Citation Nr: 21041431 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 19-33 726 DATE: July 9, 2021 ORDER The claim to reopen service connection dermatophytosis pedis is granted. The claim to reopen service connection for head trauma with headaches is granted. The claim to reopen service connection for an upper back disability is granted. The claim to reopen service connection for lower back injury is granted. The claim to reopen service connection for hypertension is granted. The claim to reopen service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is granted. The claim to reopen service connection for bilateral hearing loss is granted. The claim to reopen service connection for tinnitus is granted. REMANDED The claim for service connection for a skin disability of the toes, to include dermatophytosis pedis, is remanded. The claim for service connection for head trauma with headaches is remanded. The claim for service connection for an upper back disability is remanded. The claim for service connection for lower back injury is remanded. The claim for service connection for hypertension is remanded. The claim for service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is remanded. The claim for service connection for bilateral hearing loss is remanded. The claim for service connection for tinnitus is remanded. The claim for service connection for a bilateral musculoskeletal toe disability is remanded. The claim for a compensable disability rating for erectile dysfunction (ED) is remanded. The claim for a compensable disability rating for right varicocele is remanded. The claim for a 10 percent disability rating based upon multiple noncompensable service-connected disabilities is remanded. FINDINGS OF FACT 1. In a March 2005 rating decision, service connection for dermatophytosis pedis was denied; a notice of disagreement and/or new and material evidence was not submitted within one year of notice of that decision. 2. In a January 2016 rating decision, the claim to reopen service connection for dermatophytosis pedis was denied; a timely VA form 9 substantive appeal was not received following a September 2017 SOC. 3. Evidence received more than one year after the March 2005 decision and since the September 2017 SOC is not cumulative or redundant of the evidence previously of record and raises a reasonable possibility of substantiating the claim for service connection for a skin disability of the toes, to include dermatophytosis pedis. 4. In a March 2005 rating decision, service connection for head trauma was denied; a notice of disagreement and/or new and material evidence was not submitted within one year of notice of that decision. 5. In a January 2016 rating decision, the claim to reopen service connection for head trauma was denied; a timely VA form 9 substantive appeal was not received following a September 2017 SOC. 6. Evidence received more than one year after the March 2005 decision and since the September 2017 SOC is not cumulative or redundant of the evidence previously of record and raises a reasonable possibility of substantiating the claim for service connection for a head trauma. 7. In a March 2005 rating decision, service connection for upper back trauma was denied; a notice of disagreement and/or new and material evidence was not submitted within one year of notice of that decision. 8. In a January 2016 rating decision, the claim to reopen service connection for upper back trauma was denied; a timely VA form 9 substantive appeal was not received following a September 2017 SOC. 9. Evidence received more than one year after the March 2005 decision and since the September 2017 SOC is not cumulative or redundant of the evidence previously of record and raises a reasonable possibility of substantiating the claim for service connection for upper back trauma. 10. In a January 2016 rating decision, service connection for a lower back disability was denied; a timely VA form 9 substantive appeal was not received following a September 2017 SOC. 11. Evidence received after the September 2017 SOC is not cumulative or redundant of the evidence previously of record and raises a reasonable possibility of substantiating the claim for service connection for a lower back disability. 12. In a January 2016 rating decision, service connection for hypertension was denied; a timely VA form 9 substantive appeal was not received following a September 2017 SOC. 13. Evidence received after the September 2017 SOC is not cumulative or redundant of the evidence previously of record and raises a reasonable possibility of substantiating the claim for service connection for hypertension. 14. In a January 2016 rating decision, service connection for an acquired psychiatric disability was denied; a timely VA form 9 substantive appeal was not received following a September 2017 SOC. 15. Evidence received after the September 2017 SOC is not cumulative or redundant of the evidence previously of record and raises a reasonable possibility of substantiating the claim for service connection for an acquired psychiatric disability. 16. In a January 2016 rating decision, service connection for bilateral hearing loss was denied; a timely VA form 9 substantive appeal was not received following a September 2017 SOC. 17. Evidence received after the September 2017 SOC is not cumulative or redundant of the evidence previously of record and raises a reasonable possibility of substantiating the claim for service connection for bilateral hearing loss. 18. In a January 2016 rating decision, service connection for tinnitus was denied; a timely VA form 9 substantive appeal was not received following a September 2017 SOC. 19. Evidence received after the September 2017 SOC is not cumulative or redundant of the evidence previously of record and raises a reasonable possibility of substantiating the claim for service connection for tinnitus. CONCLUSIONS OF LAW 1. The March 2005 rating decision that denied service connection for dermatophytosis is final. 38 U.S.C. §§ 7104 (b), 7105(c); 38 C.F.R. §§ 3.104, 20.201, 20.302, 20.1103. 2. The January 2016 rating decision that denied service connection for dermatophytosis is final. 38 U.S.C. §§ 7104 (b), 7105(c); 38 C.F.R. §§ 3.104, 20.201, 20.302, 20.1103. 3. Evidence received more than one year since the March 2005 rating decision and the September 2017 SOC is new and material to the claim for service connection for dermatophytosis and the claim to reopen the issue is granted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 4. The March 2005 rating decision that denied service connection for head trauma is final. 38 U.S.C. §§ 7104 (b), 7105(c); 38 C.F.R. §§ 3.104, 20.201, 20.302, 20.1103. 5. The January 2016 rating decision that denied service connection for head trauma is final. 38 U.S.C. §§ 7104 (b), 7105(c); 38 C.F.R. §§ 3.104, 20.201, 20.302, 20.1103. 6. Evidence received more than one year since the March 2005 rating decision and the September 2017 SOC is new and material to the claim for service connection for head trauma and the claim to reopen the issue is granted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 7. The March 2005 rating decision that denied service connection for upper back trauma is final. 38 U.S.C. §§ 7104 (b), 7105(c); 38 C.F.R. §§ 3.104, 20.201, 20.302, 20.1103. 8. The January 2016 rating decision that denied service connection for upper back trauma is final. 38 U.S.C. §§ 7104 (b), 7105(c); 38 C.F.R. §§ 3.104, 20.201, 20.302, 20.1103. 9. Evidence received more than one year since the March 2005 rating decision and the September 2017 SOC is new and material to the claim for service connection for upper back trauma and the claim to reopen the issue is granted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 10. The January 2016 rating decision that denied service connection for lower back disability is final. 38 U.S.C. §§ 7104 (b), 7105(c); 38 C.F.R. §§ 3.104, 20.201, 20.302, 20.1103. 11. Evidence received more than one year since the September 2017 SOC is new and material to the claim for service connection for lower back disability and the claim to reopen the issue is granted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 12. The January 2016 rating decision that denied service connection for hypertension is final. 38 U.S.C. §§ 7104 (b), 7105(c); 38 C.F.R. §§ 3.104, 20.201, 20.302, 20.1103. 13. Evidence received more than one year since the September 2017 SOC is new and material to the claim for service connection for hypertension and the claim to reopen the issue is granted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 14. The January 2016 rating decision that denied service connection for acquired psychiatric disability is final. 38 U.S.C. §§ 7104 (b), 7105(c); 38 C.F.R. §§ 3.104, 20.201, 20.302, 20.1103. 15. Evidence received more than one year since the September 2017 SOC is new and material to the claim for service connection for acquired psychiatric disability; the claim to reopen the issue is granted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 16. The January 2016 rating decision that denied service connection for bilateral hearing loss is final. 38 U.S.C. §§ 7104 (b), 7105(c); 38 C.F.R. §§ 3.104, 20.201, 20.302, 20.1103. 17. Evidence received more than one year since the September 2017 SOC is new and material to the claim for service connection for bilateral hearing loss and the claim to reopen the issue is granted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 18. The January 2016 rating decision that denied service connection for tinnitus is final. 38 U.S.C. §§ 7104 (b), 7105(c); 38 C.F.R. §§ 3.104, 20.201, 20.302, 20.1103. 19. Evidence received more than one year since the September 2017 SOC is new and material to the claim for service connection for tinnitus and the claim to reopen the issue is granted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1962 to December 1963. He provided testimony during a hearing before the undersigned in January 2021. A transcript has been associated with the claims file. During the Board hearing, the Veteran explained that the claim regarding his toes in fact involves two separate disabilities, a skin disorder, including dermatophytosis pedis, and a musculoskeletal disorder. As such, the Board finds that it is appropriate to bifurcate the issues and adjudicate them separately. See Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011) ("[b]ifurcation of a claim is generally within the Secretary's discretion"); see also Tyrues v. Shinseki, 732 F.3d 1351 (Fed. Cir. 2013); Roebuck v. Nicholson, 20 Vet. App. 307, 315 (2006) (acknowledging that the Board can bifurcate a claim and address different theories or arguments in separate decisions). The issues of service connection for dermatophytosis pedis, head trauma, and an upper back disability were each denied in a March 2005 rating decision; new and material evidence, or a notice of disagreement, were not received within one year of notice of that decision. In a January 2016 rating decision, the claims to reopen service connection for dermatophytosis, a head trauma disability, and an upper back trauma disability were each denied reopening as new and material evidence had not been received and the issues of service connection for lower back injury, hypertension, an acquired psychiatric disability, bilateral hearing loss, and tinnitus were each denied. Following a September 2017 statement of the case (SOC), the Veteran failed to submit a timely VA Form 9 substantive appeal. The Board finds that the disabilities claimed and denied in 2005 and 2016 and the current claim are the same as the Veteran has identified the same disability in each claim and identified the same cause of the disability. The Board, therefore, does not construe the current claim as a claim for a "distinctly diagnosed disease" or disability from those previously denied in the final 2005 and 2016 rating decisions. As such, his current claim is not a separate and distinct claim, but rather a claim to reopen his prior determination. See Velez v. Shinseki, 23 Vet. App. 199 (2009). Where the claim in question has been finally adjudicated at the RO or Board level and not appealed, the statutes make clear that the Board has a jurisdictional responsibility to consider whether it is proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Thus, despite the various characterizations of the issue throughout the appeal, the Board must make an independent determination as to whether new and material evidence has been presented to reopen each claim. Claim to Reopen 1. Whether new and material evidence has been received to reopen service connection dermatophytosis pedis 2. Whether new and material evidence has been received to reopen service connection for head trauma disability 3. Whether new and material evidence has been received to reopen service connection for an upper back disability 4. Whether new and material evidence has been received to reopen service connection for lower back injury 5. Whether new and material evidence has been received to reopen service connection for hypertension 6. The claim to reopen service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) 7. Whether new and material evidence has been received to reopen service connection for bilateral hearing loss 8. Whether new and material evidence has been received to reopen service connection for tinnitus Generally, a claim which has been finally denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c). However, 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. 38 U.S.C. § 5108. As explained above, the issues of service connection for dermatophytosis, head trauma, and upper back trauma were denied in a March 2005 rating decision on the basis that the evidence did not demonstrate a disability that was etiologically related to military service. As the Veteran did not submit new and material evidence or a notice of disagreement within one year of the March 2005 decision on those issues, the rating decision became final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 3.156(b), 20.202, 20.1103; see Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) (holding that VA has a duty to consider in every case whether evidence received within one year of an RO decision is new and material so as to prevent the decision from becoming final under 38 C.F.R. § 3.156 (c)). Claims to reopen the issues of service connection for dermatophytosis, head trauma, and upper back trauma were denied in a January 2016 rating decision. Following a September 2017 SOC, a timely VA Form 9 substantive appeal was not received. Also in the January 2016 rating decision, service connection for a lower back injury, hypertension, an acquired psychiatric disability, bilateral hearing loss, and tinnitus were each denied on the basis that the evidence did not demonstrate a disability that was etiologically related to military service. VA did not receive a timely VA Form 9 substantive appeal regarding these issues either. As the Veteran did not timely perfect an appeal regarding any of these issues, the January 2016 rating decision regarding each of the above issues is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 3.156(b), 20.202, 20.1103; see Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) (holding that VA has a duty to consider in every case whether evidence received within one year of an RO decision is new and material so as to prevent the decision from becoming final under 38 C.F.R. § 3.156 (c)). Since the September 2017 SOC, the evidence now includes lay testimony from the Veteran asserting in more detail when and how his in-service injuries occurred, how the disabilities and related symptoms relate in time to his post-service accidents, where he received treatment for such disabilities post-discharge and/or why he didn't immediately seek such treatment for some of the disabilities. This evidence is new and material to the reason for the prior denial, namely whether the Veteran has a current disability that is etiologically related to military service. As such, the claims for service connection for dermatophytosis, head trauma, upper back trauma, lower back trauma, hypertension, acquired psychiatric disorder, hearing loss, and tinnitus are reopened. REASONS FOR REMAND 1. Entitlement to service connection for a skin disability of the toes, to include dermatophytosis pedis 2. Entitlement to service connection for head trauma with headaches 3. Entitlement to service connection for an upper back disability 4. Entitlement to service connection for lower back injury 5. Entitlement to service connection for hypertension 6. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and adjustment disorder 7. Entitlement to service connection for bilateral hearing loss 8. Entitlement to service connection for tinnitus 9. Entitlement to service connection for a bilateral musculoskeletal toe disability 10. Entitlement to a compensable disability rating for erectile dysfunction (ED) 11. Entitlement to a compensable disability rating for right varicocele 12. Entitlement to a 10 percent disability rating based upon multiple noncompensable service-connected disabilities The Veteran's lay statements, including during his testimony during the Board hearing, demonstrate that there are outstanding VA and medical private treatment records in this claim. He reported that he only recently sought mental health treatment and that he was still receiving such treatment at the time of the hearing. The last VA treatment record in the claims file is dated in September 2019. The Veteran reported treatment during the 1980s in the Bronx, although it's unclear whether it was VA or private records. He also reported treatment at the VA Harbor Healthcare Hospital System and "Harbor Healthcare" (the undersigned recognizes that there is a private system by the same name and is unclear which he refers to throughout the hearing transcript). Finally, the Veteran reported throughout the claim, including "recent" treatment with his private doctor, Dr. S. A. located in Brooklyn. The Board notes that there are zero treatment records from the 1980s and no attempts to obtain such records are documented in the file. The SOC does not note any such records. In addition, it appears that there are missing treatment records from "Harbor Healthcare", whether they are associated with the VA or a private healthcare system as there are mainly administrative notes listed from there in the recent VA records and there are zero private treatment records from such a facility. Again, the SOC is negative for such records. Finally, there are clearly missing private treatment records from Dr. S.A., as a single treatment record from April 2016 is of record and listed in the SOC. Therefore, upon remand, the Veteran must be asked to list all sources and locations of VA and private treatment relevant to the above listed issues on appeal and must be told to also provide authorization for VA to obtain such private treatment records. Thereafter, all records identified by the Veteran, and for which VA has authorization, must be obtained and associated with the claims file. Then, in light of any newly obtained records or evidence, the RO must consider whether new VA examinations or opinions are warranted. The matters are REMANDED for the following action: 1. Request that the Veteran to identify all sources and locations of VA and private treatment relevant to the above listed issues on appeal. For private treatment, ask that he provide authorization via VA Form 21-4142 to enable VA to obtain such private records, including the treatment he referenced in the Board hearing, described above. 2. Obtain all outstanding VA treatment records identified by the Veteran as well as any outstanding records from the Bronx VA Health System, including back in the 1980s; the Harbor Healthcare System; and all VA treatment records dated from September 2019 to present. 3. Make two requests for the authorized records identified by the Veteran unless it is clear after the first request that a second request would be futile. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. B., 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.