Citation Nr: 18157554 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 15-35 419 DATE: December 12, 2018 ORDER New and material evidence having been presented, reopening of the claim for service connection for a left knee disability is granted. New and material evidence having been presented, reopening of the claim for service connection for a right knee disability is granted. New and material evidence having been presented, reopening of the claim for service connection for a thoracolumbar spine disability is granted. Entitlement to service connection for an acquired psychiatric disorder, claimed as depression is granted. REMANDED Entitlement to service connection for a left knee disability. Entitlement to service connection for a right knee disability. Entitlement to service connection for a thoracolumbar spine disability. Entitlement to a disability rating in excess of 10 percent for status post fracture, left wrist is remanded. Entitlement to a disability rating in excess of 30 percent for bilateral pes planus is remanded. Entitlement to service connection for a Morton’s neuroma is remanded. Entitlement to service connection for right ear hearing loss is remanded. Entitlement to service connection for a left elbow disability is remanded. Entitlement to service connection for a right elbow disability is remanded. Entitlement to service connection for irritable bowel syndrome is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for a left hand disability is remanded. Entitlement to service connection for a right hand disability is remanded. Entitlement to service connection for plantar fasciitis is remanded. Entitlement to an initial compensable disability rating for left ear hearing loss is remanded. INTRODUCTION The Veteran served on active duty from February 1978 to February 1981. FINDINGS OF FACT 1. A February 2009 rating decision denied the claims of entitlement to service connection for a left knee, right knee, and back disability; the Veteran did not appeal those denials, and thus, those decisions are considered final. 2. Evidence received subsequent to the February 2009 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and relates to unestablished facts necessary to substantiate the claims for entitlement to service connection for a left knee, right knee, and back disability. 3. The Veteran’s acquired psychiatric disorder was caused by his service-connected bilateral pes planus and left wrist disabilities. CONCLUSIONS OF LAW 1. New and material evidence has been presented to reopen the claim of entitlement to service connection for a left knee disability. 38 U.S.C. 5108 (2012); 38 C.F.R. 3.156 (2017). 2. New and material evidence has been presented to reopen the claim of entitlement to service connection for a right knee disability. 38 U.S.C. 5108 (2012); 38 C.F.R. 3.156 (2017). 3. New and material evidence has been presented to reopen the claim of entitlement to service connection for a thoracolumbar spine disability. 38 U.S.C. 5108 (2012); 38 C.F.R. 3.156 (2017). 4. An acquired psychiatric disorder, diagnosed as a mood and depressive disorder, is proximately due to or the result of a service-connected disability. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. 7105 (c) (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. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. 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 U.S. 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 the purpose of 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). The RO initially denied service connection for entitlement to service connection for left knee, right knee, and back disabilities in a February 2009 rating decision. At that time, the RO determined the Veteran’s STRs failed to show the claimed right knee and back disabilities were incurred in service. The RO also found the Veteran’s left knee injury in service was not chronic. The evidence of record in February 2009 consisted of the Veteran’s statements and service treatment records (STRs), as well as outpatient treatment records from the Orlando VAMC. The evidence received after the expiration of the appeal period includes additional statements from the Veteran, as well as additional outpatient treatment records from the Tampa, Miami, and Orlando VAMCs. The Veteran also underwent a left knee examination in June 2011. In the course of his examination the Veteran reported chronic ongoing joint manifestations that resulted from his over 30 parachute jumps in service. A review of the Veteran’s outpatient treatment records, shows ongoing treatment for chronic ongoing knee and back problems. These records, when taken in the light most favorable to the Veteran, provide probative evidence tending to support his claims. This follows, because the Veteran’s reports and treatment records provide evidence that tends to show his current knee and back disabilities may have an association to his military service. As such, the Board finds this evidence to be new and material. Accordingly, reopening of the claims for service connection for left knee, right knee, and thoracolumbar spine disabilities is warranted. Psychiatric Disorder Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310 (a). The Veteran is claiming service connection is warranted for an acquired psychiatric disorder because it is secondary to his service-connected bilateral pes planus and left wrist disabilities. In the course of an August 2013 private psychiatric assessment, the Veteran’s clinician stated the Veteran suffers from chronic foot pain, and that it was her belief the Veteran’s mood disorder was consequentially related to his service connected chronic foot injury. Thereafter, in November 2015 the Veteran underwent a VA mental disorders examination, wherein he was diagnosed with a depressive disorder. Following this examination, the examiner found the Veteran’s depressive disorder is secondary to his pain associated to his medical problems, to specifically include his wrist and foot problems. Accordingly, the Board concludes service connection is warranted for a mood and depressive disorder. REASONS FOR REMAND The Board is of the opinion that additional development is required before the Veteran’s remaining appellate issues are decided. Service Connection Claims Initially, the Board notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). To be considered adequate, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran asserts his current left knee, right knee, and thoracolumbar spine disabilities are consequentially related to his parachute jumps in service. As noted above, the Veteran underwent a VA examination of his left knee in June 2011. He was diagnosed with left knee degenerative joint disease at that time; however, the examiner found this disability was less likely as not “permanently aggravated by none.” Facially, this opinion is incomprehensible. Further, to support this conclusion, the examiner stated the Veteran has mild to moderate DJD which could simply be caused by age related changes. Often times a disability could have several potential causes, but the examiner provided no explanation as to how or why the Veteran’s disability was unrelated to his parachute jumps in service. The Board notes the RO has not obtained a VA medical opinion addressing his claim for a right knee or thoracolumbar spine disability. VA must provide a medical examination or obtain a medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. 5103A (d)(2), 38 C.F.R. 3.159 (c)(4)(i). The third prong, which requires that the evidence of record “indicate” that the claimed disability or symptoms “may be” associated with the established event, disease or injury is a low threshold. McLendon, 20 Vet. App. at 83. A review of the Veteran’s outpatient treatment notes indicates he has been diagnosed and treated for right knee degenerative changes and lumbar spine degenerative disc disease with grade 1 anterolisthesis. The Veteran’s STRs do not indicate he experienced these disabilities on active duty; however, the Veteran has reported his disabilities may be the result of his greater than 30 parachute jumps, and his DD-214 confirms his receipt of the Parachutist Badge. Based on the foregoing, the Board finds an examination and medical opinion is necessary to determine whether the Veteran’s right knee and lumbar spine disabilities are consequentially related to his parachute jumps in service. Increased Rating for Bilateral Pes Planus Next, with regard to the Veteran’s bilateral pes planus the Veteran’s outpatient treatment notes show he has reported a worsening of his manifestations associated with this disability. He most recently underwent a VA examination to assess this disability in June 2011. As there is evidence of a worsening of the disability since the last VA examination, which was performed many years ago, the claim must be remanded for a new examination to determine the current severity of the disability. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Non-Jurisdictional Appeals By way of a February 2013 rating decision, the RO assigned a 10 percent disability rating for the Veteran’s service-connected left wrist disability. In October 2013, the Veteran submitted a timely notice of disagreement as to the assigned rating. The Board also acknowledges that the Veteran initiated an appeal with respect to entitlement to service connection for a Morton’s neuroma, right ear hearing loss, a bilateral elbow disability, irritable bowel syndrome, a bilateral ankle disability, a bilateral hip disability, a bilateral shoulder disability, sleep apnea, tinnitus, a bilateral hand disability, and plantar fasciitis, as well as entitlement to an increased initial rating for left ear hearing loss by way of a February 2018 notice of disagreement. To date, the RO has not provided the Veteran with a statement of the case (SOC) in response to these notices of disagreement. As such, these matters must be remanded for the originating agency to issue a SOC. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). On remand, relevant ongoing medical records should also be obtained. 38 U.S.C. 5103A (c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, this case is REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s remaining issues on appeal, to specifically include any more recent treatment records related to the claimed disabilities. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. 3.159 (e). 2. Then, an SOC on the issues of entitlement to service connection for a Morton’s neuroma, right ear hearing loss, a bilateral elbow disability, irritable bowel syndrome, a bilateral ankle disability, a bilateral hip disability, a bilateral shoulder disability, sleep apnea, tinnitus, a bilateral hand disability, and plantar fasciitis, as well as entitlement to an increased initial rating for left ear hearing loss and entitlement to a rating in excess of 10 percent for status post fracture, left wrist should be issued to the Veteran and his representative. The Veteran should be informed of the requirements to perfect an appeal with respect to these issues. If the Veteran perfects an appeal with respect to these issues, the RO should ensure that all indicated development is completed before the case is returned to the Board. 3. Also, afford the Veteran a VA examination by an examiner or examiners with sufficient expertise to address the etiology of the Veteran’s claimed left knee, right knee, and thoracolumbar spine disabilities. All pertinent evidence of record must be made available to and reviewed by the examiner(s). Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state whether any diagnosed left knee, right knee, and thoracolumbar spine disabilities present during the pendency of this appeal at least as likely as not (a 50 percent probability or greater) originated during his period of active service or are otherwise etiologically related to his active service, to include as a result of his numerous parachute jumps therein. The examiner(s) must provide a complete rationale for all proffered opinions. In this regard, the examiner(s) must discuss and consider the Veteran’s competent lay statements. If an examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she 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. Additionally, afford the Veteran a VA examination by an examiner with sufficient expertise to determine the current severity of the Veteran’s service-connected bilateral pes planus. The electronic records should be made available to and reviewed by the examiner. Ensure the examiner provides all information required for rating purposes. 5. Finally, undertake any other indicated development, and then readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Fraser, Counsel