Citation Nr: 21005563 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 14-07 355A DATE: February 2, 2021 ORDER New and material evidence having been received, the application to reopen the previously denied claim for service connection for an anal fissure is granted. New and material evidence having been received, the application to reopen the previously denied claim for service connection for traumatic iritis of the right eye is granted. REMANDED Entitlement to service connection for a rectal disability, to include an anal fissure, and to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for a right eye disability is remanded. Entitlement to service connection for a respiratory condition, to include asthma, is remanded. Entitlement to service connection for a headache disability, to include as secondary to a service-connected disability, is remanded. Entitlement to a rating in excess of 10 percent for the service-connected low back strain is remanded. Entitlement to a rating in excess of 10 percent for the service-connected hypertension is remanded. Entitlement to a compensable rating for the service-connected left ankle scar is remanded. Entitlement to a compensable rating for the service-connected onychomycosis of toenails is remanded. Entitlement to a compensable rating for the service-connected anemia is remanded. FINDINGS OF FACT 1. An unappealed January 2007 rating decision denied service connection for an anal fissure, and new and material evidence was not received within one year of that decision. 2. The evidence associated with the file since the January 2007 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim for service connection for a rectal disability, to include an anal fissure. 3. An unappealed March 2009 rating decision confirmed and continued a prior final denial of service connection for traumatic iritis of the right eye, and new and material evidence was not received within one year of that decision. 4. The evidence associated with the file since the March 2009 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim for service connection for a right eye disability. CONCLUSIONS OF LAW 1. The January 2007 rating decision that denied service connection for an anal fissure is final. 38 U.S.C. § 7105(c) (2006); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2006). 2. The evidence received since the January 2007 rating decision is new and material evidence and serves to reopen the Veteran’s claim for service connection for an anal fissure. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 3. The March 2009 rating decision that confirmed and continued the prior final denial of service connection for traumatic iritis of the right eye is final. 38 U.S.C. § 7105(c) (2006); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2008). 4. The evidence received since the March 2009 rating decision is new and material evidence and serves to reopen the Veteran’s claim for service connection for traumatic iritis of the right eye. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1986 to September 2006. This case was previously before the Board of Veterans’ Appeals (Board) in February 2016, when it was remanded for further development. The Board has recharacterized the issues on appeal as above to better reflect the Veteran’s contentions. New and Material Evidence A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Regardless of how the Regional Office (RO) decided a reopening question, the Board must consider the matter on appeal. Reopening is a threshold jurisdictional question for the Board. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The United States Court of Appeals for Veterans Claims (Court) has held that the credibility of evidence must be presumed for the purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for the Federal Circuit has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material, even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). When deciding whether received evidence meets the definition of new and material evidence, the Board is cognizant of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). Anal Fissure In a January 2007 rating decision, the RO denied the Veteran’s claim for service connection for an anal fissure on the basis that the evidence did not show a current disability. The Veteran did not perfect an appeal on this adverse determination, nor did she submit any additional evidence within the time frame needed to prevent it from becoming final. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). Thus, the January 2007 rating decision became final as to this issue, based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.302, 20.1103. The evidence added to the record since the January 2007 rating decision includes a May 2017 written statement submitted by the Veteran’s representative, wherein she stated that the Veteran submitted medical evidence showing that she currently has this condition. As the credibility of this evidence is presumed for the purpose of deciding whether it is new and material, this evidence is neither cumulative nor redundant of the evidence of record and raises a reasonable possibility of substantiating the claim for service connection for an anal fissure disability. Thus, this claim is reopened. Right Eye Disability In a March 2009 rating decision, the RO confirmed and continued a prior final denial of service connection for traumatic iritis of the right eye on the basis that the evidence did not show a current compensable right eye disability. The Veteran did not perfect an appeal on this adverse determination, nor did she submit any additional evidence within the time frame needed to prevent it from becoming final. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). Thus, the March 2009 rating decision became final as to this issue, based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.302, 20.1103. The evidence added to the record since the March 2009 rating decision includes VA treatment records showing that the Veteran was diagnosed with papilledema during the appeal period, after seeking treatment for vision issues. This evidence is neither cumulative nor redundant of the evidence of record and raises a reasonable possibility of substantiating the claim for service connection for a right eye disability. Thus, this claim is reopened. REASONS FOR REMAND As an initial matter, the Board notes that the Veteran’s VA treatment records associated with the claims file are dated September 2018 and earlier. Updated VA treatment records should be obtained. Service connection for a rectal disability, to include an anal fissure, and to include as secondary to a service-connected disability Although the Veteran’s medical treatment records do not indicate that she has been diagnosed with a rectal disability, her representative submitted a written statement in May 2017 indicating that the Veteran experiences symptoms of rectal bleeding, which is something she is competent to report. The representative also alleged that the bleeding could be a result of straining due to the Veteran’s service-connected urinary leakage/incontinence; residuals of a total hysterectomy; and/or low back strain. The Veteran has not yet been afforded a VA examination during the appeal period to determine the nature and etiology of her rectal condition. The Board finds that a VA examination is needed before it can decide this claim. Service connection for a right eye disability The Veteran also seeks service connection for a right eye disability, which she contends resulted from traumatic iritis she sustained in service when she was hit by a softball. She has not been afforded a VA examination to determine if any current eye disability could be related to service, and one is needed to address the etiology of any compensable right eye condition before the Board can decide this claim. Service connection for a respiratory disability, to include asthma The Veteran also seeks service connection for a respiratory disability, to include asthma. The medical records are unclear as to what current respiratory disability the Veteran has had throughout the period on appeal. The RO denied the Veteran’s claim for service connection for asthma after finding that she was diagnosed with asthma in 2008, but such diagnosis was later changed to a reactive airway disease. However, the Veteran’s VA treatment records show that, on September 11, 2015, she reported to a provider that she was hospitalized in the emergency room a year prior for an asthma attack. These emergency room records are not associated with the Veteran’s claims file, and indicate that there are private treatment records which must be obtained before the Board can decide this claim. Also, a VA examination is needed to determine the nature and etiology of any respiratory disability the Veteran has had during the appeal period, given her in-service complaints of trouble breathing and evidence of a current diagnosis. Service connection for a headache disability, to include as secondary to a service-connected disability The Veteran most recently underwent a VA examination to determine the etiology of her headache disability in May 2016. At that time, the examiner opined that the Veteran’s headaches were due to benign intracranial hypertension—and were not related to sinus headaches she suffered in service. However, it is unclear whether benign intracranial hypertension is related to the Veteran’s service-connected hypertension, or possibly due to a head injury she sustained in service when she was hit by a softball. An addendum opinion is needed to address these etiologic possibilities before the Board can decide this claim. Entitlement to a rating in excess of 10 percent for the service-connected low back strain The Veteran was last examined by VA for the severity of her service-connected low back symptoms in July 2015, over five years ago. She submitted a December 2018 Disability Benefits Questionnaire (DBQ), for her back condition completed by provider Dr. N.R., DO. However, the DBQ did not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). In Sharp, the United States Court of Appeals for Veterans Claims (Court) addressed 38 C.F.R. § 4.40, which states that a VA examiner must “express an opinion on whether pain could significantly limit functional ability,” and the examiner’s determination in such regard should, if feasible, be portrayed in terms of the degree of additional loss of range of motion due to pain on use or during flare-ups. In this regard, the Court concluded that, when a VA examiner is asked to opine as to additional functional loss during flare-ups of a musculoskeletal disability, the examiner must obtain information from the veteran regarding the severity, frequency, duration, characteristics, and/or functional loss related to such flare-ups. The Court also concluded that, if the examination was not conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot opine as to additional loss of range of motion during a flare-up without resorting to mere speculation, the examiner must make clear that he/she has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but that any member of the medical community at large could not provide such an opinion without resorting to speculation. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). In the December 2018 DBQ report, the examiner stated that pain, weakness, fatigability, or incoordination significantly limited functional ability during flare-ups or when the joint was used repeatedly over a period of time, but that an estimated range of motion was not feasible. As to why she could not estimate the range of motion during flare-ups or after repetitive use over time, the examiner stated that the “Veteran has difficulty with prolonged sitting, standing, and walking during flare-ups and with repeated use.” This statement does not adequately explain why estimated ranges of motion could not be measured. Thus, the Board finds the opinion inadequate under Sharp, as it is unclear whether the examiner considered all procurable data, including information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran. As such, a new VA examination is needed to assess the current severity of the Veteran’s service-connected low back symptoms before the Board can decide this claim. Entitlement to a rating in excess of 10 percent for the service-connected hypertension Entitlement to a compensable rating for the service-connected left ankle scar Entitlement to a compensable rating for the service-connected onychomycosis of the toenails Entitlement to a compensable rating for the service-connected anemia As to the Veteran’s claims for increased ratings for her service-connected hypertension, left ankle scar, onychomycosis of the toenails, and anemia, the Board notes that the Veteran was last examined for these conditions in July 2015, over five years ago. Thus, on remand, she should be provided an opportunity to report for VA examinations to ascertain the current severity and manifestations of these disabilities. Accordingly, these matters are REMANDED for the following action: 1. Obtain VA treatment records from September 2018 through the present. 2. Ask the Veteran to complete a VA Form 21-4142 for all private providers who have treated her for her any of the conditions on appeal, to include specifically the emergency room visit she disclosed having had for an asthma attack in 2014 or 2015. Make two requests for all authorized records from all identified providers, unless it is clear after the first request that a second request would be futile. 3. After all outstanding medical records have been obtained, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any rectal disability she may have. The examiner is asked to clarify whether the Veteran has been diagnosed with an anal fissure or other rectal disability manifested by rectal bleeding at any time during the appeal period (from April 2015 to present) and respond to the following questions for each such diagnosed condition: (a.) Is it at least as likely as not (i.e., 50 percent probability or greater) that any such diagnosed rectal disability onset in, or is otherwise related to, the Veteran’s active service? (b.) Is it at least as likely as not (i.e., 50 percent probability or greater) that any such diagnosed rectal disability was caused by one, or a combination, of the Veteran’s service-connected disabilities, to include urinary incontinence/leakage; residuals of a total hysterectomy, or low back strain? (c.) Is it at least as likely as not (i.e., 50 percent probability or greater) that any such diagnosed rectal disability was aggravated (i.e., made worse) by one or a combination of the Veteran’s service-connected disabilities, to include urinary incontinence/leakage; residuals of a total hysterectomy, or low back strain? If so, the examiner should identify the degree of impairment that is due to such aggravation. The examiner is advised that the Veteran is competent to report her symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If her reports are discounted, the examiner should provide a reason for doing so. The above requested opinions should be rendered if any diagnosis is found during the appeal period, regardless of the current status of the condition. If no diagnosed rectal disability is found on examination, the examiner should still address any and all previous indications that the Veteran had these disabilities during the appeal period (from April 2015 to present) and explain if such were misdiagnosed or explain his or her reasons for disagreeing that the Veteran currently has, or has had, such condition. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or is the result of an exhaustion of the limits of current medical knowledge in providing an answer to that particular question. 4. Also after all outstanding medical records have been obtained, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any right eye disability she may have. The examiner is asked to clarify whether the Veteran has been diagnosed with a right eye disability at any time during the appeal period (from April 2015 to present) and respond to the following question for each such diagnosed condition: Is it at least as likely as not (i.e., 50 percent probability or greater) that any such diagnosed right eye disability onset in, or is otherwise related to, the Veteran’s active service, to include as related to the head injury she sustained in 1987 after being hit by a softball? The examiner is advised that the Veteran is competent to report her symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If her reports are discounted, the examiner should provide a reason for doing so. The above requested opinion should be rendered if any diagnosis is found during the appeal period, regardless of the current status of the condition. If no diagnosed right eye disability is found on examination, the examiner should still address any and all previous indications that the Veteran had such a disability during the appeal period (from April 2015 to present) and explain if such were misdiagnosed or explain his or her reasons for disagreeing that the Veteran currently has, or has had, such condition. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or is the result of an exhaustion of the limits of current medical knowledge in providing an answer to that particular question. 5. Also after all outstanding medical records have been obtained, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any respiratory disability she may have. The examiner is asked to clarify whether the Veteran has been diagnosed with respiratory disability, to include asthma, at any time during the appeal period (from April 2015 to present) and respond to the following question for each such diagnosed condition: Is it at least as likely as not (i.e., 50 percent probability or greater) that any such diagnosed respiratory disability onset in, or is otherwise related to, the Veteran’s active service, to include her complaints of shortness of breath in service in 2002? The examiner is advised that the Veteran is competent to report her symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If her reports are discounted, the examiner should provide a reason for doing so. The above requested opinions should be rendered if any diagnosis is found during the appeal period, regardless of the current status of the condition. If no diagnosed respiratory disability is found on examination, the examiner should still address any and all previous indications that the Veteran had such a disability during the appeal period (from April 2015 to present), to include records of her using an inhaler, and explain if such were misdiagnosed or explain his or her reasons for disagreeing that the Veteran currently has, or has had, such condition. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or is the result of an exhaustion of the limits of current medical knowledge in providing an answer to that particular question. 6. Also after all outstanding medical records have been obtained, obtain an addendum opinion from the same examiner who provided the June 2016 VA headaches examination, if possible. If the June 2016 VA examiner is unavailable, this opinion request should be forwarded to another appropriate VA examiner. If an opinion cannot be provided without an examination, one should be provided. Upon review of the Veteran’s claims file, including a copy of this Remand, the examiner is asked to opine whether (a.) it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s headaches due to benign intracranial hypertension onset in, or are otherwise related to, her active service, to include as related to the injury she incurred in 1987 when she was hit in the head by a softball? (b.) Is it at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s headaches due to benign intracranial hypertension were caused by one, or a combination, of the Veteran’s service-connected disabilities, to include specifically hypertension? (c.) Is it at least as likely as not (i.e., 50 percent probability or greater) that Veteran’s headaches due to benign intracranial hypertension were aggravated (i.e., made worse) by one, or a combination, of the Veteran’s service-connected disabilities, to include specifically hypertension? If so, the examiner should identify the degree of impairment that is due to such aggravation. The examiner is advised that the Veteran is competent to report her symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If her reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or is the result of an exhaustion of the limits of current medical knowledge in providing an answer to that particular question. 7. Also after all outstanding medical records have been obtained, schedule the Veteran for an appropriate examination to determine the current severity of her service-connected low back strain. The examiner should review the claims file in conjunction with the examination. All necessary tests should be completed, and all pertinent pathology associated with this service-connected disability—to include, but not limited to, any limitation of motion of the Veteran’s low back—should be annotated in the examination report. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the service-connected disability alone and discuss the effect of the disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 8. Also after all outstanding medical records have been obtained, schedule the Veteran for an appropriate VA examination to determine the current severity of her service-connected hypertension. The Veteran’s claims file should be made available to the examiner in conjunction with this examination, and the examiner’s review of the folder should be annotated in the examination report. The examiner should provide a full description of the Veteran’s hypertension and report all signs and symptoms associated with the disorder. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s hypertension alone and discuss the effect of this disability on any occupational functioning and activities of daily living. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the 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. 9. Also after all outstanding medical records have been obtained, schedule the Veteran for an appropriate VA examination to determine the current severity of her service-connected left ankle scar. The Veteran’s claims file should be made available to the examiner in conjunction with this examination, and the examiner’s review of the folder should be annotated in the examination report. The examiner should provide a full description of the Veteran’s left ankle scar and report all signs and symptoms associated with the disorder. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s left ankle scar alone and discuss the effect of this disability on any occupational functioning and activities of daily living. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the 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. 10. Also after all outstanding medical records have been obtained, schedule the Veteran for an appropriate VA examination to determine the current severity of her service-connected onychomycosis of toenails. The Veteran’s claims file should be made available to the examiner in conjunction with this examination, and the examiner’s review of the folder should be annotated in the examination report. The examiner should provide a full description of the Veteran’s onychomycosis of toenails and report all signs and symptoms associated with the disorder. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s onychomycosis of toenails alone and discuss the effect of this disability on any occupational functioning and activities of daily living. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the 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. 11. Also after all outstanding medical records have been obtained, schedule the Veteran for an appropriate VA examination to determine the current severity of her service-connected anemia. The Veteran’s claims file should be made available to the examiner in conjunction with this examination, and the examiner’s review of the folder should be annotated in the examination report. The examiner should provide a full description of the Veteran’s anemia and report all signs and symptoms associated with the disorder. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s anemia alone and discuss the effect of this disability on any occupational functioning and activities of daily living. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the 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. No action is required of the Veteran until she is notified by VA. However, she is advised of her obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). Her failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that she has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Davidoski, 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.