Citation Nr: 23042007 Decision Date: 08/01/23 Archive Date: 08/01/23 DOCKET NO. 12-07 467 DATE: August 1, 2023 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for a back disability. New and material evidence has been received to reopen the claim of entitlement to service connection for a right knee disability. New and material evidence has been received to reopen the claim of entitlement to service connection for a left knee disability. New and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder. Service connection for psychiatric disability, diagnosed as adjustment disorder with mixed anxiety and depressed mood and alcohol use disorder, is granted. REMANDED Entitlement to an initial compensable rating for bilateral hearing loss is remanded. Entitlement to an initial rating in excess of 10 percent for tinnitus is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is remanded. FINDINGS OF FACT 1. A June 2008 rating decision denied service connection for a back disability, a bilateral knee disability, and an acquired psychiatric disorder (claimed as posttraumatic stress disorder (PTSD) and major depressive disorder). The Veteran did not appeal that decision, and new and material evidence was not received within one year of notice of its issuance. 2. Evidence received more than one year since the final June 2008 rating decision, namely the May 2023 Board Hearing testimony and June 2023 private opinion, is neither cumulative nor redundant of evidence already of record and raises a reasonable possibility of substantiating the claims of entitlement to service connection for a back disability, right and left knee disabilities, and an acquired psychiatric disorder (a nexus to service). 3. The Veteran's adjustment disorder with mixed anxiety and depressed mood had its onset in service, and his alcohol use disorder is proximately due to his adjustment disorder with mixed anxiety and depressed mood. CONCLUSIONS OF LAW 1. The June 2008 rating decision is final. 38?U.S.C. §?7105; 38?C.F.R. §?20.1103. 2. The criteria to reopen the claim of entitlement to service connection for a back disability are met. 38?U.S.C. §?5108; 38?C.F.R. §?3.156. 3. The criteria to reopen the claim of entitlement to service connection for a right knee disability are met. 38?U.S.C. §?5108; 38?C.F.R. §?3.156. 4. The criteria to reopen the claim of entitlement to service connection for a left knee disability are met. 38?U.S.C. §?5108; 38?C.F.R. §?3.156.? 5. The criteria to reopen the claim of entitlement to service connection for an acquired psychiatric disorder are met. 38?U.S.C. §?5108; 38?C.F.R. §?3.156.? 6. The criteria for entitlement to service connection for an acquired psychiatric disorder, diagnosed as adjustment disorder with mixed anxiety and depressed mood and alcohol use disorder, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 1970 to April 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2009 and May 2012 rating decisions of a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In February 2016, the Board remanded the claims for further development. The Veteran testified at a hearing before a Veterans Law Judge in February 2021. However, due to a technological malfunction, a hearing transcript was not produced. In May 2023, the Veteran testified at another hearing before the undersigned Veterans Law Judge; a transcript of the May 2023 hearing has been associated with the record. The Board has broadened the Veteran's claim for entitlement to service connection for PTSD to include any diagnosed psychiatric disability. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). 1. Entitlement to service connection for an acquired psychiatric disorder, diagnosed as adjustment disorder with mixed anxiety and depressed mood and alcohol use disorder, is granted. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38?U.S.C. §?1110;?38?C.F.R. §?3.303(a). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi,?381 F.3d 1163?(Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See?38?C.F.R. §?3.310(a). Here, the evidence of an acquired psychiatric disorder is not in dispute, as the Veteran has been diagnosed with adjustment disorder with mixed anxiety and depressed mood. See June 2023 private opinion. Accordingly, the first element of service connection is established. Turning to the second element, in-service incurrence of a disease or injury, service treatment records do not identify any complaints, treatment for, or diagnosis of a psychiatric disorder or symptoms indicative of the same. However, the Veteran competently and credibly reported experiencing traumatic events aboard ship during service, such as loading and firing cannons, fear of thunderstorms, fear that he would accidently drop a projectile that would explode, and nightmares about dropping a projectile and blowing up his ship. See Board Hearing Transcript (Tr.) at 12-14. Thus, element two is also met. Regarding the last element, nexus, the only competent opinion of record is in favor of the claim. Specifically, in June 2023, Dr. P., a licensed psychologist, opined that the Veteran's adjustment disorder with mixed anxiety and depressed mood was at least as likely as not directly related to service. In support, Dr. P. considered the Veteran's descriptions of having nightmares about service and noted his history of a suicide attempt, which transpired shortly after service, in 1976 when he started remembering the war. As this favorable opinion is well-reasoned and based on the Veteran's competent and credible lay statements, as well as a review of pertinent medical records and his present condition, the nexus element is satisfied, and the benefit sought on appeal is granted. Additionally, secondary service connection for alcohol use disorder is warranted, as Dr. P., attributed such disorder to the Veteran's mental health difficulties from service as a form of self-medication, which supports a secondary nexus between the Veteran's psychiatric disorder and his alcohol use, with no competent opinion to the contrary. 38 C.F.R. § 3.310(a). REASONS FOR REMAND As to all issues being remanded, records of his VA outpatient treatment, dated since January 2022, have not been associated with the claims folder. A May 2023 VA hospitalization report, however, has been added to the record. Records of his VA treatment, however, are constructively before VA. As such, remand is necessary to obtain updated medical records. See Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). 2. Entitlement to an initial compensable rating for bilateral hearing loss is remanded. The Veteran was last afforded an examination for his service-connected bilateral hearing loss in January 2020, and he testified that his hearing loss has worsened since that time. See Board Hearing Tr. at 3. In light of the foregoing, the Board finds that remand is required to afford the Veteran a contemporaneous VA examination to assess the current nature, extent, and severity of his bilateral hearing loss. See Snuffer v. Gober, 10 Vet. App. 400 (1997). 3. Entitlement to an initial rating in excess of 10 percent for tinnitus is remanded. The Veteran testified that his tinnitus impacts his ability to sleep. See Board Hearing Tr. At 21. In Morgan v. Wilkie, 31 Vet. App. 162 (2019), the United States Court of Appeals for Veterans Claims (Court) held, "VA has powerful, ready-made schedular rating tools with which it can better adjudicate claims that include symptoms and effects not contemplated by an applicable diagnostic code." 31 Vet. App.at 167. Indeed, the Court stated doing so was necessary to ensure a veteran is appropriately compensated before resorting to § 3.321(b)'s extraschedular provisions. In doing so, the Court held this included secondary service connection. Id; see also Bailey v. Wilkie, 33 Vet. App. 188, 203 (2021); Long v. Wilkie, 33 Vet. App. 167, 174 (2020) (en banc), vacated on other grounds sub nom. Long v. McDonough, 38 F.4 th 1063 (Fed. Cir. 2022). Thus, the Board finds further information is necessary to properly rate, on a schedular basis, all the manifestations of the Veteran's service-connected tinnitus, in this case, to include any sleep impairments and/or manifestations of the Veteran's service-connected tinnitus. Accordingly, on remand, a medical opinion should be obtained to determine any symptoms or secondary disability the Veteran may have and whether they are proximately due to his service-connected tinnitus. Morgan; Bailey; Long. 4. Entitlement to service connection for a back disability is remanded. 5. Entitlement to service connection for a right knee disability is remanded. 6. Entitlement to service connection for a left knee disability is remanded. The Veteran has competently reported having back, right knee and left knee problems since service. To date, the Veteran has not yet been afforded a VA examination for his back and bilateral knee disabilities, and the duty to obtain one is triggered based on his testimony and the medical evidence of record. McLendon v. Nicholson, 20?Vet. App.?79 (2006). 7. Entitlement to a TDIU is remanded. Action on this inextricably intertwined claim is deferred pending the above development and must be remanded as well. See Harris v. Derwinski, 1?Vet. App.?180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). 8. Entitlement to SMC based on the need for aid and attendance is remanded. The issue of SMC based on the need for aid and attendance has been raised and is part and parcel of the Veteran's appeal. See Board Hearing Tr. at 25. Thus, a VA examination is warranted on remand to determine the Veteran's need for aid and attendance due to his service-connected disabilities. These matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service right knee, left knee and back problems. The Veteran is also invited to submit statements regarding the impact of his service-connected disabilies o his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. Schedule the Veteran for a VA examination to determine the current nature and severity of his bilateral hearing loss and tinnitus. All findings should be reported in detail. The examiner should opine as to whether it is at least as likely as not that any currently diagnosed sleep disorder, was caused, or aggravated by his service-connected tinnitus and/or his now service-connected psychiatric disability. Diagnoses of insomnia and obstructive sleep apnea must be ruled in or excluded. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of his back and bilateral knee disabilities. The entire claims file should be made available to the examiner. All indicated tests should be conducted and all findings reported in detail. Following a review of the claims file, the examiner should opine as to whether it is at least as likely as not that: (a) any currently diagnosed back disability had its onset in or is otherwise related to service, to include as a result of the documented June 1971 report of back pain and pulled muscle therein. (b) any currently diagnosed bilateral knee disability had its onset in or is otherwise related to service. In addressing these questions, the examiner must discuss the Veteran's reports of an in-service back and bilateral knee cumulative impact injury resulting in pain from repeatedly lifting and loading projectiles weighing 75 to 100 pounds, as well as continuous back and knee symptomatology since service (see Board Hearing Tr. at 5-9), and determine, based on the same, whether a nexus between the Veteran's back and bilateral knee disabilities and service are "medically plausible." Failure to consider the Veteran's lay statements will result in an inadequate opinion. Please note that the lack of contemporaneous medical records is not dispositive and may not be used as a basis for a negative opinion. A complete rationale for the examiner's opinion should be provided, citing to specific evidence of record, as necessary. If the examiner cannot provide an opinion without resort to 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). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. 6. Schedule the Veteran for a VA examination to determine whether his service-connected disabilities render him so helpless as to be in need of regular aid and attendance. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. S. Mahoney 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.