Citation Nr: 21072007 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 18-14 252 DATE: December 2, 2021 ORDER New and material evidence has been received to reopen a claim of service connection for a back disability; thus, the claim to reopen is granted. New and material evidence has been received to reopen a claim of service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD); thus, the claim to reopen is granted. Entitlement to a rating in excess of 10 percent for painful surgical scar on the right ankle is dismissed. Entitlement to a compensable rating for painful surgical scar on the right ankle is dismissed. Entitlement to an earlier effective date for painful surgical scar on the right ankle is dismissed. REMANDED 1. Whether new and material evidence has been received to reopen a claim of service connection for a right knee disability, to include as due to service-connected right ankle, is remanded. 2. Whether new and material evidence has been received to reopen a claim of service connection for a left knee disability, to include as due to service-connected right ankle, is remanded. 3. Entitlement to service connection for a back disability is remanded. 4. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. 5. Entitlement to a rating greater than 10 percent for right ankle disability is remanded. 6. Entitlement to service connection for sleep apnea is remanded. 7. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. A February 2016 rating decision denied service connection for a back disability. 2. Evidence added to the record since the February 2016 rating decision raises a reasonable possibility of substantiating the claim of service connection for a back disability. 3. An April 1994 rating decision denied service connection for an acquired psychiatric disorder. 4. Evidence added to the record since the April 1994 rating decision raises a reasonable possibility of substantiating the claim of service connection for an acquired psychiatric disorder. 5. On the record and with knowledge of the consequences, in his September 2021 Board hearing, the Veteran withdrew his claims of entitlement to a compensable rating for right ankle scar, a rating in excess of 10 percent for right ankle scar, and an earlier effective date for right ankle scar. CONCLUSIONS OF LAW 1. The February 2016 rating decision that denied service connection for a back disability is final. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 20.1103. 2. The April 1994 rating decision that denied service connection for an acquired psychiatric disorder is final. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 20.1103. 3. New and material evidence has been received to reopen the claims of service connection for a back disability and for an acquired psychiatric disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The criteria for withdrawal of the appeals by the Veteran for the issues of entitlement to a compensable rating for right ankle scar, a rating in excess of 10 percent for right ankle scar, and an earlier effective date for right ankle scar have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from May 1992 to December 1993. In September 2021, the Veteran had a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims folder. The Board notes that in the Veteran's hearing, the Veteran's representative requested an additional 90 days to submit evidence. To date, the representative has not submitted any additional evidence. However, since the Veteran's claims are being remanded for further development, the Veteran and/or his representative will have an opportunity to submit any additional evidence that can be considered by the Board at a later time. Withdrawal of Claims Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. An appeal may be withdrawn in writing or in testimony at a hearing. 38 C.F.R. § 20.204. On the record in the Veteran's September 2021 Board hearing, the Veteran withdrew his claims of entitlement to a compensable rating for right ankle scar, entitlement to a rating greater than 10 percent for right ankle scar, and entitlement to an earlier effective date for right ankle scar. The consequences of that withdrawal were addressed on the record and the Veteran indicated that he understood them. As the Veteran properly withdrew his claims, there remain no allegations of errors of fact or law for appellate consideration as it relates to these issues. Accordingly, the claims are dismissed. Claims to Reopen Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c). An 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, VA shall reopen the claim and review the former disposition of the claim. New and material evidence is defined as evidence not previously submitted to agency decision makers which bear directly and substantially upon the specific matter under consideration; such 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). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). 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). 1. Whether new and material evidence has been received to reopen a claim of service connection for a back disability, to include as due to service-connected right ankle. Procedural background shows a February 2016 rating decision denied service connection for a back disability based on the absence of a link between the Veteran's currently diagnosed back disability and service, or his service-connected right ankle. As new and material evidence was not received within the one-year period following notification of the decision, and the Veteran did not initiate an appeal of the decision by filing a notice of disagreement, the decision became final. 38 U.S.C. § 7105 (a); 38 C.F.R. §§ 20.1103. Since the final denial, new evidence has been added to the record. Specifically, in the Veteran's September 2021 hearing, the Veteran testified that he injured his back in service. In addition, contrary to the February 2016 rating decision that based its denial on the absence of complaints, treatment, or a diagnosis of a back condition in service, the Veteran's service treatment records (STRs) show otherwise. Specifically, STRs show complaints and treatment for back pain, and a diagnosis of mechanical back pain. Therefore, as STRs substantiate the Veteran's statements, the Board finds the Veteran's testimony concerning an in-service injury is new and material and raises a reasonable possibility of substantiating the claim. Thus, the claim of service connection for a back disability is reopened. 2. Whether new and material evidence has been received to reopen a claim of service connection for an acquired psychiatric disorder, to include PTSD. Procedural background shows an April 1994 rating decision denied service connection for a condition resulting in overdose of medication. The denial was based on the absence of a psychiatric disorder caused by the overdose. As new and material evidence was not received within the one-year period following notification of the decision, and the Veteran did not initiate an appeal of the decisions by filing a notice of disagreement, the decision became final. 38 U.S.C. § 7105 (a); 38 C.F.R. §§ 20.1103. Since the final denial, new evidence has been added to the record to include VA treatment records which show a diagnosis of PTSD and depression in August 2017. At that time, the Veteran reported stressors of his entire squad being killed while deployed to Kuwait, and that his significant other was killed by a drunk driver while he was in the service. The Board finds this evidence is new and material and raises a reasonable possibility of substantiating the claim. Thus, the claim for an acquired psychiatric disorder is reopened. REASONS FOR REMAND 1. Whether new and material evidence has been received to reopen a claim of service connection for a right knee disability, to include as due to service-connected right ankle, is remanded. 2. Whether new and material evidence has been received to reopen a claim of service connection for a left knee disability, to include as due to service-connected right ankle, is remanded. Initially, the Veteran's claim of service connection for right knee disability was previously denied in an August 2013 rating decision for lack of diagnosis, while service connection for left knee was denied because the evidence was absent of a causal relationship to service or to service-connected right ankle disability. These claims were subsequently denied for lack of new and material evidence in a February 2016 rating decision. Since the last denial, evidence added to the record shows complaints of knee pain and testimony from the Veteran contending that his bilateral knee disability was caused by his service-connected right ankle. However, this evidence is duplicative. Nevertheless, the matters are not ripe for adjudication as there are outstanding records that may be relevant to the Veteran's claims. In his September 2021 hearing, the Veteran testified to receiving disability benefits from the Social Security Administration (SSA) since 2009. As these records have not been obtained and may be relevant to the Veteran's claims, remand is warranted so that the agency of original jurisdiction (AOJ) can attempt to retrieve these records. Additionally, the Veteran testified that VA sent him to an outside doctor; however, these records do not appear to have been obtained and associated with the record. Therefore, remand is warranted to obtain the Veteran's outstanding treatment records. 3. Entitlement to service connection for a back disability is remanded. The Veteran's claim of service connection for a back disability has been reopened; however, remand is warranted to obtain a new VA examination. In a January 2016 VA examination for his back, the Veteran was diagnosed with degenerative arthritis of the spine, intervertebral disc syndrome (IVDS), and spinal fusion. However, the examiner found that the Veteran's back disability was not related to his service-connected right ankle. In doing so, the examiner found that the Veteran's back disability was caused by an incident after service in 2006 when the Veteran fell from a truck. The Board finds the opinion is inadequate since the examiner did not provide a medical rationale, nor did the examiner appear to consider whether the Veteran's back disability was directly related to service given the Veteran's in-service complaints, treatment, and diagnosis of mechanical back pain while in service. Moreover, the examiner did not provide an opinion as to whether the Veteran's back disability may have pre-existed service and was aggravated by service given that STRs show the Veteran reported injuring his back prior to service while wrestling. Therefore, remand is warranted to obtain a new medical opinion to determine the etiology of the Veteran's back disability. 4. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. In August 2017 VA treatment records, the Veteran reported a stressor that included his entire squad being killed while deployed to Kuwait. In the March 2018 Statement of the Case, it was noted that the Veteran's claim of service connection for an acquired psychiatric disorder, including PTSD, was denied since his separation document did not show any foreign service or receipt of any medals or citations to verify service in Kuwait. While the Veteran's DD-214 is absent of foreign service, the Board notes that in a June 2017 VA primary treatment note, the Veteran reported that he was spared from deployment due to his ankle. He further reported that had he not fractured his ankle, he would have saved his colleagues. Further, in an August 2017 mental health consult, the Veteran reported having survivor's guilt and intrusive memories of the events. In this regard, the Board notes that the Veteran is not limited to having engaged in combat in order to have a verified stressor for PTSD. According to the Diagnostic and Statistical Manual of Mental Disorders, fifth edition (DSM-5), a PTSD stressor is established when the veteran was exposed to death, threatened death, actual or threatened serious injury, or actual or threatened sexual violence, in the following ways: (1) direct exposure, (2) witnessing the trauma, (3) learning that a relative or close friend was exposed to trauma, or (4) indirect exposure to aversive details of the trauma, usually in the course of his professional duties. To that end, there is no evidence to confirm the AOJ attempted to verify the Veteran's statements concerning his unit being killed; therefore, remand is warranted. Moreover, STRs suggest the Veteran may have had a pre-existing psychiatric disorder that could have been aggravated by service. Specifically, a March 1993 Report of Medical History shows the Veteran reported being treated for a mental condition in June 1987. And, in the June 2017 VA treatment record mentioned above, it was noted that the Veteran tried to hang himself in 1991 prior to service, and he attempted to overdose on medications while in service in 1993. Therefore, an examination and medical opinion should be obtained to determine whether the Veteran's psychiatric disorder pre-existed service, and if so, whether the condition was aggravated by service. 5. Entitlement to a rating greater than 10 percent for right ankle disability is remanded. In his September 2021 hearing, the Veteran reported that his service-connected ankle pain has increased to the extent that he now has right foot drop. As the Veteran has reported a worsening of his right ankle, and given that his last examination was in April 2018, remand is warranted to obtain a contemporaneous examination to determine the current severity of the Veteran's right ankle disability. 6. Entitlement to service connection for sleep apnea is remanded. In his September 2021 hearing, the Veteran contended that his sleep apnea was caused by his service-connected right ankle. Specifically, he testified that his right ankle has prevented him from exercising and has caused a significant amount of weight gain; thereby, resulting in sleep apnea. The Board recognizes that obesity cannot be service-connected; however, obesity may act as an "intermediate step" between a service-connected disability and a disability for which secondary service connection is sought under 38 C.F.R. § 3.310 (a). See VAOPGCPREC 1-2017 (Jan. 6, 2017). Therefore, a medical opinion is warranted to determine the etiology of the Veteran's sleep apnea. 7. Entitlement to a TDIU is remanded. The Board finds that TDIU is inextricably intertwined with the pending claims on appeal. As such, the Board will defer consideration of the TDIU issue at this time. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims folder. 2. Obtain any outstanding private treatment records related to the Veteran's claims currently on appeal. The Veteran's assistance should be requested as needed. All obtained records should be associated with the evidentiary record. If the AOJ cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 3. Undertake all necessary development to verify the Veteran's reported stressors/in-service events. Document all efforts to verify his stressors and any subsequent findings to the claims file. 4. Contact the SSA and obtain any decisions and records pertinent to the Veteran's claim for SSA disability benefits, to include any medical records concerning that claim. All efforts to obtain the records should be fully documented, and a negative response should be requested if no records are available. 5. After the above development, schedule the Veteran for a VA examination with a qualified clinician to determine the current severity of the Veteran's right ankle disability. The examiner must review the claims folder, including a copy of this remand and all lay statements of record. With respect to range of motion testing, this must be conducted on active and passive motion and in weight-bearing and non-weightbearing conditions (pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016)). Additionally, the examiner must document all functional loss of the right ankle. In assessing functional loss, flare-ups must be considered, and the examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion. degrees of limitation of motion. (pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017)). The examiner must provide a rationale for all opinions provided. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 6. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's back disability. The examiner must review the claims folder, including a copy of this remand and all lay statements of record. The examiner should provide an opinion as to the following: (a) Whether the Veteran's back disability clearly and unmistakably existed prior to service, and if so, whether such disability clearly and unmistakably was NOT aggravated by service? (b) If the identified disability did not clearly and unmistakably pre-exist service, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any identified back disability was incurred in service or is otherwise related to service; OR whether the identified back disability was proximately caused or aggravated by the Veteran's service-connected right ankle. The examiner must provide a rationale for all opinions provided. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 7. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's sleep apnea. The examiner must review the claims folder, including a copy of this remand and all lay statements of record. The examiner should provide an opinion as whether it is at least as likely as not (50 percent probability or greater) that the Veteran's sleep apnea was proximately caused or aggravated by the Veteran's service-connected right ankle. The examiner must consider and specifically discuss the Veteran's assertion that the limitation of mobility caused by his right ankle disability has led to weight gain which, in turn, caused or aggravated his sleep apnea. The Board notes that this is a legally acceptable basis for the award of service connection. The examiner must provide a rationale for all opinions provided. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 8. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's psychiatric disorder. The examiner must review the claims folder, including a copy of this remand and all lay statements of record. (a) The examiner should first identify all currently diagnosed psychiatric disorders of record. (b) Then, provide an opinion as to whether any one of the Veteran's identified psychiatric disorders clearly and unmistakably existed prior to service, and if so, whether such disability clearly and unmistakably was NOT aggravated by service? (c) If the identified disability did not clearly and unmistakably pre-exist service, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the identified psychiatric disorder, other than PTSD, was incurred in service, or is otherwise related to service. (d) If PTSD is diagnosed, the examiner must specifically opine as to whether it is at least as likely as not related to a verified stressor. The examiner is asked to provide a complete rationale for any opinion offered, including discussion of the facts of this case and any medical studies or literature relied upon. If the examiner is unable to provide any requested opinion without resorting to mere speculation, the examiner must provide a reasoned explanation for such conclusion. 9. The AOJ must review the examination reports and all opinions to ensure they are complete, adequate, and comply with the Board's specific remand directives. 10. Then, readjudicate the claims. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Laffitte, 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.