and/or headache disorders. The Board recognizes that the Veteran might sincerely believe that he has gall bladder and headache disabilities that are related to his active service. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on his symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Although the Veteran is competent to report his symptoms, he does not possess the requisite medical training or expertise necessary to render his statements as competent evidence on matters such as medical diagnosis or medical causation. See Cromley v. Brown, 7 Vet. App. 376, 379 (1995). The existence of a current disability is the cornerstone of a claim for VA disability compensation, and without a current disability, service connection is not warranted. 38 U.S.C. § 1131; see also Brammer, 3 Vet. App. at 225 (1992). As above the evidence does not show that the Veteran has a gall bladder or a headache disorder, nor have such diagnoses been present at any time during the period of the appeal. Accordingly, the Board finds that the probative evidence is against finding that the Veteran has a current gall bladder or headache disability. In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine does not apply, and service connection must be denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). New and Material Evidence – General Legal Criteria Generally, a claim that has been denied in an unappealed Regional Office (RO) decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c) (2012). 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. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed about the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). 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). The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). For establishing whether new and material evidence has been submitted, the credibility of 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); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). 5. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression, anxiety, and bipolar disorders. See argument Below at Number 7 6. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for residuals of a head injury. See argument Below at Number 7 7. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a lumbar spine disorder, to include degenerative disc disease and stenosis. The Veteran’s claims of entitlement to service connection for an acquired psychiatric disorder, residuals of a head injury, and a lumbar spine disorder were initially denied by the RO in a February 2009 rating decision; he did not appeal the decision. Evidence considered at the time of the rating decision consisted of service treatment records, VA outpatient treatment records dated January 2003 through April 2005 and January 2008 through February 2008, private treatment records dated May 2003, May 2004 through April 2005, and July 2007 through February 2009, a VA examination report dated February 2009 that indicated a diagnosis of lumbar spine degenerative disc disease; the examiner found the low back disorder was not related to the January 1982 inservice lumbar spine muscle sprain, and an article entitled “Fans make smoker a success,” dated 1981, showing that the boxer named smoker knocked the Veteran’s “lights out for good” during a boxing match that took place at the Marine Corp base in Quantico, Virginia. The RO concluded that service connection for an acquired psychiatric disorder, residuals of a head injury, and a lumbar spine disorder was not warranted because the evidence failed to show that the Veteran had chronic current disabilities that were related to service. The Veteran was notified of the decision and his appellate rights but did not appeal. In August 2013, the Veteran submitted a statement requesting that the claim of entitlement to service connection for an acquired psychiatric disorder, residuals of a head injury, and a lumbar spine disorder, be reopened. In the August 2014 decision on appeal, the RO declined to reopen these issues. Notwithstanding the RO’s actions, the Board must make its own determination on this matter. Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). Regarding the claimed acquired psychiatric disorders, evidence received since the February 2009 rating decision includes statements from the Veteran indicating that he experienced symptoms of depression since service, as well as a statement from the Veteran’s wife that includes her observations of his symptoms of depression for decades. Specifically, a November 2003 private treatment record notes the Veteran’s report of being hospitalized four times due to suicidal ideation over the years because of depression, which began during service. A December 2012 VA outpatient treatment record notes the Veteran’s report of symptoms of depression since the early 1980’s. Social Security Administration (SSA) and VA outpatient treatment records dated April 2005 to the present, demonstrate ongoing complaints, treatment for, and diagnoses of PTSD, anxiety, depression, and bipolar disorders. The assertion of symptoms of depression since active service and documented treatment for PTSD, anxiety, depression, and bipolar disorders in November 2003 to the present, suggest a possible relationship between his current chronic psychiatric diagnoses and active service. With respect to the claimed residuals of a head injury, evidence received since the February 2009 rating decision includes statements from the Veteran indicating that he experienced a worsening of his memory since an in-service head injury, when he lost consciousness during a boxing match. Specifically, a December 2014 VA outpatient treatment record demonstrates a finding of memory loss. A September 2015 record includes the Veteran’s report of a loss of consciousness during service due to a boxing injury, as well as a finding of impaired memory by a neurologist. The assertion of memory loss that has worsened since a loss of consciousness due to head injury during active service, and documented treatment by a neurologist for memory loss in December 2014 to the present, suggest a relationship between the Veteran’s current neurological condition(s) and active service. Regarding the claimed lumbar spine disorder, evidence received since the February 2009 rating decision includes statements from the Veteran indicating that his multiple lumbar spine disorders were related to active service because he sought treatment for his low back during service on several occasions and his pain has continued since that time. In addition, VA outpatient treatment records dated in December 2013 through May 2014 demonstrate diagnoses of lumbar spine degenerative disc disease, a history of a herniated disc, and stenosis at L2 and L3. The assertion of low back pain that has worsened since his documented inservice treatment for a muscle strain and ongoing low back pain during active service, and documented treatment by a VA physician for an additional diagnosis, namely, stenosis, in December 2013 through May 2014, suggest a relationship between the Veteran’s current lumbar spinal stenosis and active service. The aforementioned evidence is not cumulative or redundant of the evidence previously of record. Moreover, it relates to an unestablished fact necessary to substantiate the claim. Therefore, it is new and material, and reopening of the claims of entitlement to service connection for an acquired psychiatric disorder, residuals of a head injury, and a lumbar spine disorder, is in order. 8. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a right elbow disorder. See argument Below at Number 14 9. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a left elbow disorder. See argument Below at Number 14 10. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a right knee disorder. See argument Below at Number 14 11. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a left knee disorder. See argument Below at Number 14 12. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a right ankle disorder. See argument Below at Number 14 13. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a left ankle disorder. See argument Below at Number 14 14. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a heart disorder. The Veteran’s claims of entitlement to service connection for ¬¬¬¬¬¬¬¬¬¬¬¬a right elbow, left elbow, right knee, left knee, right ankle, left ankle, and heart disorders were initially denied by the RO in a February 2009 rating decision; he did not appeal the decision. Evidence considered at the time of the rating decision consisted of service treatment records dated November 1979 through October 1982, statements from the Veteran indicating that his claimed right elbow, left elbow, right knee, left knee, right ankle, left ankle, and heart disorders were related to active service, VA outpatient treatment records dated January 2003 to May 2003 and January 2008 through February 2008; private treatment records from M.M. dated May 2003; private treatment records from Sentara Complex dated May 2004 through April 2005; private treatment records from Dr. C. dated July 2007 through October 2007; and a VA examination report dated February 2009, which indicates that there is no current diagnosis of a heart disorder. In August 2013, the Veteran submitted a statement requesting that the claims of entitlement to service connection for right elbow, left elbow, right knee, left knee, right ankle, left ankle, and heart disorders be reopened. In the August 2014 rating decision on appeal, the RO declined to reopen the claims. Notwithstanding the RO’s actions, the Board must make its own determination on these matters. Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). Since the February 2009 rating decision, the Veteran has not submitted or identified evidence demonstrating a relationship between his claimed right elbow, left elbow, right knee, left knee, right ankle, left ankle, or heart disorders and his active service. In this regard, the evidence received since the February 2009 rating decision includes duplicate service treatment records, duplicate statements from the Veteran dated September 2013 through July 2014, indicating that his current claimed right elbow, left elbow, right knee, left knee, right ankle, left ankle, and heart disorders are related to his active service, and VA outpatient treatment records dated January 2012 through April 2016, as well as SSA records, which are negative for complaints of, treatment for, or a diagnosis of right elbow, left elbow, right knee, left knee, right ankle, left ankle, or heart disorders. In sum, the evidence received since the February 2009 rating decision still does not reflect current diagnoses of right elbow, left elbow, right knee, left knee, right ankle, left ankle, or heart disorders, nor does it reflect a finding of a nexus between the Veteran’s claimed disorders and his active service. Thus, even if some of this evidence could, in a limited sense, be considered “new,” none of the evidence is material because it provides no reasonable possibility of substantiating the claims. The Board acknowledges that the threshold for reopening a claim is low, but it is a threshold nonetheless. See, Shade, supra. Thus, the Board finds that new and material evidence has not been submitted, and the requirements of 38 C.F.R. § 3.156(a) have not been satisfied. In light of the aforementioned, the request to reopen a claim of entitlement to service connection for right elbow, left elbow, right knee, left knee, right ankle, left ankle, and heart disorders must be denied. Because the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen his finally disallowed claims, the benefit of the doubt doctrine is inapplicable. Annoni v. Brown, 5 Vet. App. 463 (1993). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression, anxiety, and bipolar disorders. The Veteran contends that his current PTSD, depression, anxiety, and bipolar disorders are due to active service. In this regard, he contends that his symptoms began in service in the early 1980’s. In addition, a statement from the Veteran’s wife indicates that she observed his symptoms of depression for several decades. Service treatment records are negative for complaints of, treatment for, or a diagnosis of an acquired psychiatric disorder. Post-service records include a December 2012 VA outpatient treatment record that notes the Veteran’s report of symptoms of depression since the early 1980’s during active service. A November 2003 private treatment record notes the Veteran’s report of being hospitalized four times due to suicidal ideation over the years. VA and SSA records dated April 2005 to the present, demonstrate ongoing complaints, treatment for, and diagnoses of PTSD, anxiety, depression, and bipolar disorders. Given the Veteran’s assertion of an in-service depression symptoms and current diagnoses, this issue must be remanded for a VA examination and medical opinion concerning this matter. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). 2. Entitlement to service connection for residuals of a head injury. The Veteran contends that his current neurological disorder, claimed as memory loss, is due to active service. Specifically, he asserts that his head was injured during a boxing match while serving in Quantico, Virginia, and as a result, he lost consciousness. In this regard, a September 1981 newspaper article shows that the Veteran was in a boxing match with “the Smoker,” who “knocked the Veteran’s lights out for good.” In addition, he also asserts that he experienced a worsening of memory since the in-service head injury. Service treatment records are negative for complaints of, treatment for, or a diagnosis of a head injury and/or neurological disorder. Post-service records include a December 2014 VA outpatient treatment record that demonstrates memory loss. A June 2015 VA outpatient treatment record notes the Veteran’s report of a post-service motor vehicle accident in 1996; he reported that his airbag deployed but he denied a loss of consciousness. A September 2015 record includes the Veteran’s report of a loss of consciousness during service due to a boxing injury, as well as a finding of impaired memory, by a neurologist. Given the Veteran’s assertion of in-service head injury and evidence of a boxing injury, his current diagnosis of memory loss, and his report of a worsening of his memory since the in-service injury, this issue must be remanded for a VA examination and medical opinion concerning this matter. See Id. 3. Entitlement to service connection for a lumbar spine disorder, to include degenerative disc disease and stenosis. The Veteran contends that his current lumbar spine disorders, to include degenerative disc disease and stenosis, are due to active service. In addition, he also asserts that he experienced a worsening of his low back pain since the in-service lifting injury. Service treatment records include an August 1979 induction examination, which is negative for complaints of, treatment for, or a diagnosis of a low back disorder. An early record dated January 1982 demonstrates the Veteran’s complaint of low back pain for two days after lifting; examination reveals pain on rotation and a diagnosis of a muscle sprain. A late January 1982 record notes the Veteran’s report of low back pain for the past week after lifting. A March 1982 record notes a finding of lumbar spine muscle spasm. The October 1982 separation medical examination is negative a diagnosis of a lumbar spine disorder; the report of medical history is not of record. Post-service records include an April 2005 VA outpatient treatment record that indicates a bulging disc; the Veteran declined surgery. An April 2008 record notes a diagnosis of a herniated disc with complaints of radicular pain. The MRI shows L5 root compression. The report of an April 2009 VA examination notes a diagnosis of degenerative disc disease. The examiner found that such diagnosis was not caused by or a result of back pain complaints during service. In providing this opinion, the examiner noted that the 1982 separation spinal examination was normal, and concluded that a sprain and spasm are typically acute and transitory conditions that resolve without residual. The examiner noted that the Veteran’s post-service treatment records were silent for complaints of low back problems until 2005. SSA records dated December 2013 note the Veteran’s report of ongoing low back pain. VA outpatient treatment records dated December 2013 through May 2014 indicate diagnoses of degenerative disc disease, a history of a herniated disc, and lumbar stenosis at L2 and L3. The April 2009 VA opinion is inadequate to adjudicate the claim, as the examiner stated that the Veteran’s current degenerative disc disease was not related to his active service due to a lack of medical evidence indicating low back problems for several years, following discharge from service. Moreover, the examiner did not discuss the Veteran’s report of ongoing symptoms of pain since the reported in-service lifting injury. Given the Veteran’s assertion of documented low back pain during service and diagnosis of a muscle strain, his current diagnoses of degenerative disc disease and stenosis at L2 and L3, his report of a worsening of low back symptoms since the in-service injury, and the inadequacy of the April 2009 VA opinion, this issue must be remanded for another VA examination and medical opinion concerning this matter. See Id. 4. Entitlement to service connection for right LLI. See argument Below at Number 5 5. Entitlement to service connection for left LLI. The Veteran contends that his current right and left LLI disorders are due to active service; specifically, the result of a boxing injury. In the alternative, he contends that these disorders are the result of his claimed lumbar spine disorders. In addition, he also asserts that he experienced a worsening of his right and left LLI pain since the in-service injury. Service treatment records are negative for complaints of, treatment for, or a diagnosis of a right and/or left LLI disorder. Post-service records include an April 2008 VA outpatient treatment record that notes right LLI. Records dated in June 2014 indicate diagnoses of right and left LLI. Given the Veteran’s assertion of an in-service boxing injury, current diagnoses of right and left LLI, and his report of a worsening of his leg discrepancies manifested by increased pain since the in-service injury, these issues must be remanded for a VA examination and medical opinion concerning these matters. See Id. 6. Entitlement to service connection for a sleep disorder, to include as secondary to a claimed acquired psychiatric disorder. The Veteran contends that his current sleep disorder is due to active service. In the alternative, he asserts that the disorder is secondary to his claimed acquired psychiatric disorders. Service treatment records are negative for complaints of, treatment for, or a diagnosis of sleep disorder. Post-service records include a June 2014 VA outpatient treatment record that notes a diagnosis of insomnia. A January 2016 record indicates a diagnosis of insomnia secondary to PTSD. As the issue of entitlement to service connection for an acquired psychiatric disability is being remanded for additional development by the AOJ, and is secondarily applicable to the question of service connection for insomnia, the issue of entitlement to service connection for a sleep disorder is also remanded as inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). 7. Entitlement to a TDIU due to service-connected disabilities. As the issues of entitlement to service connection for an acquired psychiatric disorder, residuals of a head injury, right leg discrepancy, left leg discrepancy, and a sleep disorder are being remanded for additional development by the AOJ, and they are directly applicable to the question of employability, the issue of TDIU is also remanded as inextricably intertwined. See Id. As this claim is being remanded, updated VA outpatient treatment records should also be obtained. 38 C.F.R. § 3.159. The matters are REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims, to include complete VA outpatient treatment records from April 2016, to the present. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159(e). All steps taken to attempt to obtain the above records should clearly be documented in the record. 2. Schedule the Veteran for a VA examination before an appropriate physician to determine the etiology of any acquired psychiatric disorder present during the period on appeal, to include PTSD, depression, anxiety, and bipolar disorders. The examiner must review the record, to include service treatment records, VA, private, and SSA records, and the Veteran’s statements and lay statements. The examiner must also consider the Veteran's documented medical history, assertions, and reported symptoms. All indicated studies should be completed, and all clinical findings reported in detail. The examiner must provide an opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that any current acquired psychiatric disorder, to include PTSD, depression, anxiety, and bipolar disorders, manifested during, or as a result of, active military service. In providing the opinion, the examiner must comment on the Veteran’s report of symptoms of depression since active service in the early 1980’s. For purposes of the opinions, the examiner should assume that the Veteran is a credible historian. A complete rationale for all opinions offered must be provided. If the examiner is unable to provide any required opinion, the examiner should fully explain why this is the case. Likewise, if the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. Schedule the Veteran for a VA examination before an appropriate physician to determine the etiology of any residuals of a head injury present during the period on appeal, to include impaired memory. The examiner must review the record, to include service treatment records, VA, private, and SSA treatment records, and the Veteran’s statements. The examiner must also consider the Veteran's documented medical history, assertions, and reported symptoms. All indicated studies should be completed, and all clinical findings reported in detail. The examiner must provide an opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that any current residuals of a head injury/neurological disorder, to include impaired memory, manifested during, or as a result of, active military service. In providing the opinion, the examiner must comment on the Veteran’s assertion that he lost consciousness during service due to a head injury from a boxing match that took place in Quantico, Virginia. The examiner must also comment on the September 1981 newspaper article that shows that the Veteran was in a boxing match with “the Smoker,” who “knocked the Veteran’s lights out for good” during service. The examiner must comment on the June 2015 VA outpatient treatment record that notes the Veteran’s report of a post-service motor vehicle accident in 1996, and his denial of a loss of consciousness. For purposes of the opinions, the examiner should assume that the Veteran is a credible historian. A complete rationale for all opinions offered must be provided. If the examiner is unable to provide any required opinion, the examiner should fully explain why this is the case. Likewise, if the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 4. Schedule the Veteran for a VA examination before an appropriate physician to determine the etiology of any lumbar spine disorder present during the period on appeal, to include degenerative disc disease and stenosis at L2 and L3. The examiner must review the record, to include service treatment records, VA, private, and SSA treatment records, and the Veteran’s statements. The examiner must also consider the Veteran's documented medical history, assertions, and reported symptoms. All indicated studies should be completed, and all clinical findings reported in detail. The examiner must provide an opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that any current lumbar spine disorder, to include degenerative disc disease and stenosis at L2 and L3, manifested during, or as a result of, active military service. In providing the opinion, the examiner must comment on the Veteran’s assertion that he has experienced low back pain since his in-service lifting injury. The examiner must also comment of the service treatment records that demonstrate treatment for a muscle strain due to a lifting injury in January 1982, subsequent complaints of low back pain in late January 1982, and complaints of low back pain and muscle spasm in April 1982. The examiner must comment on the report of an April 2009 VA examination that notes a diagnosis of degenerative disc disease. The examiner found that the degenerative disc disease was not caused by or related to the in-service injury, due to a lack of diagnosis upon separation and his conclusion that a muscle sprain and spasm are typically acute and transitory conditions that resolve without residual. For purposes of the opinions, the examiner should assume that the Veteran is a credible historian. A complete rationale for all opinions offered must be provided. If the examiner is unable to provide any required opinion, the examiner should fully explain why this is the case. Likewise, if the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 5. Schedule the Veteran for a VA examination before an appropriate physician to determine the etiology of any right and/or left leg LLI disorder (s) present during the period on appeal. The examiner must review the record, to include service treatment records, VA, private, and SSA treatment records, and the Veteran’s statements. The examiner must also consider the Veteran's documented medical history, assertions, and reported symptoms. All indicated studies should be completed, and all clinical findings reported in detail. The examiner must provide an opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that any current right and/or left LLI, manifested during, or as a result of, active military service. If not, the examiner must provide an opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the right and/or left LLI disorder(s) was caused or permanently worsened by the claimed lumbar spine disorder. If the physician believes that a right and/or left LLI disorder was permanently worsened by the claimed lumbar spine disorder(s), the physician should attempt to identify the baseline level of disability that existed prior to the onset of aggravation and the extent of disability that is attributable to aggravation. In providing the opinions, the examiner must comment on the Veteran’s assertion that he was injured during service due to a boxing match injury that took place in Quantico, Virginia. For purposes of the opinions, the examiner should assume that the Veteran is a credible historian. A complete rationale for all opinions offered must be provided. If the examiner is unable to provide any required opinion, the examiner should fully explain why this is the case. Likewise, if the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 6. The AOJ should ensure that the Veteran is provided with adequate notice of the date and place of all scheduled examinations. A copy of all notifications, including the address where the notice was sent, must be associated with the record if the Veteran fails to report for any examination. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause may have adverse effects on his claim. 7. Then, the AOJ should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, he and his representative should be provided a supplemental statement of the case and an appropriate period for response before the case is returned to the Board for further appellate action. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel