Citation Nr: 21069837 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 18-11 541 DATE: November 19, 2021 ORDER New and material evidence having been received, the appeal to reopen the claim of entitlement to service connection for an acquired psychiatric disability is granted. New and material evidence having been received, the appeal to reopen the claim of entitlement to service connection for bilateral hearing loss is granted. New and material evidence having been received, the appeal to reopen the claim of entitlement to service connection for a bilateral foot disability is granted. Service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and generalized anxiety disorder (GAD), is granted. Service connection for type II diabetes mellitus is granted. Service connection for erectile dysfunction is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a bilateral foot disability is remanded. Entitlement to a disability rating in excess of 10 percent for chronic back pain syndrome with degenerative arthritis of the spine is remanded. Entitlement to a separate disability rating for radiculopathy of the lower extremities secondary to the back disability is remanded. FINDINGS OF FACT 1. An April 2011 rating decision denied the claim of entitlement to service connection for bilateral hearing loss and a bilateral foot disability; the Veteran filed a timely notice of disagreement, and the Regional Office (RO) continued denial of the claim in a July 2014 statement of the case (SOC); the Veteran did not file a substantive appeal, and no new, relevant service records were received any time thereafter. 2. A June 2013 rating decision denied the claim of entitlement to service connection for a psychiatric disability; the Veteran did not file a timely notice of disagreement, and no evidence was received within one year of the rating decision, nor were new, relevant service records received any time thereafter. 3. The evidence associated with the claims file subsequent to the April 2011 and June 2013 rating decisions denying service connection for a psychiatric disability, bilateral hearing loss, and a bilateral foot disability is not cumulative, relates to an unestablished fact necessary to substantiate the claims, and raises a reasonable possibility of substantiating the claims. 4. The Veteran's current psychiatric disability, including PTSD and GAD, was caused by his experiences during active service. 5. The Veteran's service-connected disabilities caused the Veteran to become obese; the Veteran's obesity was a substantial factor in causing his diabetes mellitus and erectile dysfunction; and diabetes and erectile dysfunction would not have occurred but for obesity. CONCLUSIONS OF LAW 1. The April 2011 and June 2013 rating decisions, which denied service connection for bilateral hearing loss, bilateral foot disability, and a psychiatric disability, became final. 38 U.S.C. § 7105(a); 38 C.F.R. §§ 20.302, 20.1103. 2. The evidence received subsequent to the April 2011 and June 2013 rating decisions denying service connection for bilateral hearing loss, a bilateral foot disability, and a psychiatric disability is new and material, and the claims are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for a psychiatric disability have been met. 38 U.S.C. §§ 101, 1101, 1110, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 4. The criteria for service connection for type II diabetes mellitus have been met. 38 U.S.C. §§ 101, 1101, 1110, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310; VAOPGCPREC 1-2017. 5. The criteria for service connection for erectile dysfunction have been met. 38 U.S.C. §§ 101, 1101, 1110, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310; VAOPGCPREC 1-2017. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the Appellant in this case, had active service from September 2000 to February 2001. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a March 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a July 2021 virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims folder. New and Material Evidence 1. New and material evidence having been received, the appeal to reopen the claim of entitlement to service connection for an acquired psychiatric disability is granted. 2. New and material evidence having been received, the appeal to reopen the claim of entitlement to service connection for bilateral hearing loss is granted. 3. New and material evidence having been received, the appeal to reopen the claim of entitlement to service connection for a bilateral foot disability is granted. In June 2009, the Veteran filed an initial claim for service connection for bilateral hearing loss and a bilateral foot disability. The claim was denied in an April 2011 rating decision, in which the RO found no evidence of a current hearing loss disability and no medical nexus between the foot disability and active service. The Veteran filed a timely notice of disagreement (NOD), and the RO continued denial of the claims in a July 2014 statement of the case (SOC). The Veteran did not file a substantive appeal, and no new, relevant service records were received at any time after the April 2011 rating decision. 38 C.F.R. § 3.156(b) and 3.156(c). Consequently, the April 2011 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. In December 2011, the Veteran filed an initial claim for service connection for a psychiatric disability. The claim was denied in a June 2013 rating decision, in which the RO found no evidence of a diagnosis of PTSD and no nexus between any current psychiatric disorder and active service. The Veteran did not file a timely NOD, and no evidence was received within one year of the June 2013 rating decision, nor were new, relevant service records received at any time thereafter. 38 C.F.R. § 3.156(b) and 3.156(c). Consequently, the June 2013 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. In December 2015, the Veteran filed a request to reopen his claim of entitlement to service connection for an acquired psychiatric disability, bilateral hearing loss, and a bilateral foot disability. In the March 2016 rating decision on appeal, the RO denied reopening of the claims, finding that no new and material evidence had been received. Based on the procedural history outlined above, the issue for consideration with respect to the Veteran's claims is whether new and material evidence has been received to reopen the claim of entitlement to service connection for a psychiatric disability, bilateral hearing loss, and a bilateral foot disability. Evidence added to the record since the time of the last final denial of the hearing loss and foot claims in April 2011 includes a July 2021 report from a private physician, Dr. S.B., in which the doctor stated that hearing loss is a progressive phenomenon, that the Veteran was experiencing the beginning changes in hearing loss, and that the Veteran's noise exposure in service caused his hearing loss. In addition, at the July 2021 Board hearing, the Veteran testified that his hearing loss had worsened since he was last examined in 2011, and that his foot problems began at the same time that he developed his service-connected bilateral knee disability, and he believed that his knee disability caused or aggravated his bilateral foot problem. Evidence added to the record since the time of the last final denial of the psychiatric disability claim in June 2013 includes an August 2021 report from a private psychologist, Dr. S.K., in which the doctor opined that the Veteran met the diagnostic criteria for PTSD and GAD and that the GAD had an onset date prior to his discharge from active service and was caused by his in-service experiences. The Board finds that this evidence constitutes new and material evidence as it tends to support the existence of a current hearing loss disability, a nexus between the claimed bilateral foot disability and a service-connected disability, and a nexus between the current psychiatric disability and active service, which was the basis for the previous denials of the claims. In this regard, the Board notes that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Therefore, the Board finds that the evidence added to the record since the last final April 2011 and June 2013 denials of the psychiatric disability, hearing loss, and bilateral foot claims constitutes new and material evidence, and that the criteria under 38 C.F.R. § 3.156(a) have been satisfied; therefore, the claim of entitlement to service connection for a psychiatric disability, bilateral hearing loss, and a bilateral foot disability is reopened. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). 4. Service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and generalized anxiety disorder (GAD), is granted. The Veteran contends that his current psychiatric disability was caused by the stressful environment and physical demands of his active service. For the reasons discussed below, the Board agrees and finds that service connection is warranted. Service treatment records show that the Veteran was diagnosed with situational depression in October 2000. Following separation from service, in January 2012, the Veteran sought mental health treatment, stating that he believed he had PTSD. He reported symptoms of insomnia and had dreams about his basic training during which time he was forced to exercise despite difficulty due to severe knee pain. He recalled being yelled at because he could not work out as ordered. He felt that the Army did not care about him and made him feel as if he was in jail. The clinician assessed sleep disturbances and rule out PTSD. In March 2012, the Veteran reported that he had experienced insomnia and nightmares related to violent events experienced in his work as a military policeman ever since active service. He also reported symptoms of depression and loneliness. The impression was anxiety disorder NOS. In March 2017, the Veteran reported recurrent dreams about his time in basic training. A clinician assessed adjustment disorder with anxiety. The Veteran submitted an April 2018 letter from a private licensed mental health counselor, Z.G. The counselor reviewed the Veteran's treatment records, noting a provisional diagnosis of PTSD in 2017 and a positive PTSD screen in 2012. The Veteran reported that he was told that the base he was assigned to during active service had a high suicide rate and this, combined with the physical strain of basic training and lack of sleep, caused him to become fearful. The counselor diagnosed PTSD and GAD, listing the DSM-V criteria and stating the Criterion A (stressor) was met in that the Veteran experienced repeated or extreme exposure to aversive details of traumatic events. The counselor explained that based on the Veteran's family history, he was likely predisposed to developing an anxiety disorder. The counselor further stated it was likely that the highly stressful, prolonged experience in basic training could have been more damaging to a person predisposed to anxiety than someone who was not. While the Veteran's course of PTSD was somewhat nontraditional in that it lacked a single direct traumatic experience that could be linked to the development of symptoms, recent research has demonstrated that a person who undergoes subjectively traumatic situations for prolonged periods of time could develop PTSD. At the July 2021 Board hearing, the Veteran testified that, as a military police officer, he was exposed to a lot of bombs, training with firearms, bullets, and grenades, etc., and that he developed anxiety in service, although at the time, he did not know what that feeling was. An August 2021 private opinion from Dr. S.K., a licensed clinical psychologist, states that the Veteran met the DSM-5 diagnostic criteria for diagnoses of generalized anxiety disorder and unspecified depressive disorder prior to his discharge date of February 16, 2001, and also met the DSM-5 diagnostic criteria for a diagnosis of PTSD with an onset date of September 11, 2001, when the Veteran was in the Army Reserves and provided first responder emergency services for four consecutive seventeen hour days. Based on the foregoing, the Board finds that the evidence demonstrates that the Veteran's current psychiatric disability, including PTSD and GAD, is related to his experiences in active service, and that service connection is warranted. There are two competent favorable nexus opinions of record and no contrary opinions. Therefore, the elements required to substantiate a claim of entitlement to service connection have been met, and service connection for a psychiatric disability is granted. 5. Service connection for type II diabetes mellitus is granted. 6. Service connection for erectile dysfunction is granted. The Veteran contends that, due to his service-connected musculoskeletal disabilities, which include the bilateral knees and back, he has been unable to be as active as he otherwise would be, causing him to gain weight; consequently, he believes his obesity led to his diabetes and erectile dysfunction. For the reasons discussed below, the Board finds that service connection is warranted. In January 2017, VA's Office of General Counsel issued a precedential opinion that concluded that obesity per se is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131 and therefore may not be service connected on a direct basis. Similarly, obesity is not a "disability" for the purposes of secondary service connection under 38 C.F.R. § 3.310. However, VAOPGCPREC 1-2017 recognized that obesity may act as an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310(a). In order to determine if obesity is an "intermediate step," an adjudicator must resolve the following issues: (1) whether the service-connected disability caused the Veteran to become obese; (2) if so, whether the obesity was a substantial factor in causing the claimed disability; and (3) whether the claimed disability would not have occurred but for obesity. If these questions are answered in the affirmative, the claimed disability may be service connected on a secondary basis. See VAOPGCPREC 1-2017. In this case, during an April 2004 VA examination, the Veteran reported that, due to his service-connected bilateral knee disability, he was unable to run, had to sit down repeatedly at work, could not play games or exercise the way he used to, and had no recreational activities. He stated he was putting on weight and was approximately 60 pounds overweight due to lack of activity. Private treatment records show diagnosis of obesity at least as early as October 2008. In a July 2021 report, a private physician, Dr. S.B., M.D., PhD., opined that the Veteran's diabetes mellitus and erectile dysfunction are complications of his service-connected back and bilateral knee disabilities. The pain from his service-connected musculoskeletal disabilities have contributed to his sedentary lifestyle leading to obesity. The doctor provided citations to medical literature supporting the premise that musculoskeletal injuries are a fuel to sedentary lifestyle leading to obesity. His sedentary lifestyle also contributed to the development of his metabolic disorders, including diabetes and hypertension. The risk factors of metabolic syndrome are obesity and sedentary lifestyle. Erectile dysfunction is also a recognized complication of diabetes. The doctor concluded that the Veteran's musculoskeletal disabilities led to his sedentary lifestyle, which in turn caused his obesity, and thus is at least as likely as not the cause of his hypertension, diabetes, and their complications of neuropathy and erectile dysfunction. The doctor's opinions were accompanied by extensive rationale and discussion of the evidence of record with citations to specific treatment records and medical literature. There are no contrary opinions of record. Although Dr. S.B. did not explicitly state that the diabetes mellitus and erectile dysfunction would not have occurred but for the Veteran's obesity, he provided an extensive discussion explaining why the Veteran's obesity caused these conditions. The Board has resolved any doubt in the Veteran's favor in finding that the Veteran's obesity was an intermediate step between his service-connected disabilities and the claimed diabetes and erectile dysfunction. Based on the foregoing, the Board finds that the criteria for service connection for diabetes mellitus and erectile dysfunction have been met and the claim for service connection is granted. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. In-service acoustic trauma has been conceded, and, in his July 2021 report, Dr. S.B. provided a favorable nexus opinion. The Veteran's claim of entitlement to service connection for bilateral hearing loss has been denied because his test results have not met the criteria for a disability as defined by VA regulations. In light of the Veteran's testimony at the Board hearing that his hearing loss has worsened since he was last examined in 2011, the Board finds that a remand is necessary to obtain a new VA audiology examination to determine if he has a current hearing loss disability. 2. Entitlement to service connection for a bilateral foot disability is remanded. The Veteran was afforded a VA examination of his feet in February 2011, at which time the examiner diagnosed bilateral metatarsalgia, but provided an opinion as to whether the bilateral foot condition caused or aggravated the already service-connected bilateral knee disability. Therefore, the examination is inadequate, and a remand is necessary to obtain a VA foot examination to address whether the service-connected bilateral knee disability caused or aggravated the bilateral foot disorder. 3. Entitlement to a disability rating in excess of 10 percent for chronic back pain syndrome with degenerative arthritis of the spine is remanded. 4. Entitlement to a separate disability rating for radiculopathy of the lower extremities secondary to the back disability is remanded. The Veteran is in receipt of a 10 percent disability rating for his back disability throughout the increased rating period on appeal. His most recent VA back examination was in March 2016. At the July 2021 Board hearing, he testified that his back disability had worsened since that examination, and that he also experienced pain in his bilateral lower extremities that radiated from his back. The Board finds that a new VA examination is necessary to assess the current severity of the back disability and to determine whether he has lower extremity radiculopathy related to the service-connected back disability. In addition, the Veteran submitted a November 2019 letter from the Social Security Administration (SSA) that indicates that Social Security Disability (SSD) benefits were awarded effective December 13, 2017, in part for his back disability. The SSA records should be requested and associated with the claims file, as they may be relevant to the back disability rating. The matters are REMANDED for the following action: 1. Contact the SSA and request a copy of the Veteran's complete SSA disability benefits file, including all associated medical records, and associate all records received with the claims file. All attempts to procure the records should be documented in the file. If the records cannot be obtained, any negative responses should be associated with the claims file, and the Veteran and his attorney should be notified of unsuccessful attempts to obtain the records, in order to allow the Veteran the opportunity to obtain and submit those records for review. 2. Afford the Veteran the opportunity to attend a VA examination to assess the current severity of his bilateral hearing loss. The claims file, to include a copy of this remand, should be made available to the examiner for review of the history in conjunction with the examination, and the examination report should reflect that such review was accomplished. The examiner must conduct a complete audiological evaluation, to include an audiogram and a speech recognition test using the Maryland CNC word list. The examiner should also discuss the functional impact of any hearing loss based on the Veteran's competent lay statements and test results. 3. Afford the Veteran an opportunity to attend a VA examination with an appropriate specialist regarding the nature and etiology of his bilateral foot disability. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished, and a rationale for any opinion expressed should be provided. The claims file, including a copy of this decision, must be made available to the examiner for review of the history in conjunction with the examination, and the examination report should reflect that such review was accomplished. (a.) The examiner should offer the following opinion: Is it at least as likely as not (i.e., to at least a 50/50 degree of probability) that the Veteran's bilateral foot disability was caused or aggravated by the service-connected knee disabilities, to include as a result of an altered gait? Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Note: The term "aggravated" in the above context refers to a worsening of the pre-existing or underlying condition, as contrasted to temporary or intermittent flare-ups of symptoms which resolve with return to the previous baseline level of disability. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. Afford the Veteran the opportunity to attend a VA examination to assess the current severity of his service-connected back disability. The claims file, to include a copy of this remand, should be made available to the examiner for review of the history in conjunction with the examination, and the examination report should reflect that such review was accomplished. The examiner must test the Veteran's active motion, passive motion, and identify whether or not there is pain with weight-bearing and without weight-bearing. Range of motion findings for active and passive motion should be recorded separately, even if they are the same, and the point at which painful motion begins should be clearly stated. A goniometer should be used for all range of motion testing. The examiner should also state whether the examination is taking place during a period of flare-up or following repeated use over time. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his knee symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion regarding whether pain, weakness, fatigability, or incoordination would significantly limit functional ability during flare-ups or with repeated use over a period of time and must estimate any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot provide an opinion regarding whether pain, weakness, fatigability, or incoordination would significantly limit functional ability in these instances or estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). The examiner should note that the VA CLINICIAN'S GUIDE requires the examiner to estimate the range of motion "per [the] Veteran." See VA CLINICIAN'S GUIDE at Ch. 11. [CONTINUED ON NEXT PAGE] The examiner must also discuss whether or not the Veteran has lower extremity radiculopathy related to the service-connected back disability. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Sherrard, 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.