Citation Nr: 21023441 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-10 700 DATE: April 20, 2021 ORDER New and material evidence has not been received sufficient to reopen the claim of entitlement to service connection for a respiratory disorder, and the claim is denied. Entitlement to a rating more than 10 percent for tinnitus is denied. REMANDED Entitlement to a rating more than 50 percent for posttraumatic stress disorder (PTSD) with anxiety and insomnia (acquired psychiatric disorder) is remanded. Entitlement to a rating more than 10 percent for bilateral metatarsalgia (foot disorder) is remanded. Entitlement to a rating more than 10 percent for bilateral hearing loss is remanded. Entitlement to service connection for hepatitis C is remanded. FINDINGS OF FACT 1. In a decision dated August 2006, the Regional Office (RO), in pertinent part, denied the Veteran’s claim of entitlement to service connection for a respiratory disorder. The Veteran was notified of the decision, but he did not perfect an appeal. 2. Evidence added to the record since the August 2006 rating decision denying entitlement to service connection for a respiratory disorder is cumulative or redundant, does not cure a prior evidentiary defect, and does not raise a reasonable possibility of substantiating the Veteran’s claim. 3. The Veteran’s tinnitus is assigned a 10 percent rating, which is the maximum schedular rating authorized under Diagnostic Code 6260. Factors rendering the application of the regular schedular provisions impractical have not been demonstrated. CONCLUSIONS OF LAW 1. The August 2006 rating decision denying entitlement to service connection for a respiratory disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2019). 2. New and material evidence has not been presented to reopen a claim of entitlement to service connection for a respiratory disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2019). 3. The criteria for entitlement to a rating more than 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.87, Diagnostic Code 6260 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from December 1981 to April 1982 and from May 2004 to October 2005. New and Material Evidence Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c) (2012). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record. 38 C.F.R. § 3.156(a). 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 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence received since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). 1. Whether new and material evidence has been received sufficient to reopen the claim of entitlement to service connection for a respiratory disorder This appeal arises out of the Veteran’s contention that his claimed respiratory disorder is related to his military service. The August 2006 rating decision, which considered the Veteran’s service treatment records, lay statements, and medical records, denied the Veteran’s claim of entitlement to service connection for a respiratory disorder because there was no evidence of a chronic respiratory condition incurred during his periods of active service. The Veteran was notified of this decision, but he did not appeal the issue of entitlement to service connection for a respiratory disorder and new and material evidence was not received within a year of the decision. The Board notes that the Veteran did not file another claim for VA disability benefits until October 2011. Thus, the August 2006 rating decision that denied entitlement to service connection for a respiratory disorder is final. See 38 U.S.C. § 7105; 38 C.F.R. § 3.104. Subsequently, a number of additional medical treatment records were added to the Veteran’s electronic claims file. However, it does not appear that these records reveal a diagnosis of a chronic respiratory disorder for VA purposes. Furthermore, the medical treatment records suggest that the Veteran’s breathing is normal and the Veteran has not offered any evidence to suggest that he suffers from a respiratory condition. Simply put, the Board has determined that new and material evidence to reopen the claim of entitlement to service connection for a respiratory disorder has not been received. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. 38 U.S.C. § 5107. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. While it is necessary to consider the complete medical history of the Veteran’s condition in order to evaluate the level of disability and any changes in condition, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); Francisco v. Brown, 7 Vet. App. 55 (1994). In deciding the Veteran’s increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. 2. Entitlement to a rating more than 10 percent for tinnitus The Veteran contends that he is entitled to a rating more than 10 percent for his service-connected tinnitus. The Veteran’s tinnitus is evaluated as 10 percent disabling under Diagnostic Code 6260. 38 C.F.R. § 4.87. Pursuant to Diagnostic Code 6260, a 10 percent rating is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. The maximum schedular rating available for tinnitus is 10 percent. 38 U.S.C. § 1155; 38 C.F.R. § 4.87; Smith v. Nicholson, 451 F.3d. 1344 (Fed. Cir. 2006). As there is no legal basis upon which to award a higher schedular rating, or separate schedular ratings for each ear, the appeal must be denied. Moreover, there is no contention nor evidentiary showing that there is such impairment due to tinnitus as to render application of the regular schedular provisions impractical. As such, the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.321.   REASONS FOR REMAND 1. Entitlement to a rating more than 50 percent for posttraumatic stress disorder (PTSD) with anxiety and insomnia (acquired psychiatric disorder) is remanded. 2. Entitlement to a rating more than 10 percent for bilateral metatarsalgia (foot disorder) is remanded. 3. Entitlement to a rating more than 10 percent for bilateral hearing loss is remanded. Review of the record reveals that remand is required in order to provide new VA examinations. To that end, the Board notes that the Veteran’s most recent and pertinent VA psychiatric examination took place in August 2020. Curiously, an October 2020 rating decision continued his 50 percent evaluation, but a supplemental statement of the case (SSOC) was not provided. The Veteran’s latest VA foot and audiological examinations were in September 2012 and August 2013, respectively. A substantial amount of medical records have since been added to his claims file. Upon review of these additional medical records, the Board finds it possible that his conditions may have worsened. See Green v. Derwinski, 1 Vet. App. 121 (1991) (VA has a duty to conduct a thorough and contemporaneous examination of the Veteran in an increased rating claim); Schafrath v. Derwinski, 1 Vet. App. 589 (1991); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (a Veteran is entitled to a new examination after a two-year period between the last VA examination and the Veteran’s contention that the pertinent disability had increased in severity). Given the likelihood that his conditions have worsened since the dates of the prior examinations, contemporaneous VA examinations are thereby warranted. 4. Entitlement to service connection for hepatitis C is remanded. Review of the record reveals that a remand is required so that a VA examination can be performed and to obtain any additional treatment records. Here, the Veteran’s medical treatment records include a diagnosis of hepatitic C virus. It is the Veteran’s contention that he was accidentally exposed to hepatitis C while in Iraq. It does not appear that the Veteran has ever received a VA examination for his claimed hepatitis C. Given the above, a VA examination with corresponding medical opinion would help resolve this issue. Finally, there may be outstanding or pertinent treatments available for review. The Board finds that it would be prudent for an attempt to obtain any outstanding treatment records be made. The matters are REMANDED for the following action: 1. With the assistance of the Veteran as necessary, identify and obtain any outstanding, relevant treatment records, and associate them with the Veteran’s electronic claims file. If the Agency of Original Jurisdiction (AOJ) cannot locate or obtain such records, it must specifically document the attempts that were made to locate or obtain them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AOJ must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. All attempts to obtain records should be documented in the Veteran’s electronic claims file. 2. Next, but whether or not additional records are obtained, arrange for a VA psychiatric examination. Forward the entire electronic claims file to a suitably qualified VA examiner to determine the current severity of the Veteran’s acquired psychiatric disorder In accordance with the latest worksheet for rating PTSD, the examiner is to provide a detailed review of the Veteran’s pertinent medical history, current complaints, and the nature and extent of his PTSD. The examiner should also identify the nature, frequency, and severity of all current manifestations of the Veteran’s current service-connected PTSD. The electronic claims folder must be provided to and reviewed by the examiner as part of the examination. The examiner must specify in the report that the electronic claims file has been reviewed. 3. Also, schedule the Veteran for a VA examination with a VA examiner of appropriate expertise to assess the severity of his service-connected bilateral metatarsalgia (foot disorder). The examiner is to be provided access to the electronic claims file. The examiner must specify in the report that these records have been reviewed. All indicated tests must be performed and all clinical findings should be set forth in detail. The examiner should identify the nature, frequency, and severity of all current manifestations of the Veteran’s current service-connected foot disorder. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. Additionally, schedule the Veteran for a new VA audiological examination to assess the current severity of his bilateral hearing loss disability. The audiologist is to be provided access to the Veteran’s electronic claims file and must specify in the report that these records have been reviewed. The evaluation should be in accordance with the criteria delineated in 38 C.F.R. § 4.85 and should include testing of pure tone criteria at 1000, 2000, 3000, and 4000 Hz and speech recognition scores using the Maryland CNC Test. The VA audiologist must fully describe the functional effects caused by the bilateral hearing loss disability in the final report. 5. Then, schedule the Veteran for a VA examination with an examiner of appropriate expertise in order to determine the nature and etiology of the Veteran’s claimed hepatitis C. The examiner is to be provided access to the Veteran’s electronic claims file. The examiner is requested to review all pertinent records associated with the claims file, the Veteran’s service treatment records, post-service medical records, and lay statements of record. Any indicated diagnostic tests and studies should also be accomplished. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The VA examiner must opine whether it is at least as likely as not (50 percent or higher degree of probability), that the Veteran’s claimed hepatitis C manifested in-service or is otherwise causally or etiologically related to his military service. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. All prior reports should be reconciled, as necessary. 6. After the development requested has been completed, the AOJ should review any report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures at once. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Miller, 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.