Citation Nr: 19192686 Decision Date: 12/10/19 Archive Date: 12/10/19 DOCKET NO. 16-43 451 DATE: December 10, 2019 ORDER New and material evidence having been received, the application to reopen a claim of entitlement to service connection for a left fifth finger disability is granted. New and material evidence having been received, the application to reopen a claim of entitlement to service connection for a back disability is granted. New and material evidence having been received, the application to reopen a claim of entitlement to service connection for pes planus is granted. New and material evidence having been received, the application to reopen a claim of entitlement to service connection for a bilateral knee disability is granted. New and material evidence having been received, the application to reopen a claim of entitlement to service connection for an acquired psychiatric disorder is granted. New and material evidence having not been received, the application to reopen a claim of entitlement to service connection for hepatitis C is denied. Entitlement to service connection for left wrist osteoarthritis is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for a left fifth finger disability is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for pes planus is remanded. Entitlement to service connection for a bilateral knee disability is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for a left-hand disability is remanded. Entitlement to service connection for a bilateral foot disability, to include as secondary to pes planus, is remanded. Entitlement to service connection for hearing loss is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for right scapular pain is remanded. Entitlement to service connection for dizziness is remanded. FINDINGS OF FACT 1. In a March 2012 rating decision, the Regional Office denied entitlement to service connection for left fifth finger disability, bilateral pes planus, bilateral knee disability, major depressive disorder with mild posttraumatic stress disorder (PTSD), and hepatitis C; and denied an application to reopen a claim of entitlement to service connection for a back disability. Additional evidence was received within one year and the Veteran submitted a Notice of Disagreement; however, thereafter, the Veteran withdrew the appeal. 2. Evidence received since the March 2012 rating decision relates to unestablished facts necessary to substantiate the claims for service connection for left fifth finger disability, bilateral pes planus, bilateral knee disability, acquired psychiatric disorder, and back disability. 3. Evidence received since the March 2012 rating decision does not relate to unestablished facts necessary to substantiate the claim for service connection for hepatitis C. 4. The Veteran’s left wrist osteoarthritis is related to an injury and treatment in active service. 5. Resolving reasonable doubt in the Veteran’s favor, his tinnitus began during active service. CONCLUSIONS OF LAW 1. The March 2012 rating decision that denied entitlement to service connection for left fifth finger disability, bilateral pes planus, bilateral knee disability, major depressive disorder with mild posttraumatic stress disorder, and hepatitis C; and denied an application to reopen a claim of entitlement to service connection for a back disability, became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received to reopen the claim for entitlement to service connection for a left fifth finger disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. New and material evidence has been received to reopen the claim for entitlement to service connection for a back disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. New and material evidence has been received to reopen the claim for entitlement to service connection for pes planus. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. New and material evidence has been received to reopen the claim for entitlement to service connection for a bilateral knee disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 6. New and material evidence has been received to reopen the claim for entitlement to service connection for an acquired psychiatric disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 7. New and material evidence has not been received to reopen the claim for entitlement to service connection for hepatitis C. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 8. The criteria for service connection for left wrist osteoarthritis are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 9. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1975 to April 1976. The Veteran testified at a hearing before the undersigned Veterans Law Judge in August 2019. A transcript of the hearing has been associated with the record. Applications to Reopen 1. New and material evidence having been received, the application to reopen a claim of entitlement to service connection for a left fifth finger disability is granted. 2. New and material evidence having been received, the application to reopen a claim of entitlement to service connection for a back disability is granted. 3. New and material evidence having been received, the application to reopen a claim of entitlement to service connection for pes planus is granted. 4. New and material evidence having been received, the application to reopen a claim of entitlement to service connection for a bilateral knee disability is granted. 5. New and material evidence having been received, the application to reopen a claim of entitlement to service connection for an acquired psychiatric disorder is granted. 6. New and material evidence having not been received, the application to reopen a claim of entitlement to service connection for hepatitis C is denied. A March 2012 rating decision denied claims of service connection for hepatitis C, left fifth finger, back, pes planus, bilateral knee, and acquired psychiatric disabilities. Hepatitis C was denied on the basis that the Veteran’s service treatment records did not reveal complaints, treatment, or diagnosis for the condition. The disability was found to not be incurred in service. Left fifth finger disability was denied on the basis that while service treatment records reflected complaints, treatment, or a diagnosis similar to that claimed, the medical evidence supported the conclusion that a persistent disability was not present in service. Bilateral knee disability and acquired psychiatric disability were denied on the basis that the evidence did not show an event, disease or injury in service and the evidence did not show that the conditions resulted from or were aggravated by a service-connected disability. Pes planus was denied on the basis that the disability existed prior to service and was not permanently worsened as a result of service. Back disability was denied on the basis that new and material evidence was not received to reopen the claim. It had been previously denied on the basis that there was no evidence of an in-service back injury. The Veteran submitted a private provider statement in April 2012 and a Notice of Disagreement (NOD), and a VA examination was performed in June 2013. However, in October 2013 the Veteran withdrew the appeal and the decision became final. The question before the Board is whether new and material evidence has been submitted to reopen the claims. Since the prior final rating decision, in August 2019 an additional private provider stated that the Veteran was being provided care for conditions, including severe pain of the lower back, right hip, and left foot. The provider reported that the Veteran’s wrist injury caused pain in the left hand. The provider stated that the Veteran’s low back pain started in a basic training injury and has worsened over time as seen in a magnetic resonance imaging (MRI) in July 2018. The Veteran was still suffering from severe back pain. The provider reported that the Veteran’s flat feet were more than likely made during his time in the service, which caused him to have degenerative joint disease. At the hearing before the undersigned the Veteran reported that he believed that his bilateral knee disability was due to his back disability because he always walked with a limp after his injury. In October 2017 the Veteran was noted to have depression related to general medical condition, back injury. Regarding the claims for left fifth finger, back, pes planus, bilateral knee disability, and acquired psychiatric disabilities, the evidence is “new” in that it had not been previously submitted. Moreover, the evidence is “material” because it relates to an unestablished fact necessary to substantiate the claims; that is whether the disabilities may be related to the Veteran’s active service and/or due to the Veteran’s service-connected disabilities. Therefore, the claims for service connection for left fifth finger disability, back disability, pes planus, bilateral knee disability, and acquired psychiatric disorder are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). However, in regard to claim to reopen service connection for hepatitis C, material evidence has not been received. Although additional treatment records have been associated with the claims file, the records do not indicate any evidence of in-service onset or diagnosis or whether the hepatitis C may be associated with the Veteran’s active service. The Veteran testified at his hearing before the undersigned that he did not know where the hepatitis C came from and that he had not been told that his hepatitis C was related to his active service. As new and material evidence has not been received to reopen a claim of entitlement to service connection for hepatitis C, the claim is denied. Service Connection 7. Entitlement to service connection for a left wrist disability. 8. Entitlement to service connection for tinnitus. The Veteran contends that he injured his left wrist lifting logs in service and that he had tinnitus since service. The Board concludes that the Veteran has current disabilities that are related to or began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service treatment records reveal that the Veteran complained of left wrist pain in March 1976 and was diagnosed with sprained wrist. In statements dated in April 2012 and June 2017 private providers noted that it was more than likely that the Veteran’s left wrist injury caused arthritis causing it to be secondary to the wrist injury in service. The Veteran was afforded a VA examination regarding the wrist in June 2013. After examination the examiner rendered the opinion that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner reported that a treatment note in March 1976 revealed a diagnosis of wrist sprain. The treating provider ordered three days of no physical training. There was no further evaluation or documentation of ongoing complaint identified by the examiner. Thus, it was less likely than not incurred in or caused by the noted in-service injury. In a July 2017 treatment note, the Veteran was reported to be diagnosed with left wrist osteoarthritis. In October 2017 the Veteran reported that his wrist hurt since service. In a private provider statement dated in August 2019 the Veteran was noted to be under the provider’s care for a left wrist condition. The provider rendered the opinion that it is more than likely that the Veteran’s wrist injury caused an arthritis flare-up. Second to his wrist injury this caused pain in his left hand. In a treatment note dated in August 2019 the Veteran was noted to complain of pain of the left wrist, lower back, and left foot that started about 2 weeks prior. He presented with swelling and tenderness to his left wrist and reported that he was injured many years prior. The provider reported that the Veteran had an x-ray of the left wrist three years prior that correlated with old trauma. At the hearing before the undersigned, the Veteran reported that he hurt his wrist in service and that it was still bothering him. Affording the Veteran the benefit of the doubt, his current left wrist disability is related to his injury and treatment in service. Service treatment records reveal that the Veteran was treated for complaints of wrist pain and that he was diagnosed with sprain of the left wrist. During the period on appeal the Veteran has been diagnosed with left wrist osteoarthritis. Finally, a private provider has associated the Veteran’s left wrist osteoarthritis with the Veteran’s in-service injury and treatment. Therefore, service connection for left wrist osteoarthritis is granted. In April 2013 the Veteran denied tinnitus. In December 2014 the Veteran reported recurrent bilateral tinnitus. In January 2015 the Veteran was noted to be diagnosed with tinnitus. The Veteran was afforded a VA examination in May 2016. The Veteran reported constant bilateral hearing loss over the prior years since service. However, the examiner stated that while it is assumed that anyone in military service may be exposed to loud noises, paperwork indicated the Veteran’s military occupation did not have a high likelihood of exposure to hazardous noise. The examiner concluded that, considering the relatively brief time in active duty service, the current tinnitus is less likely as not due to active duty military noise exposure. The Veteran was afforded a VA examination in November 2017. The Veteran was diagnosed with tinnitus; however, no opinion regarding etiology was provided. At the hearing before the undersigned the Veteran reported that he has had ringing in his ears ever since service. The Veteran is competent to report ringing in his ears and he has been diagnosed with tinnitus during the period on appeal. Although there have been some notations of negative for symptoms of tinnitus in the treatment records, affording the Veteran the benefit of the doubt, the Veteran’s reports of ringing in the ears since exposure to loud noise in service are credible. Therefore, entitlement to service connection for tinnitus is granted. REASONS FOR REMAND 1. Entitlement to service connection for a left fifth finger disability is remanded. 2. Entitlement to service connection for a back disability is remanded. 3. Entitlement to service connection for pes planus is remanded. 4. Entitlement to service connection for a bilateral knee disability is remanded. 5. Entitlement to service connection for an acquired psychiatric disorder is remanded. 6. Entitlement to service connection for a left-hand disability is remanded. 7. Entitlement to service connection for a bilateral foot disability, to include as secondary to pes planus, is remanded. 8. Entitlement to service connection for hearing loss is remanded. 9. Entitlement to service connection for sleep apnea is remanded. 10. Entitlement to service connection for right scapular pain is remanded. 11. Entitlement to service connection for dizziness is remanded. At the hearing before the undersigned the Veteran reported that he believed that his left fifth finger, left hand, and left wrist disabilities were all related to his injury in service. Although the Veteran has been afforded a VA examination with regard to the etiology of his left wrist disability, the Veteran has not been afforded an adequate VA examination regarding the etiology of any left fifth finger or left hand disability. In August 2019 a private provider indicated that the Veteran’s wrist injury caused pain in the left hand. As such, it is necessary to afford the Veteran an adequate examination regarding the etiology of any left fifth finger and left-hand disability present, including whether any disability is due to or aggravated by his service-connected left wrist disability. See 38 C.F.R. § 3.159. In a June 2013 VA examination, the examiner rendered the opinion that the pes planus clearly and unmistakable existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner noted that there was no evidence in the medical record to suggest that the identified mild degree of pes planus was aggravated by his several months of active military duty. However, in April 2012 a private provider stated that based on an x-ray report it was more than likely that being in service made the Veteran’s flat feet worse causing the Veteran to have degenerative joint disease. June 2017 and August 2019 statements by providers reported that the Veteran’s pes planus was more than likely made during service. At the hearing, the Veteran reported that his feet did not bother him before service, that he believed that the boots he had to wear in service may have made his flat feet worse, and that the strenuous activity in service caused his foot disability. The VA medical opinion is inadequate because it does not comment on the Veteran’s boots or the strenuous activity in service. The private opinions are inadequate because they do not provide adequate rationale for the opinions. Therefore, it is necessary to afford the Veteran a VA examination regarding whether his pes planus disability was aggravated by the Veteran’s active service, to include the boots he was issued and the strenuous activity. Further, a VA examination is necessary to determine whether any other foot disability, including degenerative joint disease, is related to active service and/or is due to or aggravated by the Veteran’s pes planus. Id. The Veteran was afforded a VA examination regarding his knee disabilities and his back disability in June 2013. The opinions rendered found that the Veteran’s knee and back disabilities were less likely than not proximately due to or the result of the Veteran’s pes planus because the examiner found that the pes planus was not aggravated by service. Further, an opinion was rendered that the Veteran’s back disability was not related to service due to the lack of records during the Veteran’s 5-month period of service showing early separation due to spine-related condition, even though the Veteran reported discharge due to spinal condition. A private provider in April 2012 reported that the Veteran’s low back pain more than likely started when the Veteran was in basic training. In June 2017 a private provider noted that the Veterans’ back pain started in basic training and had not improved. At the hearing before the undersigned the Veteran argues that his knee disabilities are related to his back disability and that his back was injured in service during “STC.” In August 2019 a private provider stated that the Veteran was being provided care for severe pain of the lower back. The provider stated that the Veteran’s low back pain started in a basic training injury and has worsened over time as seen in an MRI in July 2018. The Veteran was still suffering from severe back pain. The VA opinions are not adequate because they do not opine on whether the Veteran’s knee disabilities are related to his back disability and in rendering the back opinions, is based upon a lack of record of treatment in service. In addition, the examiner did not adequate contemplate a January 2016 notation of low back pain. The private opinions are not adequate regarding the Veteran’s back disability because they do not comment on the nature of the injury in service or how a July 2018 MRI identifies worsening in the Veteran’s back disability since service. Therefore, the claims must be remanded for the Veteran to be afforded another VA examination. Id. The Veteran has been noted to have depression related to general medical condition, back injury. See VA Treatment, October 2017. However, this statement is not accompanied by any rationale. The claim is remanded to obtain an etiological opinion. At the hearing, the Veteran reported that he was told that his hearing loss was related to exploding munitions in service. He has hearing loss for VA compensation purposes. See VA Treatment, September 2017. The Veteran was afforded VA audiological examinations in May 2016 and November 2017, but the examiners said the testing was unreliable. The Veteran has hearing loss for VA purposes, has reported that he was exposed to loud noise in service and that he has been told that his hearing loss is related to his exposure to loud noise. The claim is remanded for an adequate VA examination regarding the etiology of his hearing loss. The Veteran has been diagnosed with sleep apnea and has reported that he has had trouble with sleep apnea since exposure to tear gas in a tent in service. As the Veteran has not been afforded a VA examination regarding the etiology of his sleep apnea disability, the claim must be remanded for the Veteran to be afforded an examination. The Veteran has argued that his right scapular disability was associated with his back disability. As the back disability is being remanded, the claim for a right scapular disability is inextricably intertwined and remanded also. In addition, although it is not noted that the Veteran has been diagnosed with a right scapular disability, the Federal Circuit held that “pain alone can serve as a functional impairment and therefore qualify as a disability.” See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Therefore, an examination to secure a medical opinion, to include regarding the functional impairment due to pain, if any, is necessary. The Veteran was treated for an episode of dizziness in service and has been treated since service for a complaint of dizziness. The claim is remanded to obtain a medical opinion. May 2015 VA treatment notes indicate that the Veteran was hospitalized at Bryce Hospital after he got out of the military in the 1970s. He reported that he went to Bryce Hospital for drug and alcohol treatment and that he used intravenous drugs for year after he got out of the military. Review of the claims file does not reveal treatment records from Bryce. In addition, VA treatment records regarding the Veteran dated since February 2019 have not been associated with the claims file. On remand attempts must be made to obtain and associate with the claims file treatment records regarding the Veteran from Bryce and VA treatment records regarding the Veteran dated since February 2019, after receipt of any necessary authorization. See 38 C.F.R. § 3.159. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Bryce Hospital. Thereafter, take all appropriate action ot obtain the identified records. 2. Obtain the Veteran’s VA treatment records for the period from February 2019 to the present. 3. After completion of the above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left fifth finger and left-hand disabilities found to be present. The examiner must opine whether it is at least as likely as not any left fifth finger and left-hand disabilities found to be present is related to an in-service injury, event, or disease. In addition, the examiner must render an opinion regarding whether any left fifth finger and left-hand disability found to be present is at least as likely as not (1) proximately due to service-connected disability, including left wrist disability, or (2) aggravated by service-connected disability, including left wrist disability. Aggravation here is defined as any increase in disability. A complete rationale must be provided for any opinions offered. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any pes planus. The examiner must opine whether it was at least as likely as not that the pes planus was aggravated (non-temporary increase in severity) by service and, if so, whether any increase in severity was clearly and unmistakably (undebatable) due to its natural progress. In rendering the opinion the examiner must comment on the Veteran’s reports of problems with his boots in service, the reports of strenuous activity in service, and the prior opinions of record, including the statements of the private providers. A complete rationale must be provided for any opinions offered. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any foot disability other than pes planus, to include degenerative joint disease. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including strenuous activity and wearing of boots. In addition, the examiner must render an opinion regarding whether any foot disability other than pes planus is at least as likely as not (1) proximately due to pes planus, or (2) aggravated by pes planus. Aggravation here is defined as any increase in disability. A complete rationale must be provided for any opinions offered. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any knee and back disabilities found to be present. The examiner must opine whether any knee and back disabilities found to be present are at least as likely as not related to an in-service injury, event, or disease, including the report of low back pain in service and the reported injury during basic training. In rendering an opinion, the examiner must comment on the opinions of the private providers associated with the claims file. In addition, the examiner must render an opinion regarding whether any knee disability is at least as likely as not (1) proximately due to pes planus or a back disability, or (2) aggravated by pes planus or a back disability. Aggravation here is defined as any increase in disability. A complete rationale must be provided for any opinions offered. 7. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any psychiatric disability, to include posttraumatic stress disorder and major depressive disorder, found to be present. (a) If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. In providing the opinion, the examiner must consider the Veteran’s reports of interactions with Drill Sergeant and his disabilities. (b) If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether it is at least as likely as not (i) related to service, or (ii) caused or aggravated (defined as any increase in disability) by the Veteran's service-connected disabilities. A complete rationale must be provided for any opinions offered. 8. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bilateral hearing loss. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including exposure to loud noise. A complete rationale must be provided for any opinions offered. 9. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any sleep apnea. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including reported exposure to tear gas. A complete rationale must be provided for any opinions offered. 10. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any right scapular disability found to be present. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the strenuous activity in basic training. In addition, the examiner must render an opinion regarding whether any right scapular disability found to be present is at least as likely as not (1) proximately due to a back disability, or (2) aggravated by a back disability. A complete rationale must be provided for any opinions offered. 11. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any disability manifested by dizziness. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including reported dizzy spell in service. A complete rationale must be provided for any opinions offered. M.E. LARKIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Robert J. Burriesci, 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.