Citation Nr: 21014523 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 16-25 353 DATE: March 12, 2021 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for a back disability, claimed as back pain, is reopened. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a skin disability is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for an acquired psychiatric disorder other than insomnia disorder and an alcohol-related disorder, to include other specified depressive disorder, posttraumatic stress disorder (PTSD), and other mood and anxiety disorders, is remanded. Entitlement to service connection for insomnia disorder, to include as secondary to a mood or anxiety disorder, is remanded. Entitlement to service connection for an alcohol-related disorder, to include as secondary to a mood or anxiety disorder, is remanded. Entitlement to non-service-connected pension benefits is remanded. FINDINGS OF FACT 1. In a June 2014 rating decision, a regional office (RO) denied a claim of entitlement to service connection for back pain on the basis that there was no medical evidence relating any current back disability to service. The Veteran was notified of that decision but did not appeal that decision. No evidence was received within the one-year appeal period. 2. A September 2017 statement from a private doctor relating the degenerative disc disease of the lumbar spine to an in-service injury in June 1991, when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim of service connection for a back disability. CONCLUSIONS OF LAW 1. The June 2004 rating decision, which denied the Veteran’s claim of entitlement to service connection for back pain, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.201, 20.302, 20.1103 (2020); 38 C.F.R. § 3.156 (2004). 2. The evidence received since the June 2004 rating decision is new and material, and the claim of entitlement to service connection for a back disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1990 to August 1994, with one month and eight days of prior inactive service. These matters come before the Board of Veterans’ Appeals (Board) on appeal from March 2013 (denials of service connection) and April 2014 (denial of pension) rating decisions of a Department of Veterans Affairs (VA) RO. In the June 2014 rating decision, a RO denied a claim of entitlement to service connection for back pain. In the March 2013 rating decision, the RO denied the reopening of a claim of service connection for back pain. In an April 2016 statement of the case, a RO implicitly reopened the claim of entitlement to service connection for a back disability because that RO denied the claim on the merits. Although the RO reopened this claim, the Board must initially determine whether the Veteran has presented new and material evidence sufficient to reopen the previously denied claim. See Barnett v. Brown, 8 Vet. App. 1 (1995), aff’d, 83 F.3d 1380 (Fed. Cir. 1996). The Board has a responsibility to consider whether it was proper for a claim to be reopened, and there is no harm to a veteran’s ability to present the case when the Board addresses the issue of whether a claim should be reopened rather than addressing the reopened claim on the merits. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As noted above, the Board is reopening the claim of service connection for a back disability. In the March 2013 rating decision, a RO denied service connection for insomnia as well as service connection for depression with anxiety. In a September 2013 notice of disagreement, the Veteran indicated that the claims included service connection for PTSD. Moreover, in a September 2017 statement, a private psychologist noted treatment records showing diagnoses of mood and anxiety disorders. Although the Veteran did not respond to a March 2016 letter regarding a claim for service connection for PTSD, pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), the claim on appeal includes PTSD as well as all anxiety and mood disorders. In the September 2017 statement, the private psychologist related the Veteran’s alcohol use to his depressive disorder. Furthermore, in a September 2017 statement, a private physician related the Veteran’s sleep disturbances to his depressive disorder. In Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000), the United States Court of Appeals for the Federal Circuit (the Federal Circuit) held that VA’s duty to assist attaches to the investigation of all possible causes of a current disability, including those unknown to the claimant. Pursuant to Schroeder, the Board will consider whether an alcohol-related disorder and an insomnia disorder are secondary to other psychiatric disorders. In light of the above, the issues are as stated on the first two pages of this decision. In his two VA Form 9s, the Veteran requested a videoconference hearing before a Veterans Law Judge. In November 2020, the Veteran withdrew his request for a Board hearing. REASONS FOR REMAND A June 2020 Social Security Administration inquiry shows that a claim for Social Security disability benefits for the Veteran had been denied. The RO should obtain all records from the Social Security Administration pertaining to the Veteran’s claim. An April 2016 statement of case reflects that a RO reviewed treatment records from the Miami VA Medical Center from 2005 to 2015. These treatment records are not in the electronic claims file and should be obtained. Similarly, the September 2017 statement from a private physician reveals that the Veteran first sought treatment at the Miami VA Medical Center in 1999 for his back disability. The RO should obtain all treatment records from the Miami VA Medical Center from January 1999 to the present. In a November 2020 statement, the Veteran asserts that his psychiatric disorders are related to serving in Operation Restore Hope in 1992 and 1993 off the coast of Haiti and that he had disciplinary problems in service. The RO should obtain the Veteran’s military personnel records and undertake stressor development. Though a private psychologist rendered a medical opinion relating the Veteran’s depressive disorder to service in a September 2017 statement, that psychologist did not evaluate the Veteran. A VA examination is necessary to determine the nature of the Veteran’s psychiatric disorders. The Veteran’s service treatment records show that he had skin symptomology. A VA examination is warranted to determine the nature of any current skin disability. The Veteran failed to report for two VA audiological examinations in 2016. The Board notes that there was some confusion about the Veteran’s address at that time. The RO should afford the Veteran another opportunity for an examination to determine the nature of his tinnitus. The Veteran was last examined for his pension claim in September 2016 at which time he employed in a full-time position. His June 2020 claim shows that the Veteran reported that he is currently unemployed. Given the passage of time and change in employment status, another VA examination is warranted. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all treatment for his back disability, psychiatric disabilities, skin disability, tinnitus, and any disability pertaining to his pension claim, and obtain any identified records. Obtain the Veteran’s VA treatment records from the Miami VA Medical Center for the period from January 1999 to the present. 2. Obtain the Veteran’s federal records from the Social Security Administration pertaining to the Veteran’s claim for disability benefits. Document all requests for information as well as all responses in the claims file. 3. Obtain the Veteran’s complete service personnel records. 4. Attempt to corroborate the Veteran’s in-service stressors, including the stressors related to serving in Operation Restore Hope in 1992 and 1993 off the coast of Haiti. If more details are needed, contact the Veteran to request the information. 5. After the development in 1 through 2 is completed, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current skin disability. The examiner must opine whether it is at least as likely as not that the skin disability is related to an in-service injury, event, or disease, including treatment for pediculosis pubis, tinea corporis, tinea versicolor, and pseudofolliculitis barbae during service. 6. After the development in 1 though 2 is completed, schedule the Veteran for an examination by an appropriate clinician to determine the natures and etiology of any tinnitus. The examiner must opine whether it is at least as likely as not that any tinnitus is related to an in-service injury, event, or disease, including in-service noise exposure. 7. After the development in 1 through 2 is completed, the RO should undertake any necessary development on the claim of service connection for a back disability as warranted by any additional evidence of record. 8. After the development in 1 through 4 is completed, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any PTSD or other psychiatric disorder, to include other anxiety and depressive disorders, insomnia disorder, and an alcohol-related disorder. If the Veteran is diagnosed with a personality disorder and a current psychiatric disorder, the examiner must opine whether the current psychiatric disorder was at least as likely as not superimposed on a personality disorder during active service and resulted in additional disability. For any current Axis I psychiatric disorder other than an alcohol-related disorder, the examiner should opine whether it is at least as likely as not that the Axis I psychiatric disorder is related to an in-service injury, event, or disease, including any disciplinary problems in service. If the Veteran is diagnosed with PTSD or other trauma-and-stress-related disorder, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not (50 percent or greater) that PTSD or other trauma-and-stress-related disorder is related to a verified in-service stressor. For any diagnosed insomnia disorder or other sleep-wake disorder, the examiner should opine on whether it is at least as likely as not that the sleep-wake disorder was (1) caused by or (2) aggravated by another current Axis I psychiatric disorder other than an alcohol-related disorder. If the clinician finds that a sleep-wake disorder was aggravated by another current Axis I psychiatric disorder other than an alcohol-related disorder, then the examiner should quantify the degree of aggravation. For any diagnosed alcohol-related disorder, the examiner should opine on whether it is at least as likely as not that the alcohol-related disorder was (1) caused by or (2) aggravated by another current Axis I psychiatric disorder other than an alcohol-related disorder. If the clinician finds that an alcohol-related disorder was aggravated by another current Axis I psychiatric disorder other than an alcohol-related disorder, then the examiner should quantify the degree of aggravation. 9. Thereafter, readjudicate the claims on appeal. If any benefit sought in connection with the claims remains denied, the Veteran and his counsel should be provided with an appropriate Supplemental Statement of the Case (SSOC) and given the opportunity to respond. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Cherry, 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.