Citation Nr: 20021600 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 19-08 387 DATE: March 26, 2020 ORDER The petition to reopen a previously denied claim for service connection for a back disability is granted. Entitlement to service connection for tinnitus is granted. For the entire rating period on appeal, a 20 percent rating, but not higher, for a left ankle disability is granted. REMANDED Entitlement to service connection for a back disability as secondary to service-connected left ankle disability is remanded. Entitlement to service connection for a left foot as secondary to service-connected left ankle disability is remanded. Entitlement to an initial rating higher than 70 percent for PTSD is remanded. Entitlement to a total disability evaluation based on individual unemployability due to the veteran’s service- connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. In an unappealed October 2015 rating decision, the RO denied the Veteran’s original claim for a back disability. 2. Evidence received since the October 2015 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for a back disability. 3. Resolving any reasonable doubt in the Veteran’s favor, his currently diagnosed tinnitus had its onset during active military service. 4. Resolving all doubt in the Veteran’s favor, the left ankle disability manifested by symptoms that more nearly approximate marked limitation of motion. CONCLUSIONS OF LAW 1. The October 2015 rating decision denying service connection for a back disability is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.105(a), 20.302, 20.1103 (2019). 2. The additional evidence received since the October 2015 rating decision is new and material, and the claim of service connection for a back disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 3. The criteria to establish service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 3.307, 3.309 (2019). 4. For the entire rating period on appeal, the criteria for a 20 percent rating, but not higher, for the service-connected left ankle disability are approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.40, 4.45, 4.59, 4.71a, DC 5003-5271 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1975 to July 1975 and from June 1979 to January 1981. A decision regarding the issue of entitlement to a waiver of recovery of an overpayment of $28,120.50 will be made in a separate decision. New and Material Evidence Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a Notice of Disagreement (NOD) with the decision or submitting new and material evidence, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302. An exception to the finality rule is found in 38 U.S.C. § 5108, which provides that, if new and material evidence is received with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Here, in an October 2015 rating decision, the RO denied the Veteran’s original service connection claim for a back disability, finding that there was no evidence of in-service injury, that his service treatment records were silent for any complaints, treatment, or diagnosis of a back condition, and as such there was no evidence of a nexus. Evidence considered at the time included service treatment records and treatment records for a back disability. The Veteran did not appeal this decision, and new and material evidence was not received within one year of the decision. Thus, the October 2015 rating decision became final. See 38 U.S.C. § 7105 (d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. The Board finds that the Veteran has offered a new theory of entitlement; namely, that his back disability is secondary to her his left ankle disability. The Court has held that a new etiological theory does not constitute a new claim. Velez v. Shinseki, 23 Vet. App. 199 (2009); Ashford v. Brown, 10 Vet. App. 120, 123 (1997); Roebuck v. Nicholson, 20 Vet. App. 307 (2006). However, while a new theory of entitlement cannot be the basis to reopen a claim under 38 U.S.C. § 7104 (b), if the evidence supporting a new theory of entitlement constitutes new and material evidence, then VA must reopen the claim under section 5108. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). Here, some medical records discuss that the back pain was due to mechanisms of other body parts, suggestive that it could be related to the service-connected disability. This evidence is new and material, and the criteria for reopening the claim for service connection for a back disability are therefore met. Service Connection for Tinnitus Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Tinnitus (as an organic disease of the nervous system) is considered a “chronic” disease under 38 C.F.R. § 3.309(a). Therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on “chronic” symptoms in service and “continuous” symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic diseases in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the ‘chronic’ disease became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A claimant bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give an appellant the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107(b)). Here, the Veteran asserts that his tinnitus had its onset during active duty service. There is evidence of a current disability as he is currently diagnosed with tinnitus, a disability capable of lay observation and diagnosis. The Board next concedes exposure to hazardous noise during service because the Veteran’s military occupational specialty (MOS) was power generation equipment repair, which carries high probability of hazardous noise exposure. As to the etiology, a March 2017 VA examiner opined that the Veteran’s tinnitus was less likely than not related to service. The examiner reasoned that there was lack of evidence in the claims file and there for it was less likely than not that the tinnitus was related to his MOS. However, the Board finds this opinion inadequate as the VA examiner failed to consider the Veteran’s competent and credible lay assertions during the examination that his tinnitus began during service. In other words, the unfavorable etiology opinion disregarded the fact that tinnitus is a disability capable of lay observation and that the Veteran’s lay report during the examination, in which he specifically reported that his tinnitus began during active duty service, is considered competent evidence. In addition, the Board finds no reason to challenge the credibility of these competent assertions. Based on this body of evidence, the Board finds that, at the very least, the evidence is in equipoise on the question of whether the Veteran’s current tinnitus was incurred in service. Resolving any reasonable doubt in the Veteran’s favor, the Board finds that, based on competent and credible evidence of in-service incurrence and continuous post-service symptoms, presumptive service connection for tinnitus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Increased Rating for a Left Ankle Disability When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). For the entire rating period on appeal, the Veteran’s left ankle disability is assigned a 10 percent rating pursuant to DC 5003-5271 for limitation of motion of the ankle. DC 5003 provides that degenerative arthritis substantiated by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion. A 20-percent evaluation is warranted for x-ray evidence of involvement of 2 or more major or minor joints, with occasional incapacitating exacerbations. 38 C.F.R. § § 4.71a, DC 5003. Under DC 5271, the diagnostic code for limitation of motion of the ankle, a 10 percent rating is warranted with “moderate” limitation of motion and a 20 percent rating where there is “marked” limitation of motion. Normal ranges of ankle motions are 0 to 20 degrees for dorsiflexion and 0 to 45 degrees for plantar flexion. 38 C.F.R. § 4.71, Plate II. The words “slight,” “moderate,” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for “equitable and just decisions.” 38 C.F.R. § 4.6. Neither the Rating Schedule nor the regulations provide definitions for descriptive words such as “mild,” “moderate,” “moderately severe,” and “severe.” Sellers v. Wilkie, 30 Vet. App. 157 (2018). Rather than applying a mechanical formula, the Board must instead evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The Board carefully reviewed the evidence and finds evidence to support the assignment of a 20 percent disability ratings for the left ankle disability for the entire rating period on appeal. In May 2016, the Veteran underwent a VA ankle conditions examination, at which time the examiner rendered a diagnosis of left ankle osteoarthritis. The Veteran reported that he had left ankle pain that was worse on use of clutch as a truck driver and while walking. He denied having flare-ups or functional loss/impairment. Physical examination of the left ankle revealed normal range of motion with dorsiflexion to 20 degrees and plantar flexion to 45 degrees. The examiner noted that pain was noted during the examination but did not result in or cause functional loss. There was evidence of pain with weight bearing and no evidence of localized tenderness or pain on palpation. The Veteran was able to perform repetitive use testing with at least three repetitions, which did not result in additional loss of function or range of motion. The examiner noted that the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time and concluded that it was not possible to state without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time. Additional contributing factors to the disability included disturbance of locomotion and interference with standing. Muscle strength testing revealed active movement with gravity eliminated (2/5) with reduction in muscle strength but no evidence of muscle atrophy. There was no ankylosis and ankle instability or dislocation was not suspected. The Veteran never had shin splints and there were no other pertinent physical findings, complications, conditions, signs, or symptoms related to the left ankle disability. The Veteran used no assistive devices. According to November 2016 VA treatment records, the Veteran had absent deep tendon reflexes in both ankles. In March 2017, the Veteran underwent an additional VA ankle conditions examination, at which time the examiner rendered diagnoses of left ankle arthritis and lateral collateral ligament sprain, chronic, recurrent. The Veteran reported having functional loss/impairment, which he described as limited motion. Upon physical examination, range of motion of the left ankle revealed dorsiflexion to 5 degrees and plantar flexion to 20 degrees. The examiner noted that pain was noted on examination and caused functional loss. There was evidence of pain with weight bearing and pain on palpation of the anterior joint but no pain on passive range of motion and/or non-weight bearing. There was also objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions that did not result in additional loss of function or range of motion. Muscle strength testing was normal throughout (5/5) with no evidence of reduction in muscle strength and/or muscle atrophy. There was no ankylosis. Ankle instability/dislocation was suspected but there was no laxity compared to the opposite side on both Anterior Drawer and Talar Tilt tests. There Veteran used a cane regularly. According to November 2017 VA treatment records, the Veteran had limited range of motion of the left ankle more on dorsiflexion than with plantar flexion. Muscle strength testing was normal throughout (5/5). The medical professional indicated that the difficulty with movement of the left ankle appeared to be a range of motion issue as opposed to weakness. In January 2019 correspondence, the Veteran’s attorney asserted that the Veteran should be assigned separate ratings for arthritis and lateral collateral ligamentous strain of the left ankle. On review, and resolving reasonable doubt in the Veteran’s favor, a 20 percent rating for a left ankle disability is warranted for the entire rating period on appeal. As discussed above, the Veteran had absent deep tendon reflexes reported flare-ups and functional loss, instability, and difficulty with prolonged walking. The probative evidence additionally showed continuous ankle pain, decreased range of motion, instability. Accordingly, the Board finds the above symptoms to more nearly approximate a marked limitation of ankle motion during a flare-up and/or with repeated use over a period of time, which warrants a 20 percent disability rating. A 20 percent rating is the maximum rating under DC 5271 (limitation of motion of the ankle). The evidence does not show ankylosis of the ankle or any other pathology that would warrant a separate rating under a different diagnostic code. Specifically, while one VA examination showed reduction in muscle strength, subsequent treatment records and VA examination showed normal muscle strength and explained that the issue was with loss of motion rather than weakness. In this regard, the Board finds that all of the Veteran’s symptoms are properly contemplated by the criteria for a 20 percent rating for marked limitation of motion of the left ankle. Further, because the left ankle disability has been assigned the maximum rating based on limitation of motion, the DeLuca criteria are not applicable. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The highest rating possible has been assigned under the Schedule for Rating Disabilities. While the Board acknowledges the attorney’s argument that separate rating should be assigned, the Board finds that the symptoms associated with the lateral collateral ligamentous strain involve the same symptoms discussed above, to include pain. Notably, the Veteran’s painful motion is already contemplated by the already assigned 20 percent disability rating and assigment of separate ratings would violate the prohibition against pyramiding. This is also the case with assigning separate ratings under DC 5003 and 5271. 38 C.F.R. § 4.14; Esteban, 6 Vet. App. at 261. Finally, the Board notes that neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND A remand is necessary to obtain an addendum medical opinion regarding the likely etiology of the claimed back and left foot disabilities. In addition, readjudication of the claim for a TDIU in light of the Board’s decision herein and the intertwined claim for increased rating for PTSD is necessary. Back Disability During a July 2016 VA back examination, the examiner rendered a diagnosis of lumbar spine arthritis and stenosis. The examiner opined that it was less likely than not that the back disabilities were proximately due to or the result of the left ankle disabilities. As a rationale, the examiner stated that there was no medical evidence/literature that lumbar spinal stenosis was caused by or proximately due to left ankle osteoarthritis. Nevertheless, the examiner provided no opinion regarding any potential aggravation. A September 2016 VA physical therapy treatment record noted that the Veteran was educated about body mechanics in order to prevent aggravating his back pain. In a subsequent December 2018 VA examination, the VA examiner opined that the Veteran’s arthritis and stenosis of the lumbar spine were less likely as not aggravated beyond their natural progression by the service-connected left ankle arthritis. The examiner explained that he was unable to locate any documentation of complaints, treatment, or diagnosis of a lumbar spine in the service treatment records. The examiner then went on to discuss back treatment received post-service. Upon review, the Board finds that neither examination is adequate to decide the claim. The 2016 VA examiner did not address aggravation and generally cited to no medical literature to support the claim of causation. The 2018 VA examiner provided an opinion regarding aggravation but did not provide adequate rationale. Accordingly, obtaining a new medical opinion is necessary prior to deciding the claim on the merits. Left Foot Disability During a July 2016 VA foot conditions examination, the VA examiner rendered a diagnosis of hammer toes. The examiner opined that the left foot disability was less likely as not proximately due to or the result of the left ankle disability. As a rationale, the examiner explained that there was no medical evidence/literature to support the claim. The examiner added that according to a May 2016 podiatry treatment record, the left foot hammer toe was unlikely related to the left ankle injury but rather was neurological in nature, likely related to the spine. A subsequent December 2018 VA examiner opined that the hammer toe disability was less likely than not aggravated beyond its natural progression by the service-connected left ankle disability. As a rationale the examiner explained that the service treatment records were silent to any complaints of hammer toes. In addition, the examiner discussed post-service treatment for hammer toes. Lastly, the examiner indicated that hammertoe foot deformities occurred due to imbalance in the muscles, tendons, or ligaments that normally hold the foot straight but concluded that he could not locate any documentation in the Veteran’s medical treatment records of permanent increase in the severity of the left foot hammer toe condition due to the service-connected left ankle disability. Upon review, however, the Board finds that neither opinion is adequate in their current form. As with the back, the 2016 opinion failed to address any potential aggravation. The 2018 opinion discussed permanent aggravation; however, the Court in Ward v. Wilkie, 31 Vet. App. 233, 239 (2019), held that permanent worsening is not a requirement for secondary service connection of a non-service-connected injury or disease. In addition, the suggestions that the hammertoe might be related to the back condition requires the Board to defer its decision given that the back condition is also remanded herein. Accordingly, obtaining a new addendum medical opinion is necessary prior to deciding the claim on the merits. TDIU The Court has held that a request for TDIU is part and parcel of a higher rating when raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran filed a formal claim for a TDIU in December 2017, in which he indicated that he was unable to obtain substantial gainful occupation due to his PTSD. Nevertheless, the most recent VA examination for PTSD does not address whether the current psychiatric symptoms prevent the Veteran from maintaining gainful occupation. Specifically, the December 2017 VA examiner noted that the Veteran retired from his work as a truck driver and indicated that he “adjusted well to his retirement because of his medical problems and associated disability.” In other words, the examiner did not reflect on the Veteran’s ability to work due to his PTSD. In addition, given the Board’s decision herein, granting service connection for tinnitus and remanding claims for back and left foot disabilities, a decision regarding entitlement to a TDIU must be deferred. PTSD Rating Higher than 70 percent Because the Board is remanding herein the issue of entitlement to a TDIU, which includes determination regarding the effects of the Veteran’s service-connected disabilities on his ability to work, entitlement to a disability rating higher than 70 percent for PTSD, which contemplates, in part, total occupational impairment, must also be remanded as it is inextricably intertwined. The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Thereafter, obtain an addendum medical opinion from an appropriate VA examiner to help determine the likely etiology of the claimed back disability. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. After a review of the record, the examiner is asked to respond to the following: Provide an opinion as to whether it is at least as likely as not (a 50 percent or higher probability) that the diagnosed back disability was caused by or aggravated by the service-connected left ankle arthritis and lateral collateral ligament sprain. A complete rationale should be provided for all opinions for both causation AND aggravation. Please note, permanent worsening is not necessary for secondary service connection. 3. Thereafter, obtain an addendum medical opinion from an appropriate VA examiner to help determine the likely etiology of the claimed left foot disability. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. After a review of the record, the examiner is asked to respond to the following: Provide an opinion as to whether it is at least as likely as not (a 50 percent or higher probability) that the diagnosed left foot disability was caused by or aggravated by the service-connected left ankle arthritis and lateral collateral ligament sprain. A complete rationale should be provided for all opinions for both causation AND aggravation. Please note, permanent worsening is not necessary for secondary service connection. 4. Thereafter, readjudicate the remanded claims, to include entitlement to a TDIU and increased rating for PTSD. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Yaffe, 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.