Citation Nr: 20056920 Decision Date: 08/28/20 Archive Date: 08/28/20 DOCKET NO. 16-11 684 DATE: August 28, 2020 ORDER New and material evidence having been received, the claim of entitlement to service connection for bilateral ankle disability, is reopened. To this extent only, the claim is granted. REMANDED Whether new and material evidence has been received to reopen the claim for entitlement to service connection for prostate disorders is remanded. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for colon cysts is remanded. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for thyroid cancer is remanded. Entitlement to service connection for bilateral ankle disability is remanded. Entitlement to a compensable rating for bilateral hearing loss prior to February 18, 2019, and in excess of 10 percent thereafter is remanded. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to December 10, 2018 is remanded. Entitlement to a total disability based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. A May 2006 rating decision denied the Veteran’s claim of entitlement to service connection for bilateral ankle disability. 2. The evidence received since the May 2006 rating decision is new to the record, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for bilateral ankle disability. CONCLUSIONS OF LAW 1. The May 2006 rating decision which denied the Veteran’s claim of entitlement to service connection for bilateral ankle disability is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302(a), 20.1103. 2. Since the May 2006 rating decision, new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for bilateral ankle disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1968 to April 1972. This case comes to the Board of Veterans’ Appeals (Board) on appeal from April 2011 and September 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office. In February 2014, the Veteran testified at a hearing before a Decision Review Officer (DRO hearing). A transcript of the DRO hearing is associated with the claims folder. The Veteran testified at a hearing before the undersigned in December 2018. The transcript is associated with the claims folder. The Board also notes that during the pendency of the appeal in a May 2019 rating decision, the evaluation for the bilateral hearing was increased to 10 percent, effective February 18, 2019. The May 2019 rating decision also increased the evaluation for the PTSD to 100 percent, effective December 10, 2018. As these rating increases are not the maximum benefit for the entire period on appeal, the claims are still in controversy and on appeal. AB v. Brown, 6 Vet. App. 35 (1993). However, the award of a 100 percent rating for the service-connected PTSD effective December 10, 2018, constitutes a full grant of benefit sought as of that date. Thus, the Board will not consider an increased rating for PTSD from December 10, 2018. Claim to Reopen To reopen a claim that has been denied by a final decision, the claimant must present new and material evidence with respect to the claim. 38 U.S.C. § 5108. “New evidence” means existing evidence not previously submitted to VA. 38 C.F.R. § 3.156(a). “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. Id. 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, and it must raise a reasonable possibility of substantiating the claim. Id. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the “credibility” of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and it views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). Evidence “raises a reasonable possibility of substantiating the claim” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. See id. at 120-23. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for bilateral ankle disability. Here, the Veteran’s claim for service connection for his ankle disability was originally denied in a May 2006 rating decision. The service connection denial was based on a finding that there is a lack of evidence to suggest the Veteran suffered from a residual ankle condition caused or worsened as a result of his active duty service and lack of evidence of treatment related to a current ankle condition. The Veteran did not file a notice of disagreement or submit new and material evidence within one year of the denial. As such, the May 2006 rating decision became final as to the evidence then of record, and is not subject to review on the same factual basis. 38 U.S.C. § 7105(b)(2)(c); 38 C.F.R. §§ 3.104, 20.302(a), 20.1103. Pertinent evidence considered at the time of the May 2006 rating decision included service treatment records (STRs), treatment records from 2001 to 2006, and an April 2006 statement from the Veteran. Pertinent evidence received since the May 2006 rating decision includes an August 2019 private examination in which the examiner diagnosed osteoarthritis of the ankles and noted the Veteran’s reports of in-service injury while practicing jumping out of helicopters. Specifically, the Veteran had a large impact jump and felt pain and his ankles subsequently began to click and pop with walking and with all weightbearing activities. See September 2019 Disability Benefits Questionnaire (DBQ) – Veteran Provided. The examiner also noted the Veteran’s repetitive loading from skiing while in Alaska. The Board finds that the August 2019 private examination constitutes new and material evidence submitted under the definition set forth in 38 C.F.R. § 3.156(a) sufficient to reopen claim. The evidence is presumed to be credible for the limited purpose of reopening the claim. Given that the above evidence addresses facts necessary to substantiate the Veteran’s claim of entitlement to service connection for bilateral ankle disability, to include a current diagnosis and additional information regarding in-service stressors, the Board finds that the low threshold for reopening the claim has been met. Shade v. Shinseki, 24 Vet. App. 110 (2010). Therefore, the claim of entitlement to service connection for bilateral ankle disability is reopened. REASONS FOR REMAND Entitlement to service connection for bilateral ankle disability is remanded. As noted above, the Veteran submitted a private examination, dated August 2019, in support of his claim. See September 2019 Disability Benefits Questionnaire (DBQ) – Veteran Provided. The private examiner diagnosed osteoarthritis of the ankles. During examination, the examiner noted the Veteran’s reports that he had practiced jumping out of helicopters and he had a large impact jump after which he felt pain and his ankles subsequently began to click and pop with walking and all weightbearing activities, that has continued to the present. The examiner also noted the Veteran’s reports of repetitive loading from skiing while carrying a fellow servicemember that strained his ankles. A review of the record confirms these reports that during miliary service, his military occupational specialty included regular command of an armed helicopter providing night security against hostile forces in Vietnam and skiing in excess of 100 miles while serving in Alaska. See December 2011 Military Personnel Record and March 2019 Military Personnel Record. However, the private examiner did not provide an etiological opinion for the bilateral ankle disability. The Veteran has also consistently reported ongoing chronic ankle problems since active service. See August 2005 Veterans Application for Compensation or Pension, April 2006 Authorization for Release of Information, March 2012 NOD, September 2013 NOD, February 2014 Hearing Testimony, and December 2018 Hearing Transcript. Considering the military personnel records support the Veteran’s reports of in-service stressors of high impact jumps from helicopters and physical exertion due to skiing, the Veteran’s reports of ongoing bilateral ankle problems since active service, and considering the Veteran has not been provided a VA examination for his bilateral ankle disability, the Board finds that the low threshold standard established has been surpassed. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Thus, a remand is warranted in order to afford the Veteran a VA examination and obtain a medical opinion related to his claim for service connection for his bilateral ankle disability. Entitlement to an initial rating in excess of 30 percent for PTSD prior to December 10, 2018 is remanded. Entitlement to a TDIU is remanded. During the December 2018 Board hearing, the Veteran reported that he recently retired due to his PTSD. See December 2018 Hearing Transcript. He reported that he had been working for the VA medical center prior to his retirement. The Veteran reported that in the last year, he had four severe battles with suicide and that for three to four years he had been in the PTSD unit for counseling at the VA medical center. He reported continued treatment for his psychiatric condition at the VA medical center. The Veteran’s attorney indicated during the December 2018 Board hearing that attempts should also be made to obtain his employee health record because he was an employee and that counseling as an employee may not be out in the open in DVMS AMOS records because of confidentiality of VA employees. A review of the record shows a missing period of VA treatment records between January 2016 and May 2018. See February 2016 CAPRI and May 2019 CAPRI. Considering the Veteran has specifically reported receiving treatment for his PTSD during this missing period at a VA medical center and reported symptoms that may warrant a higher rating than currently assigned for the period prior to December 10, 2018, the Board finds that a remand is warranted to obtain any outstanding treatment records not yet associated with the claims file. As noted above, during the December 2018 Board hearing, the Veteran reported that he had recently retired due to his PTSD since his employment had triggered his PTSD, resulting in four severe battles with suicide in the past year. See December 2018 Hearing Transcript. The Board observes that he is in receipt of a 100 percent rating for his PTSD as of December 10, 2018. During his March 2019 VA examination, the examiner noted that he retired in 2017. As it is unclear from the current record when exactly the Veteran stopped working, the Board finds that a claim for a TDIU has been raised by the record and is part of the current appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Whether new and material evidence has been received to reopen the claim for entitlement to service connection for prostate disorders is remanded. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for colon cysts is remanded. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for thyroid cancer is remanded. Entitlement to a compensable rating for bilateral hearing loss prior to February 18, 2019, and in excess of 10 percent thereafter is remanded. As noted above, the Veteran has reported outstanding VA treatment records during the relevant period on appeal that may be relevant to the claims for reopening entitlement to service connection for prostate disorders, colon cysts, and thyroid cancer, as well as entitlement to a higher evaluation for the service-connected bilateral hearing loss. As VA has actual knowledge that such records may exist, they must be obtained prior to any decision made in these matters. See 38 U.S.C. § 5103A(a)(2) and Moore v. Shinseki, 555 F.3d 1369, 1374-1375 (Fed. Cir. 2009). The matters are REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran’s VA treatment facilities between 2016 and 2018, and all private treatment records from the Veteran not already associated with the file. The Board notes that the Veteran was a VA employee between from 2012 and 2018 and as such, attempts should be made to obtain the Veteran’s VA employee file, to include any confidential treatment records, if applicable. 2. Develop the raised claim for TDIU. 3. After development #1 and #2 are completed, schedule the Veteran for VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate examiner to determine the nature and etiology of his bilateral ankle disability. The Veteran’s claims file must be made accessible to the designated professional for review. A complete rationale for any opinion expressed should be provided. Following review of the claims file, the examiner is then requested to respond to the following: a. Identify, by diagnosis, the Veteran’s claimed right and left ankle disabilities. All pertinent diagnoses of record must be addressed. Any applicable imaging studies should be conducted. b. Determine whether it is at least as likely as not (50 percent probability or greater) that his right and left ankle disabilities had their onset during active service, or are otherwise etiologically related to his period of service? The examiner should address the confirmed in-service stressors regarding jumping out of helicopters and load-bearing skiing during active service. The examiner should also address the Veteran’s contentions that he has had ongoing ankle complaints since active service. The examiner should assume that the Veteran’s lay statements of record are credible for the limited purpose of providing the requested medical opinion. 4. Thereafter, readjudicate the remaining claims on appeal, to include the claim for TDIU. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Cheng, 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.