Citation Nr: 23044656 Decision Date: 08/10/23 Archive Date: 08/10/23 DOCKET NO. 19-36 425 DATE: August 10, 2023 ORDER Readjudication of the claim for service connection for migraine headaches is granted. Readjudication of the claim for service connection for bilateral pes planus is granted. Readjudication of the claim for service connection for a left leg disability including knee pain is granted. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to a compensable rating for right tympanic eardrum rupture is denied. REMANDED Entitlement to service connection for migraine headaches is remanded. Entitlement to service connection for bilateral pes planus is remanded. Entitlement to service connection for a left leg disability including knee pain is remanded. Entitlement to service connection for acquired psychiatric disorder is remanded. Entitlement to a rating in excess of 50 percent for total hysterectomy and bilateral salpingo-oophorectomy is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. In a March 2005 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for left leg injury, flat feet, and migraines; the Veteran did not appeal this decision. 2. The evidence received since the March 2005 rating decision is both new and relevant, tending to prove or disprove the matters at issue for entitlement to service connection for migraine headaches, left leg disability including knee pain, and bilateral pes planus. 3. The evidence of record persuasively weighs against finding that the Veteran has had a hearing loss disability at any time during or approximate to the pendency of the claim. 4. The Veteran's right perforated eardrum is assigned a noncompensable disability rating, the maximum schedular rating authorized under Diagnostic Code 6211. CONCLUSIONS OF LAW 1. The criteria for readjudicating the claim for service connection for migraine headaches have been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156, 3.2501. 2. The criteria for readjudicating the claim for service connection for left disability have been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156, 3.2501. 3. The criteria for readjudicating the claim for service connection for bilateral pes planus have been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156, 3.2501. 4. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 5. The criteria for a compensable disability rating for a perforated eardrum have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 4.31, 4.87, Diagnostic Code 6211. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1979 to September 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2018 rating decision issued by the Agency of Original Jurisdiction (AOJ). New and Relevant Evidence Effective February 19, 2019, when a claim has been previously disallowed it may not thereafter be readjudicated and allowed and a claim based upon the same factual basis may not be considered, unless the Veteran submits a supplemental claim along with new and relevant evidence. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. §§ 3.2501, 19.2(a). If new and relevant evidence is presented or secured with respect to the supplemental claim, the agency of original jurisdiction will readjudicate the claim taking into consideration all of the evidence of record. 38 C.F.R. §§ 3.156 (d), 3.2501. New evidence is evidence that was not previously part of the actual record before agency adjudicators at the time of the prior denial. 38 C.F.R. § 3.2501 (a)(1). Relevant evidence is information that tends to prove or disprove a matter at issue in a claim, including evidence that raises a theory of entitlement to benefits that was not previously addressed. Id. The new and relevant standard will not impose a higher evidentiary threshold than the previous new and material evidence standard. 38 C.F.R. § 3.2501(a). 1. Readjudication of the claim for service connection for migraine headaches is granted. 2. Readjudication of the claim for service connection for bilateral pes planus is granted. 3. Readjudication of the claim for service connection for a left leg disability including knee pain is granted. Here, new and relevant evidence has been received to readjudicate the claims for service connection for migraine headaches, bilateral pes planus, and left leg disability. By way of history, the Veteran originally filed a claim for service connection in September 2004 which was denied in a March 2005 rating decision. The Veteran did not appeal this decision. In October 2016, the Veteran filed claim to reopen her previously denied claims for service connection for left leg condition, flat feet, and migraines, which were denied by the July 2018 rating decision on appeal. However, the Board must make its own determination as to whether any newly submitted evidence warrants readjudication of the claim. The Board finds that new evidence has been presented after the March 2005 unappealed rating decision that is relevant to the Veteran's claims for service connection. Specifically, the Veteran submitted non-VA treatment records and a private medical opinion dated October 2017, received November 2017 discuss the matters at issue for entitlement to service connection for migraine headaches, left leg disability including knee pain, and bilateral pes planus. See Report of Consultation and Examination from P.Y., Diagnostic Consultant dated October 2017. The statement and non-VA treatment records are new, as it was not already of record. The private medical opinion is also relevant as it may prove or disprove a matter at issue, namely the nexus element of the claim for service connection. The statement also asserts in-service onset and relates to the reason VA previously denied the claims. 38 C.F.R. § 3.2501 (a)(1). Accordingly, as new and relevant evidence has been received readjudication of the claims for migraine headaches, left leg disability including knee pain, and bilateral pes planus are warranted. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 4. Entitlement to service connection for bilateral hearing loss is denied. For the reasons stated below, service connection is not warranted. The record shows a VA contract examination of April 2018 where the audiologist indicated normal hearing, concluding "no etiology provided as there is no right ear [and left ear] hearing loss." The examiner remarked "there is no pathology on which to base a diagnosis because the claimant has hearing within normal limits." See Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ) dated April 2018. The Veteran was afforded another VA contract examination in July 2018, which was conducted by a different audiologist. However, similar findings were made. The Veteran had normal hearing for both left and right ear. The examiner remarked, "there is no diagnosis because there is no pathology to render a diagnosis." See Hearing Loss and Tinnitus DBQ dated July 2018. Here, the evidence does not indicate a diagnosis of a current hearing loss disability for which service connection can be established. The Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Meaning, service connection requires a showing of a current disability and as the Veteran has normal hearing, the claim for right ear hearing loss must be denied. Based on the foregoing reasons, the Board finds service connection is not warranted. As the evidence of record persuasively weighs against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38?U.S.C. §?5107(b); 38?C.F.R. §?3.102; Gilbert v. Derwinski, 1?Vet. App.?49, 53-56 (1990). Increased Rating Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.§ 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but findings sufficient to identify the disease, the resulting disability, and above all, coordination of the rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21. 4. Entitlement to a compensable rating for right tympanic eardrum rupture is denied. The Veteran filed a claim for increased rating in November 2017, which was denied by rating action of July 2018. The Veteran's right tympanic eardrum rupture is currently rated under 38 C.F.R. § 4.87, Diagnostic Code 6211. Under Diagnostic Code 6211, perforation of the tympanic membrane (eardrum) warrants a noncompensable rating. Therefore, a compensable rating is not available for tympanic membrane perforation under Diagnostic Code 6211. The Veteran may only receive a higher rating under a different Diagnostic Code for diseases of the ear. Medical evidence of record shows the Veteran has normal hearing and no other clinical findings or symptoms noted on examination. Physical examination of the ear was normal, and there was no evidence of dizziness or vertigo. There were no tumors/neoplasms or scars. See Hearing Loss DBQ dated April 2018 and July 2018. The Board finds that a rating under another Diagnostic Code is not warranted. To receive a compensable rating under another Diagnostic Code, there would need to be evidence of otitis media; otosclerosis; loss of auricle; Meniere's syndrome; eustachian tube dysfunction; malignant neoplasm of the ear; or chronic suppurative otitis externa. 38 C.F.R. § 4.87, Diagnostic Codes 6201, 6202, 6204, 6207, 6205, 6208, 6200. Review of the evidence does not reveal the presence of these right ear disorders. Therefore, these diagnostic codes are not for application here, and the Veteran's perforated eardrum must continue to be rated as noncompensable under Diagnostic Code 6211. REASONS FOR REMAND 6. Entitlement to service connection for migraine headaches is remanded. 7. Entitlement to service connection for bilateral pes planus is remanded. 8. Entitlement to service connection for a left leg disability including knee pain is remanded. Service treatment records (STR) document in-service symptoms for headaches, flat feet, and left knee pain. For migraine headaches, a December 1982 STR shows report of headache at frontal area where pain makes her dizzy. Notably, Report of Medical History dated June 1985 shows notation of "severe headaches off and on for 3 years". For feet, a November 1995 STR shows the Veteran's report of "problems with feet" which she reported the "problem has been recurring since 1980." Indeed, the record shows a diagnosis of "flat feet" in April 1980. For left leg, a December 1995 STR shows Veteran's report of recurring knee pains, and another March 1996 STR shows report of bilateral knee pain and difficulty running. Additionally, the Veteran has submitted evidence, in the form of an independent medical opinion dated October 2017 which address the matters at issue. The Board observes the Veteran has not yet been afforded a VA examination for these claimed disabilities. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). On remand, the Veteran should be afforded VA examinations and medical opinions should be obtained. 4. Entitlement to service connection for an acquired psychiatric disorder is remanded. As further explained below, remand is warranted to reconcile the conflicting medical evidence of record. By way of history, in November 2017, the Veteran filed her claim for adjustment disorder and unspecified depressive disorder, which was denied in a July 2018 rating decision. In support of her claim, the Veteran submitted a November 2017 Disability Benefits Questionnaire (DBQ) completed by a non-treating Psychologist (W.A., Psy.D.) which showed current diagnoses of Adjustment Disorder, Other Specified Depressive Disorder, and Generalized Anxiety Disorder. The November 2017 DBQ also showed the examiner finding the Veteran's level as "occupational and social impairment with reduced reliability and productivity." In contrast, the record shows the Veteran was afforded a VA contract examination in March 2018 where the examiner found no clinical diagnosis. See Mental Disorders DBQ dated March 2018, conducted by Psy.D., Psychologist. In fact, the examiner found the Veteran to be "fully functional" and that the evidence does not support a depressive disorder. Given the stark differences of the two assessments, remand is needed to obtain a new etiological opinion that addresses the conflicting clinical findings of both 2017 and 2018 psychologists. 9. Entitlement to a rating in excess of 50 percent for total hysterectomy and bilateral salpingo-oophorectomy is denied. Remand is needed to address the contention raised by the Veteran's representative regarding the competency of the March 2018 examiner. The Veteran was afforded a VA contract examination in March 2018 to evaluate the severity of residuals of service-connected total hysterectomy and bilateral salpingo-oophorectomy. In a November 2021 Informal Hearing Presentation (IHP), the Veteran's representative asserted that the "provider whom examined the veteran for her hysterectomy residuals and fibrocystic breast disease is a physician's assistant (PA)" who has "no subspecialities or secondary taxonomies in her online resume and profession profiles that would qualify her to assess such specific and longstanding complications." In Francway v. Wilkie, the Federal Circuit held that "[o]nce the request is made for information as to the competency of the examiner, the veteran has the right, absent unusual circumstances, to the curriculum vitae and other information about qualifications of a medical examiner," "mandated by VA's duty to assist." 940 F.3d 1304, 1308 (2019). The Board notes that since the examiner's competency has been challenged, a remand is necessary to obtain information regarding the examiner's qualifications. On remand, the AOJ should provide the Veteran information regarding the March 2018 VA examiner's qualifications. 10. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. As the development ordered above could result in information relevant to the TDIU claim, the Board finds the issues are inextricably intertwined and therefore the issue of entitlement to TDIU must also be remanded. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Afford the Veteran VA examinations for her headaches, bilateral pes planus, and left leg disability. The claims folder must be provided to the examiner for review. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. a) The examiner should provide an opinion on whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's migraine headaches began during active service or is causally related to service? A December 1982 STR shows report of headache at frontal area where pain makes her dizzy. Notably, Report of Medical History dated June 1985 shows notation of "severe headaches off and on for 3 years". b) The examiner should provide an opinion on whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's bilateral pes planus began during active service or is causally related to service? A November 1995 STR shows the Veteran's report of "problems with feet" which she reported the "problem has been recurring since 1980." Indeed, the record shows a diagnosis of "flat feet" in April 1980. c) The examiner should provide an opinion on whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's left leg disability including pain began during active service or is causally related to service? A December 1995 STR shows Veteran's report of recurring knee pains, and another March 1996 STR shows report of bilateral knee pain and difficulty running. In rendering the opinion, the examiner is asked to consider medical records and lay evidence of record. Specifically, the Veteran submitted a private medical opinion dated October 2017 which should be considered. A complete rationale for all opinions is requested. 2. Obtain a medical opinion which addresses the conflicting medical evidence of record for the Veteran's claimed acquired psychiatric disorder. a) The examiner should provide an opinion on whether the Veteran has a current clinical diagnosis of an acquired psychiatric disorder. b) If so, for each clinical diagnosis, provide an opinion on whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's acquired psychiatric disorder began during active service or is causally related to service? In rendering the opinion, the examiner is asked to consider medical records and lay evidence of record. Specifically, the examiner must review conflicting medical evidence of record. The Veteran submitted a November 2017 Disability Benefits Questionnaire (DBQ) completed by a non-treating Psychologist (W.A., Psy.D.) and VA afforded an examination in March 2018 conducted by a Psychologist. A complete rationale for all opinions is requested. (Continued on the next page) ? 3. Obtain the curriculum vitae or equivalent information for the March 2018 VA examiner who provided the VA examination for evaluation of the Veteran's service-connected total hysterectomy and bilateral salpingo-oophorectomy. This information (which may be redacted as deemed warranted) is to be provided to the Veteran and her representative and associated with the Veteran's claims file. If the requested CV is not obtainable, the Veteran and her representative should be notified, and the reasons for such should be documented in the record. 4. Upon completion of the requested development and any additional development deemed appropriate, adjudicate the claims on appeal. If the determination remains unfavorable, the Veteran and her representative should be furnished a supplemental statement of the case which addresses all relevant evidence. The Veteran and her representative should be afforded the applicable time period in which to respond. Then, return the case to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A., 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.