Citation Nr: 21076035 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 17-00 423 DATE: December 22, 2021 ORDER New and material evidence has been presented to reopen a claim of entitlement to service connection for a dental condition and the claim is reopened, to that extent only, the claim is granted. New and material evidence has been presented to reopen a claim of entitlement to service connection for an eye condition and the claim is reopened, to that extent only, the claim is granted. New and material evidence has been presented to reopen a claim of entitlement to service connection for a left knee disability and the claim is reopened, to that extent only, the claim is granted. New and material evidence has been presented to reopen a claim of entitlement to service connection for a right knee disability and the claim is reopened, to that extent only, the claim is granted. New and material evidence has been presented to reopen a claim of entitlement to service connection for a left leg disability and the claim is reopened, to that extent only, the claim is granted. New and material evidence has been presented to reopen a claim of entitlement to service connection for a right leg disability and the claim is reopened, to that extent only, the claim is granted. REMANDED Entitlement to service connection for diabetes mellitus, type II (DM) is remanded. Entitlement to service connection for a heart condition, to include irregular heartbeat, is remanded. Entitlement to service connection for sinusitis is remanded. Entitlement to service connection for shortness of breath is remanded. Entitlement to service connection for hay fever, to include allergic rhinitis, is remanded. Entitlement to service connection for a dental condition is remanded. Entitlement to service connection for an eye disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left leg disability is remanded. Entitlement to service connection for a right leg disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a left foot disability is remanded. Entitlement to service connection for a right foot disability is remanded. Entitlement to service connection for an acquired psychiatric disability, to include depression and posttraumatic stress disorder (PTSD), is remanded. Entitlement to an increased rating in excess of 10 percent for a back disability, prior to June 5, 2015, is remanded. Entitlement to an increased rating in excess of 20 percent for a back disability, from June 5, 2015, is remanded. Entitlement to special monthly compensation (SMC) based on aid and attendance is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. An unappealed October 2010 rating decision denied service connection for eye and dental disabilities. Since that decision, the Veteran has provided new and material evidence regarding the possible etiology of these claimed disabilities. 2. An unappealed August 2013 rating decision denied service connection for a bilateral knee and leg disabilities. Since that decision, the Veteran has provided new and material evidence which of previously unestablished facts of these claims. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen a claim for service connection for a dental condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a) 2. New and material evidence has been received to reopen a claim for service connection for an eye disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. New and material evidence has been received to reopen a claim for service connection for a left knee disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. New and material evidence has been received to reopen a claim for service connection for a right knee disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 5. New and material evidence has been received to reopen a claim for service connection for a left leg disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 6. New and material evidence has been received to reopen a claim for service connection for a right leg disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active service in the United States Army from October 1966 to October 1968. 1. New and material evidence has been presented to reopen a claim of entitlement to service connection for a dental condition and the claim is reopened, to that extent only, the claim. 2. New and material evidence has been presented to reopen a claim of entitlement to service connection for an eye condition and the claim is reopened, to that extent only, the claim. 3. New and material evidence has been presented to reopen a claim of entitlement to service connection for a left knee disability and the claim is reopened, to that extent only, the claim. 4. New and material evidence has been presented to reopen a claim of entitlement to service connection for a right knee disability and the claim is reopened, to that extent only, the claim. 5. New and material evidence has been presented to reopen a claim of entitlement to service connection for a left leg disability and the claim is reopened, to that extent only, the claim. 6. New and material evidence has been presented to reopen a claim of entitlement to service connection for a right leg disability and the claim is reopened, to that extent only, the claim By way of procedural history, the Board notes that the Veteran initially filed a claim for service connection for a back disability, eye disability, and a dental condition, in March 2010. In an October 2010 rating decision, the RO granted the Veteran's claim for service connection for the back, and denied the claims for an eye disability and a dental condition. The denial was not appealed by the Veteran, and that decision become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Subsequently, in November 2012, the Veteran filed an initial claim for service connection for his bilateral knee and leg disabilities. In an August 2013 rating decision, the RO, inter alia, denied the Veteran's claim for service connection for his bilateral knees and legs. This decision was also not appealed by the Veteran, and as such, the denial for service connection became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. With regards to all these claims, to include for a dental condition, eye disability, bilateral knee disability, and bilateral leg disability, the Veteran filed to reopen the claims in May 2015. The new evidence submitted by the Veteran since the last final denials include lay statements, contemporaneous VA medical evidence, and a February 2021 medical opinion from private physician regarding these claimed disabilities. A close review of the newly acquired private opinion specifically speaks to all the Veteran's claims to include concluding a positive nexus opinion relating the Veteran's eye disability, dental condition, and bilateral knees and leg disabilities, to incidents of his active service. The Board notes that this evidence, while not dispositive, is evidence regarding a previously unestablished fact, that have the possibility of substantiating his claims. Accordingly, the Board finds that new and material evidence sufficient to reopen the claim has been submitted, and the claims for service connection for an eye, dental, knee, and leg disabilities are reopened. 38 C.F.R. § 3.156. REASONS FOR REMAND 1. Entitlement to service connection for DM is remanded. 2. Entitlement to service connection for a heart condition, to include irregular heartbeat, is remanded. With regard to the claims for service connection for DM and a heart condition, the Board finds the VA has not afforded the Veteran a VA examination to assess the nature and etiology of these claimed disabilities. To this end, the Board notes that the Veteran has submitted a private medical report and opinion regarding all his claimed disabilities. The February 2021 private opinion provided not only diagnoses of these disabilities, to include claims of functional loss due to pain, but also findings that all such disabilities where related to, and/or incurred during, the Veteran's active service. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where necessary to make a decision on the claim. m38 U.S.C. § 5103 (d); 38 C.F.R. § 3.159(c)(4); Robinette v. Brown, 8 Vet. App. 69 (1995). In a claim for service connection, evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits still triggers the duty to assist if it indicates that the Veteran's condition may be associated with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, with regards to the Veteran's for DM and a heart condition, the Board notes that the private examiner explicitly noted that such condition could be the result of exposure to environmental toxins the Veteran claims he was exposed to during his active service. To this end, the examiner noted that toxins such as cleaning solvent and diesel exhaust increases the risk of the development of both DM and heart disability/hypertension. The Board finds that, while the Board does not find this private opinion to be dispositive of the claims herein, as they are not based on the evidence of record, such evidence is sufficient to overcome the low threshold necessary to trigger VA's duty to provide an examination for the claimed DM and a heart condition. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, on remand a VA examination and opinion supported by a thorough medical explanation and rationale should be obtained. 3. Entitlement to service connection for sinusitis is remanded. 4. Entitlement to service connection for shortness of breath is remanded. 5. Entitlement to service connection for hay fever, to include allergic rhinitis is remanded. The Veteran claims that his sinusitis, shortness of breath, and hay fever, arose during his active service and has persisted until the present. The Board again finds that the VA's duty to afford the Veteran a VA examination has been triggered, as not only is there evidence of a current disability, but the evidence also shows several possible etiologies relating to service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, contemporaneous VA records clearly demonstrates treatment for various respiratory disability such as sinusitis and allergic rhinitis (hay fever) during the claims period, and prior. To this end, the Veteran has asserted that his hay fever arose during his active service, which is confirmed by his service treatment records (STRs), showing one reported instance of complaint and treatment for hay fever during service. In addition to this, in the February 2021 private opinion letter, the examiner also noted that the Veteran asserted exposure to toxins such as diesel exhaust. The Board finds that as the Veteran has not yet been afforded a VA examination for these claimed respiratory conditions, of sinusitis, shortness of breath, and hay fever, that the VA's duty to afford the Veteran a VA examination to assess the nature and etiology of these claimed conditions has been triggered by the evidence of record, and that as such remand is required. 6. Entitlement to service connection for a dental condition is remanded. Likewise, the February 2021 private examiner also provided an opinion regarding the Veteran's claim for a dental disability. Specifically, the examiner found that the Veteran's claimed dental disability is etiologically related to his active service, to specifically include the result of a tonsillectomy during service; to this end, the examiner found that such procedure affected the Veteran's dental condition to include decay. The Board again find that such opinion is inadequate to be dispositive of the claim for service connection for a dental condition, however, as the Veteran has not yet been afforded a VA examination to assess the nature and etiology of this claimed disability, the Board must find that VA's duty to assist in provide an adequate VA examination and nexus opinion has been triggered, and remand is required. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 7. Entitlement to service connection for an eye disability is remanded. With regards to the Veteran's claim for an eye disability, the Board find that the February 2021 private opinion to be similarly inadequate. For the Veteran's eye disability, the private examiner noted an etiological connection to a single instance and report of itchy and teary eyes during service with the Veteran's currently claimed eye disability. Here, again, as the opinion fail to provide any rationale regarding such finding, to include ignoring the Veteran's separation examination which does not indicate any issues with the Veteran's eye upon leaving service, the Board must find that such opinion cannot be dispositive of the claim for service connection. However, the Veteran has not been afforded a VA examination, the Board finds that remand is required for the VA to afford the Veteran a VA examination to assess the nature and etiology of his claimed eye disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 8. Entitlement to service connection for a left knee disability is remanded. 9. Entitlement to service connection for a right knee disability is remanded. 10. Entitlement to service connection for a left leg disability is remanded. 11. Entitlement to service connection for a right leg disability is remanded. 12. Entitlement to service connection for a left ankle disability is remanded. 13. Entitlement to service connection for a left foot disability is remanded. 14. Entitlement to service connection for a right foot disability is remanded. With regards to the Veteran's claims for a bilateral knee, leg, ankle, and foot disabilities, the Board finds that remand is also necessary to afford the Veteran a VA examination that speaks to the nature and etiology of each claimed condition. Here, not only has the Veteran repeatedly asserted pain in his knees, legs, ankle, and foot, to explicitly include functional loss, he has also claimed that such disabilities are the result of his back disability, which is service connected. In addition, there is ample reported/recorded injuries during his active service to his lower extremities, to include his ankles and foot. Finally, the February 2021 private opinion have also explicitly associated these conditions to the Veteran's active service; again, to this end, such findings lack rationale that is based on the evidence of record. Nonetheless, the Board finds that the evidence of record is sufficient to trigger the VA's duty to afford the Veteran a VA examination to assess the nature and etiology of these claimed disabilities. Furthermore, the Board does acknowledge that the VA has afforded the Veteran a VA examination regarding the nature and etiology of his claimed bilateral foot disability. A close review of this opinion, however, reveals that such findings were no supported by an adequate rationale. Specifically, in finding against the Veteran's claim, the May 2016 VA examiner found that the Veteran's pre-existing flatfeet was, essentially, the same as the condition that he suffers from currently. However, the cited rationale is silent on any acknowledgment or analysis of the Veteran's lay assertions that his bilateral foot disability was much worse upon separation from service, specifically from the misfitted boots he was forced to wear, and the wear and tear from training, to include developing blisters and bunions. To this end, the opinion also fails to speak to any analysis of baselevel of the Veteran's condition upon entry, to the development of his condition today. As such, the Board finds that such lack of consideration of the Veteran's lay accounts and statements on a continued and worsening symptomatology renders the May 2016 VA examination inadequate and remand is also required for this condition. The Board notes that the VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). When the medical evidence is inadequate, as it is here, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Therefore, remand is required for the VA to fulfills its duty to the Veteran. 15. Entitlement to service connection for an acquired psychiatric disability, to include depression and posttraumatic stress disorder (PTSD) is remanded. The Board finds that additional development to include affording the Veteran a VA examination to assess the nature and etiology of any psychiatric disability is required. Here, the record shows that the Veteran has been diagnosed and treated for various psychiatric disabilities, to include adjustment disorder, alcohol dependence, depression, and anxiety. The Veteran has consistently asserted that these conditions are the result of the racism and oppression he felt during his active service period. To this end, the Veteran submitted a private psychiatric examination and opinion in February 2021, which opined, ostensibly, that the Veteran's major depressive disorder, was due to the experiences and stressor he experienced during his active service. Like the above noted claimed conditions, the Board finds that such evidence, to include the private psychiatric assessment to trigger the VA's duty to afford the Veteran a VA examination, to include a nexus opinion regarding the etiology of the Veteran's claimed psychiatric disability. In this regard, however, that Board does not find that the February 2021 private psychiatric opinion letter to be dispositive of the claim for service connection. Here, the Board notes that, the private examiner ignores much of the ongoing outpatient treatment afforded to the Veteran by the VA, which is of record. A close review of these VA psychiatric assessment and treatment notes reveals that much of the Veteran's ongoing issues with anxiety, depression, and adjustment disorder, had been related back to the Veteran's financial difficulties contemporaneous to the claims period. To this end, records from October 2015 and April 2016, shows exclusively that the Veteran's conditions, to include his alcohol abuse, stem from such financial struggles in his life. As such, the private opinion submitted by the Veteran, while positive, is considered inadequate, and further development is required for the VA to fulfill its duty to the Veteran. 16. Entitlement to an increased rating in excess of 10 percent for a back disability, prior to June 5, 2015, is remanded. 17. Entitlement to an increased rating in excess of 20 percent for a back disability, from June 5, 2015, is remanded. The Veteran last underwent a VA examination in July 2019 to assess the nature and severity of his back disability. The Board finds that although VA examinations do not necessarily expire or go stale due to the mere passage of time, adequate examinations must be sufficiently detailed for the Board's evaluation of the claimed disability to be a fully informed decision. Barr v. Nicholson, 21 Vet. App. 303 (2007). As more than two years have passed since the most recent VA examination, and since the last examination the Veteran has asserted that his back condition has worsened, remand is necessary to determine the current severity level of the Veteran's disability. 18. Entitlement to special monthly compensation (SMC) based on aid and attendance is remanded. 19. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. In the February 2021 private opinion letter, both from the physician and the psychiatrist, the Veteran was found to be unable to obtain or sustain gainful employment due to his claimed disabilities. Thus, the Board finds that the issue of entitlement to a TDIU rating has been reasonably raised by the record and is not a separate "claim" for benefits, but rather, is part and parcel of the claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, as the claim for increased rating for a back disability has a direct effect on the determination for a TDIU and SMC, the Board also finds that such claims are intertwined. Where a claim is inextricably intertwined with another claim, the claims must be adjudicated together. Harris v. Derwinski, 1 Vet. App. 180 (1991). The RO has not developed a claim of entitlement to a TDIU. On remand, such development is necessary. The matters are REMANDED for the following action: 1. Obtain all VA treatment medical records not already of record. 2. After obtaining appropriate authorization, obtain any private treatment records identified by the Veteran that are not already of record. 3. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the nature and etiology of his claimed DM. The claims file must be made available to and reviewed by the examiner. All indicated tests and studies must be performed. Based on the examination results and the review of the record, the examiner should provide an opinion as to whether his DM, is at least as likely as not (50 percent probability or better) etiologically related to the Veteran's active service, or otherwise had its onset during such service. In forming the opinion, the examiner should consider, and specifically address, the lay statements provided by the Veteran regarding onset/incurrence and his claim of service exposure to toxins such as cleaning solvent and diesel exhaust, and the February 2021 private opinion by the Veteran in support of his claim. Additionally, the examiner should provide a rationale for all opinions provided, preferably citing to specific evidence in the file and/or accepted medical authority. 4. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the nature and etiology of any currently present heart disability. The claims file must be made available to and reviewed by the examiner. All indicated tests and studies must be performed. Based on the examination results and the review of the record, the examiner should provide an opinion as to whether any currently present heart disability, is at least as likely as not (50 percent probability or better) etiologically related to the Veteran's active service, or otherwise had its onset during such service. In forming the opinion, the examiner should consider, and specifically address, the lay statements provided by the Veteran regarding onset/incurrence, and his claim of service exposure to toxins such as cleaning solvent and diesel exhaust, and the February 2021 private opinion by the Veteran in support of his claim. Additionally, the examiner should provide a rationale for all opinions provided, preferably citing to specific evidence in the file and/or accepted medical authority. 5. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the nature and etiology of any currently present respiratory condition, to include sinusitis, shortness of breath, and hay fever. The claims file must be made available to and reviewed by the examiner. All indicated tests and studies must be performed. Based on the examination results and the review of the record, the examiner should provide an opinion as to whether any currently present respiratory disability, is at least as likely as not (50 percent probability or better) etiologically related to the Veteran's active service, or otherwise had its onset during such service. In forming the opinion, the examiner should consider, and specifically address, the lay statements provided by the Veteran regarding onset/incurrence, and his claim of service exposure to toxins such as cleaning solvent and diesel exhaust, and the February 2021 private opinion by the Veteran in support of his claim. Additionally, the examiner should provide a rationale for all opinions provided, preferably citing to specific evidence in the file and/or accepted medical authority. 6. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the nature and etiology of any currently present dental disability. The claims file must be made available to and reviewed by the examiner. All indicated tests and studies must be performed. Based on the examination results and the review of the record, the examiner should provide an opinion as to whether any currently present dental disability, is at least as likely as not (50 percent probability or better) etiologically related to the Veteran's active service, or otherwise had its onset during such service. In forming the opinion, the examiner should consider, and specifically address, the lay statements provided by the Veteran regarding onset and his inservice trauma, to specifically include his claimed inservice tonsilitis surgery, and the February 2021 private opinion by the Veteran in support of his claim. Additionally, the examiner should provide a rationale for all opinions provided, preferably citing to specific evidence in the file and/or accepted medical or dental authority. 7. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the nature and etiology of any currently present eye disability; to include any related to the Veteran's DM. The claims file must be made available to and reviewed by the examiner. All indicated tests and studies must be performed. Based on the examination results and the review of the record, the examiner should provide an opinion as to whether any currently present eye disability, is at least as likely as not (50 percent probability or better) etiologically related to the Veteran's active service, or otherwise had its onset during such service. In forming the opinion, the examiner should consider, and specifically address, the lay statements provided by the Veteran regarding onset and his complaints of issues with his eye in his STRs, and the February 2021 private opinion by the Veteran in support of his claim. Additionally, the examiner should provide a rationale for all opinions provided, preferably citing to specific evidence in the file and/or accepted medical authority. 8. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the nature and etiology of any currently present orthopedic conditions, to include of the bilateral knees, ankles, and legs. The claims file must be made available to and reviewed by the examiner. All indicated tests and studies must be performed. Based on the examination results and the review of the record, the examiner should provide an opinion as to whether any currently present orthopedic disability of the lower extremities, is at least as likely as not (50 percent probability or better) etiologically related to the Veteran's active service, or otherwise had its onset during such service. In forming the opinion, the examiner should consider, and specifically address, the lay statements provided by the Veteran regarding onset/ incurrence, and the February 2021 private opinion by the Veteran in support of his claim. Additionally, the examiner should also opine as to whether it is at least as likely as not (50 percent or greater probability) that any knee, leg, or left ankle foot disabilities, are due to/caused, or aggravated (permanently increased in severity beyond the natural progress of the disorder) by any service-connected disabilities, to specifically include his back disability. The examiner should provide a rationale for all opinions provided, preferably citing to specific evidence in the file and/or accepted medical authority. 9. Schedule the Veteran for VA examination for claimed disabilities of the bilateral foot. The examiner must review the claims file and must note that review in the report. All indicated tests should be conducted. The examiner is asked to opine as to the nature and etiology of each disability. The examiner is asked to opine whether it is at least as likely as not (50 percent or greater probability) that any bilateral foot condition is related to active service, or any incident of service. With specific regards to the Veteran's flatfeet condition, as that condition was noted upon entry, the examiner must specifically address whether such flatfeet condition was aggravated (permanently increased in severity beyond the natural progress of the disorder) by any aspect of the Veteran's active service. In this regard, the examiner must show consideration of all medical and lay evidence of record to determine baseline disability for flatfeet and must explicitly provide an analysis of a baseline of flatfoot disability when speaking to any increased in severity of such condition, or there in lack of. The examiner must also show explicit consideration of the Veteran's lay assertions regarding the progression of his foot pain and condition. 10. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the nature and etiology of any currently present psychiatric condition, do include depression and PTSD. The claims file must be made available to and reviewed by the examiner. All indicated tests and studies must be performed. Based on the examination results and the review of the record, the examiner should provide an opinion as to whether any currently present psychiatric condition disability, is at least as likely as not (50 percent probability or better) etiologically related to the Veteran's active service, or otherwise had its onset during such service. In forming the opinion, the examiner should consider, and specifically address, the lay statements provided by the Veteran regarding onset/incurrence, and his claim of stressors during his active service, and the February 2021 private psychiatric opinion by the Veteran in support of his claim. Additionally, the examiner should provide a rationale for all opinions provided, preferably citing to specific evidence in the file and/or accepted medical and psychiatric authority. (Continued on the next page) 11. Then, schedule the Veteran for a VA examination of the back disability. The examiner must review the claims file and should note that review in the report. The examiner is specifically asked to report on the current nature and severity of the Veteran's back disability, to include a current diagnosis. A complete rationale for any opinion expressed should be included in the examination report. The examiner should provide the following: (a) Provide ranges of motion, measured in degrees; (b) State whether there is any additional loss of range of motion due to painful motion, weakened motion, fatigability, incoordination, or other factors; (c) State whether there is any neurologic symptomatology due to the lumbar spine disability, to include in the lower extremities. If so, state the nerves involved and the level of impairment. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ziheng Zhu, 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.