Citation Nr: 1807298 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 11-29 562 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for a skin disorder. 2. Whether new and material evidence has been received to reopen a claim for service connection for a foot disorder. 3. Entitlement to service connection for an ear disorder, to include bilateral hearing loss. 4. Entitlement to service connection for a bilateral ankle disorder. 5. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Osegueda, Counsel INTRODUCTION The Veteran served on active duty from June 1982 to November 1983. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming. In December 2013, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. In December 2014, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for further development. The case has since been returned to the Board for appellate review. In an October 2015 rating decision, the AOJ determined that a May 1993 rating decision that denied service connection for a low back disorder, skin disorder, and foot disorder, was not clearly and unmistakably erroneous. Therefore, the issues of whether new and material evidence has been received to reopen the claims for service connection for a skin disorder and a foot disorder remain on appeal. In addition, the Board notes that the Veteran's appeal originally included the issue of entitlement to an effective date earlier than June 17, 2010, for the grant of service connection for degenerative joint disease of the lumbosacral spine. However, in the October 2015 rating decision, the AOJ granted an effective date of November 3, 1998, for the grant of service connection for degenerative joint and disc disease of the lumbosacral spine. The AOJ's grant of an earlier effective date constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Therefore, that matter is no longer on appeal, and no further consideration is necessary. The underlying merits of the claims for service connection for a skin disorder and a foot disorder, as well as the claims for service connection for a bilateral ankle disorder, an acquired psychiatric disorder, and a bilateral ear disorder are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. The RO previously considered and denied the Veteran's claim for service connection for a skin disorder in a May 1993 rating decision. The Veteran was informed of the decision and of his appellate rights, but he did not appeal. There was also no new and material evidence received within one year of the determination. 2. The evidence received since the May 1993 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for a skin disorder. 3. The RO previously considered and denied the Veteran's claim for service connection for a foot disorder in a May 1993 rating decision. The Veteran was informed of the decision and of his appellate rights, but he did not appeal. There was also no new and material evidence received within one year of the determination. 4. The evidence received since the May 1993 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for a foot disorder. CONCLUSIONS OF LAW 1. The May 1993 rating decision that denied service connection for a skin disorder is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.202, 20.302, 20.1103 (2017). 2. The evidence received subsequent to the May 1993 rating decision is new and material, and the claim for service connection for a skin disorder is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The May 1993 rating decision that denied service connection for a foot disorder is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.202, 20.302, 20.1103 (2017). 4. The evidence received subsequent to the May 1993 rating decision is new and material, and the claim for service connection for a foot disorder is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran's claims for service connection for a skin disorder and a foot disorder were previously considered and denied by the RO in a rating decision dated in May 1993. The evidence of record at the time of the May 1993 rating decision included VA treatment records and service treatment records. In that decision, the RO noted that the Veteran's service treatment records show did not reference any back injury or skin condition. He did report having recurring low back during the October 983 discharge examination, which first occurred in September 1982 secondary to a strain. It was noted that he denied seeking treatment because the pain was not incapacitating. The RO also observed that VA treatment records showed that the Veteran was treated for bilateral foot pain with x-rays that ruled out a fracture or tarsal condition, and a VA bone scan showed evidence compatible with degenerative joint disease. Therefore, the RO determined that there was no evidence that the claimed conditions occurred in or were caused by service. The Veteran was notified of the May 1993 rating decision and of his appellate rights; however, he did not submit a notice of disagreement. In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. There was also no evidence received within one year of the issuance of the decision. Therefore, the May 1993 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.302, 20.1103 (2017). In June 2010, the Veteran requested that his claims for service connection for a skin disorder and a bilateral foot disorder be reopened. The evidence associated with the claims file subsequent to the May 1993 rating decision includes VA treatment records and hearing testimony. Notably, there is new evidence showing that the Veteran was diagnosed left plantar fasciitis, right pes planus, bilateral degenerative joint disease, and bilateral flat feet with bilateral hallux valgus. See September 2011 VA podiatry note. Moreover, during the December 2013 hearing, the Veteran reported that he began having problems with his feet in 1983, before he separated from service. He indicated that his foot pain started after he sprained his ankle in service. The Veteran also reported that he developed hives as a result of stress and that he was treated by doctors for his skin during service. He indicated that he continued to develop hives approximately every nine months as a result of stress. As such, the evidence relates to unestablished facts necessary to substantiate the claims. Moreover, for purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the Board finds that new and material evidence has been presented to reopen the Veteran's previously denied claims for service connection for a skin disorder and bilateral foot disorder. However, as will be explained below, the Board is of the opinion that further development is necessary before the merits of the Veteran's claims can be addressed. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for a skin disorder is reopened. New and material evidence having been submitted, the claim of entitlement to service connection for a bilateral foot disorder is reopened. REMAND The Veteran should be afforded VA examinations to determine the nature and etiology of his skin disorder and bilateral foot disorder. He has testified that his skin and bilateral foot symptoms manifested during his active duty service. In addition, his post-service medical records show diagnoses of left plantar fasciitis, right pes planus, bilateral degenerative joint disease, and bilateral flat feet with bilateral hallux valgus. Therefore, a remand is necessary to obtain VA examinations and medical opinions. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Moreover, in the December 2014 remand, the Board directed the AOJ to afford the Veteran a VA examination to determine the nature and etiology of any current right and/or left ankle disorder that may be present. The examiner was requested to provide an opinion as to whether it was at least as likely as not that any current ankle disorder identified was causally related to the Veteran's active service or any incident therein, to include a documented September 1983 left ankle sprain or the Veteran's claimed September 1983 right ankle injury. The Veteran was provided a VA ankle examination in October 2015. In the report, the VA examiner diagnosed the Veteran with degenerative arthritis of both ankles; however, the VA examiner did not provide the requested opinion. Therefore, an additional medical opinion is needed. Stegall v. West, 11 Vet. App. 268 (1998). Additionally, in a December 2016 statement, the Veteran's representative contended that the October 2015 VA mental disorders examination was inadequate. Specifically, he noted that the VA examiner diagnosed the Veteran with major depressive disorder and other specified personality disorder, including antisocial and narcissistic traits. The representative observed that the VA examiner stated that there was no treatment in service, but he noted that the Veteran was evaluated and diagnosed with a passive-aggressive personality disorder during service. The Board notes that the October 2015 VA examiner did address the Veteran's in-service symptoms associated with his passive-aggressive personality disorder diagnosis in the narrative to her VA examination report. However, in the December 2016 statement, the Veteran's representative contended that the Veteran had a preexisting mental health disorder that was worsened beyond its natural progression due to the racism that he experienced in the military. In the alternative, the Veteran's representative also suggested that the Veteran has PTSD caused by personal assault or fear of personal assault during service. The Board notes that, during the December 2013 hearing, the Veteran testified that he was assaulted on multiple occasions during service. See hearing transcript, p. 17. Therefore, on remand, the Veteran should be provided notification for his PTSD claim, and a clarifying opinion should be obtained to address these new contentions. In addition, after the Veteran was afforded VA hearing loss and tinnitus and ear conditions examinations in October 2015, he submitted a private audiology evaluation and opinion in support of his claim for service connection for a bilateral ear disorder in December 2015. The private audiologist opined that the etiology of the Veteran's military service at least as likely as not contributed to his current hearing loss and tinnitus. The audiologist stated that the Veteran reported inadequate hearing protection while working on the flight line during service. The audiologist noted that the Veteran had hearing within normal limits at separation from service, but a decrease in hearing thresholds was seen between enlistment and separation testing that indicated the beginnings of probable nerve degeneration and tinnitus symptoms. However, the September 2015 VA examiner reported that hearing tests conducted at enlistment and separation from service showed that the Veteran did not have a significant threshold shift beyond normal measurement variability while in service. Therefore, on remand, a clarifying opinion should be obtained to address the October 2015 private audiologist's opinion. Accordingly, the case is REMANDED for the following action: 1. The AOJ should send the Veteran a notice letter in connection with his claim for service connection for an acquired psychiatric disorder, to include PTSD. The letter should: (1) inform him of the information and evidence that is necessary to substantiate the claim, (2) inform him about the information and evidence that VA will seek to provide, and, (3) inform him about the information and evidence that he is expected to provide. This letter should be compliant with 38 C.F.R. § 3.304(f), advising the Veteran of specific examples of alternative forms of evidence to corroborate an in-service assault and that behavioral changes may constitute credible supporting evidence of such a stressor. 2. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for a skin disorder, a bilateral foot disorder, left and/or right ankle disorders, psychiatric symptoms, or an ear disorder, to include bilateral hearing loss and/or tinnitus. A specific request should be made for private psychiatric treatment records from Peak Wellness Center (identified in the December 2016 statement from the Veteran's representative). After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records, to include any records dated from October 2011 to the present. 3. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any skin disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that the Veteran has a current skin disorder that is related to his active service, to include any injury or symptomatology therein. In rendering this opinion, the examiner should address the Veteran's report that he developed hives as a result of stress during service that continued to flare-up approximately every nine months. (The term "as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any bilateral disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that the Veteran has a current bilateral foot disorder that is related to his active service, to include any injury or symptomatology therein. In rendering this opinion, the examiner should address the Veteran's report that he developed problems with his feet following a documented in-service ankle sprain in September 1983. (The term "as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. After the above development has been completed, the AOJ should refer the Veteran's claims file to the September 2015 VA examiner or, if he is unavailable, to another suitably qualified VA examiner for a clarifying opinion to determine the nature and etiology of any left and right ankle disorders that may be present. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. It should be noted that the Veteran is competent to attest to factual matters of which she had first-hand knowledge, such as observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should provide an opinion as to whether it is at least as likely as not that any current left and right ankle disorders manifested in or are otherwise causally or etiologically related to the Veteran's military service, to include a documented September 1983 left ankle sprain or the Veteran's claimed September 1983 right ankle injury. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 6. After the above development has been completed, the AOJ should refer the Veteran's claims file to the October 2015 VA examiner or, if she is unavailable, to another suitably qualified VA examiner for a clarifying opinion to determine the nature and etiology of any acquired psychiatric disorders that may be present. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. It should be noted that the Veteran is competent to attest to factual matters of which she had first-hand knowledge, such as observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The Veteran has contended that he had a preexisting psychiatric disorder that was aggravated by the racism that he experienced during service. Alternatively, he has contended that he has a psychiatric disorder that was caused by personal assault or fear of personal assault during service. The examiner is asked to determine whether the Veteran had any behavioral changes indicative of a personal assault in service. The examiner should identify all current psychiatric disorders. If the Veteran is diagnosed with a personality disorder, the examiner should state whether there was a superimposed disease or injury that occurred during service. For each diagnosis identified other than a personality disorder, the examiner should state whether the disorder clearly and unmistakably preexisted the Veteran's service. In responding to this question, the examiner is advised that "clear and unmistakable" means that the conclusion is undebatable, unconditional, and unqualified, and cannot be misinterpreted or misunderstood. For any preexisting psychiatric disorder, the examiner should state whether there was an increase in severity of the Veteran's preexisting psychiatric disorder during his active service. If so, the examiner should indicate whether any increase was due to the natural progression of the disorder or whether it represented a chronic worsening of the underlying symptoms. If any diagnosis identified other than a personality disorder and PTSD did not clearly and unmistakably preexist the Veteran's service, the examiner should state whether it is at least as likely as not that that the disorder is related to the Veteran's military service. The AOJ should provide the examiner with a summary of any verified in-service stressors, and the examiner must be instructed that only these events and any personal assault he or she determines to have occurred in service may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD. If there is a verified stressor or if the examiner determines that a personal assault occurred in service, he or she should determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. If the PTSD diagnosis is deemed appropriate, the examiner should then comment upon the link between the current symptomatology and any verified in-service stressor, including personal assault if found. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 7. After the above development has been completed, the AOJ should refer the Veteran's claims file to the September 2015 VA audiology examiner or, if he is unavailable, to another suitably qualified VA examiner for a clarifying opinion to determine the nature and etiology of any hearing loss or tinnitus that may be present. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. It should be noted that the Veteran is competent to attest to factual matters of which she had first-hand knowledge, such as observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should provide an opinion as to whether it is at least as likely as not that any current bilateral hearing loss and tinnitus manifested in or are otherwise causally or etiologically related to the Veteran's military service. In rendering this opinion, the examiner should address the December 2015 private audiologist's evaluation and opinion associated with the record. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 8. When the development has been completed, the case should be reviewed by the AOJ on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs