Citation Nr: 20009937 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 18-20 386 DATE: February 6, 2020 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for a back disability, and to this extent only, the appeal is granted. New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss, and to this extent only, the appeal is granted Entitlement to a total disability evaluation based on individual unemployability due to service-connected disability (TDIU) is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to service connection for a back disability including as secondary to pes planus is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a disability of the lower extremities including peripheral neuropathy. Entitlement to a rating in excess of 50 percent for bilateral pes planus on an extraschedular basis is remanded. FINDINGS OF FACT 1. In a December 2003 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for a back disability; the Veteran did not perfect an appeal. 2. Evidence submitted since the December 2003 rating decision, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim of service connection for a back disability, and therefore raises a reasonable possibility of substantiating the claim. 3. In a May 2012 rating decision, the AOJ denied service connection for bilateral hearing loss; the Veteran did not perfect an appeal. 4. Evidence submitted since the May 2012 rating decision, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim of service connection for bilateral hearing loss, and therefore raises a reasonable possibility of substantiating the claim. 5. The Veteran meets the schedular criteria for TDIU and the Veteran’s service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The December 2003 rating decision which denied service connection for a back disability is final. 38 U.S.C. § 7105. 2. New and material evidence has been received since the December 2003 rating decision which denied service connection for a back disability is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. The May 2012 rating decision which denied service connection for bilateral hearing loss is final. 38 U.S.C. § 7105. 4. New and material evidence has been received since the May 2012 rating decision which denied service connection for bilateral hearing loss is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 5. The Veteran is individually unemployable by reason of his service-connected disabilities. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341(a), 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Service Connection for Back and Bilateral Hearing Loss Disabilities A December 2003 rating decision denied service connection for a back disability on the basis that the evidence did not show any chronic spinal impairment/scoliosis while the Veteran was in service and no current nexus to service. In a May 2012 rating decision denied service connection for bilateral hearing loss on the basis that the current evidence showed hearing within normal limits. The Veteran did not perfect an appeal as to either of those rating decisions. Specifically, a notice of disagreement was not received within the respective subsequent one-year period nor was pertinent evidence received. Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011). Therefore, the AOJ’s rating decisions are final. 38 U.S.C. § 7105. Prior unappealed decisions are final. However, a claim will be reopened, and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that, when “new and material evidence” is presented or secured with respect to a previously and finally disallowed claim, the Department of Veterans Affairs (VA) must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing evidence not previously submitted to agency decisionmakers. 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). According to the Court, the pertinent VA law requires that in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). Since the last prior final decision, evidence has been added to the record. The additional evidence of record includes medical evidence of a new diagnosis of a back disability, degenerative joint disease, and contentions that this back disability developed secondary to service-connected pes planus. In addition, medical evidence has been received that the Veteran has current hearing loss. In addition, the AOJ has conceded exposure to acoustic trauma during service. For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed, unless the evidence is inherently incredible or consists of statements which are beyond the competence of the person making them. Justus v. Principi, 3 Vet. App. 510 (1992); Meyer v. Brown, 9 Vet. App. 425 (1996); King v. Brown, 5 Vet. App. 19 (1993); Duran v. Brown, 7 Vet. App. 216 (1994). Evidence may be considered new and material if it contributes to a more complete picture of the circumstances surrounding the origin of a veteran’s injury or disability, even where it will not eventually convince the Board to grant the claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010) Thus, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. There is a low threshold for reopening a claim, one that does not require that a claimant submit a medical opinion to reopen a claim if the new evidence causes VA to obtain a medical opinion. 38 C.F.R. § 3.156(a) (2016). Rather, if there is newly submitted evidence of current disability which in connection with the prior evidence, raises a reasonable possibility of substantiating the claim, and the element of a nexus could be established by providing a VA examination, the claim may be reopened. That reopening then triggers VA’s duty to assist in providing the claimant with a VA examination. In this case, the additional evidence suggests a basis for service connection for a back disability and for bilateral hearing loss. That evidence raises a reasonable possibility of substantiating the claims. Therefore, the claims of entitlement to service connection are reopened. 2. Entitlement to a TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a). VA interprets the schedular requirements in 38 C.F.R. § 4.16(a) to mean that a combined 70 percent rating is only required if no single disability is rated at 60 percent disabling. See VBA Fast Letter No. 13-13 (June 17, 2013). The Veteran is service-connected for posttraumatic stress disorder with major depressive disorder, rated as 70 percent disabling; bilateral pes planus, rated as 50 percent disabling; and tinnitus, rated as 50 percent disabling. The combined rating is 90 percent. Thus, the Veteran meets the schedular criteria, per 38 C.F.R. § 4.16(a). Thus, the issue is whether his service-connected disabilities preclude him from engaging in substantially gainful employment (i.e., work that is more than marginal, which permits the individual to earn a “living wage”). See Moore v. Derwinski, 1 Vet. App. 356 (1991). For the Veteran to prevail in his claim for TDIU, the record must reflect circumstances, apart from non-service-connected conditions, that place him in a different position than other veterans who meet the basic schedular criteria. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the Veteran, in light of his service-connected disorders, is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran is unemployed and recently suffered a stroke. He apparently had cognitive impairment following the stroke, but that was not shown on the last examination. The Veteran and his wife testified at a Board hearing. They explained that even prior to the stroke, the Veteran’s pes planus caused many problems with his feet, including extreme pain, and he was a constant fall risk and required a cane for walking. A review of the medical evidence confirms significant psychiatric symptoms as well as significant foot symptoms. Thus, the Board finds that the combination of the service-connected mental and physical impairments renders the Veteran unemployable, particularly since the Veteran is to be afforded every reasonable doubt. See 38 U.S.C. § 5107. The Board has resolved all reasonable doubt in this case in the Veteran’s favor. Accordingly, a TDIU is warranted. REASONS FOR REMAND 1. Service connection for a back disability is remanded. The Board finds that a medical opinion should be obtained. The examiner should address the pertinent evidence of record including a November 1967 examination dated within 4 months of service discharge which documents reports of pain and notes limitation of motion of the spine, as well as the lay evidence including current assertions of a back disability as being secondary to pes planus. 2. Service connection for bilateral hearing loss is remanded. The Board finds that a medical opinion should be obtained. The examiner should address the pertinent evidence of record including current evidence of hearing loss as well as the AOJ’s concession of inservice acoustic trauma. 3. Service connection for disability of the lower extremities including peripheral neuropathy is remanded. The Board finds that a medical opinion should be obtained. The examiner should address the pertinent evidence of record including current evidence of peripheral neuropathy and gout, and consider the lay evidence including current assertions of these disabilities as being secondary to pes planus. 4. Increased (extraschedular) rating for bilateral pes planus is remanded. The Veteran is receiving the highest schedular rating at 50 percent and has asserted that extraschedular consideration should be undertaken. Thus, the RO should consider an extraschedular rating to include whether a referral to the Under Secretary for Benefits or Director of Compensation and Pension Service for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321(b) is appropriate.   The matters are REMANDED for the following action: 1. Obtain a medical opinion to determine the etiology of the Veteran’s back disability. Based on a review of the record, the examiner should address the following: (a.) whether it is more likely than not, less likely than not, or at least as likely as not, that any current back disability including degenerative joint disease had its clinical onset during service, was manifest within a year of service, or is otherwise related to any in-service disease, event, or injury. The examiner should address the November 1967 VA examination dated within 4 months of service discharge which documents reports of pain and notes limitation of motion of the spine (b.) whether it is more likely than not, less likely than not, or at least as likely as not, that any current back disability is proximately due to, or the result of, the service-connected pes planus. (c.) whether it is more likely than not, less likely than not, or at least as likely as not, that any current back disability is permanently aggravated by the Veteran’s service-connected pes planus. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 2. Obtain a medical opinion to determine the etiology of the Veteran’s bilateral hearing loss disability. The examiner should opine as to whether it is more likely than not, less likely than not, or at least as likely as not, that current hearing loss had its clinical onset during service, was manifest within one year of service, or is otherwise related to any in-service disease, event, or injury to include conceded inservice acoustic trauma. A rationale for any opinion expressed should be provided. 3. Obtain a medical opinion to determine the etiology of the Veteran’s bilateral lower extremity disability. Based on a review of the record, the examiner should address the following: (a.) whether it is more likely than not, less likely than not, or at least as likely as not, that any current lower extremity disability including peripheral neuropathy and gout had its clinical onset during service or is otherwise related to any in-service disease, event, or injury. (b.) whether it is more likely than not, less likely than not, or at least as likely as not, that any current lower extremity disability including peripheral neuropathy and gout is proximately due to, or the result of, the service-connected pes planus. (c.) whether it is more likely than not, less likely than not, or at least as likely as not, that any current lower extremity disability including peripheral neuropathy and gout is permanently aggravated by the Veteran’s service-connected pes planus. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 4. With regard to service-connected pes planus, consider an extraschedular rating to include whether referral to the Under Secretary for Benefits or Director of Compensation and Pension Service for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321(b) is appropriate. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.