Citation Nr: 21015048 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 20-22 394 DATE: March 16, 2021 ORDER New and material evidence having been received, the petition to reopen the claim for service connection for schizophrenia, schizoaffective type is granted. New and material evidence having been received, the petition to reopen the claim for service connection for traumatic brain injury (TBI) is granted. New and material evidence having been received, the petition to reopen the claim for service connection for cervical spine disability is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for a TBI is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to a rating in excess of 20 percent for post traumatic arthritis, right ankle is remanded. FINDINGS OF FACT 1. In an unappealed June 2005 decision, the RO denied the Veteran’s claim of service connection for schizophrenia, schizoaffective type. 2. Evidence received since the June 2005 decision is not duplicative of evidence previously submitted and considered on the merits, and the evidence, by itself or when considered with previous evidence of record, relates to unestablished facts necessary to substantiate the claim of service connection for an acquired psychiatric disorder. 3. In an unappealed August 2010 decision, the RO denied the Veteran’s claim of service connection for TBI. 4. Evidence received since the August 2010 decision is not duplicative of evidence previously submitted and considered on the merits, and the evidence, by itself or when considered with previous evidence of record, relates to unestablished facts necessary to substantiate the claim of service connection for a TBI. 5. In an unappealed August 2010 decision, the RO denied the Veteran’s claim of service connection for cervical spine condition to include arthritis. 6. Evidence received since the August 2010 decision is not duplicative of evidence previously submitted and considered on the merits, and the evidence, by itself or when considered with previous evidence of record, relates to unestablished facts necessary to substantiate the claim of service connection for cervical spine condition to include arthritis.   CONCLUSIONS OF LAW 1. The June 2005 rating decision denying service connection for schizophrenia, schizoaffective type is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence sufficient to reopen the claim of service connection for an acquired psychiatric disorder has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The August 2010 rating decision denying service connection for TBI is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1103. 4. New and material evidence sufficient to reopen the claim of service connection for TBI has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 5. The August 2010 rating decision denying service connection for a cervical spine disability is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 6. New and material evidence sufficient to reopen the claim of service connection for a cervical spine condition to include arthritis has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appeal originates from an August 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned in December 2020. The transcript is associated with the record. The Board has recharacterized the Veteran’s psychiatric claim as one for entitlement to an acquired psychiatric disorder due to the assertions raised by the Veteran throughout the appeal. See Clemmons v. Shinseki, 23 Vet. App. 1. 6 (2009). This alteration is reflected above. 1. Whether new and material evidence has been received, to reopen the claim for service connection for schizophrenia, schizoaffective type. 2. Whether new and material evidence has been received, to reopen the claim for service connection for TBI. 3. Whether new and material evidence has been received, to reopen the claim for service connection for cervical spine disability. Generally, a claim that has been denied in an unappealed AOJ decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). When a Veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is “new and material.” If VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of the Veteran’s claim considering all the evidence both new and old. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). It is the Board’s jurisdictional responsibility to consider whether a claim should be reopened, no matter what the RO has determined. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 51 (1992). Additionally, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA’s duty to obtain a VA examination. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Veteran’s claim for schizophrenia was most recently finally denial in June 2005. His claims for TBI and cervical spine disabilities were most recently denied in August 2010. These collective denials were essentially predicated on a lack of nexus and/or evidence of in-service incurrence. As to the Veteran’s schizophrenia and cervical spine denials he neither appealed the decisions nor requested reconsideration, and new and material evidence was not received within a year of these decisions. As to the Veteran’s TBI, he did not timely appeal a November 2011 statement of the case. The decisions therefore became final. 38U.S.C. §7105; 38C.F.R. §20.1103 Evidence added to the claims file since the denials includes the Veteran’s testimonyat Board hearing that his private care providers correlated his cognitive, physical, and psychological impairments to service. The evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial. The Veteran’s testimony, as to being told by his physicians his disabilities were related to service, is presumed credible for purposes of deciding whether a previously denied claim may be reopened. Such makes it material as well. Accordingly, the claims for service connection are reopened. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder. 2. Entitlement to service connection for a TBI. 3. Entitlement to service connection for a cervical spine disability. 4. Entitlement to service connection for a right knee disability. The Veteran has not been afforded a VA examination to address his collective assertions of entitlement to service connection for his claimed acquired psychiatric disability, TBI, or cervical spine disability. Such opinions are warranted in light of 1) the Veteran’s contention that his physicians have correlated his conditions to service, 2) his reports of in-service injury, 3) and treatment medical records suggesting current disability. Additionally, an opinion has not been obtained to ascertain whether the Veteran’s claimed right knee disability is etiologically related to either service or to his service-connected right ankle disability as claimed. The Board cannot make the above determinations based on its own medical judgment. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Thus, the Veteran’s claims are remanded to afford him VA examinations to determine whether his disabilities are etiologically related to his service and/or service-connected disabilities. See 38 U.S.C. § 5103A (d)(2); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 5. Entitlement to a rating in excess of 20 percent for post traumatic arthritis, right ankle. While the “mere passage of time” does not render a VA examination inadequate to adjudicate a claim, Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007), a new examination is necessary here to determine the current severity of the Veteran’s service-connected right ankle disability. See 38 U.S.C. § 5107A; 38 C.F.R. § 3.159. Here, the Veteran asserts worsening in his condition since his most recent VA examination in November 2019. Specifically, on Board hearing the Veteran reported being unable to walk, two to three days a week, due to the severity of his ankle condition. Previously on 2019 examination, the Veteran reported only difficulty with walking, but not an inability to walk. Importantly, treatment records since VA examination are negative for evidence of current severity in terms of range of motion of the Veteran’s ankle. Given the Veteran’s assertions on Board hearing and the lack of contemporaneous evidence indicating the current severity of his disability a VA examination is warranted. While on remand, all outstanding treatment medical records should be associated with the claims file. The matters are REMANDED for the following action: 1. Obtain all outstanding treatment medical records, private and VA, and associate them with the claims file. 2. Obtain a VA examination as to the nature and etiology of the Veteran’s claimed TBI. After review of the claims file, consideration of the lay statements of record, and physical examination with any needed testing, the examiner should address the following: (a.) List all TBI/head/brain injury residual diagnoses made during the pendency of the period on appeal. (b.) Whether there is any evidence to accept or reject the proposition that the Veteran experienced a head injury in service or experienced chronic residuals of a traumatic brain injury in service. Note, a fall from a tank is conceded as it was the basis for the grant of service connection for an ankle condition. However, the examiner is tasked with explaining whether this fall resulted in a head injury, brain injury, or TBI, and what residuals are associated with this injury. The examiner must provide a rationale for either accepting or rejecting the assertion of said in-service injury to include citing to the presence, or lack thereof, of residual head/brain injury symptomatology such as headaches, cognitive impairment, etc. The examiner should also specify whether the development of tinnitus can be as sign of head/brain injury and whether the Veteran’s development of tinnitus supports his assertion of in-service injury. (c.) Once completed, the examiner must determine whether there is clear and unmistakable (obvious, manifest, or undebatable) evidence that any diagnosed TBI and/or brain injuries pre-existed the Veteran’s active duty service? (d.) The VA examiner must specifically consider and discuss the October 1959 enlistment examination that documents the Veteran’s reports of a motor vehicle accident (MVA) in 1957 and hospitalization for a head injury. The examiner should also address treatment/hospitalization records from 1985 which mirror these reports. (e.) If it is determined that an TBI/brain injury disability clearly and unmistakably pre-existed service, is there clear and unmistakable (obvious, manifest, or undebatable) evidence that the preexisting TBI/brain injury was not aggravated beyond the natural progression of the condition? The VA examiner must specifically consider the Veteran’s reports on Board hearing that he did not suffer from severe headaches prior to enlistment. The examiner must also consider that on enlistment in October 1959 a physician noted the Veteran suffered from “occasional headaches” but by service separation in February 1962 he reported suffering from severe and frequent headaches. The examiner must also consider the Veteran’s assertions of tinnitus/cognitive impairment, as a symptom of his alleged in-service head injury. In that regard, the examiner must explain whether the above pieces of evidence, either individually or collectively, support aggravation of any a preexisting brain injury during service, to include as a result of the Veteran’s asserted head injury following falling from a tank if the examiner accepts that proposition. (f.) For each diagnosed TBI/brain injury present during the appeal period that did NOT clearly and unmistakably pre-exist service, provide an opinion concerning whether such at least as likely as not (50 percent probability or greater) had its onset in service, is related to the Veteran’s asserted in-service fall, or is otherwise related to service. (g.) The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. 3. Then schedule the Veteran for a VA examination to obtain an etiology opinion for the claimed acquired psychiatric disorder. (a.) List all acquired psychiatric disabilities diagnosed during the period on appeal. (b.) If any acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. Note, the examiner must address the Veteran’s in-service mental health consultation in March 1960. A complete rationale for all opinions is required. The examiner must also address 1985 psychiatric hospitalization records. (c.) The examiner is asked to specifically address the Veteran’s assertion on Board hearing that he suffered a preexisting head injury that was aggravated by service to point of the developing an acquired psychiatric disability. Prior to rendering this determination, the examiner must review the findings of the TBI/head/brain injury examiner. The examiner should indicate whether he or she agrees with the TBI/head/brain injury examiner’s determinations regarding preexisting head/brain/TBI injury and in-service head/brain injury/TBI. A rationale must be provided for any determination rendered. 4. Schedule the Veteran for a VA examination with an appropriate examiner(s) to determine the nature and etiology of his cervical spine. The claims file must be made available to the examiner for review of the case. (a.) Identify/diagnose any cervical spine disability that presently exists or that has existed during the appeal period. (b.) For each identified cervical spine disability, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability) that the disability had its onset in service or is otherwise etiologically related to his military service to include a reported fall from a tank in-service. (c.) The examiner must provide a complete rationale upon which his or her opinion is based and must include a discussion of the medical principles as applied to the medical evidence and facts used, including lay statements, in establishing his or her opinion. Note, a fall from a tank is conceded as it was the basis for the grant of service connection for an ankle condition. However, the examiner is tasked with explaining whether this fall resulted in a neck/cervical spine injury and what are the associated residuals of this injury. The examiner should consider the record to include lay statements/testimony, treatment records, and the findings of fellow VA examiners to explain whether or not such a neck injury occurred. 5. Obtain a VA examination and opinion from an appropriate clinician regarding the nature and etiology of the Veteran’s right knee disability. Specifically, after reviewing the claims file, the examiner should provide an opinion as to whether it is at least likely as not that the Veteran’s right knee disability (diagnosed at any time during the appeal): (a.) had its onset in service or is otherwise etiologically related to active service. Note, a fall from a tank is conceded as it was the basis for the grant of service connection for an ankle condition. However, the examiner is tasked with explaining whether this fall also resulted in a knee injury and what are the associated residuals of this injury. (b.) was proximately due to a service-connected disability ankle. (c.) underwent any incremental increase in disability, regardless of its permanence, due to a service-connected disability or medications used to treat a service-connected disability. (d.) If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, rationale must be provided. Merely saying he/she cannot comment will not suffice. All opinions must be rationalized against the lay evidence of record to include hearing testimony. (e.) The term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any “incremental increase in disability” need not be permanent. 6. Schedule the Veteran for an examination to determine the current severity of his service-connected right ankle disability. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. (a.) In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. (b.) The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. (c.) If it is not possible to provide a specific measurement 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). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. L. Burroughs, 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.