Citation Nr: 1807073 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 13-01 115 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a chest keloid. 2. Entitlement to service connection for a chest keloid. 3. Entitlement to service connection for a neck disability. 4. Entitlement to service connection for a low back disability. 5. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder, a depressive disorder, anxiety, and claustrophobia. 6. Entitlement to an evaluation in excess of 10 percent for sinusitis. 7. Entitlement to an initial compensable evaluation for a right ankle disability. ATTORNEY FOR THE BOARD Mary E. Rude, Counsel INTRODUCTION The Veteran served on active duty from December 1978 to December 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In a November 2015 Board decision, the claim of entitlement to service connection for a low back disability was reopened and remanded, along with the issue of entitlement to service connection for a neck disability. The Board also, in pertinent part, declined to reopen the claim of entitlement to service connection for a chest keloid, denied entitlement to service connection for an acquired psychiatric disorder, denied entitlement to a rating higher than 10 percent for sinusitis, and denied entitlement to a compensable rating for a right ankle disability. In an October 2016 Board decision the claims of entitlement to service connection for a neck disability and a low back disability were denied. The Veteran appealed these decisions to the United States Court of Appeals for Veterans Claims (Court). In a May 2017 order granting a Joint Motion for Partial Remand, the November 2015 Board denials pertaining to the issues of entitlement to service connection for an acquired psychiatric disorder, entitlement to an increased rating for sinusitis, the claim to reopen the issue of entitlement to service connection for a chest keloid, and entitlement to an increase rating for a right ankle disability were vacated and remanded to the Board. In a July 2017 order granting a Joint Motion for Partial Remand, the Board denials of the issues of entitlement to service connection for neck and back disabilities were also vacated and remanded to the Board. The issues of entitlement to service connection for a neck disability, a low back disability, a chest keloid, and an acquired psychiatric disorder, to an evaluation in excess of 10 percent for sinusitis, and to a compensable evaluation for a right ankle disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Service connection was previously denied for a chest keloid by an August 2002 rating decision. The Veteran was informed of this decision, including her right to appeal, but she did not appeal or submit new and material evidence within a year of the decision. 2. Evidence received since the August 2002 rating decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a chest keloid. CONCLUSION OF LAW The August 2002 rating decision denying entitlement to service connection for a chest keloid is final; new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.1103 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran submitted a claim of entitlement to service connection for a chest keloid in June 2002. VA denied that claim in August 2002. The Veteran was notified of such decision, but she did not file a timely notice of disagreement or submit any new and material evidence within the one year appeal period. The August 2002 rating decision is therefore final. See 38 U.S.C. § 7105(b), (d); 38 C.F.R. §§ 20.204, 20.302, 20.1103. The August 2002 rating decision denied entitlement to service connection for a chest keloid on the basis that there was no evidence of a chronic disability or permanent residuals related to chest keloid, and the claimed disability was not shown on examination. Evidence of record at the time of the August 2002 rating decision included the Veteran's service treatment records and some private treatment records, which showed that she was treated for a keloid on the upper chest in June and July 1995. A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Evidence is new if it has not been previously submitted to agency decision makers. Id. Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. The phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the evidence will be presumed credible. See Kutscherousky v. West, 12 Vet. App. 369, 371 (1999). Since the August 2002 rating decision the Veteran has submitted private treatment records showing continued treatment for a chest keloid, keloid residuals, and keloid scarring after her separation from service. These medical records provide evidence of a current disability related to a chest keloid, and relate to a crucial element that was previously missing for the claim of entitlement to service connection for a chest keloid-that of the existence of a current disability. The Board therefore finds that evidence has been obtained since the last prior denials which relates to an unestablished element necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. See Shade, 24 Vet. App. at 117. The additional evidence is therefore new and material, and the claim of entitlement to service connection for a chest keloid is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). ORDER New and material evidence having been submitted, the claim of entitlement to service connection for a chest keloid is reopened. REMAND Chest Keloid The Veteran's service treatment records show that she was treated for a keloid on the upper chest in June and July 1995. Her private treatment records show that since service separation she has received continuing treatment for residuals of a keloid and keloid scarring. The Veteran has not, however, been afforded a VA examination regarding the etiology of any keloid on her chest. Hence, this issue is remanded so that she can attend a VA skin examination to assess the etiology, nature, and extent of any current keloids on her chest. Back and Neck Disabilities A July 2017 Joint Motion for Partial Remand found that the March 2016 VA examination report was inadequate because the examiner had failed to provide adequate rationale regarding whether the Veteran's neck disability was related to service. It also stated that the Board had failed to address evidence indicating that the Veteran's 1982 in-service motor vehicle accident may have caused or aggravated her back and neck disabilities. The Veteran's service treatment records do show treatment for back strain after a motor vehicle accident in December 1981, treatment for a pulled lower back muscle in May 1985, and upper back muscle strain in May 1995. The Board therefore remands this case so that a new VA orthopedic examination and opinion can be obtained to address these issues and all relevant evidence. Acquired Psychiatric Disorder The Veteran contends that she has an acquired psychiatric disorder that had its onset during or is related to her active service. The Veteran attended a VA examination in January 2014. The examiner found that the Veteran did not meet the criteria for a diagnosis of PTSD, nor did she have any other psychiatric diagnosis. The examiner wrote that the Veteran had two instances of situational stressors from her marriage, but "no formal diagnosis was made nor did she have any mental health treatment." In a November 2015 Board decision, the Board acknowledged that the Veteran had been treated for depression, but stated that she had not received a formal diagnosis of any psychiatric disability. The claim was denied on the basis that she did not have a current acquired psychiatric disorder. The Board's decision was vacated in May 2017, on the basis that it had failed to discuss the Veteran's diagnoses of a depressive disorder from physicians at East Carolina University in September and October 2011. The record also shows that the Veteran was assigned additional psychiatric diagnoses during her private medical treatment, including diagnoses of an anxiety state in September 2009, an adjustment disorder in November 2011, a depressive disorder in April-June 2012, and a relational problem, rule out bipolar disorder in February 2013. The Board therefore finds that the Veteran likely has a current psychiatric disorder. Significantly, no medical opinion has yet been obtained addressing the etiology of any current psychiatric disorder and its possible relationship to her service. Furthermore, since the January 2014 VA examination the Veteran's VA treatment records show that she has presented with suicidality, mania, pressured speech, and tangential thoughts. This suggests that she may have additional psychiatric symptoms that were not presented or not acknowledged at the January 2014 VA examination. This issue is therefore remanded to obtain a new VA psychiatric examination and opinion, and to afford the Veteran an opportunity to submit any outstanding, relevant private medical records to specifically include medical opinion evidence showing that an acquired psychiatric disorder is related to service. Sinusitis The Veteran filed a claim of entitlement to an increased rating for sinusitis, currently rated as 10 percent disabling, in March 2009. The Board denied that claim in a November 2015 decision, but an April 2017 joint motion vacated that denial finding that the Veteran had reported at her September 2010 VA examination that her sinusitis was "constant" and accompanied by purulent discharge from the nose, pain, crusting, headaches and migraines. The joint motion for remand stated that this could possibly suggest that such symptoms were consistent with the rating criteria under 38 C.F.R. § 4.97, Diagnostic Code 6513 (2017), which allows for a 30 percent rating when there are more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. Unfortunately, the evidence reported in the September 2010 VA examination is not sufficient to allow a determination as to whether the criteria have been met for a 30 percent rating. While the Veteran reported that sinus problems were "constant," it is not clear to what frequency or severity accompanying symptoms of discharge, pain, crusting, and headaches/migraines occur. The September 2010 examiner also did not find any of the reported symptoms on examination, and wrote that "no sinusitis was detected." He instead diagnosed the Veteran with rhinitis that was believed to be allergic in origin and seasonal. The diagnosis of rhinitis is not consistent, however, with the Veteran's private treatment records which show numerous diagnoses of nasal disorders, including chronic sinusitis. If the proper diagnosis is rhinitis or some other non service connected disorder a complete rationale for such a finding must be provided in light of the private treatment records. Additionally, as the Veteran's VA examination for sinusitis is now over seven years old, and may not accurately represent the current severity of any extant sinusitis, the Board remands this issue so that a new VA examination can be conducted prior to further adjudication. Right Ankle Disability The Veteran claims entitlement to a compensable evaluation for a right ankle strain. In a September 2009 rating decision, the Veteran was granted entitlement to service connection for a right ankle strain and assigned a noncompensable evaluation effective March 31, 2009. The Board denied an initial compensable rating in the November 2015 Board decision. That decision was vacated when the Court granted a joint motion finding that the Board had failed to properly apply 38 C.F.R. § 4.59 (2017) when assessing whether a compensable rating could be awarded due to the Veteran's subjective reports of painful motion. The Veteran last attended a VA examination for her ankle in September 2010. She reported weakness, swelling, giving way, redness, pain, and flare ups that occurred "0.3" times a month and lasted for 2 days. She reported having functional impairment that caused limping while walking during her flare ups. Physical examination found tenderness. There was no instability, subluxation, or limitation of motion. The examiner did not, however, identify the point in the arc of motion where pain began, but did state that there were subjective symptoms of pain and tenderness. The examiner did not estimate the likely limitation of motion during flare ups or after repeated use. The Board acknowledges that the Veteran has reported subjective reports of pain and described flare ups which cause additional functional impairment. These symptoms of painful motion and limitation of motion during flare ups were not, however, adequately addressed by the prior VA examination. See DeLuca v. Brown, 8 Vet. App. 202 (1995). As was the situation above, the Veteran's last VA examination is now over seven years old. The Board therefore remands this issue so that a new VA examination can be held prior to further adjudication. Accordingly, the case is REMANDED for the following action: 1. Send to the Veteran a letter requesting that she provide sufficient information and a signed and dated VA Form 21-4142 (Authorization and Consent to Release Information) to enable VA to obtain any additional relevant private medical records of treatment related to the back and neck, right ankle, sinusitis, chest keloid, and any psychiatric disorders or symptoms. If the AOJ cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. Then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Obtain all outstanding, pertinent treatment records from the Durham VA Medical Center, and any affiliated facility to include the Greenville Health Care Center, since February 2015. All records received should be associated with the claims file. If the AOJ cannot locate the Federal records requested herein, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. Then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of any current chest keloid disorder. The examiner must be provided access to all files in Virtual VA and VBMS, and the examiner must specify in the examination report that the Virtual VA and VBMS files have been reviewed. Following the examination, the examiner must address: a) Does the Veteran currently have, or has she had at any time since March 2009, a diagnosis of keloid, residuals of a keloid, or keloid scarring involving her chest? b) If so, is it at least as likely as not (a 50 percent probability or greater) that any current chest keloid or residuals were incurred during the Veteran's service? The examiner is to specifically address the Veteran's in-service treatment for a chest keloid in June and July 1995 and whether any current residuals appear to be in approximately the same location and could be related to the keloid treated in service. A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 4. Schedule the Veteran for a VA orthopedic examination to determine the nature and etiology of any current back or neck disorder and the current severity of the Veteran's right ankle disability. The examiner must be provided access to all files in Virtual VA and VBMS, and the examiner must specify in the examination report that the Virtual VA and VBMS files have been reviewed. Following the examination, the examiner must address the following: a) What, if any, diagnosis is appropriate for any cervical and/or lumbar spine disorder? b) For each diagnosed cervical and lumbar spine disorder opine whether it is at least as likely as not (a 50 percent probability or greater) that the disorder was incurred in or otherwise related to the Veteran's service The examiner is to discuss the Veteran's report of having back and neck pain ever since being in a motor vehicle accident in 1981, and her claim that this pain continued until it was aggravated by a second car accident in 2002. The examiner must also address the service treatment record showing care for a back strain/contusion following a motor vehicle accident in December 1981, treatment in May 1985 for a pulled lower back muscle, and treatment in May 1995 for upper back discomfort, diagnosed as a muscle strain. c) Perform all necessary tests to determine the nature and severity of the Veteran's right ankle disability. In evaluating the Veteran, the examiner should report the complete range of motion findings for both the right and left ankle. The examiner should address whether the joints exhibit pain, weakened movement, excess fatigability or incoordination. If feasible, these determinations should be expressed in terms of additional range of motion loss due to any pain, weakened movement, excess fatigability, or incoordination, both before and after repetitive motion testing. For the right ankle the examiner is to specifically test the range of active motion, passive motion, weight-bearing motion, and nonweight-bearing motion. If the examiner is unable to conduct the required testing or concludes that the required testing is not possible or necessary in this case, he or she should clearly explain why that is so. The examiner must indicate whether, and to what extent, the Veteran experiences functional loss of the right ankle due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use. To the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner should ask the Veteran to describe the flare-ups she experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment. A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 5. Schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of any current psychiatric disorder. The examiner must be provided access to all files in Virtual VA and VBMS, and the examiner must specify in the examination report that the Virtual VA and VBMS files have been reviewed. Following the examination, the examiner must address: a) What, if any, psychiatric diagnosis is appropriate in the appellant's case? In addressing this question discuss the Veteran's September 2009 diagnosis of an anxiety state, September/October 2011 and April-June 2012 diagnoses of a depressive disorder, a November 2011 diagnosis of an adjustment disorder, and the February 2013 diagnosis of a relational problem, rule out bipolar disorder. b) Does the Veteran have a diagnosis of claustrophobia? Please discuss her assertions that she is afraid of small spaces and rooms. c) For each and every diagnosis found, address whether it is at least as likely as not (a 50 percent probability or greater) that the disorder had its onset during or is otherwise related to the Veteran's active service? In answering this question address the Veteran's reports that during her military service from 1978 to 1998 she was mentally and physically abused by her spouse from 1980 to 1982, that she was later stalked by him, and that as a result she twice tried to commit suicide. Discuss the Veteran's other reported stressors: that she was stationed in the Philippines during the eruption of Mount Pinatubo and that she had an upsetting experience when her car broke down while driving home from Camp John. A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 6. Schedule the Veteran for a VA examination to determine the current severity of her service-connected sinusitis. The examiner must be provided access to all files in Virtual VA and VBMS, and the examiner must specify in the examination report that the Virtual VA and VBMS files have been reviewed. Following the examination, the examiner must evaluate the current severity of the Veteran's sinusitis and address the following questions: a) Is sinusitis shown on examination? If sinusitis is not diagnosed explain why that diagnosis is not appropriate, to specifically include addressing private treatment records showing treatment for sinusitis. b) Please discuss the Veteran's private treatment records showing frequent treatment for sinusitis, upper respiratory infections, and rhinitis. Are any of these treatments related to her service-connected sinusitis? How frequently is the Veteran affected by symptomatology due to sinusitis? c) Does the Veteran have headaches related to sinusitis which are entirely distinct from headaches associated with her service-connected migraine headaches? d) Does the Veteran have more than six non-incapacitating episodes per year which are characterized by headaches, pain, and purulent discharge or crusting due to sinusitis? Discuss the Veteran's report that her sinus problems are nearly "constant" and accompanied by discharge from the nose, pain, and crusting. Please state whether the medical evidence supports a finding that symptoms due to sinusitis are "constant" and explain why. A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 7. The Veteran is hereby notified that it is her responsibility to report for any scheduled examinations and to cooperate in the development of the claims, and that the consequences for failure to report for the VA examinations without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 8. Thereafter, the AOJ should readjudicate the claims. If any benefit sought is not granted in full, the appellant must be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs