Citation Nr: 18160755 Decision Date: 12/28/18 Archive Date: 12/27/18 DOCKET NO. 15-35 437A DATE: December 28, 2018 ORDER The application to reopen a claim of entitlement to service connection for a right-hand disability is denied. The application to reopen a claim of entitlement to service connection for a left-hand disability is denied. The application to reopen a claim of entitlement to service connection for a heart disability is denied. The application to reopen a claim of entitlement to service connection for hypertension is denied. Service connection for depressive disorder with anxiety is granted. REMANDED The propriety of a reduction from 30 percent to 20 percent for cervical spine arthritis effective November 1, 2014 is remanded. The claim of entitlement to service connection for fibromyalgia, or a disability manifesting as chronic pain, is remanded. The claim of entitlement to an increased rating for arthritis of the right elbow is remanded. The claim of entitlement to an increased initial rating for left knee chondromalacia is remanded. The claim of entitlement to an increased initial rating for right knee chondromalacia is remanded. The claim of entitlement to an increased rating for left ankle sprain is remanded. The claim of entitlement to an increased rating for right ankle sprain is remanded. The claim of entitlement to an increased rating for status post excision of right heel spur is remanded. The claim of entitlement to an increased rating for right heel scar is remanded. The claim of entitlement to an increased rating for cervical spine arthritis, to include whether a reduction from 30 percent to 20 percent effective November 1, 2014 was proper, is remanded. The claim of entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In a September 2006 rating decision, the Veteran’s claim for service connection for a bilateral hand disability was denied. He did not appeal that decision and it is now final. 2. In a March 2010 rating decision, the Veteran’s claims for service connection for a heart disability and hypertension were denied. He did not appeal that decision and it is now final. 3. The evidence received since the September 2006 and March 2010 rating decisions is cumulative or redundant of the evidence of record, does not relate to an unestablished fact necessary to substantiate the claims, and does not raise the possibility of substantiating the claims for service connection for a right-hand disability, a left-hand disability, a heart disability, and hypertension. 4. His depressive disorder is caused by his service-connected arthritis of the neck, arthritis of the right elbow, bilateral ankle sprain, status post excision of right heel spur, and bilateral knee chondromalacia. CONCLUSIONS OF LAW 1. The September 2006 and March 2010 rating decisions denying service connection for a right-hand disability, a left-hand disability, a heart disability, and hypertension are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. As new and material evidence has not been received, the criteria to reopen the claims of entitlement to service connection for a right-hand disability, a left-hand disability, a heart disability, and hypertension are not met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria are met for service connection for depressive disorder with anxiety. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1979 to June 1995. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2013 and August 2014 rating decisions. Service Connection Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence showing: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran is seeking service connection for some disabilities for which service connection has been denied in the past. In general, VA rating decisions or Board decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.1100, 20.1103. A finally disallowed claim may be reopened only when new and material evidence is secured with respect to that claim. 38 C.F.R. § 3.156. “New” evidence is evidence not previously submitted to agency decisionmakers. Evidence is “material” if it 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, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). 1. The application to reopen a claim of entitlement to service connection for a right-hand disability is denied.   2. The application to reopen a claim of entitlement to service connection for a left-hand disability is denied. The Veteran’s claim for service connection for bilateral hand arthritis was denied in September 2006 because the evidence did not show treatment or diagnosis for arthritis while in service. The record at that time also did not show a current diagnosis of either hand. The Veteran did not appeal that decision and it is now final. The Board notes that the regulation does not require new and material evidence as to each previously unproven element of a claim, merely that there is a reasonable possibility of an allowance of the claim. 38 C.F.R. 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110 (2010). However, the Board finds that none of the evidence obtained and made a part of the record since the September 2006 decision relates to an unestablished fact necessary to substantiate the claim. The Veteran asserts that he has arthritis of the bilateral hands, but the newly evidence received does not show any current diagnosis of either hand. Indeed, the January 2013 VA examiner did not identify any pathology of the hands. Generally, the credibility of such statements is presumed when determining whether new and material evidence has been provided. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). This rule is not boundless, however. Duran v. Brown, 7 Vet. App. 216 (1994). His assertion—that he has arthritis—is cumulative and redundant evidence as he asserted he had arthritis of the hands in the previous claim, which was not shown. He has provided no additional detail regarding this reported diagnosis, such as when or where it was diagnosed, and it is not noted in any of the newly received medical evidence. There are no diagnoses of either hand noted in any of the medical evidence. The Veteran was notified that no current diagnoses were found in the August 2013 rating decision, and the September 2015 statement of the case, but no evidence has been received showing a current diagnosis of either hand. There is no suggestion that there are outstanding medical records that were requested by the Veteran but not obtained. The duty to assist is a two-way street. If the Veteran wishes help in developing his claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). He has not provided any evidence regarding an incident or injury during his service. The evidence received since the September 2006 rating decision does not relate to any unproven element of the previously denied claim. Accordingly, the Board finds that new and material evidence has not been received and the claims for service connection for right and left-hand disabilities are not reopened. Annoni v. Brown, 5 Vet. App. 463 (1993). 3. The application to reopen a claim of entitlement to service connection for a heart disability is denied. The Veteran’s claim to service connect a heart disability was denied in a March 2010 rating decision, which found there was no injury or disease in service that led to his heart disabilities. The rating decision also noted that the evidence did not show that his heart disability manifested within a year of separation from service. The Veteran did not appeal that decision, and it is now final. As above, none of the evidence associated with the record since the March 2010 rating decision relates to an unestablished fact necessary to substantiate the claim. The newly received medical evidence confirms the Veteran’s diagnosis of coronary artery disease status post CABG surgery, but does not show or suggest a relationship to his service. None of the evidence shows that his heart disability manifested within a year of separation from service, and he has not so alleged. Accordingly, as new and material evidence has not been received, and the claim for service connection for a heart disability is not reopened. Annoni, supra. 4. The application to reopen the claim of entitlement to service connection for hypertension is denied. The Veteran’s claim to service connect hypertension was last denied in a March 2010 rating decision because no new and material evidence had been received. It had been previously denied in September 2006 because the evidence did not show hypertension in service or within the year from separating from service. He did not appeal that decision and it is now final. As above, no new and material evidence has been received. Rather, the newly received evidence confirms that the Veteran has a current diagnosis of hypertension. It does not show a relationship to service or that it manifested within a year from separation from service. The Veteran has not alleged as much. Indeed, he has not provided any statement in support of this claim that addresses a relationship to service. Accordingly, as new and material evidence has not been received, and the claim for service connection for hypertension is not reopened. Annoni, supra. 5. Service connection for depressive disorder with anxiety is granted. Initially, the Board notes the Veteran claimed service connection for both depression and anxiety. However, the Board has considered this claim as seeking service connection for any acquired psychiatric disability. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Based on a review of the evidence, the Board finds that service connection is warranted for depressive disorder, and that anxiety is a symptom of his depression. The Veteran asserts that his depressive disorder is secondary to the pain caused by his other service-connected disabilities: arthritis of the cervical spine, arthritis of the right elbow, bilateral ankle sprain, status post excision of right heel spur, and chondromalacia of the bilateral knees. Service connection is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310. To prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and, (3) nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran has submitted a Mental Disorders Disability Benefits Questionnaire, completed by a private psychologist in October 2014. She diagnosed the Veteran with depressive disorder NOS, and noted he had problems with chronic pain. She opined that his depression was caused by his service connected disabilities, and that it is also aggravated by them, because of the chronic pain. She indicated that there is a body of medical literature detailing the connection between disabilities that cause pain, like the Veteran’s, and depression. She cited to two research studies, and included them with her report. The Board finds this evidence is sufficient to grant service connection for depressive disorder on a secondary basis. His depressive disorder includes anxiety as a symptom. Accordingly, service connection for depressive disorder with anxiety is granted. REASONS FOR REMAND 1. The propriety of a reduction from 30 percent to 20 percent for cervical spine arthritis effective November 1, 2014 is remanded. An August 2013 rating decision continued an assigned 30 percent rating for the Veteran’s cervical spine arthritis. The Veteran filed a timely notice of disagreement (NOD) to this rating decision in June 2014. Shortly thereafter, an August 2014 rating decision decreased the rating for cervical spine arthritis to 20 percent effective November 1, 2014. He filed a timely NOD to this rating decision in March 2015. Effectively, the Veteran initiated an appeal for both the denial of a higher rating and the propriety of the reduction. However, the Agency of Original Jurisdiction (AOJ) issued a September 2015 statement of the case (SOC) which only addressed whether a rating higher than 20 percent was warranted for cervical spine arthritis. It did not address the propriety of the reduction from 30 percent to 20 percent. Therefore, a remand is required to provide the Veteran with the required SOC for the reduction issue. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The issue of an increased rating for cervical spine arthritis is separately addressed below. 2. The claim of entitlement to service connection for fibromyalgia, or a disability manifesting as chronic pain, is remanded. The record shows the Veteran was diagnosed with chronic pain syndrome, and provisionally with fibromyalgia, in November 2012. He will be asked to supplement the record with updated treatment records. His STRs show he sought treatment in November 1984 for fatigue. He complains of having chronic pain in his joints since his service. On remand, a VA examination should be scheduled. 3. The claim of entitlement to an increased rating for arthritis of the right elbow is remanded. 4. The claim of entitlement to an increased initial rating for left knee chondromalacia is remanded. 5. The claim of entitlement to an increased initial rating for right knee chondromalacia is remanded 6. The claim of entitlement to an increased rating for left ankle sprain is remanded. 7. The claim of entitlement to an increased rating for right ankle sprain is remanded. 8. The claim of entitlement to an increased rating for status post excision of right heel spur is remanded. 9. The claim of entitlement to an increased rating for right heel scar is remanded. 10. The claim of entitlement to an increased rating for cervical spine arthritis, is remanded. The Veteran’s most recent VA examinations were in September 2015, and there is no other evidence more recent than that in the record. That is, the evidence is too old and would not allow a fair determination of the current severity of the Veteran’s service connected disabilities. Accordingly, updated VA examinations must be scheduled. 11. The claim of entitlement to a TDIU is remanded. The Veteran’s claim for a TDIU is inextricably intertwined with his claims for higher ratings, and with the rating that will be assigned to his now service-connected depressive disorder with anxiety. Accordingly, it is also remanded. The matters are REMANDED for the following action: 1. Send the Veteran and his representative a statement of the case that addresses the issue of whether the reduction from 30 percent to 20 percent for cervical spine arthritis effective November 1, 2014 was proper. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. 2. Ask the Veteran to provide authorization to obtain updated treatment records from his private treatment providers. 3. After completion of directive #2 and an appropriate period of time for response, schedule the Veteran for an appropriate examination for an opinion on whether he has fibromyalgia, or any other disability manifesting with chronic pain, and if so, whether it is as likely as not (50 percent probability or greater) related to service. The examiner is asked to review the record prior to the examination and to elicit from the Veteran a detailed history of his symptoms. The record shows the Veteran was diagnosed with chronic pain syndrome in November 2012, which his doctor indicated could be fibromyalgia. The Veteran complained of pain all over, and has asserted he has had these symptoms since his service. The examiner should also note that the Veteran is currently service-connected for arthritis of the cervical spine, arthritis of the right elbow, bilateral ankle sprain, status post excision of right heel spur, and chondromalacia of the bilateral knees. All opinions are to be supported with explanation. 4. After completion of directive #2 and an appropriate period of time for response, schedule the Veteran for updated VA examinations for the bilateral knees, bilateral ankles, right elbow, right heel, cervical spine, and right heel scar for reports on the current severity of these disabilities. The examiner is asked to elicit from the Veteran a detailed history of his symptoms and functional loss resulting from each disability. The examiner is asked to conduct a thorough examination that includes all necessary testing. The examiner is asked to note all relevant symptoms. The examiner is asked to identify any new diagnoses that are related to the service-   connected disabilities. All opinions should be accompanied by explanatory rationale. Shamil Patel Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Gibson