Citation Nr: 1808943 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 07-11 749 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and as secondary to a service-connected low back disability, and if so, whether service connection is warranted. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to an increased evaluation on an extraschedular basis for a low back disability. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD H. Fisher, Associate Counsel INTRODUCTION The Veteran had honorable active duty service with the United States Air Force from January 1977 to June 1981. These matters are before the Board of Veterans' Appeals (Board) on appeal from April 2012, April 2015 and March 2016 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In September 2015, the Veteran testified before the undersigned in a videoconference hearing. A transcript of those proceedings has been associated with the claims file. In December 2015, the Board denied entitlement to service connection for an acquired psychiatric disorder, granted increased, staged evaluations for the Veteran's low back disability, as well as granted separate evaluations for bilateral lower extremity radiculopathy as secondary to the low back disability. The Board raised the issue of entitlement to TDIU under Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board finally remanded the issue of TDIU and entitlement to an extraschedular evaluation for the low back disability for additional evidentiary development. In March 2016, the RO declined to reopen the Veteran's claims of entitlement to service connection for bilateral hearing loss and tinnitus. The RO also declined to reopen the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder. The RO cited a rating decision from April 2012 that denied entitlement to service connection for bilateral hearing loss and tinnitus that purportedly became final after one year. The evidence of record, however, reflects that the Veteran filed a Notice of Disagreement in April 2013 as to the April 2012 rating decision. As such, new and material evidence is not required in order to adjudicate the Veteran's claims of entitlement to hearing loss and tinnitus. The Board denied entitlement to service connection for an acquired psychiatric disorder in December 2015, which remains final. Thus, new and material evidence is required to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD only. The issues of entitlement to service connection for bilateral hearing loss, tinnitus and an acquired psychiatric disorder, as well as entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A December 2015 Board decision denied entitlement to service connection for an acquired psychiatric disorder, to include PTSD and dysthymia. Board decisions are final. 2. Evidence has been received since the December 2015 Board decision that relates to an unestablished fact necessary to substantiate the claims, and raises a reasonable possibility of substantiating the claims of service connection for an acquired psychiatric disorder, to include PTSD. 3. The Veteran's low back disability does not present an exceptional or unusual disability picture. CONCLUSIONS OF LAW 1. The December 2015 Board decision is final. 38 U.S.C.A. §§ 7103, 7104 (West 2014); 38 C.F.R. §§3.156(b), 20.1100(a) (2017). 2. New and material evidence has been received since the May 2011 denial of service connection for a right knee disability, and as such, the claim is reopened. 38 U.S.C.A. §§ 5108 (West 2014); 38 C.F.R. §§ 3.156, 3.303 (2017). 3. The criteria for an extraschedular rating for a low back disability are not met. 38 C.F.R. § 3.321(b)(1) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence The Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, was denied by the Board in December 2015. Generally, a Board decision is final unless the Chairman of the Board orders reconsideration. See 38 U.S.C.A. §§ 7103(a), 7104(a); 38 C.F.R. § 20.1100(a). The claim may be reopened, however, with the introduction of new and material evidence with respect to the claim previously disallowed. See 38 U.S.C.A. § 5108. New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The United States Court of Appeals for Veterans Claims (Court) has emphasized that the final sentence of 38 C.F.R. § 3.156 (a), especially the phrase "raise[s] a reasonable possibility of substantiating the claim," does not create a third element or separate determination in the reopening process, but is a component of the question of what is new and material evidence. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (noting that 38 U.S.C.A. § 5108 requires only new and material evidence to reopen). Shade further holds that 38 C.F.R. § 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]" Id. Further, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather, the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id., see also McLendon, 20 Vet. App. at 83. Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118. The evidence received to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Court has elaborated on what constitutes "new and material evidence." New evidence is not that which is cumulative of other evidence already present in the record. In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App 273, 283 (1996); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans, 9 Vet. App. at 273. The Board denied the Veteran's claim of entitlement to PTSD due to the weight of the probative medical evidence of record denying a diagnosis of PTSD, and a subsequent nexus with active duty service. At the time, medical records did not reflect a nexus opinion regarding the relationship between other acquired psychiatric disorders, such as depression, and active duty service. In February 2016, the Veteran submitted a claim of entitlement to service connection for an acquired psychiatric disorder as secondary to his service-connected back condition. The RO obtained a medical opinion in March 2016 regarding this nexus. In this opinion, the psychologist stated that the Veteran's symptoms of depression and anxiety were due to his diagnoses of PTSD and Major Depressive Disorder, and were not likely due to his service-connected back disability. No detailed rationale was provided for this conclusion. The Veteran's treatment records also reflect a new stressor for his PTSD. In January 2016, treatment records reflect that the Veteran experienced guilt over a plane crash that occurred in service. However, while a plane crash was previously noted, it was not previously analyzed as a stressor that may contribute to his PTSD. Finally, the Veteran reported in December 2017 that he entered in-patient treatment for PTSD. Records of this treatment have not been associated with the record. In sum, the Veteran presented a new theory of entitlement to service connection, which the RO deemed credible to initially reopen the claim. The RO began investigation by requesting a medical opinion and obtaining additional records. The medical opinion provided an inadequate rationale for adjudicative purposes. The opinion and treatment records confirmed a present diagnosis of PTSD, and offered a stressor not previously adjudicated. The Veteran's most recent in-patient treatment records have not been associated with the record. As such, the evidence presented since the December 2015 Board decision is both new and material sufficient to reopen the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and as secondary to his service-connected back disability. Extraschedular Consideration Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service- connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. In Thun v. Peake, 22 Vet. App. 111 (2008), the Court specified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id.; see also Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. See Thun, 22 Vet. App. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. However, the Board is not precluded from raising this question and addressing referral where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board has considered the evidence of record and the Veteran's lay assertions. However, there is no basis for referral for extraschedular consideration in this case. In the Veteran's October 2007 VA examination, he reported pain with radiation in both legs. His back disability caused painful motion and spasm without weakness and tenderness. Range of motion was slightly impaired. The Veteran could lift and carry up to 20 pounds, sit for 10 minutes, stand for 15-20 minutes, and walk for up to 30 minutes. The Veteran used a cane, and reported that kneeling and bending were painful. The Veteran's post-service treatment records reflect an ongoing problem with chronic low back pain. In August 2009, it was noted that his back pain was exacerbated by extended periods of walking, bending or sitting. In March 2010, VA Medical Center (VAMC) records again noted chronic low back pain. In an October 2010 VA examination, the Veteran continued to report low back pain with radiation down the right left. He did not report flare ups. In a February 2012 VA examination, the Veteran reported similar symptomatology. In a July 2014 hearing with a Decision Review Officer, the Veteran reported pain, neuropathy and muscle spasms from his low back condition. In a November 2014 VA examination, the Veteran again reported pain and radicular pain associated with his back disability with no flare ups. Range of motion was limited due to pain. Functional loss was caused by less movement than normal, pain on movement, disturbance of locomotion and interference with sitting, standing or weight-bearing. The Veteran's back condition affected his ability to work in occupations requiring physical exertion. In the Veteran's September 2015 videoconference hearing before the undersigned, he reported pain in his back and bilateral lower extremities. He stated that he could walk a quarter or half a mile. Sitting and standing for prolonged periods exacerbated his condition. Additionally, the pain caused some trouble with sleep. In a May 2017 VA examination, the Veteran reported that his symptoms were unchanged from previous examinations, but were more intense. That same month, VAMC records note weekly injections to treat his chronic back pain. Turning to the first step of the Thun extraschedular analysis, the Board finds that all the symptomatology and impairment caused by the Veteran's lumbar spine disability are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The Veteran's lumbar spine disability has been manifested by symptoms including: pain, reduced range of motion, muscle spasms, and limitations to sitting, standing and walking. The Veteran is also presently service-connected for bilateral lower extremity radiculopathy due to his low back disability. The schedular criteria for rating the neurologic, sensory and motor, manifestations in the lower and upper extremities takes into account numerous factors, as cited in 38 C.F.R. § 4.71a. The schedular criteria for rating the disabilities of the spine specifically provide for ratings based on the presence of painful motion, whether or not such pain radiates; limitations of motion of the spine including due to pain and other orthopedic factors that result in functional impairment (38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, Mitchell); and other clinical findings such as muscle spasm, guarding, abnormal gait, and abnormal spinal contours; and on the basis of incapacitating episodes. See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991) (read together with schedular rating criteria, 38 C.F.R. §§ 4.40 and 4.45 recognize functional loss due to pain); Deluca v. Brown, 8 Vet. App. 202, 206-07 (1995) (functional limitations are applied to the schedular rating criteria to ascertain whether a higher schedular rating can be assigned based on limitation of motion due to pain and during flare-ups, and should be expressed in schedular rating terms of degree of range-of-motion loss); Burton v. Shinseki, 25 Vet. App. 1, 4 (2011) (the majority of 38 C.F.R. § 4.59, which is a schedular consideration rather than an extraschedular consideration, provides guidance for noting, evaluating, and rating joint pain); Mitchell v. Shinseki, 25 Vet. App. 32, 33-36 (2011) (pain alone does not constitute functional impairment under VA regulations, and the rating schedule contains several provisions, such as 38 C.F.R. §§ 4.40, 4.45, 4.59, that address functional loss in the musculoskeletal system as a result of pain and other orthopedic factors when applied to schedular rating criteria); see also Mitchell at 45 (Footnote 2) and Vogan v. Shinseki, 24 Vet. App. 159, 161 (2010) (when a condition is not listed in the VA disability schedule, VA may undertake rating by analogy where the disability in question is analogous in terms of the functions affected, the anatomical localization, and the symptomatologies of the ailments). All the symptomatology and functional impairment described above result from the spinal dysfunction which includes imitation motion of the spinal segments, as well as pain, stiffness, and all the symptoms described by the Veteran are contemplated in the schedular ratings assigned under the General Rating Formula for Spine Disabilities either directly as limitation of motion or muscle spasm or tenderness or antalgic gait, or indirectly as orthopedic factors that limit motion and function. See 38 C.F.R. §§ 4.40, 4.45, 4.59 4.71a; DeLuca, 8 Vet. App. at 206-07. The schedular rating criteria specifically include tenderness, spasm, and any and all limitations of motion of the spine in any direction, including in flexion, extension, lateral flexion, and rotation of the spine. 38 C.F.R. § 4.71a. Such symptoms and impairment are part of or similar to symptoms listed under the schedular rating criteria. See 38 C.F.R. § 4.20 (schedular rating criteria provides for rating by analogy based on similar functions, anatomical location, and symptomatology); Mauerhan v. Principi, 16 Vet. App. 436 (2002) (the schedular rating criteria also include analogous symptoms that are "like or similar to" listed schedular rating criteria). To the extent that the activities which the Veteran reports as being impaired, e.g., prolonged standing, sitting, walking, bending, disturbance of locomotion, require spinal motion, such specific measure of motion is explicitly part of the schedular rating criteria which encompasses motion in flexion, the combined ranges of motion in all planes, as well as the absence of motion, via ankylosis. See 38 C.F.R. § 4.71a. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The competent medical evidence of record has not demonstrated that the Veteran suffers from symptoms not considered by the rating criteria, and thus entitlement to an extraschedular evaluation for his low back disability must be denied. In this regard, VA has completed the necessary steps in order to meet its duties to notify and assist in this case. The Veteran has not raised any procedural arguments regarding the notice or assistance provided. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board also finds that the December 2015 remand directives have been substantially complied with. Stegall v. West, 11 Vet. App. 268 (1998). ORDER New and material evidence having been received, the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and as secondary to a service-connected low back disability, is reopened. Entitlement to an increased evaluation on an extraschedular basis for a low back disability is denied. REMAND Unfortunately, remand is necessary in order to further adjudicate the issues on appeal. At the outset, the Veteran disagreed with the denial of service connection for hearing loss and tinnitus, as stated in his April 2013 Notice of Disagreement. The RO did not issue a SOC on that issue. As such, remand is necessary for the originating agency to issue a Statement of the Case. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Furthermore, the VA examination of record assessing the remaining disability on appeal is insufficient for adjudicative purposes. The March 2016 medical opinion regarding a relationship between the Veteran's acquired psychiatric disorder and his service-connected back disability provides no rationale for the conclusions drawn. As such, a new examination is warranted in order to obtain a thorough rationale for all conclusions drawn regarding the Veteran's acquired psychiatric disorder. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (if VA undertakes the effort to provide the Veteran with a medical examination, it must ensure that such exam is an adequate one). As the issue of TDIU is inextricably intertwined with the determinations of the issues on appeal, it must be adjudicated following the evidentiary development listed in the remand instructions. Accordingly, the case is REMANDED for the following action: 1. Obtain any relevant, outstanding VA treatment records related to the Veteran's disabilities on appeal that are not already associated with the claims file, specifically to include in-patient PTSD treatment. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). All attempts to contact the Veteran should be documented in the record. In this regard, the Veteran himself should submit any recent treatment records regarding the conditions at issue. 2. Once the aforementioned development is complete, schedule the Veteran for a VA examination to assess the etiology of his bilateral hearing loss and tinnitus. The examiner must review the entire claims file, including a copy of this remand. The examiner must take a history from the Veteran, and consider lay statements as to onset of observable symptomatology. The examiner must consider and address the medical treatise evidence offered by the Veteran's representative in his Appellate Brief. Once a thorough review of the record is complete, the examiner must opine as to the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral hearing loss is related to an incident of service, or began within one year after discharge from active service? (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's tinnitus is related to an incident of service, or began within one year after discharge from active service? The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 3. Once the aforementioned evidentiary development is complete, schedule the Veteran for a VA examination to assess the nature and etiology of his acquired psychiatric disorders, to include PTSD and as secondary to his service-connected back disability. The examiner must review the entire claims file, including a copy of this remand and with particular attention to previous medical opinions of record. The examiner must consider the Veteran's lay reports of observable symptomatology. After a thorough review of the record is complete, the examiner must respond to the following: (a) List any and all acquired psychiatric disorders with which the Veteran is presently diagnosed. (b) For each acquired psychiatric disorder, opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's acquired psychiatric disorder is related to an incident of service, or began within one year after discharge from active service. (c) Otherwise, for each acquired psychiatric disorder, is it at least as likely as not (50 percent or greater probability) that the Veteran's acquired psychiatric disorder was caused by or aggravated by his service-connected disabilities? The examiner must discuss the previous opinions of record regarding the Veteran's varying diagnoses and stressors. The examiner should consider each reported stressor with respect to his or her PTSD determination, and not focus on only one stressor. The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete and thorough rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 4. Following completion of the foregoing, the AOJ should review the record and readjudicate the claims on appeal. If any remain denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and his representative an opportunity to respond, and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or 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). JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs