Citation Nr: 18160201 Decision Date: 12/27/18 Archive Date: 12/26/18 DOCKET NO. 16-18 975A DATE: December 27, 2018 ORDER 1. The appeal to reopen a claim of service connection for bilateral hearing loss is granted. 2. The appeal to reopen a claim of service connection for tinnitus is granted. 3. The appeal to reopen a claim of service connection for a psychiatric disability, to include bipolar disorder and schizophrenia, is granted. 4. The appeal to reopen a claim of service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED 5. Entitlement to service connection for gout is remanded. 6. Entitlement to service connection for myositis is remanded. 7. Entitlement to service connection for a left shoulder disability is remanded. 8. Entitlement to service connection for a right shoulder disability is remanded. 9. Entitlement to service connection for a cervical spine disability is remanded. 10. Entitlement to service connection for a low back disability is remanded. 11. Entitlement to service connection for a left hip disability is remanded. 12. Entitlement to service connection for a right hip disability is remanded. 13. Entitlement to service connection for a left knee disability is remanded. 14. Entitlement to service connection for a right knee disability is remanded. 15. Entitlement to service connection for a left ankle disability is remanded. 16. Entitlement to service connection for a right ankle disability is remanded. 17. Entitlement to service connection for a left foot condition is remanded. 18. Entitlement to service connection for a right foot disability is remanded. 19. Entitlement to service connection for sleep apnea is remanded. 20. Entitlement to service connection for a heart disability, to include coronary artery disease (CAD) is remanded. 21. Entitlement to service connection for erectile dysfunction (ED) is remanded. 22. Entitlement to service connection for left upper extremity neuropathy is remanded. 23. Entitlement to service connection for right upper extremity neuropathy is remanded. 24. Entitlement to service connection for left lower extremity neuropathy is remanded. 25. Entitlement to service connection for right lower extremity neuropathy is remanded. 26. Entitlement to service connection for depression is remanded. 27. Entitlement to service connection for bilateral hearing loss (on de novo review) is remanded. 28. Entitlement to service connection for tinnitus (on de novo review) is remanded. 29. Entitlement to service connection for a psychiatric disability, to include bipolar disorder and schizophrenia, (on de novo review) is remanded. 30. Entitlement to service connection for PTSD (on de novo review) is remanded. 31. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. An unappealed July 2003 rating decision denied the Veteran service connection for bilateral hearing loss based essentially on a finding that a hearing loss disability was not shown. 2. Evidence received since the July 2003 rating decision includes a May 2015 private treatment record that suggests the Veteran’s hearing acuity had declined; relates to an unestablished fact necessary to substantiate the claim of service connection for bilateral hearing loss; and raises a reasonable possibility of substantiating such claim. 3. An unappealed July 2003 rating decision denied the Veteran service connection for tinnitus based essentially on a finding that such disability was not shown. 4. Evidence received since the July 2003 rating decision includes a May 2015 private treatment record that notes a diagnosis of tinnitus; relates to an unestablished fact necessary to substantiate the claim of service connection for tinnitus; and raises a reasonable possibility of substantiating such claim. 5. An unappealed August 2011 rating decision denied the Veteran service connection for a mental disability, to include bipolar disorder and schizophrenia, based essentially on a finding that such was not shown to be related to his service. 6. Evidence received since the August 2011 rating decision includes a May 2015 private treatment record wherein the provider opines that the Veteran’s psychiatric disorders are more likely than not related to his military service; relates to an unestablished fact necessary to substantiate the claim of service connection for a mental disability; and raises a reasonable possibility of substantiating such claim. 7. An unappealed September 2013 rating decision denied the Veteran service connection for PTSD based essentially on a finding that such was not shown to be related to his service. 8. Evidence received since the September 2013 rating decision includes a May 2015 private treatment record wherein the private provider opines that the Veteran’s psychiatric disorders are more likely than not related to his military service; relates to an unestablished fact necessary to substantiate the claim of service connection for PTSD; and raises a reasonable possibility of substantiating such claim. CONCLUSIONS OF LAW 1. New and material evidence has been received and the claim of service connection for bilateral hearing loss may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. New and material evidence has been received and the claim of service connection for tinnitus may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3., 4. New and material evidence has been received and the claims of service connection for a psychiatric disability, to include bipolar disorder, schizophrenia, and PTSD may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from November 1976 to May 1982. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. New and material evidence is defined by regulation. New evidence means evidence not previously submitted to agency decision-makers. Material evidence is 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 establishing the claim. See 38 C.F.R. § 3.156(a). The Court has held that the phrase ‘raises a reasonable possibility of establishing the claim’ must be viewed as enabling rather than precluding reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1., 2. The appeal to reopen claims of service connection for bilateral hearing loss and tinnitus is granted. A July 2003 rating decision denied service connection for bilateral hearing loss and tinnitus on the basis that such disabilities were not shown (and that there was no evidence linking any tinnitus to service). The Veteran was informed of, and did not appeal, that decision, or submit new and material evidence within a year following, and it is final. 38 U.S.C. § 7105. Evidence received since the July 2003 rating decision includes a May 2015 private treatment record that notes diagnoses of tinnitus and “bilateral deafness”. As service connection for bilateral hearing loss and tinnitus was previously denied on the basis that the Veteran was not shown to have a hearing loss disability or a diagnosis of tinnitus, for evidence to be new and material in the matter, it would have to be evidence not previously of record that tends to show that he now has a hearing loss disability and tinnitus. As noted above, a private provider has diagnosed a bilateral hearing loss disability and tinnitus. The private treatment evidence directly addresses unestablished facts necessary to substantiate the claims, and given that the Veteran’s duties in service (assembler and cannoneer prior to becoming a medic) exposed him to noise (a known cause of hearing loss) raises a reasonable possibility of substantiating the claims. Accordingly, the evidence is new and material and the claims of service connection for a bilateral hearing loss disability and tinnitus may be reopened. De novo consideration of the claims is discussed in the remand below. 3., 4., The appeal to reopen claims of service connection for a psychiatric disability (to include bipolar disorder. Schizophrenia, and PTSD), is granted. An August 2011 rating decision denied service connection for a psychiatric disability (to include bipolar disorder and schizophrenia) based essentially on a finding that such was not shown to be related to his service. The Veteran initiated an appeal of that decision in January 2012, following which the Regional Office (RO) issued a Statement of the Case (SOC) in June 2014. He did not perfect an appeal to the Board in the matter by filing a substantive appeal, and that rating decision became final. 38 U.S.C. § 7105. Evidence received since the August 2011 rating decision includes a May 2015 private treatment record with the provider’s opinion that the Veteran’s psychiatric disorders are more likely than not related to his military service. A September 2013 rating decision denied service connection for PTSD based essentially on a finding that such disability was not shown to be related to his service. He was informed of, and did not appeal, that decision, or submit new and material evidence within a year following, and it is final. 38 U.S.C. § 7105. Evidence received since the September 2013 rating decision includes a May 2015 private treatment record with the provider’s opinion that the Veteran’s psychiatric disorders are more likely than not related to his military service. As service connection for a mental disability (to include bipolar disorder and schizophrenia) and PTSD was previously denied on the basis that such disabilities were not shown to be related to the Veteran’s service, for evidence to be new and material in the matters, it would have to be evidence not previously of record that tends to show that the Veteran’s mental disability and PTSD are etiologically related to his service. The private medical statement relates the Veteran’s mental disability and PTSD to service. Such evidence relates to an unestablished fact necessary to substantiate the claims of service connection for a psychiatric disability (to include bipolar disorder and schizophrenia) and for PTSD, and raises a reasonable possibility of substantiating such claims (particularly in light of the low threshold standard for reopening endorsed by the Court of Appeals for Veterans Claims (CAVC) in Shade, supra). Therefore, the additional evidence received is both new and material, and the claims of service connection for a psychiatric disability to include bipolar disorder and schizophrenia and PTSD, may be reopened. 38 U.S.C. § 5108. De novo consideration of the claims is discussed in the remand below. REASONS FOR REMAND 5., 6., 7., 8., 9., 10., 11., 12., 13., 14., 15., 16., 17., 18., 19., 20., 21., 22., 23., 24., 25., 26. Entitlement to service connection for gout, myositis, a left shoulder disability, a right shoulder disability, a cervical spine disability, a low back disability, a left hip disability, a right hip disability, a left knee disability, a right knee disability, a left ankle disability, a right ankle disability, a left foot disability, a right foot disability, sleep apnea, a heart disability to include CAD, ED, a left upper extremity neuropathy, a right upper extremity neuropathy, a left lower extremity neuropathy, and a right lower extremity neuropathy. A May 2015 private treatment record notes that the Veteran reported low back pain and muscle stiffness and numbness, tingling, and sensorial loss that radiated to his lower extremities. Cardiovascular disease, low back pain, chronic myositis, degenerative joint disease (DJD) of the hips, knees, ankles, and feet, gouty arthritis, a sleep disorder, and ED were diagnosed. The provider opined that the Veteran’s cardiovascular, metabolic, musculoskeletal, and psychiatric disorders were more likely than not related to his military service. The opinion is conclusory and lacks adequate rationale. Therefore, it is inadequate for rating purposes. Contemporaneous examinations to determine the etiologies of the Veteran’s gout, myositis, bilateral shoulder, cervical spine, low back, bilateral hip, bilateral knee, bilateral ankle, bilateral foot, sleep apnea, heart, ED, bilateral upper and lower extremity neuropathies, and depression are necessary. 27., 28. Entitlement to service connection for bilateral hearing loss and tinnitus (on de novo review). A May 2015 private treatment record notes diagnoses of bilateral hearing loss and tinnitus. However, the record does not identify the clinical data supporting the diagnoses or include an adequate opinion regarding their etiology. an adequate opinion regarding the etiology of the bilateral hearing loss or tinnitus. An examination to confirm the existence of the disabilities and determined their likely etiology is necessary. 29., 30. Entitlement to service connection for a psychiatric disability (to include bipolar disorder, schizophrenia, and PTSD on de novo review) and depression. In a May 2015 private treatment record, the provider opined that the Veteran’s psychiatric disabilities are related to his service. The opinion is cursory, lacks rationale, and is inadequate for rating purposes. An examination to determine the nature and likely etiology of the Veteran’s psychiatric disability(ies) is necessary. 31. Entitlement to a TDIU rating. The claim of entitlement to a TDIU rating is inextricably intertwined with the service connection claims on appeal. A grant of service connection for a disability on appeal would impact VA’s analysis of the TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Consequently, consideration of the TDIU claim must be deferred. The record suggests that the medical evidence associated with the record is incomplete. The record includes an October 2012 Veteran’s statement that he receives Social Security Administration (SSA) benefits for PTSD, schizophrenia, and bipolar disorder. VA has not obtained these records. VA has a duty to obtain records in SSA’s possession, provided they are relevant. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). The Board is unable to find the SSA records would not be relevant. As the record suggests that the Veteran continues to receive ongoing treatment for the disabilities on appeal, including from VA and private providers, and records of such treatment may contain pertinent information, outstanding records of the treatment must be obtained and considered. The most recent records of VA evaluations and treatment the Veteran has received for the disabilities on appeal are dated in December 2015. VAMC (Veterans Affairs Medical Center) treatment records, from VAMC Puerto Rico, from September 30, 2013 through December 28, 2015, are listed on a December 2015 rating decision but are not associated with the claims file. Records of all VA evaluations and treatment he has received for the disabilities on appeal during the period under consideration are pertinent evidence that is constructively of record, and must be sought and considered. In a November 2018 statement, the Veteran’s representative notes the Veteran’s assertion that he may have sustained his claimed bilateral musculoskeletal injuries during involvement in “Dark Operations” from February 1977 to February 1979 in Germany during his service. Clarification of this allegation is needed. The matters are REMANDED for the following: 1. Ask the Veteran to identify all providers of evaluations and treatment he has received for the disabilities on appeal, and to provide authorizations for VA to obtain updated, to the present, records of any private evaluations or treatment. Secure for the record complete clinical records of the evaluations and treatment from all providers identified (i.e.,) any not already associated with the record). If any private records identified are not received pursuant to the request, the Veteran should be so notified and advised that ultimately it is his responsibility to ensure that private medical records are received. Specifically, secure complete updated records of all VA evaluations and treatment the Veteran has received for the disabilities on appeal since September 2013 (to specifically include September 2013 to December 2015 VAMC Puerto Rico records. Also ask the Veteran to clarify the nature and circumstances of the injuries he allegedly sustained participating in “Dark Operations” while serving in Germany, describing where, when, and how the injuries were sustained. If, and only if, the Veteran responds to the request, provide him with a notification letter containing the Special Operations development paragraph. Complete and submit a Special Operations Forces Incident document to the United States Special Operations Command (USSOCOM) to research the Veteran’s involvement in covert operations in Germany. Make as many requests as necessary to encompass the entire time period claimed by the Veteran. 2. Then arrange for an orthopedic examination of the Veteran to ascertain the nature and likely etiology of the Veteran’s gout, myositis, left and right shoulder, low back, cervical spine, left and right hip, left and right knee, left and right ankle, and left and right foot disabilities. On review of the record, the examiner should: (a) Identify (by diagnosis) each gout, myositis, left and right shoulder, low back, cervical spine, left and right hip, left and right knee, left and right ankle, and left and right foot disability found (or shown by the record during the pendency of the instant claim). (b) Identify the likely etiology of each such disability diagnosed. Specifically, is it at least as likely as not (a 50% or better probability) that the diagnosed disability is etiologically related to the Veteran’s service? (c) If a diagnosed disability is determined to not have been incurred in service, identify the etiology considered more likely (and explain why that is so). Include rationale with all opinions. 3. Arrange for the Veteran to be examined by an appropriate clinician to determine the nature and likely etiology of his sleep apnea. The Veteran’s record must be reviewed by the examiner in conjunction with the examination. Based on examination and interview of the Veteran and review of his record, the examiner should provide an opinion that responds to the following: (a) Does the Veteran have a diagnosis of sleep apnea? (b) If so, identify the likely etiology for the sleep apnea. Is it at least as likely as not (a 50 percent or better probability) that it is related directly to his service (due to disease, injury, or event, or had its onset, therein)? (c) If the sleep apnea is found to be unrelated to the Veteran’s service, identify the etiology for the sleep apnea considered more likely. The examiner should include rationale with all opinions. 4. Arrange for a heart examination of the Veteran to ascertain the nature and likely etiology of his cardiac disability. The Veteran's record must be reviewed by the examiner in conjunction with the examination. On review of the record and interview and examination of the Veteran, the consulting provider should provide an opinion that responds to the following: (a) Identify (by diagnosis) each heart disability entity found (or shown by the record during the pendency of the instant claim). (b) Identify the likely etiology for any/each heart disability diagnosed. Is it at least as likely as not (a 50 percent or higher probability) that it is related directly to his military service (was incurred therein)? (c) If a diagnosed heart disability is found to be unrelated to the Veteran’s service, identify the etiology for the disability considered more likely. The examiner must include rationale for all opinions. 5. Arrange for a urology examination of the Veteran to confirm the existence and determine the nature and likely etiology of the claimed ED. The Veteran’s record must be reviewed by the examiner in conjunction with the examination. The examiner should provide an opinion that responds to the following: (a) Does the Veteran have ED? (b) Identify the likely etiology for any ED. Specifically, is it at least as likely as not (a 50% or better probability) that the ED is etiologically related to the Veteran’s service or is secondary to a service-related disability? The examiner must include rationale with all opinions. 6. Arrange for the Veteran to be examined by an appropriate clinician to confirm the existence, and determined the nature and likely etiology of a neurological disability of a left and right upper and/or left and right lower extremity. The Veteran’s record must be reviewed by the examiner in conjunction with the examination. The examiner should provide opinions that respond to the following: (a) Identify (by diagnosis) any (and each) upper and lower extremity neurological disability found. (b) Identify the likely etiology of each upper and lower extremity neurological disability diagnosed. Specifically, is it at least as likely as not (a 50% or better probability) that such disability was either caused or aggravated by the Veteran’s service? (c) If a neurological disability of the upper and lower extremities is determined to not have been caused by the Veteran’s service, identify the etiological factor(s) for the disability considered more likely. 7. Arrange for an audiological examination of the Veteran (with audiometric studies) to ascertain whether he now has a hearing loss disability (as defined in 38 C.F.R. § 3.385), and if so, the likely etiology of the hearing loss and tinnitus. The entire record must be reviewed by the examiner in conjunction with the examination. The examiner should provide opinions that respond to the following: (a) Does the Veteran have a hearing loss disability (as defined in 38 C.F.R. § 3.385) in either or both ears? (b) If a hearing loss disability is found, identify the likely etiology of such disability. Specifically, is it at least as likely as not (i.e., a 50% or better probability) that it is related to his service? (c) Identify the likely etiology for the Veteran’s tinnitus. Is it at least as likely as not (a 50% or better probability) etiologically related to his service)? (d) If a current hearing loss or tinnitus disability is determined to be unrelated to service, the examiner should identify the etiology considered more likely (based on the record), and explain why that is so. The examiner must include rationale with all opinions. 8. Also arrange for the Veteran to be examined by an appropriate psychiatrist or psychologist to ascertain the nature and likely etiology of his psychiatric disability (ies). Advise the examiner of any alleged stressor event in service that is corroborated/has been conceded by VA. Following examination and interview of the Veteran and review of his medical history, the examiner should: (a) Identify (by diagnosis) each psychiatric disability entity found (or shown by the record). Specifically, does the Veteran have a diagnosis of PTSD based on a corroborated/conceded stressor event in service. If not, identify the factors necessary for such diagnosis found lacking. (b) Identify the likely etiology for any psychiatric disability entity other than PTSD diagnosed (to include bipolar disorder, schizophrenia, and depression). Specifically, is it at least as likely as not that the disability is related directly to the Veteran’s service/events therein? The examiner must include rationale with all opinions. 9. When all the development requested above is completed, review the entire record and, following any further development deemed necessary, readjudicate the claim for TDIU considering all information and evidence received. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Bayles, Associate Counsel