Citation Nr: 20022200 Decision Date: 03/31/20 Archive Date: 03/31/20 DOCKET NO. 09-04 436 DATE: March 31, 2020 ORDER Entitlement to an effective date prior to September 1, 2016, for the grant of a 30 percent evaluation for chronic headaches, mixed type, tensional, vasomotor, cervicogenic with migraine components is denied. Entitlement to an effective date prior to July 26, 2007, for the grant of a 30 percent evaluation for chronic sinusitis is denied. A 50 percent evaluation, but no higher, for chronic headaches, mixed type, tensional, vasomotor, cervicogenic with migraine components is granted. Entitlement to an evaluation greater than 30 percent for chronic sinusitis is denied. A 10 percent evaluation, but no higher, for gastroesophageal reflux disease (GERD) is granted for the entire appeal period. The petition to reopen the claim of entitlement to service connection for a cervical spine disability is denied. The petition to reopen the claim of entitlement to service connection for status post lumbar laminectomy, L4-L5 disc herniation with compression of thecal sac, L1-L2 disc herniation, (lumbar spine condition) is granted. Entitlement to service connection for a right arm disability is denied. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to the service-connected disabilities, is granted. REMANDED Entitlement to service connection for a bilateral hip disability is remanded. Entitlement to service connection for a bilateral ankle disability is remanded Entitlement to service connection for a bilateral foot disability is remanded. Entitlement to service connection for left knee osteoarthritis is remanded. Entitlement to service connection for a lumbar spine condition is remanded. Whether new and material evidence has been received sufficient to reopen the claim of entitlement to service connection for right knee osteoarthritis is remanded. Entitlement to an evaluation greater than 10 percent for allergic rhinitis is remanded. Entitlement to a total disability rating based upon individual unemployability due to the service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran was granted entitlement to service connection for chronic headaches, mixed type, tensional, vasomotor, cervicogenic with migraine components in a February 2012 rating decision with an effective date of May 23, 2007, and did not appeal the effective date assigned or the initial rating of 10 percent. 2. The Veteran submitted a claim for increased rating for chronic headaches, mixed type, tensional, vasomotor, cervicogenic with migraine components on September 1, 2016. 3. The Veteran was granted entitlement to service connection for chronic sinusitis with allergic rhinitis in a February 2015 rating decision with an effective date of July 26, 2007, and did not appeal the effective date assigned or the initial rating of 30 percent. 4. The Veteran submitted a claim for increased rating for chronic sinusitis with allergic rhinitis on September 1, 2016. 5. Resolving reasonable doubt in favor of the Veteran, the Veteran’s headaches symptoms manifest in very frequent prostrating and prolonged attacks productive of severe economic inadaptability. 6. The Veteran has not had sinus surgery. 7. Throughout the entire appeal period, the Veteran’s GERD has been manifested by symptoms that include dysphagia, pyrosis, and regurgitation that are stable with regular medication, but has not been productive of considerable impairment of health. 8. In a June 2016 decision, the Board of Veterans’ Appeals (Board) denied reopening the claim for entitlement to service connection for a cervical spine condition. 9. The Veteran appealed the June 2016 decision to the U.S. Court of Appeals for Veterans Claims (Court), which affirmed the Board’s denial to reopen the issue of entitlement to service connection for a cervical spine condition in a January 2018 memorandum decision. 10. The evidence received since the June 2016 Board decision does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a cervical spine condition. 11. In a January 2011 decision, the Board denied reopening the claim for entitlement to service connection for lumbar spine condition is final. 12. The evidence received since the January 2011 Board decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a lumbar spine condition. 13. The evidence of record does not support that the Veteran has a right arm diagnosis separate from his service-connected residuals of right elbow and arthritis disabilities. 14. The Veteran’s depression and anxiety are proximately due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to September 1, 2016, for the grant of a 30 percent evaluation for chronic headaches, mixed type, tensional, vasomotor, cervicogenic with migraine components have not been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.400. 2. The criteria for an effective date prior to July 26, 2007, for the grant of a 30 percent evaluation for chronic sinusitis with allergic rhinitis have not been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.400. 3. The criteria for a disability rating of 50 percent for chronic headaches, mixed type, have been met for the entire appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8100. 4. The criteria for an evaluation greater than 30 percent for sinusitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.97, Diagnostic Code 6513. 5. The criteria for a 10 percent evaluation, but no higher, for GERD have been met for the entire appeal period. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.20, 4.114, Diagnostic Codes 7399-7346. 6. The June 2016 Board decision, which denied the petition to reopen the claim of entitlement to service connection for a cervical spine condition is final. 38 U.S.C. §§ 7104(b), 7105; 38 C.F.R. §§ 3.105, 20.302, 20.100, 20.1105. 7. The evidence received subsequent to the final June 2016 Board decision for the claim of entitlement to service connection for a cervical spine condition is not new and material, and the issue of service connection for that condition is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 8. The January 2011 Board decision that denied the petition to reopen the claim for entitlement to service connection for a lumbar spine condition is final. 38 U.S.C. §§ 7104(b), 7105; 38 C.F.R. §§ 3.105, 20.302, 20.100, 20.1105. 9. The evidence received subsequent to the final January 2011 Board decision for the claim for a lumbar spine condition is new and material, and the issue of service connection for a lumbar spine condition is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 10. The criteria for service connection for a right arm disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 11. The criteria for service connection for an acquired psychiatric disorder, as secondary to the service-connected disabilities are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from January 1964 to December 1965. These matters are on appeal from various rating decisions. The relevant procedural history is discussed within the body of the decision. Earlier Effective Dates The method of determining the effective date of an increased rating is set forth in 38 U.S.C. § 5110(a) and (b)(2), and 38 C.F.R. § 3.400(o). The general rule with respect to the effective date of an award of increased compensation is that the effective date of such award shall not be earlier than the date of receipt of application thereof. 38 U.S.C. § 5110(a). This statutory provision is implemented by regulation which provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). An exception to the rule applies, however, under circumstances where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. In that regard, the law provides that the effective date of the award shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date, otherwise the date of receipt of the claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). The phrase “otherwise, the date of receipt of the claim” applies only if a factually ascertainable increase in disability occurred within one year prior to filing the claim for an increased rating. Harper v. Brown, 10 Vet. App. 125, 126-27 (1997). Moreover, the term increase, as used in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400, means an increase to the next disability level. Hazan v. Gober, 10 Vet. App. 511, 519 (1997). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. Prior to March 24, 2015, VA recognized formal and informal claims. The amendments also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155. The amended regulations apply only to claims filed on or after March 24, 2015. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to an effective date prior to September 1, 2016, for the grant of a 30 percent evaluation for chronic headaches, mixed type, tensional, vasomotor, cervicogenic with migraine components (claimed as headaches). The Veteran contends that an effective date prior to September 1, 2016, is warranted for the assignment of a 30 percent disability evaluation for headaches. After a thorough review of the evidence, the Board finds that an earlier effective date is not warranted. In a February 2012 rating decision, the Veteran was granted service connection for chronic headaches, mixed type, tensional, vasomotor, cervicogenic with migraine components and assigned a 10 percent evaluation effective May 23, 2007. The Veteran did not appeal either the effective date or the initial rating assigned within the prescribed time period. The Board notes that the Veteran included headaches as a claim for service connection in a May 2012 statement; however, at that juncture, the Veteran had already been granted service connection and the Veteran did not submit a notice of disagreement with the assigned disability evaluation for the initial award. The Veteran submitted a new claim for an increased rating for headaches on September 1, 2016. In a December 2016 rating decision, the Veteran was granted a 30 percent evaluation with an effective date of September 1, 2016 (the date of his claim for an increased evaluation). The Veteran filed a timely notice of disagreement expressing disagreement with the evaluation and effective date of the award. As discussed below, the Board has considered whether an increased rating is warranted for any portion of the one-year period prior to that date of claim. See Gaston v. Shinseki, 603 F.3d 979, 984 (Fed. Cir. 2010) (holding that 38 U.S.C. § 5110(b)(2) and its implementing regulation “require that an increase in a veteran’s service-connected disability must have occurred during the one year prior to the date of the veteran’s claim in order to receive the benefit of an earlier effective date.”). The evidence is against an increased evaluation for the one-year period preceding the Veteran’s claim for an increased evaluation. As for the effective date assigned, the claim was made on September 1, 2016, and a determination back to the original effective date of May 23, 2007, assigned for the grant of service connection for headaches is improper. The Court held that a claim for an earlier effective date is a downstream element of a grant of service connection and that adjudication of a freestanding claim for an earlier effective date violates the rule of finality. See Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006). In short, the effective date of a grant of service connection of a disability must be timely filed after the rating decision that grants the benefit. It may not later be claimed as a stand-alone claim after the statutory time limit to appeal has passed. Therefore, the rating decision dated February 2012 was final and not appealed as to effective date or initial evaluation. Thus, an appeal of the effective date of service connection for headaches at this current juncture would constitute a stand-alone claim, which violates the rule of finality and must also be denied. In the alternative, the appeal for an effective date prior to September 1, 2016, for the increased rating claim for headaches is discussed below. Accordingly, an effective date prior to September 1, 2016 for the grant of a 30 percent disability evaluation for headaches is denied. 2. Entitlement to an effective date prior to July 26, 2007, for the grant of a 30 percent evaluation for chronic sinusitis with allergic rhinitis. In a February 2015 rating decision, the Veteran was granted service connection for chronic sinusitis with allergic rhinitis and assigned a 30 percent evaluation effective July 26, 2007. The Veteran did not appeal that decision. The Veteran submitted a new claim for increased rating for sinusitis on September 1, 2016. In a December 2016 rating decision, the Veteran’s 30 percent evaluation was continued. The Veteran filed a timely notice of disagreement expressing disagreement with the evaluation and effective date of the award. The Veteran filed his increased rating claim on September 1, 2016. In this regard, elsewhere in this decision the Board considered whether an increased rating is warranted for any portion of the one-year period prior to that date of claim. See Gaston, 603 F.3d at 984. The evidence is against an increased evaluation for the one-year period preceding the Veteran’s claim for an increased evaluation. As for the effective date assigned, the claim was made on September 1, 2016, and a determination back to the original effective date of July 26, 2007, assigned for the grant of service connection, is improper. The Court has held that a claim for an earlier effective date is a downstream element of a grant of service connection and that adjudication of a freestanding claim for an earlier effective date violates the rule of finality. See Rudd, 20 Vet. App. at 300. In short, the effective date of a grant of service connection of a disability must be timely filed after the rating decision that grants the benefit. It may not later be claimed as a stand-alone claim after the statutory time limit to appeal has passed. Therefore, an effective date prior to July 26, 2007, for the grant of a 30 percent evaluation for chronic sinusitis with allergic rhinitis is denied. Increased Evaluations In evaluating the severity of a certain disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as “staged ratings.” Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; See Gilbert, 1 Vet. App. at 56. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability evaluations are determined by the application of the facts to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 3. Entitlement to an evaluation greater than 30 percent for chronic headaches, mixed type, tensional, vasomotor, cervicogenic with migraine components. The Veteran submitted a claim for increased rating for headaches on September 1, 2016. He contends that his headache disability is worse than contemplated by the currently assigned 30 percent disability evaluation. After a thorough review of the evidence, the Board finds that a 50 percent, but no higher, evaluation is warranted for the Veteran’s headache disability. The Veteran’s service-connected headache disability is evaluated under Diagnostic Code 8100. 38 C.F.R. § 4.124a. A 30 percent rating is assigned for migraine headaches with characteristic prostrating attacks occurring on average once per month over the last several months. A maximum 50 percent rating is assigned for migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. The Rating Schedule does not define “prostrating,” nor has the Court. Fenderson, 12 Vet. App. at 119 (in which the Court quotes Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack). By way of reference, “prostration” is defined as “extreme exhaustion or powerlessness.” See Dorland’s Illustrated Medical Dictionary 1531 (32nd ed. 2012). Similarly, “prostrate” is defined as “physically or emotionally exhausted; incapacitated.” See Webster’s II New College Dictionary 889 (2001). Further, “severe economic inadaptability” is not defined in VA law. Pierce v. Principi, 18 Vet. App. 440, 446 (2004). In addition, the Court has held that nothing in Diagnostic Code 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Id. In this regard, it was explained by the Court that if “economic inadaptability” were read to import unemployability, the appellant, should he or she meet the economic-inadaptability criterion, would then be eligible for a TDIU rather than just a 50 percent rating. Id. citing 38 C.F.R. § 4.16. The Court discussed the notion that consideration must also be given as to whether the disability was capable of producing severe economic inadaptability, regardless of whether the condition was actually causing such inadaptability. Pierce, 18 Vet. App. at 446. In this regard, VA conceded that the words “productive of” could be read to mean either “producing” or “capable of producing.” Id. at 446-447. The Veteran was afforded a VA examination in November 2016, and reported headaches at least 3 times per week which required him to take bed rest and regular medication. The examiner, however, checked the box indicating attacks that were not completely prostrating or productive of economic inadaptability. The examiner also commented that the Veteran’s headaches would interfere with his ability to sustain regular employment. After carefully reviewing the evidence, the Board concludes that the evidence demonstrates that the Veteran’s migraine headache disability is productive of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Thus, the service-connected disability picture more closely resembles the criteria for a 50 percent rating for the period of the appeal from September 1, 2016, the date his claim was received. A 50 percent evaluation is the maximum schedular evaluation for the Veteran’ s headache disability. Therefore, a rating in excess of 50 percent must be denied as a matter of law. In sum, the preponderance of the evidence deemed most probative by the Board demonstrates that, pursuant to the criteria provided in 38 C.F.R. § 4.124a, a disability rating of 50 percent is warranted for headaches disability for the period of the appeal beginning September 1, 2016. 4. Entitlement to an evaluation greater than 30 percent for chronic sinusitis. In a February 2015 rating decision, the Veteran was granted service connection for chronic sinusitis with allergic rhinitis and assigned a 30 percent evaluation. He filed his claim for an increased evaluation in September 2016. In an October 2017 rating decision, the Veteran was granted a separate 10 percent evaluation for allergic rhinitis effective September 1, 2016. The issue of entitlement to an increased evaluation for allergic rhinitis will be addressed in the Remand section of this decision. The Veteran is in receipt of a 30 percent disability rating under 38 C.F.R. § 4.97, Diagnostic Code 6513, which pertains to chronic maxillary sinusitis. He contends that his sinusitis disability is worse than contemplated by the currently assigned 30 percent rating. After a thorough review of the evidence, the Board finds that an increased rating is not warranted. Under Diagnostic Code 6513, a 30 percent rating is warranted for three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 50 percent rating - the maximum rating available under Diagnostic Code 6513 - is warranted following radical surgery with chronic osteomyelitis, or near constant sinusitis characterized by headaches, pain and tenderness of the affected sinus, and purulent discharge or crusting after repeated surgeries. 38 C.F.R. § 4.97. The Veteran was afforded a VA examination in November 2016. The examiner noted that the Veteran had not undergone any sinus surgeries. The remaining medical treatment records do not indicate that the Veteran has undergone sinus surgery. The Veteran has not reported any sinus surgeries. Significantly, the Veteran did not undergo radical or repeated surgeries, or any sinus surgeries for that matter, which is required for a 50 percent disability rating. As such, a disability rating greater than 30 percent is not warranted under Diagnostic Code 6513. The Board also finds that a higher rating under another Diagnostic Code is not warranted. The Veteran has been separately rated for rhinitis and the other diagnostic codes in this category do not pertain to the Veteran’s condition. Accordingly, the appeal for an increased rating in excess of 30 percent for sinusitis is denied. 38 C.F.R. § 4.97, Diagnostic Code 6513. 5. Entitlement to a compensable evaluation prior to December 28, 2017, and an evaluation greater than 10 percent thereafter, for GERD. In a February 2015 rating decision, the Veteran was granted service connection for GERD and assigned a noncompensable evaluation. He filed his claim for an increased evaluation for GERD in September 2016. In December 2016, the Agency of Original Jurisdiction (AOJ) improperly denied service connection for GERD rather than deciding the increased rating claim. Subsequently, in an October 2018 rating decision, the AOJ granted a 10 percent evaluation for GERD effective December 28, 2017 (the date of his VA examination). The Veteran contends that his GERD is worse than contemplated by the assigned 10 percent disability evaluation. After a thorough review of the evidence, the Board finds that the Veteran is entitled to a 10 percent evaluation, but no higher, for GERD for the entire appeal period. The Veteran’s GERD is rated by analogy under Diagnostic Codes 7399-7346. 38 C.F.R. §§ 4.20, 4.114. Under Diagnostic Code 7346, a 10 percent rating is warranted where there are two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent evaluation is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent rating is warranted for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptoms combinations productive of severe impairment of health. The Veteran’s VA treatment records document longstanding prescription medication to control the symptoms related to GERD, but indicate his GERD is stable. The Veteran was afforded a VA examination in December 2017. The examiner noted that the Veteran experienced the following GERD symptoms: dysphagia, reflux, regurgitation, pain, and nausea. The Veteran noted that his nausea had occurred once in a year for less than one day of duration. The Veteran had heartburn that was controlled by prescription medication. The doctor found that the Veteran’s heartburn was triggered by certain foods and he sometimes slept with his head elevated. The Board has considered whether the Veteran’s gastroesophageal condition should be rated under another Diagnostic Code. The remaining digestive system codes pertain to conditions for which the Veteran has not been diagnosed. Accordingly, the Veteran’s GERD is most appropriately rated under the current Diagnostic Code 7346. 38 C.F.R. § 4.114. Based on the Veteran’s symptoms and medical evidence of record, the Board finds that the GERD disability more closely approximates the 10 percent disability evaluation level for the entire appeal period. The VA treatment records, in particular, indicate that the severity of the Veteran’s GERD has been stable throughout the appeal period. The Veteran has shown at least two of the symptoms noted in the 30 percent evaluation category (dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health) at a level less severe than contemplated by the 30 percent rating and the Veteran’s symptoms are controlled with regular medication for relief. Thus, the Board finds that the Veteran’s GERD warrants a 10 percent rating evaluation for the entire appeal period. However, a 30 percent evaluation for GERD exhibited by persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health, is not warranted. The examinations and medical evidence of record do not support that the Veteran’s symptoms are productive of considerable impairment of health. The Veteran takes medication to control the symptoms of GERD. There have not been reports documented by medical providers that the Veteran’s GERD causes considerable impairment of health. Thus, a 30 percent rating for GERD is not warranted. In reaching its decision, the Board has considered the lay statements of record. However, the lay statements of record are vague and do not provide a basis for a higher evaluation for GERD. Accordingly, the Board finds that a 10 percent evaluation, but no higher, for GERD is granted for the entire appeal period. 38 C.F.R. § 4.114, Diagnostic Codes 7399-7346. Petitions to Reopen 6. Whether new and material evidence has been received sufficient to reopen the claim of entitlement to service connection a cervical spine disability. The Veteran seeks to reopen the previously denied claim of entitlement to service connection for a cervical spine condition. After a review of the evidence, the Board finds that reopening the claim is not warranted. In a June 2016 decision, the Board denied reopening a claim for entitlement to service connection for cervical spine condition. The Veteran appealed this denial to the Court. The Court issued a memorandum decision in January 2018, affirming the Board’s previous denial to reopen the claim of entitlement to service connection for a cervical spine condition. 38 U.S.C. § 7104(b). The prior rating decisions by the AOJ were subsumed by the Board decision and therefore the June 2016 decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.302, 20.1103. The Veteran submitted a request to reopen the claim for entitlement to service connection for cervical spine condition in September 2016. The AOJ declined to reopen the claim in a December 2016 rating decision finding that new and material evidence had not been received. Regardless of the actions of the AOJ, the Board has jurisdictional responsibility to determine whether a claim previously denied should be reopened. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)); see also Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); VAOPGCPREC 05-92 (March 4, 1992). Accordingly, the Board must initially determine whether there is new and material evidence to reopen the cervical spine issue before proceeding to adjudicate the underlying merits of the claim. If the Board finds that no new and material evidence has been provided, that is where the analysis must end. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The question of whether new and material evidence has been received sufficient to reopen the matter is a threshold question in any case involving a previously denied claim. Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995). The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Shade v. Shinseki, 24 Vet. App. 110 (2010); see Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). That is, a finally decided claim must be reopened where the claimant submits new and material evidence relative to a fact that was unestablished at the time of the prior final decision on the claim. Shade, 24 Vet. App. at 119. For the purpose of reopening a claim, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Here, the Board finds that new and material evidence within the meaning of 38 C.F.R. § 3.156(a) has not been received since the final June 2016 Board decision. Specifically, the Veteran’s claim was previously denied because there was a lack of evidence showing that his cervical spine condition was related to active service. The Veteran continues to contend that his cervical spine condition is related to his service. Additional evidence since the June 2016 Board decision includes treatment records showing ongoing complaints of cervicalgia. This evidence is cumulative and redundant, although it is new (i.e., not previously considered). It does not relate to the reason for which the claim was originally denied in 2016. The Board finds that the additional evidence of record does not constitute new and material evidence to reopen the claim for entitlement to service connection for cervical spine condition. In short, this evidence, if presumed credible, does not relate to an unestablished fact necessary to substantiate the cervical spine claim (i.e. whether the condition relates to active service), and does not raise a reasonable possibility of substantiating the claim. Accordingly, the Board finds that new and material evidence has not been presented to reopen the Veteran’s previously denied claim for entitlement to service connection for cervical spine condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 7. Whether new and material evidence has been received sufficient to reopen the claim of entitlement to service connection for a lumbar spine condition. The Veteran seeks to reopen a denied claim for entitlement to service connection for a lumbar spine condition. After a review of the evidence, the Board finds that reopening the claim is warranted. In a January 2011 decision, the Board denied reopening a claim for entitlement to service connection for lumbar spine condition. The prior rating decisions by the AOJ were subsumed by the final January 2011 Board decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.302, 20.1103. The Veteran submitted a request to reopen the claim for entitlement to service connection for lumbar spine condition in May 2012. The AOJ denied reopening the claim in a September 2013 rating decision based on lack of new and material evidence. The Veteran submitted a notice of disagreement in October 2013. The AOJ took no further action on the issue until after the Veteran submitted a new claim to reopen the issue of service connection for lumbar spine condition in September 2016. The AOJ denied reopening the issue of service connection for a lumbar spine condition in a December 2016 rating decision. The September 2013 rating decision is not final because the AOJ failed to issue a statement of the case until October 2018. Thus, the question before the Board is whether new and material evidence has been received since the January 2011 Board decision. Here, the Board finds that new and material evidence within the meaning of 38 C.F.R. § 3.156(a) has been received since the final January 2011 Board decision. Specifically, the Veteran’s claim was previously denied for lack of evidence showing that his lumbar spine condition was incurred during or had a nexus with active service. The previous evidence showed an intercurrent accident at work while removing an air conditioning unit that led to lumbar spine surgery in 1992. The Veteran continues to contend that his lumbar spine condition is related to his service. In April 2012, Dr. N.V. wrote that the Veteran’s back problems were caused by in-service trauma. He cited the Veteran’s training and in-service falls as trauma that caused his current back problems. The Board finds that the additional evidence of record constitutes new and material evidence to reopen the claim for entitlement to service connection for a lumbar spine condition. It addresses the reason for the previous denial (a lack of nexus). This evidence is presumed credible. Accordingly, the Board finds that new and material evidence has been presented to reopen the Veteran’s previously denied claim for entitlement to service connection for a lumbar spine condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. 8. Entitlement to service connection for a right arm disability. The Veteran contends that he has a right arm disability incurred in active service. After a thorough review of the evidence, the Board finds that service connection is not warranted for a right arm disability. Initially, the Board notes that the Veteran is currently assigned a 50 percent disability rating for residuals of right elbow dislocation and a noncompensable rating for right elbow arthritis with reduced supination/pronation. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease, or is secondary to a service-connected disability. The Board concludes that the Veteran does not have a current separate diagnosis of a right arm disability apart from the arthritis and residuals of right elbow dislocation already assigned and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The Veteran submitted a claim for service connection for right arm on September 1, 2016. As the Veteran is already service connected for a residual right elbow dislocation disability, the AOJ called the Veteran to clarify his claim. In the record of an October 21, 2016, phone call, the AOJ staff wrote that the Veteran was making a new claim for a right arm condition separate from the already service-connected right elbow disability. The Board notes that in a later memorandum by AOJ staff, the AOJ staff moved forward with a sympathetic reading of the Veteran’s claim. In May 2018, the Veteran was granted increased evaluations for his right elbow disabilities, which are not currently before the Board. The Veteran was afforded a VA examination for the right arm in April 2018. The examiner diagnosed residuals of right elbow dislocation and noted the measurements on limitation of motion and presence of arthritis. The Veteran reported pain along his right elbow and stated that he could not bend his elbow. The Board finds the Veteran does not have a separate right arm disability. In reaching its conclusion, the Board has considered the Veteran’s lay statements. At the April 2018 VA examination, the Veteran endorsed right elbow pain and an inability to bend his right elbow. The VA examiner considered these lay statements and diagnosed residuals of right elbow dislocation. The examiner noted the measurements on limitation of motion and presence of arthritis. Therefore, the preponderance of evidence is against a current right arm disability other than the already service-connected residuals of right elbow dislocation and right elbow arthritis. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the Veteran’s claim of entitlement to service connection for a right arm disability, separate from the already service-connected residuals of right elbow dislocation and arthritis, must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 56. 9. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected disabilities. The Veteran contends that his depression and anxiety are caused by the chronic pain from his service-connected disabilities. In May 2011, the Veteran was afforded a VA mental disorders examination. The VA examiner diagnosed recurrent major depressive disorder. After reviewing the available records, the examiner found that there was no evidence that a mental disorder had its onset during active service and was not related to the Veteran’s service-connected disabilities. The Veteran was afforded another VA examination in January 2015. The VA examiner diagnosed unspecified depressive disorder and unspecified neurocognitive disorder. She opined that it was less likely than not that the Veteran’s acquired psychiatric disorders were proximately due to the service-connected disabilities. The examiner explained that records dated in September 1993 and July 2007 establish a diagnosis of anxiety disorder with panic episodes. A 2012 headache and elbow examination indicated that these disabilities impacted his ability to work. She acknowledged that chronic pain was documented in 2007 as a stressor, but longitudinal medical evidence shows that the Veteran’s psychiatric condition is chronic, but stable. The VA examiner concluded that there was no evidence of aggravation. In November 2016, the Veteran underwent another VA examination. The VA examiner diagnosed major depressive disorder. She opined that the Veteran’s neuropsychiatric disorder was not secondary to his service-connected disabilities. The VA examiner explained that the Veteran’s major depressive disorder and service-connected disabilities followed different time frames, different etiology, different pathophysiology, and different anatomical systems. She concluded that, as a matter of fact, the Veteran’s service-connected disabilities have not aggravated his neuropsychiatric disorder. In November 2017, VA obtained an expert medical opinion for Dr. S.M. He concluded that the Veteran’s current psychiatric disability was not caused or aggravated by service-connected disabilities. Finally, in December 2019 Dr. S.M. provided another medical opinion and revised his prior negative medical opinion. He explained that chronic pain and headaches can cause anxiety and depression and it is reasonable to consider this assertion. The assertion was not novel or controversial in his opinion. Dr. S.M. opined that it was at least as likely as not that the Veteran’s acquired psychiatric disorders were caused or aggravated by his service-connected disabilities. The Board finds that December 2019 positive opinion is probative because Dr. S.M. is a psychiatric expert. The Board acknowledges that there are negative opinions of record. However, the negative opinions fail to address the underlying assertion that the Veteran’s chronic pain has caused his depression and anxiety. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current depression and anxiety are proximately due to his service-connected disabilities. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for depression and anxiety is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral hip disability is remanded. 2. Entitlement to service connection for a bilateral ankle disability is remanded 3. Entitlement to service connection for a bilateral foot disability is remanded. 4. Entitlement to service connection for a lumbar spine condition is remanded. The Veteran has not been afforded a VA examination to determine the nature and etiology of his claimed bilateral hip, ankle, foot disabilities, and lumbar spine disabilities. He is competent to report pain. The service treatment records indicate that he sustained two severe falls. In January 1964, the Veteran fell and dislocated his right elbow. In April 1965, he sustained a fall to his left side that resulted in orthopedic treatment for his left knee. The Board concedes that the service treatment records do not include notations for treatment for hip, ankle, or foot pain. However, given the severity of these in-service falls, the Board finds that it is plausible that he may have also sustained injuries to his hips, ankles, and feet. In April 2012, Dr. N.V. wrote that the Veteran’s back and knee problems were caused by in-service trauma. He cited the Veteran’s training and in-service falls as trauma that caused his current back and knee problems. Based on the foregoing, the Board finds that a remand for VA examinations and medical opinions is warranted. 5. Entitlement to service connection for left knee osteoarthritis is remanded. The Veteran submitted a claim for entitlement to service connection for left knee osteoarthritis on May 1, 2012. In a September 2013 rating decision, the AOJ denied entitlement to service connection for the left knee. The Veteran filed an informal notice of disagreement in October 2013. As that statement was filed prior to March 24, 2015, the formal Notice of Disagreement form was not required at that time. The AOJ did not take further action on this claim or issue a statement of the case pertaining to the left knee claim. The Veteran submitted a new claim on September 1, 2016, including a claim for service connection for “knees.” In a December 2016 rating decision, the AOJ denied the petition to reopen the left knee claim as lacking new and material evidence. The AOJ issued a statement of the case in October 2018 wherein it categorized the claim as “service connection for left knee” but analyzed the issue as a petition to reopen and denied the claim for lack of new and material evidence. This was an improper analysis of the issue at hand, as the statement of the case should refer back to the Veteran’s original claim submitted in May 2012. The AOJ never issued a statement of the case for the original claim for service connection for the left knee, and therefore, the September 2013 rating decision has not become final. 38 C.F.R. §§ 20.302, 20.1103. Accordingly, the AOJ must issue a new statement of the case that categorizes and analyzes the issue as entitlement to service connection for the left knee dating back to the May 1, 2012, claim. See Manlincon v. West, 12 Vet. App. 238 (1999). 6. Whether new and material evidence has been received sufficient to reopen the claim of entitlement to service connection for right knee osteoarthritis. The Veteran contends that his right knee condition is a result of his left knee condition. Therefore, a decision on the remanded issue of entitlement to service connection for left knee osteoarthritis could significantly impact a decision on the issue of whether new and material evidence has been received sufficient to reopen the claim of entitlement to service connection for right knee osteoarthritis, and the issues are inextricably intertwined. A remand of the claim is required. 7. Entitlement to an evaluation greater than 10 percent for allergic rhinitis is remanded. In a December 2016 rating decision, the AOJ denied an evaluation in excess of 30 percent for “sinusitis with allergic rhinitis.” The Veteran filed a timely notice of disagreement in January 2017. In an October 2017 rating decision, the Veteran was granted a separate 10 percent evaluation for his allergic rhinitis. The AOJ issued a statement of the case in October 2018, which evaluated “chronic sinusitis with allergic rhinitis” as 30 percent disabling using the diagnostic criteria for sinusitis, but did not perform a separate analysis of the Veteran’s service-connected rhinitis. A remand is required for the AOJ to issue a statement of the case pertaining to the issue of entitlement to an evaluation greater than 10 percent for allergic rhinitis. 38 C.F.R. § 20.200; Manlincon, 12 Vet. App. at 240-41. 8. Entitlement to a TDIU is remanded. Finally, because a decision on the remanded issues could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claim is required. The matters are REMANDED for the following actions: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bilateral ankle, bilateral, foot, bilateral ankle disabilities, and lumbar spine conditions. The examiner must opine whether it is at least as likely as not that any bilateral ankle, bilateral foot, bilateral ankle and lumbar spine conditions are related to an in-service injury, event, or disease, including his two in-service falls. In rendering the opinion, the VA examiner must address the April 2012 statement from Dr. N.V. 2. Send the Veteran and his representative a statement of the case that addresses the issue of entitlement to service connection for left knee osteoarthritis. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. The statement of the case should not refer to reopening a left knee claim or include a new and material analysis of the left knee claim. 3. Send the Veteran and his representative a statement of the case that addresses the issue of entitlement to an evaluation greater than 10 percent for allergic rhinitis. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues of whether new and material evidence has been received sufficient to reopen the claim of entitlement to service connection for right knee osteoarthritis and entitlement to a TDIU. If the benefits sought are not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to   respond. If necessary, return the case to the Board for further appellate review. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R.R. Watkins, 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.