Citation Nr: 19164352 Decision Date: 08/20/19 Archive Date: 08/20/19 DOCKET NO. 14-20 198 DATE: August 20, 2019 ORDER New and material evidence having been submitted, the claim for service connection for panic, dysthymic, chronic adjustment, phobic, mental retardation, and personality disorders is reopened. REMANDED Entitlement to service connection for a right knee disorder, to include as secondary to service-connected bilateral pes planus and left foot arthrosis of the first metatarsal cuneiform joint status post arthrodesis, is remanded. Entitlement to service connection for a left foot disorder other than pes planus and left foot arthrosis of the first metatarsal cuneiform joint status post arthrodesis is remanded. Entitlement to service connection for a right foot disorder other than pes planus is remanded. Entitlement to service connection for an acquired psychiatric disorder other than major depressive disorder is remanded. Entitlement to an evaluation in excess of 50 percent for major depressive disorder prior to August 23, 2010, is remanded. Entitlement to an evaluation in excess of 70 percent for major depressive disorder on or after August 23, 2010, is remanded. Entitlement to an initial evaluation in excess of 10 percent for bilateral pes planus is remanded. Entitlement to an evaluation in excess of 10 percent for left foot arthrosis of the first metatarsal cuneiform joint status post arthrodesis is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. In a July 2009 rating decision, the Regional Office (RO) denied service connection for panic, dysthymic, chronic adjustment, phobic, mental retardation, and personality disorders. The Veteran was notified of that decision and of his appellate rights, but he did not appeal or submit new and material evidence within the one-year period thereafter. 2. The evidence received since the July 2009 rating decision relates to an unestablished fact and raises the reasonable possibility of substantiating the claim for service connection for an acquired psychiatric disorder other than the service-connected major depressive disorder. CONCLUSIONS OF LAW 1. The July 2009 rating decision that denied service connection for panic, dysthymic, chronic adjustment, phobic, mental retardation, and personality disorders is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2009). 2. The evidence received since the July 2009 rating decision is new and material, and the claim for service connection for an acquired psychiatric disorder other than major depressive disorder is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1995 to July 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2004, March 2015, and April 2017 rating decisions. The Board notes that the Veteran was previously represented by a private attorney. However, prior to certification of the appeal, the attorney withdrew his representation. Therefore, the Veteran is currently unrepresented before the Board in this appeal. In his August 2015 substantive appeal, the Veteran requested a hearing before the Board; however, he subsequently withdrew that request. Therefore, the Board deems the hearing request withdrawn. See 38 C.F.R. § 20.704(e) (2018). In May 2018, the Board remanded the case for initial review of additional evidence by the Agency of Original Jurisdiction (AOJ). The case has since been returned to the Board for appellate review. New and Material The Veteran has not raised any issues with the duty to notify or duty to assist with regard to the issue decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). In order to reopen a claim which has been denied by a final decision, a claimant must present new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (regardless of action taken by RO, Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial). New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For the purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, “credibility” of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The United States Court of Appeals for Veterans Claims (Court) has held that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted 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, to include by triggering the Secretary’s duty to assist. Id. at 118. In a July 2009 rating decision, the RO, in relevant part, denied claims for service connection for panic, dysthymic, chronic adjustment, phobic, mental retardation, and personality disorders. In so doing, the RO stated that mental retardation and personality disorders are considered congenital and developmental defects that are not subject to service connection. The RO also found that the claimed panic, dysthymic, phobic, and chronic adjustment conditions were considered to be part and parcel of the Veteran’s service-connected major depressive disorder. The Veteran was notified of that decision and of his appellate rights, but he did not appeal or submit new and material evidence within the one-year period thereafter. Therefore, the July 2009 rating decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2009). In November 2014, the Veteran filed claims for service connection for chronic adjustment disorder, generalized anxiety, and social phobia disorders, to include as secondary to his service-connected major depressive disorder. He also filed a claim for service connection for a neurocognitive disorder, to include as secondary to his service-connected human immunodeficiency virus (HIV). In a March 2015 rating decision, the RO, in relevant part, denied service connection for a mild neurocognitive disorder finding that the evidence did not show that the disorder was related to the Veteran’s service-connected HIV or that it was otherwise related to his military service. The RO also denied service connection for generalized anxiety, social phobia, chronic adjustment, and cyclothymic disorders finding that the evidence did not show that the conditions were secondary to the Veteran’s service-connected major depressive disorder or that they were otherwise related to his military service. Initially, the Board finds that the Veteran’s November 2014 claims do not amount to new claims based on distinct disorders, but rather provide evidence tending to substantiate an element of the previously adjudicated claims for service connection for panic, dysthymic, chronic adjustment, phobic, mental retardation, and personality disorders. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009); Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); Velez v. Shinseki, 23 Vet. App. 199, 204-05 (2009). In this regard, the evidence of record reveals that the claimed acquired psychiatric disorder has been described by the Veteran and construed by the RO based on multiple manifestations involving overlapping symptoms. In his April 2008 claim, the Veteran referenced various Diagnostic Codes and VA regulations pertaining to mental health disorders and indicated that his symptoms resulted in total occupational and social impairment. He also identified cognitive impairment, such as memory loss. The evidence also reveals that, in the July 2009 rating decision, the RO considered the Veteran’s entire mental health picture before denying service connection for social phobia, panic, dysthymic, and chronic adjustment disorders. Indeed, the RO stated that the Veteran’s conditions were considered to be part and parcel of his service-connected major depressive disorder rather than separate disabilities. The Board does acknowledge that, in his November 2014 claim, the Veteran contended that he had chronic adjustment, generalized anxiety, social phobia, cyclothymic, and neurocognitive disorders that were secondary to his service-connected major depressive disorder and human immunodeficiency virus (HIV). However, a new theory of causation for the same disease that was the subject of a previously denied claim cannot be the basis of a new claim. See Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). Therefore, new and material evidence is necessary to reopen the Veteran’s claim for service connection for an acquired psychiatric disorder other than major depressive disorder. The evidence received since the July 2009 rating decision includes VA medical records, private medical records, and lay statements. Notably, in a February 2014 VA medical statement, a VA psychiatric nurse practitioner stated that the Veteran received treatment for an anxiety disorder not otherwise specified (NOS) since May 2013. She also noted that the Veteran’s anxiety was associated with the impairment caused directly by his depression. In addition, in an August 2007 private medical record, Dr. J.R. (initials used to protect privacy) diagnosed the Veteran with a mathematics disorder. He also noted that the Veteran experienced manic-like psychiatric symptoms. This evidence relates to previously unestablished facts necessary to substantiate the claim. 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). Thus, the Board finds that the evidence is both new and material, and the claim for service connection for an acquired psychiatric disorder other than the service-connected major depressive disorder is reopened. However, as will be explained below, the Board is of the opinion that further development is necessary before the merits of the Veteran’s claim for an acquired psychiatric disorder other than the service-connected major depressive disorder can be addressed. REASONS FOR REMAND Regarding the claim for service connection for a right foot disorder other than pes planus, the RO has not issued a statement of the case addressing this matter. Historically, in an August 2004 rating decision, the RO denied service connection for a right foot disorder, to include arthritis. The Veteran filed a notice of disagreement with that decision in February 2005. However, in an August 2006 rating decision, the RO determined that new and material evidence had not been received to reopen a claim for service connection for a right foot disorder. In a July 2009 rating decision, the RO denied service connection for bilateral pes planus and right foot hypermobility of the first metatarsal cuneiform joint. The RO also determined that new and material evidence had not been received to reopen a claim for service connection for a right foot disorder, to include arthritis (claimed as severe malunion of the metatarsal bones). In an April 2011 rating decision, the RO denied service connection for a right foot disorder, to include arthritis and severe malunion of the metatarsal bones. The Veteran filed a notice of disagreement with that decision in June 2011. Thereafter, a March 2014 report of general information noted that the Veteran wished to file a claim for service connection for a bilateral foot disorder characterized by pain, swelling, and weight bearing issues. In an April 2014 rating decision, the RO granted service connection for bilateral pes planus and assigned a 10 percent evaluation effective from July 7, 2003. In so doing, the RO acknowledged that no action was taken on the Veteran’s February 2005 notice of disagreement with the August 2004 rating decision that denied service connection for a right foot disorder. The RO also stated that the appeal as to the issue of entitlement to service connection for a right foot disorder was considered satisfied. In May 2014, the Veteran expressed disagreement with the April 2014 rating decision. Specifically, he asserted that his right foot first metatarsal cuneiform joint/metatarsal joint caused symptoms that were separate from his bilateral pes planus, including pain, swelling, and instability. In a March 2015 rating decision, the RO denied service connection for a “bilateral foot condition (right foot condition),” including pain swelling and weight bearing issues. The RO also denied service connection for left pes planus, to include hallux valgus (claimed as weak left foot). The Veteran filed a notice of disagreement with respect to these issues in July 2015. In June 2015 and November 2016, the RO issued statements of the case pertaining to the issues of entitlement to an evaluation in excess of 10 percent for the service-connected bilateral pes planus and entitlement to service connection for left foot hallux valgus (claimed as weak foot). However, the RO did not address the Veteran’s disagreement regarding his right foot disorder other than the service-connected pes planus. In light of the procedural history of this case and the Veteran’s contentions, a remand is required for the AOJ to issue a statement of the case (SOC). See 38 C.F.R. § 19.9(c); Manlincon v. West, 12 Vet. App. 238 (1999) (finding that if a NOD remains unprocessed, a remand is required for issuance of an SOC). Regarding the claim for service connection for a right knee disorder, the Veteran was afforded a VA examination in March 2015. The examiner opined that the Veteran’s right knee strain was less likely than not proximately due to or a result of his service-connected left foot status post arthrodesis. In so finding, the examiner stated that the Veteran began complaining of right knee pain in May 2014. However, the Veteran’s service treatment records and post-service medical records note complaints of right knee pain prior to May 2014. As such, it appears that the opinion was based on an inaccurate or incomplete factual premise. Moreover, the examiner did not provide an opinion as to whether the Veteran’s right knee strain was aggravated by his service-connected disabilities or otherwise directly related to his military service. Therefore, a remand is required to obtain an additional VA medical opinion. Regarding the claim for service connection for an acquired psychiatric disorder other than major depressive disorder, the Veteran was afforded a VA psychiatric examination in March 2015. However, the examiner indicated that he did not review the Veteran’s service treatment records. The Veteran has contended that he has an acquired psychiatric disorder other than major depression, including a neurocognitive disorder related to his service-connected HIV. In support of his claim, he submitted an August 2007 private psychiatric evaluation that noted a DSM IV, Axis I, diagnosis of a mathematics disorder. A December 2017 VA medical record also noted a rule out diagnosis of a cognitive disorder. Therefore, a remand is necessary to ascertain the current severity of the Veteran’s service-connected major depressive disorder and to determine the nature and etiology of any other acquired psychiatric disorders. Regarding the issues of entitlement to increased evaluations for the service-connected bilateral pes planus and left foot status post arthrodesis disabilities, the Veteran was most recently afforded a VA examination in March 2015. However, subsequent VA medical records document complaints of left and right foot swelling, as well as assessments of small bone deformities. See, e.g., September 2016 and March 2019 VA podiatry records. This evidence suggests that the Veteran’s disabilities may have worsened since he was last examined. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Therefore, a remand is necessary to obtain an additional VA examination to ascertain the current severity and manifestations of the Veteran’s service-connected foot disabilities. In addition, during a March 2015 VA examination, the Veteran reported having pain in the area of his left big toe. In a March 2015 VA medical opinion regarding the Veteran’s right knee, the examiner stated that research showed that arthrodesis of the foot can affect the joint of the big toe. Therefore, on remand, the examiner should clarify whether the Veteran’s reported symptoms are associated with his service-connected foot disabilities or constitute a separate and distinct left foot disorder. Lastly, during the appeal period, the Veteran reported that he was unemployed due to his service-connected bilateral pes planus, left foot status post arthrodesis, and major depressive disorder. Therefore, the issue of entitlement to TDIU has been raised as part and parcel of the Veteran’s claims for increased evaluations. See Rice v. Shinseki, 22 Vet. App. 447 (2009); see also, Harper v. Wilkie, 30 Vet. App. 356 (2018). Moreover, the Board finds that the issue of entitlement to TDIU is inextricably intertwined with the increased rating claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two issues are inextricably intertwined when the adjudication of one issue could have significant impact on the other issue). The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for the disorders on appeal or that are otherwise relevant to the TDIU claim. 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. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any right knee 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, 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 he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should provide an opinion as to whether it is at least as likely as not that any current right knee disorder manifested in or is otherwise causally or etiologically related to the Veteran’s military service, to include any symptomatology therein. The examiner should also provide an opinion as to whether it is at least as likely as not that any current right knee disorder was either caused by or aggravated by the Veteran’s service-connected foot disabilities. In rendering his or her opinion, the examiner should consider the Veteran’s assertion that his right knee disorder is a result of an altered gait from service-connected foot disabilities. The Veteran has also reported that a physician informed him that generalized joint pain is caused by the HIV disease process. See, e.g., July 2004 VA medical 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 conclusion as it is to find against it.) A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After any additional records are associated with the claims file, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected bilateral pes planus and left foot arthrosis of the first metatarsal cuneiform joint status post arthrodesis and to determine the nature and etiology any other left foot 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 state this with a fully reasoned explanation. Regarding the service-connected bilateral pes planus and left foot arthrosis of the first metatarsal cuneiform joint status post arthrodesis, the examiner should report all signs and symptoms necessary for rating the disabilities. In particular, he or she should state whether the Veteran has severe pes planus with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. He or she should further indicate whether the Veteran has pronounced pes planus with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation, not improved by orthopedic shoes or appliances. The examiner should also identify and describe any symptoms and manifestations associated with the service-connected left foot arthrosis of the first metatarsal cuneiform joint status post arthrodesis disability. In so doing, he or she should indicate whether the Veteran’s left foot disability is moderate, moderately severe, or severe. In addition, the examiner should provide the range of motion in degrees and test the Veteran’s range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing for both feet. 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 so in the report. The presence of objective evidence of pain, excess fatigability, incoordination and weakness should also be noted, as should any additional disability (including additional limitation of motion) due to these factors and any flare-ups. The examiner should also identify any current left foot disorders other than the service-connected pes planus and left foot status post arthrodesis disability. He or she should specifically state whether the Veteran has a separate disorder characterized by left big toe pain, as opposed to symptoms associated with his service-connected foot disabilities. If the Veteran has a separate left foot disorder, the examiner should state whether it is at least as likely as not that the disorder was either caused by or aggravated by the service-connected bilateral pes planus and left foot status post arthrodesis disabilities. (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 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 any additional records are associated with the claims file, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected major depressive disorder, and the nature and etiology of any other acquired psychiatric disorder or neurocognitive disorders that may be present. Any 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, 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 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. Regarding the service-connected major depressive disorder, the examiner should report all signs and symptoms necessary for evaluating the disability under the rating criteria. The findings of the examiner should address the level of social and occupational impairment attributable to the Veteran’s major depressive disorder. To the extent possible, the examiner should distinguish between the symptoms associated with the service-connected major depressive disorder and any symptoms associated with a nonservice-connected disorder. If the examiner cannot separate the symptoms, he or she should so state in the report. Regarding the claimed acquired psychiatric disorder other than major depressive disorder, the examiner should identify all current acquired psychiatric disorders that are separate from the service-connected major depressive disorder. He or she should specifically state whether the Veteran has a neurocognitive disorder. For each diagnosis identified, the examiner should indicate whether the disorder is a congenital defect or disease. To assist the examiner, for VA adjudication purposes, “disease” generally refers to a condition considered capable of improving or deteriorating, whereas “defect” generally refers to a condition not considered capable of improving or deteriorating. (As an example, VA considers sickle cell anemia as congenital “disease” for VA purposes, whereas refractive error is considered a congenital “defect.”) (a) For each disorder identified that is a congenital defect or a personality disorder, the examiner should state whether there is any evidence of superimposed disease or injury during the Veteran’s active duty service. (b) For each disorder that is a congenital disease, the examiner should state whether the disorder clearly and unmistakably preexisted the Veteran’s active duty service. If so, the examiner should state whether there was an increase in the severity of the disorder during the Veteran’s active duty service and whether any increase was due to the natural progression of the disorder. (c) If the examiner determines that the disorder is not a congenital defect and did not clearly and unmistakably preexist the Veteran’s active duty service, he or she should state whether it is at least as likely as not that the disorder manifested in or is otherwise causally or etiologically related to the Veteran’s military service. The examiner should also state whether it is at least as likely as not that the disorder was either caused by or aggravated by a service-connected disability, to include major depressive disorder and HIV. (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 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 Veteran’s claims file, or in the alternative, the claim file, must be made available to the examiner for review. 5. The AOJ should review the examination reports to ensure compliance with this remand. If the reports are deficient in any manner, the AOJ should implement corrective procedures. 6. After completing the above actions, the AOJ should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. 7. The AOJ should issue a statement of the case addressing the issue of entitlement to service connection for a right foot disorder other than pes planus. Thereafter, the Veteran should be given an opportunity to perfect an appeal by submitting a timely substantive appeal in response thereto. The AOJ should advise the Veteran that the claims file will not be returned to the Board for appellate consideration of these particular issues following the issuance of the statement of the case unless he perfects an appeal. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Wulff, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.