Citation Nr: 21070783 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 17-23 121 DATE: November 26, 2021 ORDER New and material evidence has been received to reopen the claims of entitlement to service connection for fibromyalgia, bilateral hearing loss, and tinea pedis/onychomycosis of the feet, and the petition to reopen the claims is granted. REMANDED Service connection for fibromyalgia is remanded. Service connection for chronic fatigue syndrome is remanded. Service connection for bilateral hearing loss is remanded. Service connection for a low back disability is remanded. Service connection for tinea pedis & onychomycosis, bilateral feet, is remanded. Entitlement to a disability rating in excess of 10 percent for retropatellar pain syndrome, right knee, is remanded. Entitlement to a disability rating in excess of 10 percent for retropatellar pain syndrome, left knee, is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities is remanded. FINDINGS OF FACT 1. In a July 2001 rating decision, the Agency of Original Jurisdiction (AOJ) denied entitlement to service connection for bilateral hearing loss and tinea pedis/onychomycosis; the Veteran did not file a notice of disagreement and no new evidence was received within a year of issuance of the rating decision. 2. In a September 2002 rating decision, the AOJ denied entitlement to service connection for bilateral hearing loss; the Veteran did not file a notice of disagreement and no new evidence was received within a year of issuance of the rating decision. 3. In April 2003, the AOJ denied entitled to service connection for fibromyalgia; the Veteran did not file a notice of disagreement and no new evidence was received within a year of issuance of the rating decision. 4. Additional evidence received since the July 2001, September 2002, and April 2003 rating decisions is new and relates to unestablished facts necessary to substantiate the claims of service connection for bilateral hearing loss, tinea pedis/onychomycosis, and fibromyalgia. CONCLUSION OF LAW New and material evidence has been received since the July 2001, September 2002, and April 2003 rating decisions and the claims of service connection for bilateral hearing loss, tinea pedis/onychomycosis, and fibromyalgia are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from January 1995 to June 2000. The Veteran has reported service in the Persian Gulf, but his DD Form 214 does not reflect any foreign and/or sea service. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a February 2015 rating decision, increased ratings for the knees were denied. In an April 2015 rating decision, the RO reopened the claims of service connection for fibromyalgia, bilateral hearing loss, and tinea pedis/onychomycosis and denied on the merits and denied service connection for fatigue and a low back disability. In May 2015, the Veteran filed a notice of disagreement, a statement of the case was issued in April 2017, and a substantive appeal was received in April 2017. The Veteran requested a Board hearing but failed to appear. New & Material Evidence Even where the RO determines that new and material evidence has been received to reopen a claim, or that an entirely new claim has been received, the Board is not bound by that determination and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. 38 U.S.C. § 5108. See Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). New and material evidence is existing evidence that by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claims and raises a reasonable possibility of substantiating the claims. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA's duty to provide a VA examination is triggered. There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening. Shade, 24 Vet. App. at 117-20. In January 2001, the Veteran filed claims of service connection for fungus of both feet and bilateral hearing loss. In a July 2001 rating decision, service connection was denied for tinea pedis/onychomycosis of the feet (no nexus) and bilateral hearing loss (no diagnosis per 38 C.F.R. § 3.385). The Veteran did not file a notice of disagreement and no new evidence was received within a year of issuance of the rating decision. 38 U.S.C. § 7105; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011); 38 C.F.R. § 3.156(b). In January 2002, the Veteran filed a claim of service connection for bilateral hearing loss. In a September 2002 rating decision, service connection was denied on the basis of no diagnosis. The Veteran did not file a notice of disagreement and no new evidence was received within a year of issuance of the rating decision. 38 U.S.C. § 7105; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011); 38 C.F.R. § 3.156(b). In January 2003, the Veteran filed a claim of service connection for fibromyalgia. In an April 2003 rating decision, service connection was denied on the basis of no medical nexus. The Veteran did not file a notice of disagreement and no new evidence was received within a year of issuance of the rating decision. 38 U.S.C. § 7105; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011); 38 C.F.R. § 3.156(b). In August 2014, the Veteran submitted claims to reopen. In support of his bilateral hearing loss claim, VA treatment records reflect that he wears hearing aids and has been assessed with sensorineural hearing loss. In support of his tinea pedis/onychomycosis of the feet, VA treatment records reflect continued treatment for onychomycosis. In support of his fibromyalgia claim, VA treatment records reflect continued treatment for fibromyalgia. The Veteran has submitted statements in support of his claims that these disabilities manifested in or are due to service. 08/21/2014 Correspondence. As detailed above, there is a low threshold for finding new evidence that raises a reasonable possibility of substantiating the claims. Based on the diagnoses of record and the Veteran's assertions, the Board finds that such provides the basis for reopening the claims of service connection for bilateral hearing loss, tinea pedis/onychomycosis, and fibromyalgia. For the above reasons, the claims of service connection for bilateral hearing loss, tinea pedis/onychomycosis, and fibromyalgia are reopened. 38 U.S.C. § 5108. REASONS FOR REMAND The evidence of record contains VA treatment records dated through April 20, 2017. Updated VA treatment records must be associated with the claims folder. Fibromyalgia & chronic fatigue syndrome The Veteran asserts that he has fibromyalgia and chronic fatigue syndrome that began during active service. Service treatment records do not reflect a diagnosis of fibromyalgia or chronic fatigue syndrome, but he did seek treatment related to the knees and ankle. Following service, in February 2002 he sought treatment related to the knees and joint pain and fibromyalgia was diagnosed in March 2002. 11/05/2002 Medical Treatment Record-Government Facility at 6, 11. In an April 2004 VA treatment record a physician indicated that his fatigue could be part of his fibromyalgia. 04/06/2017 CAPRI at 654. The Veteran should be afforded an examination to assess whether he has a diagnosis of chronic fatigue syndrome, and whether his diagnosed fibromyalgia and/or claimed chronic fatigue syndrome manifested in or are due to active service. It is noted that, per his DD-214, the Veteran had no foreign service even though he served during the Persian Gulf era and thus consideration of the provisions of 38 C.F.R. § 3.317 is not for application here. Bilateral hearing loss A February 2005 VA audiology consult reflects the Veteran's report of progressively diminished hearing in his left ear beginning while on active duty. He reported that he was a Tanker in the military. His left ear was noted to be more exposed to noise than the right most of the time while in the tank. He also reported exposure to small weapons fire while in the Gulf War. The examiner diagnosed sensorineural hearing loss in the left ear and hearing was within normal limits in the right ear. The examiner referenced an audiogram with results, but the audiogram is not of record. 04/06/2017 CAPRI at 592-93. The February 2005 audiogram should be requested and associated with the claims folder. A December 2016 VA treatment record reflects that the Veteran has hearing aids for sensorineural hearing loss. The Veteran should be afforded an examination to assess the nature and etiology of his claimed bilateral hearing loss. Low back The Veteran asserts that his low back disability is due to or aggravated by his service-connected bilateral retropatellar pain syndrome of the knees. VA treatment records reflect a diagnosis of spondylolisthesis L5/S1 level diagnosed in June 2014 with lumbar radiculitis diagnosed in October 2015. 04/06/2017 CAPRI at 25. The Veteran should be afforded an examination to assess the etiology of his low back disability. Bilateral knees The Veteran most recently underwent an examination of the knees in November 2016. In April 2017, the Veteran underwent arthroscopic surgery of the knees. He should be afforded an examination to assess the severity of his knees. TDIU At this juncture, the Veteran's service-connected disabilities (retropatellar pain syndrome, right knee 10%; retropatellar pain syndrome, left knee 10%; hypertension 10%; tinnitus 10%; recurrent right ankle strain with tendon avulsion occification (10%)) do not meet the schedular criteria for a TDIU as his combined rating is 40 percent from June 9, 2000. The Veteran asserts that he stopped working as of June 20, 2014 due to a spinal injury. Thus, the low back disability claim is inextricably intertwined with the TDIU issue on appeal. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). It is also noted that in February 2018, subsequent to issuance of the April 2017 statement of the case, the Veteran's Vocational Rehabilitation & Education (VR&E) folders were associated with the claims folder. Such must be considered upon issuance of a supplemental statement of the case. The matters are REMANDED for the following actions: 1. Associate updated VA treatment records for the period from April 21, 2017. Associate the February 2005 VA Audiogram with the virtual folder. If such efforts prove unsuccessful, documentation to that effect should be added to the claims folder. 2. AFTER COMPLETION OF #1, schedule the Veteran for a VA examination with an examiner with appropriate expertise to determine the nature and etiology of his claimed fibromyalgia and chronic fatigue syndrome. The virtual folder should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner is asked to respond to the following: a) Please state whether the Veteran has a diagnosis of chronic fatigue syndrome. Consideration should be given to any diagnoses of record. b) Did fibromyalgia at least as likely as not (i.e., a likelihood of 50 percent or more) manifest during service or is it otherwise due to active service? c) If chronic fatigue syndrome is diagnosed, did it at least as likely as not (i.e., a likelihood of 50 percent or more) manifest during service or is it otherwise due to active service? Provide a comprehensive rationale for every opinion. All pertinent evidence, including both lay and medical, should be considered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. 3. After completing #1, schedule the Veteran for a VA examination to assess the nature and etiology of his claimed bilateral hearing loss. The claims folder should be made available to the examiner for review in conjunction with the examination. The examiner should state whether the Veteran has hearing loss per §§ 3.385, 4.85 and offer an opinion as to whether any hearing loss is at least as likely as not (a 50 percent or higher degree of probability) had its onset during active service or is otherwise related to the Veteran's period of active service. The examiner must provide reasons for all opinions offered. The examiner is advised that the Veteran is competent to report his symptoms and history; and that his reports must be considered in formulating the requested opinion. 4. AFTER COMPLETION OF #1, schedule the Veteran for a VA examination with an examiner with appropriate expertise to determine the nature and etiology of his claimed low back disability. The virtual folder should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner is asked to respond to the following: a) Please identify all disabilities associated with the low back. Consideration should be given to the diagnoses of record. a) Is a low back disability at least as likely as not (a 50 percent or higher degree of probability) caused by a service-connected disability, which includes retropatellar pain syndrome of the right and left knees and recurrent right ankle strain with tendon avulsion occification? e) If not, has a low back disability at least as likely as not (a 50 percent or higher degree of probability) been aggravated (made worse) by a service-connected disability, which includes retropatellar pain syndrome of the right and left knees and recurrent right ankle strain with tendon avulsion occification? If aggravation is found, the examiner should identify the baseline level of disability prior to such aggravation. Provide a comprehensive rationale for every opinion. All pertinent evidence, including both lay and medical, should be considered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. 5. Schedule the Veteran for an orthopedic examination with an orthopedist to assess the severity of his left and right knee disabilities. The virtual folder should be made available to the examiner for review in conjunction with the examination. Any medically indicated special tests should be accomplished, and all special test and clinical findings should be clearly reported. The examination of the left and right knees should include range of motion studies. Regarding range of motion testing, the examiner should report the point (in degrees) at which pain is elicited, as well as whether there is any other functional loss due to pain, weakened movement, excess fatigability, incoordination, or flare-ups. These determinations must be expressed in terms of the additional limitation of motion in approximate degrees due to each functional factor that is present. The examiner should report on whether there is functional loss due to limited strength, speed, coordination or endurance. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should perform stability testing, report whether there is instability or subluxation, and express an opinion as to the severity of such instability or subluxation. The examiner should comment on whether the Veteran has a prescription from a medical provider for a brace, cane, or walker due to recurrent instability. The examiner should provide an opinion as to whether the Veteran has sustained cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint. The examiner should comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion. The examiner should attempt to estimate additional loss of function during such flare-ups and such additional loss should be expressed in degrees of motion. The Court has held that an inability to observe a flare-up is an insufficient basis for not providing an estimate on additional functional limitation. The examiner is to provide a statement concerning how the left and right knee disabilities affect his functioning and activities. The examiner is asked to describe the types of limitations he would experience as a result of his left and right knee disabilities. The examiner should comment on the Veteran's ability to function in an occupational environment for the period from June 20, 2014, and describe any functional impairment caused by the service-connected retropatellar pain syndrome of the right and left knees. The examiner must provide a comprehensive rationale for the opinions. 6. Issue a supplemental statement of the case with regard to all issues which considers all evidence associated with the claims folder subsequent to the April 2017 statement of the case, to include the Veteran's VR&E folders. Provide the Veteran and his representative the requisite period in which to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.W. Kreindler, 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.