Citation Nr: 21003462 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 15-08 352 DATE: January 21, 2021 ORDER The petition to reopen the previously denied claim for service connection for a low back condition is granted. REMANDED Entitlement to service connection for skin disability, diagnosed as psoriasis, is remanded. Entitlement to service connection for low back disability to include as secondary to service-connected bilateral knee disability is remanded. Entitlement to an initial rating in excess of 70 percent for depressive disorder with major depressive episodes, previously rated as mood disorder, (hereinafter depressive disorder), is remanded. Entitlement to a rating in excess of 10 percent prior to August 18, 2020, and in excess of 20 percent therefrom for left knee disability is remanded. A total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to September 16, 2013, is remanded. FINDING OF FACT An unappealed August 2009 rating decision denied service connection for low back disability; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. CONCLUSION OF LAW The August 2009 rating decision denying the claim for service connection for low back disability is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1978 to August 1981. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the claims file. The VLJ held the record open for 60 days for the submission of supporting medical evidence. In January 2020, the Veteran’s representative requested another 60-day extension. The extension request was granted in February 2020. Evidence was subsequently received from the Veteran’s representative. In April 2020, the Board remanded the appeal. During remand status, in an October 2020 rating decision, the RO granted, inter alia, an initial 70 percent rating for depressive disorder, effective January 15, 2013; a 20 percent rating for left knee disability, effective August 18, 2020; and TDIU, effective September 16, 2013. As the maximum benefit under the rating schedule and during the appeal period was not provided, the claims for increase remain in appeal status. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that Veterans are presumed to seek the maximum available benefit for a disability). Because the Veteran’s underlying claim for increase for the right knee was initiated in April 2011, so is the associated TDIU claim. Harper v. Wilkie, 30 Vet. App. 356 (2018). Thus, that portion of the claim remains unresolved and is still on appeal. Harper, 30 Vet. App. at 360-62. Whether new and material evidence has been submitted to reopen the previously denied claim for service connection for low back disability. The Board concludes that the August 2009 rating decision denying the Veteran’s claim for service connection for low back disability is final; and that new and material evidence has not been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.1103. A claim that has been denied in an unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary 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). 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). In establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of whether the agency of original jurisdiction (AOJ) found that new and material evidence had been submitted to reopen a claim for service connection, it is well established that the Board must determine on its own whether new and material evidence has been submitted to reopen a claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Here, an October 2002 rating decision denied service connection for low back disability because the evidence of record did not show a current disability. VA notified the Veteran of this decision in a November 2002 letter and how to appeal. VA received no appeal or new and material evidence prior to expiration of the appeal period. Therefore, the rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.1103. Then, a July 2009 rating decision denied the claim because the evidentiary record did not reflect new and material evidence consisting of evidence of a current disability. VA notified the Veteran of this decision in an August 2009 letter and how to appeal. VA received no appeal or new and material evidence prior to expiration of the appeal period. Therefore, the rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.1103. Evidence associated with the claims file since the prior final disallowance includes new and material evidence. Specifically, a June 2011 VA treatment record reflects that the Veteran has a currently low back disability, that includes a diagnosis for degenerative joint disease of the lumbosacral spine. There are further diagnoses for spondylitis. This evidence was not considered at the time of the prior final disallowance; hence, it is new. Further, this evidence cures a prior evidentiary defect; hence, it is material. Therefore, the recent evidentiary submissions are both new and material. Accordingly, the application to reopen is granted. REASONS FOR REMAND In remanding the below matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran’s assertions. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand. 1. Entitlement to service connection for skin disability, diagnosed as psoriasis, is remanded. 2. Entitlement to service connection for low back disability to include as secondary to service-connected bilateral knee disability is remanded. 3. Entitlement to an initial rating in excess of 70 percent for depressive disorder is remanded. 4. Entitlement to a rating in excess of 10 percent from August 18, 2020, and in excess of 20 percent therefrom for left knee disability is remanded. 5. Entitlement to TDIU prior to September 16, 2013, is remanded. Issues 1 – 5: As explained below, the Board finds that remand is necessary to ensure due process of law and that VA has met its duty to assist. Further, to the extent that the Board’s prior remand orders were not met, remand is required to ensure compliance with the terms of the Board’s prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). First, remand is necessary to issue a Supplemental Statement of the Case (SSOC). In April 2020, the Board remanded the claims of (1) Entitlement to an initial rating in excess of 30 percent for mood disorder and adjustment disorder; (2) Entitlement to a rating in excess of 10 percent for left knee disability; (3) Entitlement to service connection for psoriasis; (4) Whether new and material evidence has been submitted to reopen the previously denied claim for service connection for a low back condition; and (5) TDIU. During remand status, additional development was conducted and relevant evidence obtained. The originating agency issued a SSOC in October 2020 that addressed the issues of entitlement to service connection for psoriasis and the low back, but it did not address the other issues remanded by the Board. Although an October 2020 rating decision granted TDIU from September 16, 2013 (based on the Veteran’s service-connected disabilities of the knees and psychiatric system), the award did not span the entire period on appeal, which dated to the April 1, 2011 claim for increase for the right knee disability. As such, the matter remains on appeal unless the claim is limited or withdrawn. Given the foregoing, to ensure due process of law, remand is necessary for issuance of a SSOC on the claims for (1) an initial rating in excess of 70 percent for depressive disorder, (2) a rating in excess of 10 percent as prior to August 8, 2020, and in excess of 20 percent therefrom for left knee disability; and (3) TDIU prior to September 16, 2013. See 38 C.F.R. § 19.31 (Supplemental Statement of the Case). Second, remand is necessary to obtain reasonably identified non-VA treatment records. During remand status, additional VA treatment records were obtained that disclosed non-VA treatment and that related records had been associated with the VA medical records system through scanning the documents into the VISTA-imaging system. For example, VA notes dated in July 2020 reflect that the Veteran received authorized physical therapy services through “Advanced PT Solutions.” See Medical Treatment Record – Government Facility (September 2020). Further, the Veteran’s November 2019 sworn testimony reflects that he obtained non-VA medical care via Medicare and my AARP Complete. See Hearing Transcript (November 2019). A remand is required to allow the Veteran an opportunity to authorization release of any relevant treatment records to VA. See 38 C.F.R. § 3.159(c)(1). Third, remand is necessary to obtain an adequate medical opinion addressing the etiology of the Veteran’s diagnosed psoriasis. Pursuant to the Board’s April 2020 remand, the originating agency obtain an August 2020 VA medical opinion (VAMO). The August 2020 VAMO reflects that a diagnosis of psoriasis; it acknowledged that the Veteran reported approximate onset of symptoms in 1979, described as scaly spots that were diagnosed by a flight surgeon as was psoriasis and treated with steroidal creams, which he continued to use post service. The VAMO concluded that the condition was less likley than not incurred in or caused by an in-service injury, event, or illness. The rationale was that “Lack of diagnosis while in service related to veteran lay statements. Lack of evidence of diagnosis or chronicity of care following service until 2008. With the current available records in cfile, there is a gap of 27 years of evidence for treatment of veteran claimed condition of blisters and inflammation. A nexus has not been established.” The Board finds that the VAMO is inadequate. It does not reflect any meaninful consideration of the Veteran’s report of onset of symptoms in service, or provide any reason for rejecting that history. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) (“the VA examiner's failure to consider [the Veteran’s] testimony when formulating her opinion renders that opinion inadequate.”). Further, the opinion appears to rely on the absence of a documented in-service diagnosis for psoriasis. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). In this regard, the opinion does not address whether theVeteran’s reported symptoms in service and since service are consistent with the onset and progression of any currently diagnosed psoriasis. It is noted that an in-service diagnosis is not required to establish service connection. Cosman v. Principi, 3 Vet. App. 503 (1992); see also 38 C.F.R. § 3.303(d) (service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service). Therefore, remand is necessary to obtain a new medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Fourth, and lastly, remand is necessary to obtain an adequate medical opinion on the Veteran’s low back disabilty that fully addresses his theory that it is secondary to his service-connected knee disabilites. Although a medical opinion, dated in Juen 2012, was obtained, it is inadequate to decide the appeal. This medical opinion acknowledged the Veteran’s documented in-service back complaints, diagnosed as muscle spasm, but found that they were acute and transitory, noting that (1) “the majority resolve with no residuls, (2) the Veteran’s 1989 service separation examination showed normal phsyical examination, (3) a 1989 lumbar spine x-ray was negative, and (4) the absence of any post miliary docmented back pain complaints until 2003 with spondylosis diagnosed in 2010. The clinician explained that the Veteran’s current condition, spondylosis, was a different process from that of back strain and muscle spasm, which is a condition of the muscles. Therefore, the clinician concluded that the current condition was not incurred in or caused by in-service injury or disease. However, the opinion did not address the question of secondary service connection. Therefore, remand is necessary to address this question. 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for non-VA medical providers seen for his symptoms of mental disorder since 2013 and left knee treatment since 2012, along with his symptoms of psoriasis and symptoms involving the low back since service discharge, to include relevant treatment records associated with his Medicare plan, AARP Complete, Dr. Elliot Sharon, Dr. Alan Cohen, Ernest Akpaka Ph.D., David Johnson M.A., and Advanced PT Solutions. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s low back disability is at least as likely as not (1) proximately due to or the result of service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability. Consider specifically service-connected knee disabilities. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the disability prior to aggravation by the service-connected disability. Explain. 3. Obtain an addendum opinion from an appropriate clinician addressing the nature and etiology of the Veteran’s diagnosed psoriasis. Detail the Veteran’s reported symptoms in service and thereafter, including the nature, onset, progression and severity of his reported symptoms. Then, if there is any medical reason to accept or reject the proposition that his reported symptoms in service and thereafter represented the onset of his currently diagnosed psoriasis, this should be noted. (a.) Opine whether psoriasis at least as likely as not (1) had its onset in service or (2) is otherwise related to an in-service injury, event, or disease. Consider the Veteran’s reports of in-service blisters and inflammation (b.) An adequate medical opinion may not rely solely on the absence of documented in-service complaints or findings. It should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). If any history is rejected the clinician must explain why. (Continued on next page) 4. Send the Veteran and his representative a SSOC that addresses the issues of: (1) Entitlement to service connection for skin disability, diagnosed as psoriasis; (2) Entitlement to service connection for low back disability to include as secondary to service-connected bilateral knee disability; (3) Entitlement to an initial rating in excess of 70 percent for depressive disorder; (4) Entitlement to a rating in excess of 10 percent from August 18, 2020, and in excess of 20 percent therefrom for left knee disability; and (5) Entitlement to TDIU prior to September 16, 2013. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Thaddaeus J. Cox, 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.