Citation Nr: 21016140 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 16-55 449 DATE: March 19, 2021 ORDER New and material evidence has been received, and the claim for service connection for a low back disorder is reopened. New and material evidence has been received, and the claim for service connection for left ear hearing loss is reopened. REMANDED A rating higher than 70 percent for an acquired psychiatric disorder is remanded. A compensable rating for eczema is remanded. A compensable rating for right ear hearing loss is remanded. Service connection for left ear hearing loss is remanded. Service connection for a cervical spine disorder is remanded. Service connection for a low back disorder is remanded. Service connection for a left lower extremity neurological disorder, to include neuropathy and radiculopathy, is remanded. Service connection for a right lower extremity neurological disorder, to include neuropathy and radiculopathy, is remanded. Service connection for erectile dysfunction, as secondary to an acquired psychiatric disorder, is remanded. A total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. A December 2012 rating decision denied service connection for a low back disorder. The Veteran did not file an appeal or submit additional evidence within one year of notification. 2. Evidence received since the December 2012 rating decision raises a reasonable possibility of substantiating the claim for service connection for a low back disorder. 3. A February 2013 rating decision denied service connection for left ear hearing loss. The Veteran did not file an appeal or submit additional evidence within one year of notification. 4. Evidence received since the February 2013 rating decision raises a reasonable possibility of substantiating the claim for service connection for left ear hearing loss. CONCLUSIONS OF LAW 1. The December 2012 rating decision denying service connection for a low back disorder is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103. 2. New and material evidence sufficient to reopen the claim for service connection for a low back disorder has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The February 2013 rating decision denying service connection for a low back disorder is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103. 4. New and material evidence sufficient to reopen the claim for service connection for left ear hearing loss has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1992 to March 1994 and from August 2005 to March 2011. In September 2018, the Board of Veterans’ Appeals (Board) remanded the case to the agency of original jurisdiction (AOJ) to obtain outstanding Department of Veterans Affairs (VA) treatment records. The AOJ substantially complied with the Board’s remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). New and Material Evidence The Veteran seeks to reopen previously denied claims for service connection for a low back disorder and left ear hearing loss. The Board finds that VA has received new and material evidence sufficient to reopen the claims. Generally, a claim denied in a final unappealed VA decision may not be reopened and allowed. 38 U.S.C. § 7105(c). However, if new and material evidence is received, VA shall reopen and review the former disposition of the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). In any case involving a prior final denial, the Board must address whether the evidence is sufficient to reopen the claim before addressing the merits, regardless of whether the AOJ has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995). “New” evidence means existing evidence not previously submitted to agency decisionmakers, while “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. 38 C.F.R. § 3.156(a). In deciding whether evidence is new and material, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). The threshold for determining whether evidence is new and material is low. Shade v. Shinseki, 24 Vet. App. 110, 116-18 (2010) (reopening is warranted if the new evidence, when considered in conjunction with the old evidence, would at least trigger VA’s duty to assist the Veteran). However, 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 VA. Anglin v. West, 203 F.3d 1343, 1345 (Fed. Cir. 2000). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In December 2012, the AOJ denied service connection for a low back disorder, finding that the Veteran’s lumbar myositis was not incurred in or caused by service. The Veteran received notice of the December 2012 rating decision, but he did not appeal or submit additional evidence within one year of notification. That rating decision is final. VA treatment records received since the December 2012 decision show additional relevant diagnoses, include degenerative disc disease and discogenic disease. See e.g. March 2015 primary care note. Additionally, the Veteran has submitted an August 2014 statement describing injuries to his back while stationed in Iraq. In February 2013, the AOJ denied service connection for left ear hearing loss, finding that the Veteran had normal hearing in the left ear for VA purposes. The Veteran received notice of the February 2013 rating decision, but he did not appeal or submit additional evidence within one year of notification. That rating decision is final as well. A subsequent VA examination in November 2014 revealed an auditory threshold of 40 decibels at 4000 Hertz in the Veteran’s left ear, which constitutes a hearing loss disability under 38 C.F.R. § 3.385. VA treatment records received since the February 2013 decision likewise show ongoing treatment for sensorineural hearing loss. See e.g. February 2018 audiology note. The evidence above was not before the AOJ at the time of the December 2012 and February 2013 rating decisions, respectively. It raises a reasonable possibility of substantiating both claims. The Board finds that new and material evidence has been received. Accordingly, the claims for service connection for a low back disorder and left ear hearing loss are reopened. REASONS FOR REMAND Increased Ratings for Psychiatric Disorder, Eczema and Hearing Loss The Veteran seeks a rating higher than 70 percent for a service-connected acquired psychiatric disorder, as well as compensable ratings for service-connected eczema and right ear hearing loss. He asserts that these disabilities have worsened, and that the VA examinations he received in October 2014 (psychiatric disorder) and November 2014 (eczema and hearing loss) are too old to adequately rate them. See e.g. May 2018 appellate brief. Because the most recent VA examinations on file are over six years old and may not accurately reflect the current level of severity of the Veteran’s disabilities, the Board finds that a remand for contemporaneous examinations is warranted. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Service Connection for Left Ear Hearing Loss The Veteran attributes his left ear hearing loss to in-service noise exposure. As noted above, the November 2014 VA examination revealed a hearing loss disability in the left ear for VA purposes. However, the 2014 examiner did not provide an opinion on the etiology of the Veteran’s left ear hearing loss. Remand for a new examination and opinion is thus warranted. Service Connection for a Cervical Spine Disorder The Veteran contends that he has had neck pain since service. A November 2014 VA examiner indicated that the Veteran was diagnosed with cervical strain in 2006 and with cervical spondylosis in 2014. However, the same examiner also determined that the claimed disability was less likely than not incurred in or caused by service because there was “no evidence of any cervical conditions seen in VBMS [i.e., the claims file].” The examiner provided no other rationale in support of this opinion. The Board finds the examiner’s opinion vague, conclusory, and inadequate to decide the claim. See Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012) (medical opinions are adequate when they sufficiently inform the Board of a medical expert’s judgment on a medical question and the essential rationale for that opinion). Remand for a new examination and opinion on the etiology of the Veteran’s disability is necessary. Service Connection for a Low Back Disorder In his August 2014 statement, the Veteran reported that he injured his back while running for cover in Iraq. Similarly, an October 2006 post-deployment health assessment in his service treatment records reflects that he complained of back pain during his 2005-2006 deployment. A VA examiner diagnosed the Veteran with lumbar myositis in August 2011. The 2011 examiner explained that lumbar myositis is a disease with a clear and specific etiology, and that it was not caused by the Veteran’s service in Southwest Asia. The examiner did not provide any other rationale in support of this opinion. While the 2011 opinion addresses whether the Veteran has a qualifying chronic disability for the purposes of 38 C.F.R. § 3.317 (compensation for certain disabilities occurring in Persian Gulf veterans), it does not address service connection on a direct basis. In other words, the examiner did not provide an opinion on whether the low back disorder was incurred in or is otherwise related to service. Moreover, as noted above, subsequent VA treatment records show additional diagnoses, including degenerative disc disease, which the 2011 opinion does not address. Remand for a new examination and opinion on the etiology of the Veteran’s disability is therefore necessary. Service Connection for Left & Right Lower Extremity Neurological Disorders The Veteran asserts that he has continuous pain, numbness, weakness, and a pinprick sensation throughout his extremities. See August 2014 statement. He reported similar symptoms on his October 2006 post-deployment health assessment. The record contains a VA peripheral nerves conditions examination from November 2014. The examiner indicated that the Veteran came in with bilateral hand pain, that there was no evidence of any cervical radiculopathies or peripheral neuropathies, and that he has osteoarthritis in his hands but no neurological deficits. It is unclear from the examiner’s report whether the Veteran was evaluated for a neurological disorder affecting the lower extremities, such as lumbar radiculopathy, as opposed to just the upper extremities. Remand for another examination is warranted. Service Connection for Erectile Dysfunction The Veteran contends that his erectile dysfunction is secondary to his service-connected psychiatric disorder and/or medications used to treat those symptoms. A November 2014 VA examiner opined that the Veteran’s erectile dysfunction is less likely than not related to environmental exposures in Southwest Asia, and not related to military service. However, the examiner did not address whether the claimed disability is proximately due to or aggravated by the service-connected disability or treatment thereof. See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (VA medical opinions on secondary service connection must sufficiently address both causation and aggravation). Remand for an addendum opinion is required. Service Connection for Headaches The Veteran asserts that he began having recurrent headaches in Iraq. In November 2014, a VA examiner diagnosed him with tension headaches, and opined that these headaches are less likely than not related to environmental exposures during his service in Southwest Asia. The 2014 examiner stated that tension headaches are a chronic diagnosable condition with a partially explained etiology. In other words, tension headaches are not a qualifying chronic disability within the meaning of 38 C.F.R. § 3.317. The 2014 examiner also noted that the onset of the Veteran’s headaches occurred more than three years after separation. This finding is inconsistent with the Veteran’s August 2014 statement that his headaches started while stationed in Iraq. As the examiner’s opinion appears to be based, at least in part, on an inaccurate factual premise, remand for an addendum opinion on direct service connection is warranted. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Service Connection for Allergic Rhinitis The Veteran asserts that his allergies and/or sinus problems started while stationed in Iraq. The November 2014 VA examiner diagnosed him with allergic rhinitis, and opined that it is less likely than not related to environmental exposures during service in Southwest Asia, and not related to active military service. The 2014 examiner stated that allergic rhinitis is a chronic diagnosable condition with a partially explained etiology—i.e., not a qualifying chronic disability within the meaning of 38 C.F.R. § 3.317. The 2014 examiner also noted that the onset of the Veteran’s allergic rhinitis occurred more than one year after separation. This finding is inconsistent with the Veteran’s August 2014 statement that his symptoms started during his Iraq deployment. As the examiner’s opinion appears to be based, at least in part, on an inaccurate factual premise, remand for an addendum opinion on direct service connection is warranted. Reonal, 5 Vet. App. at 461. TDIU The Veteran contends that he is unemployable due to his service-connected psychiatric disorder. The Board finds that the psychiatric disorder increased rating claim and the TDIU claim are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). Because the Board is remanding the psychiatric disorder claim for further development, the TDIU claim must be remanded as well. The Board by this remand makes no determination, expressed or implied, concerning the credibility of any statements on file. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected acquired psychiatric disorder. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected eczema. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right ear hearing loss, as well as the nature and etiology of any current left ear hearing loss. After reviewing the claims file, including this remand, the examiner should address whether it is at least as likely as not (50 percent or greater probability) that any left ear hearing loss is related to in-service noise exposure. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any cervical spine and lumbar spine disorders, and any neurological disorders affecting the left and right lower extremities. After reviewing the claims file, including this remand, the examiner shoulder address the following: (a.) Is it at least as likely as not (50 percent or greater probability) that any cervical spine disorder was incurred in service, is otherwise related to service, or manifested within one year of separation? (b.) Is it at least as likely as not (50 percent or greater probability) that any lumbar spine disorder was incurred in service, is otherwise related to service, or manifested within one year of separation? (c.) Is it at least as likely as not (50 percent or greater probability) that any left or right lower extremity neurological disorder was incurred in or is otherwise related to service? (d.) Is it at least as likely as not (50 percent or greater probability) that any left or right lower extremity neurological disorder is aggravated beyond its natural clinical course by a lumbar spine disorder? 5. Obtain an addendum opinion on the etiology of the Veteran’s erectile dysfunction. Schedule the Veteran for an in-person examination only if the examiner deems it necessary to render the requested opinion. After reviewing the claims file, including this remand, the examiner shoulder address the following: (a.) Is it at least as likely as not (50 percent or greater probability) that any erectile dysfunction is proximately due to the Veteran’s service-connected psychiatric disorder, including any related treatment? (b.) Is it at least as likely as not (50 percent or greater probability) that any erectile dysfunction is aggravated beyond its natural clinical course by Veteran’s service-connected psychiatric disorder, including any related treatment? 6. Obtain an addendum opinion on the etiology of the Veteran’s headaches. Schedule the Veteran for an in-person examination only if the examiner deems it necessary to render the requested opinion. After reviewing the claims file, including this remand, the examiner shoulder address whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s headaches were incurred in or are otherwise related to service. 7. Obtain an addendum opinion on the etiology of the Veteran’s allergic rhinitis. Schedule the Veteran for an in-person examination only if the examiner deems it necessary to render the requested opinion. After reviewing the claims file, including this remand, the examiner shoulder address whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s allergic rhinitis was incurred in or is otherwise related to service. 8. Review the medical opinions above to ensure substantial compliance with the Board’s directives. Take any necessary corrective action. 9. Readjudicate the Veteran’s claims. If any claim remains denied, issue a supplemental statement of the case and allow the Veteran and his representative the opportunity to respond. Then return to the Board for further appellate review. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.Z. Wall, 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.