Citation Nr: 18136256 Decision Date: 09/18/18 Archive Date: 09/18/18 DOCKET NO. 16-15 503A DATE: September 18, 2018 ORDER The claim of entitlement to an effective date earlier than June 4, 2012, for the grant of an increased evaluation of 10 percent for a left wrist disability, is denied. New and material evidence having been received, the claim of entitlement to service connection for a back disability is reopened. To that extent only, the appeal is granted. REMANDED The claim of entitlement to an initial disability rating in excess of 70 percent for dysthymic disorder is remanded. The claim of entitlement to an effective date earlier than June 4, 2012, for the award of service connection for dysthymic disorder is remanded. The claim of entitlement to a disability rating in excess of 10 percent for a left wrist disability is remanded. The claim of entitlement to service connection for a back disability is remanded. The petition to reopen a claim of service connection for a right wrist disability based on whether new and material evidence has been received is remanded. The petition to reopen a claim of service connection for hearing loss based on whether new and material evidence has been received is remanded. The claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is also remanded for additional development. FINDINGS OF FACT 1. The Veteran did not make a claim for an increased rating for his service-connected left wrist disability prior to June 4, 2012; nor is there evidence of an increase in severity of his left wrist one-year prior to that date. 2. An unappealed June 2004 rating decision denied entitlement to service connection for a back disability. 3. The evidence received since the final June 2004 rating decision is not cumulative or redundant of the evidence of record, does relate to an unestablished fact, and does raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for a back disability. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for a service-connected left wrist disability prior to June 4, 2012, have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.159, 3.400. 2. The June 2004 rating decision denying entitlement to service connection for a back disability is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 3. New and material evidence has been received; the claim for service connection for a back disability is reopened. 38 U.S.C. §§ 5107, 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Marine Corps from October 1975 to October 1979, and from January 1982 to April 1983. The Veteran had additional service in the Reserve. The Board of Veterans’ Appeals (Board) notes that when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a total disability rating based on individual unemployability (TDIU) will be considered to have been raised by the record as “part and parcel” of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453–54 (2009). In this case, the Veteran, through his representative, has asserted that he is unable to work due to his service-connected dysthymic disorder and left wrist disability. See December 2016 brief. Thus, pursuant to Rice, his claim for entitlement to a TDIU is part and parcel of the increased rating claims for the service-connected dysthymic disorder and left wrist disability on appeal. The Board further notes that the Veteran submitted additional evidence in December 2016 in support of his increased rating claim for dysthymic disorder and his TDIU claim. As a waiver of consideration by the Agency of Original Jurisdiction (AOJ) accompanied the submission, the Board may consider the evidence in the first instance. 38 C.F.R. § 20.1304(c). Thus, the Board may proceed with appellate consideration.   Earlier Effective Date In an August 2013 rating decision, the Veteran’s service-connected left wrist disability was increased to 10 percent disabling, effective as of June 4, 2012, the date of receipt of the Veteran’s increased rating claim. In his June 2014 notice of disagreement, the Veteran contested the effective date of the increased disability rating; however, the Board notes that the Veteran has not specified the date as to which he believes that he is entitled to the increased rating. The effective dates for a claim seeking an increased rating for an already service-connected disability that is based on an original claim, or a claim for increase will be the day of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. However, the effective date may also be the earliest date as of which it is “factually ascertainable” that an increase in disability had occurred if the claim is received within one year from the date of the increase, based on a review of the entire evidence of record. 38 C.F.R. § 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997); Swanson v. West, 12 Vet. App. 442 (1999). In determining whether an effective date assigned for an increased rating is correct or proper under the law requires (1) a determination of the date of the receipt of the claim for the increased rating, as well as (2) a review of all the evidence of record to determine when an increase in disability was “ascertainable.” See Hazan, 10 Vet. App. at 521. A “claim” is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-35 (1998). Any communication indicating an intent to apply for a benefit under the laws administered by the Department of Veterans Affairs (VA) may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). The Board notes that there is no indication that there is any evidence outstanding that is relevant to the Veteran’s appeal for an earlier effective date for the award of an increased rating for his service-connected left wrist disability. After a review of the evidence of record, the Board finds that an effective date for the assignment of a 10 percent disability rating for a left wrist disability prior to June 4, 2012, is not warranted. Service connection for a left wrist disability was granted in a June 2004 rating decision, and a noncompensable disability rating was assigned, effective as of November 14, 2003. The Veteran did not appeal that decision, and thus, the rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. As such, an effective date cannot be assigned prior to the June 2004 final rating decision. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.400(r), 20.302, 20.1103. The initial question before the Board is whether the Veteran filed a formal or informal claim for an increased rating between June 2004 and June 2012. There is no formal or informal correspondence to that effect. In fact, the record reflects that following the June 2004 rating decision, the Veteran did not file any communications until the filing of his increased rating claim on June 4, 2012. Having determined that there was no earlier (formal or informal) claim, the only question remaining is whether a 10 percent evaluation is factually ascertainable at any time within the year prior to the June 4, 2012, claim. 38 C.F.R. § 3.400(o)(2). The Board notes that there is no evidence in the record which demonstrates that the Veteran’s service-connected left wrist disability had increased in severity during the one-year period prior to June 4, 2012. Furthermore, as previously indicated, there is no indication that there is any evidence outstanding that is relevant to the Veteran’s appeal for an earlier effective date for the award of an increased rating for his service-connected left wrist disability. Thus, it is not factually ascertainable that the Veteran’s service-connected left wrist disability increased in severity during the one-year period prior to June 4, 2012. As such, after a thorough review of the evidence of record, the Veteran did not make a claim for an increased rating for his service-connected left wrist disability prior to June 4, 2012, nor was there evidence of an increase in severity one year prior to the submission of his claim. Thus, an increased evaluation for a left wrist disability is not factually ascertainable prior to that time. Accordingly, the Veteran’s appeal with respect to an earlier effective date for an increased rating for a left wrist disability is denied. New and Material Evidence Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). 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. § 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. 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 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 v. Brown, 9 Vet. App. at 273. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran seeks to reopen his claim of entitlement to service connection for a back disability. In a June 2004 rating decision, the local Regional Office (RO) denied entitlement to service connection for a back disability, as the medical evidence did not show a diagnosis of a back condition. The Veteran was notified of that decision and his appellate rights. The Veteran did not appeal this decision or submit additional evidence within one year. Thus, the June 2004 decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. In June 2012, the Veteran filed a request to reopen his claim for service connection for a back disability. The evidence before VA at the time of the June 2004 rating decision consisted of the Veteran’s lay assertions. The Board notes that while the June 2004 rating decision indicates that the Veteran’s service treatment records were reviewed, the record reflects that the service treatment records were associated with the claims file in July 2014. Further discussion of the Veteran’s service treatment records will be included below in the remand section. The evidence associated with the claims file relating to the claimed back disability following the June 2004 rating decision includes the Veteran’s partial service treatment records and additional lay assertions of the Veteran. In addition, VA conducted an examination evaluating the claimed back disability in February 2013. The Board finds that this evidence is new, as it was not previously of record, and tends to relate to a previously unestablished fact necessary to substantiate the underlying claim of service connection. Furthermore, this evidence is presumed credible for the purpose of reopening the claim. Consequently, the claim of entitlement to service connection for a back disability is reopened. REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Outstanding Service Records A review of the claims file reveals that the Veteran’s service treatment records are incomplete. Specifically, service treatment records from the Veteran’s second period of active service are not included in the electronic claims file. Furthermore, it is unclear as to whether the Veteran’s service records from his period of service in the Reserve have been associated with the claims file. On remand, an attempt should be made to obtain these potentially missing service treatment records. Increased Rating Claims Dysthymic Disorder The Veteran contends that he is entitled to an initial disability rating in excess of 70 percent for his service-connected dysthymic disorder. VA has an obligation to associate all relevant records with the claims file of a veteran, and has a duty to make reasonable efforts to obtain relevant records, including records that are not in the possession of another Federal Agency. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The record reflects that during the course of the appeal, the Veteran has received private medical treatment for his psychiatric disorder. On VA examination in February 2013, the examiner noted that at that time, the Veteran was seeking treatment from a civilian psychiatrist once a month, as well as from a psychologist once every two weeks. A June 2014 VA treatment record indicates that the Veteran reported that he received private treatment from Dr. S.M. at Psychiatric Care Consultants, and that his last visit with Dr. S.M. was in April or May of 2014. Finally, on VA examination in December 2015, the Veteran reported that he first began receiving mental health treatment services in 2011. The Board notes that there appears to be no copies of any regular notes of private mental health treatment from 2011. Thus, the Board will remand the issue of an increased rating for the Veteran’s psychiatric disability so that the AOJ can make appropriate efforts to obtain these potentially relevant outstanding records. The Veteran is invited to provide these records himself. Further, the record reflects that the Veteran was last provided a VA examination to assess the severity of his psychiatric disability in December 2015, nearly three years ago. Due to the passage of time and because the VA medical opinion associated with this examination did not consider the outstanding private medical records, the Board finds that a new VA examination in consideration of all of the pertinent medical evidence of record is warranted. With regards to the claim for an earlier effective date, the Board finds that the potentially outstanding medical records identified by the Veteran may contain evidence that could potentially affect the effective date assigned for the award of service connection for the Veteran’s dysthymic disorder. Thus, the claim for an earlier effective date for the award of service connection of dysthymic disorder is also remanded. Left Wrist Disability The Veteran also contends that he is entitled to an increased rating for his service-connected left wrist disability. The record reflects that the Veteran was most recently afforded a VA examination to assess the severity of his service-connected left wrist disability in December 2015. Following the December 2015 VA examination, on July 5, 2016, the United States Court of Appeals for Veterans Claims (Court), in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court’s holding in Correia interprets 38 C.F.R. § 4.59 to establish additional requirements that must be met prior to finding that a VA examination is adequate. The Board finds that the December 2015 VA examination does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examination notes evidence of pain during range of motion testing; however, the examination does not contain the point at which the Veteran experienced pain during range of motion testing. Furthermore, it appears that range of motion testing was conducted only on the left wrist, the affected joint. As noted above, Correia requires range of motion testing for the opposite undamaged joint as well. Moreover, passive range of testing was not conducted. Thus, in order to comply with Correia, both wrists must undergo range of motion testing in active motion, passive motion, weight-bearing, and non-weight-bearing. Therefore, as the previous examination reports do not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59, a new examination is necessary to decide the claim. Furthermore, since the December 2015 VA examination, the Court issued another decision in Sharp v. Shulkin, 29 Vet. App. 26 (2017) concerning the adequacy of VA orthopedic examinations. In Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the Court held that when a VA examiner is asked to opine as to additional functional loss during flare-ups of a musculoskeletal disability, such opinion must be based on all procurable and assembled medical evidence, to include eliciting relevant information from the veteran as to the flare (i.e., the frequency, duration, characteristics, severity, or functional loss), and such opinion cannot be based on the insufficient knowledge of the specific examiner. The Court found the VA examination report in that case inadequate because the examiner merely indicated that an opinion could not be provided without resorting to speculation because the Veteran was not undergoing a flare-up at the time of the examination. During the December 2015 VA examination, the Veteran did not report flare-ups of the left wrist; however, flare-ups were noted on VA examination in February 2013. Thus, an opinion pursuant to Sharp is necessary. Consequently, as the examination reports do not fully satisfy the requirements of Correia, 38 C.F.R. § 4.59, and Sharp, a new examination is necessary to decide the claim. Service Connection Claim Back Disability In addition, the Veteran contends that he is entitled to service connection for a back disability. As discussed above, the Veteran’s service treatment records are incomplete. As previously stated, service treatment records from the Veteran’s second period of active service are not included in the electronic claims file, and it is unclear as to whether all of the records from the Veteran’s period of service in the Reserve have been associated with the claims file. Furthermore, the Board observes that relevant service treatment records that are included in the electronic claims file were associated with the claims file after the February 2013 VA examination of the Veteran’s back. As such, none of the Veteran’s service treatment records appear to have been considered by the examiner in the evaluation of the claimed disability. Thus, on remand, as previously established, the AOJ must make another attempt to obtain all of the Veteran’s service treatment records, and upon procurement of all such records, the Board finds that a new VA examination in consideration of all of the relevant records is warranted. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). Petition to Reopen Service Connection Claims Right Wrist Disability and Hearing Loss As regards to the issues currently characterized as whether new and material evidence has been received to reopen claims for service connection for a right wrist disability and hearing loss, the Board also finds it necessary to remand these matters as a result of the Veteran’s missing service treatment records as discussed above, as these outstanding records could impact the characterization and adjudication of the Veteran’s claims. Furthermore, these service treatment records could also contain information potentially relevant to the underlying service connection claims. Entitlement to TDIU Finally, the Board finds that the issue of the Veteran’s entitlement to a TDIU is inextricably intertwined with the claims remanded herein. Accordingly, the issue of entitlement to a TDIU must be held in abeyance pending adjudication of the aforementioned claims. See Henderson v. West, 12 Vet. App. 11, 20 (1998) (matters are “inextricably intertwined” where action on one matter could have a “significant impact” on the other). On remand, the AOJ should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The Board notes that the most recent VA medical records associated with the claims file are from 2016. The matters are REMANDED for the following action: 1. The AOJ should ensure that the Veteran’s complete service treatment records, including records from his period of service in the Reserve, are associated with the claims file. The efforts to locate these records should only end if the evidence, or information, does not exist or further efforts to obtain them would be futile. 38 C.F.R. § 3.159(c)(2). If appropriate records are deemed to be unavailable, the claims file must be properly documented as to the unavailability of these records. All such available records should be associated with the claims file. 2. Provide the Veteran with an opportunity to identify any outstanding private or VA treatment records relevant to his claims. Note that the record reflects that the Veteran received psychological treatment from a private physician. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 3. After completing the above development, schedule the Veteran for a new examination with an appropriate clinician to determine the current severity of his service-connected dysthymic disorder. Prior to completing the examination report, the examiner should review the Veteran’s complete VA claims file. The examiner should indicate all of the findings suggested on the appropriate examination form and should comment on the effect, if any, of the Veteran’s service-connected psychiatric disorder on his employment. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 4. Then, schedule the Veteran for an examination by an appropriate clinician to determine the severity of his left wrist disability. In this regard, the examiner should record the range of motion observed on clinical evaluation. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which such pain begins. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the left wrist disability alone and discuss the effect of the Veteran’s left wrist disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In order to comply with regulations, as explained in Correia v. McDonald, 28 Vet. App. 158 (2016), the examiner must test and record the range of motion for both wrists in active motion, passive motion, weight-bearing, and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 5. Finally, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any back disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. The examiner should address the Veteran’s reports of pain and opine on whether this reported pain in fact results in actual functional impairment. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 6. After completing all indicated development, the Veteran’s claims should be readjudicated, to include the issue of entitlement to a TDIU, based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Y. MacDonald, Associate Counsel