Citation Nr: 18132228
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 15-41 810
DATE:	September 6, 2018
ORDER
New and material evidence having been received, the claim for service connection for a bilateral hearing loss disability, is reopened; to this extent only the appeal is granted. 
New and material evidence having been received, the claim for service connection for a low back disability, is reopened; to this extent only the appeal is granted. 
New and material evidence having been received, the claim for service connection for a cervical spine disability, is reopened; to this extent only the appeal is granted. 
New and material evidence having been received, the claim for service connection for a psychological disability, is reopened; to this extent only the appeal is granted. 
New and material evidence having been received, the claim for service connection for a right knee disability, is reopened; to this extent only the appeal is granted. 
New and material evidence having been received, the claim for service connection for a left knee disability, is reopened; to this extent only the appeal is granted. 
New and material evidence having been received, the claim for service connection for a left foot disability, is reopened; to this extent only the appeal is granted. 
New and material evidence having been received, the claim for service connection for a right foot disability, is reopened; to this extent only the appeal is granted. 

REMANDED
Entitlement to service connection for a bilateral hearing loss disability, is remanded. 
Entitlement to service connection for a low back disability, is remanded. 
Entitlement to service connection for a cervical spine disability, is remanded. 
Entitlement to service connection for a psychological 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 service connection for a left foot disability, is remanded. 
Entitlement to service connection for a right foot disability, is remanded. 
FINDINGS OF FACT
1. The Veteran’s claims for service connection for a bilateral hearing loss disability, low back disability, cervical spine disability, psychological disability, right knee disability, left knee disability, left foot disability, and right foot disability were previously denied by a January 2006 rating decision; the Veteran did not appeal the decision and documentation constituting new and material evidence was not actually or constructively received within the one-year appeal period.
2. Additional evidence received since the January 2006 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claims for service connection for a bilateral hearing loss disability, low back disability, cervical spine disability, psychological disability, right knee disability, left knee disability, left foot disability, and right foot disability, and raises a reasonable possibility of substantiating the claims.
CONCLUSIONS OF LAW
1. The January 2006 rating decision denying service connection for a bilateral hearing loss disability, low back disability, cervical spine disability, psychological disability, right knee disability, left knee disability, left foot disability, and right foot disability is final.  38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103 (2017).
2. New and material evidence has been received to reopen the Veteran’s claims for service connection for a bilateral hearing loss disability, low back disability, cervical spine disability, psychological disability, right knee disability, left knee disability, left foot disability, and right foot disability.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from August 2001 to August 2005. 
This matter is before the Board of Veterans’ Appeals (Board) on appeal from an November 2012 decision by a Department of Veterans Affairs (VA) Regional Office (RO).
The Board notes that the November 2012 decision denied service connection for pseudofolliculitis barbae and the Veteran indicated in his November 2015 Substantive Appeal (Form 9) that he wished to appeal the denial.  In a May 2016 rating decision, the RO granted service connection for pseudofolliculitis barbae.  Thus, the issue of entitlement of service connection for pseudofolliculitis barbae is no longer before the Board. 
A. Duties to Notify and Assist 
VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159.
Any error in notice or assistance on the petitions seeking to reopen the claims of service connection is harmless given the favorable determinations.  
B. New and Material Evidence 
Claims for service connection for a bilateral hearing loss disability, psychological disability, right knee disability, left foot disability, and right foot disability were originally denied in a January 2006 rating decision on the basis that the Veteran did not have current diagnosed disabilities and that the claimed conditions did not qualify as undiagnosed illnesses for the presumptive criteria of 38 C.F.R. § 3.317.  Additionally, the claim for service connection for a low back disability, cervical spine disability, and left knee disability, were originally denied in the January 2006 rating decision on the basis the conditions neither occurred in nor were caused by service.  The Veteran did not appeal the decision, nor did VA actually or constructively receive any new and material evidence within a year following notification.  38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103.  Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).
Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record.  38 U.S.C. §§ 7104, 7105.  However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. 

New evidence is defined as existing evidence not previously submitted to agency decision makers.  Material evidence is defined as 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).  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  Id.  In determining whether evidence is new and material, the credibility of the new evidence must be presumed.  Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 
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).  Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement.  Shade, 24 Vet. App. at 118 (2010).
If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence.  Justus, 3 Vet. App. at 512 (1992).  Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies.  Id. at 513.
Regarding the bilateral hearing loss disability, November 2011 and January 2012 VA treatment notes indicate that the Veteran suffers from hearing loss.  The Board is cognizant of an October 2012 VA examination, which does not show hearing loss for VA purposes.  However, for purposes of reopening, the Board must presume the credibility of the VA treatment notes that document hearing loss and resolve doubt in the Veteran’s favor.  As to the psychological disability, an August 2012 VA treatment note documents that the Veteran reported having an irritable mood and poor frustration tolerance.  He noted several stressors including his deployment to Iraq.  He was provided with an Axis I diagnosis of an occupational problem.  With respect to the right knee disability, a July 2012 VA treatment note indicates that the Veteran suffers from bilateral knee arthralgia.  Concerning the left foot and right foot disability, an April 2012 letter from Dr. N.V. states that the Veteran’s military parachutist training could have resulted in microfractures and produced a lot of stress on the Veteran’s musculoskeletal system.  The January 2006 rating decision denied service connection for these claims in part based on findings that the Veteran did not have current diagnosed conditions.  However, the aforementioned evidence relates to an unestablished fact necessary to substantiate the claims because it indicates that the Veteran may have diagnosed conditions.  
As to the Veteran’s claims for a low back disability, cervical spine disability, and left knee disability, they were originally denied in a January 2006 rating decision on the basis that the conditions neither occurred in nor were caused by service.  An April 2012 letter from Dr. N.V. states that the Veteran’s back and knee problems could be related to his service.  Thus, this evidence relates to an unestablished fact necessary to substantiate the claims.  
This evidence was not before adjudicators when the Veteran’s claim was last denied in January 2006, and it is not cumulative or redundant of the evidence of record at the time of that decision.  It also relates to unestablished facts necessary to substantiate the claims for service connection for a bilateral hearing loss disability, low back disability, cervical spine disability, psychological disability, right knee disability, left knee disability, left foot disability, and right foot disability, and raises a reasonable possibility of substantiating the claims.  Accordingly, the claims are reopened. 

REASONS FOR REMAND
Entitlement to service connection for a bilateral hearing loss disability, low back disability, cervical spine disability, psychological disability, right knee disability, left knee disability, left foot disability, and right foot disability are remanded.  
A. VA Treatment Records
An October 2015 supplemental statement of the case references VA treatment records from August 2005 to January 2015, and notes that they are available in Virtual VA.  The Veteran’s claims file includes medical records up to October 2012 and records after this date, other than a June 2013 report of the results of a lumbar spine MRI, have not been associated with the claims file.  Thus, upon remand, updated VA treatment records must be obtained and must be associated with claims file. 
B. Private Treatment Records
The record reflects that the Veteran has been treated for the claimed back and bilateral knee disability by Dr. N.V.  It does not appear from the available evidence that any efforts have been made to obtain the records of that treatment.  Because such records, if obtained, might contain information bearing on the Veteran’s appeal, efforts should be made to procure them.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). 
C. VA Examination 
The Veteran has not been afforded a VA examination to determine the nature, extent, and etiology of his low back disability, cervical spine disability, right knee disability, left knee disability, left foot disability, and right foot disability since prior to the January 2006 rating decision.  Given the new and material evidence discussed above, the Board finds that the prior examinations are inadequate and that new examinations are needed in order to adequately evaluate these claims.  
Regarding the claim of service connection for a psychiatric disability, as noted above, an August 2012 VA treatment record indicates the Veteran was dealing with several stressors, including his in-service deployment to Iraq, and that he was experiencing an irritable mood and low frustration tolerance.  The Veteran’s DD Form 214 reflects that he served as an infantryman and that he received the combat infantryman badge.  It also reflects that he served in Operation Iraqi Freedom from February 2003 to January 2004.  The prior December 2005 VA examination concluded the Veteran did not have a diagnosis of any psychiatric disorder.  Since the August 2012 VA record indicates a worsening of symptoms, the Veteran should be scheduled for a new VA examination on remand to determine whether he currently has a psychiatric disorder that is related to his service or an undiagnosed illness manifested by psychiatric symptoms.
The matters are REMANDED for the following actions:
1. Obtain the Veteran’s VA treatment records for the period from October 2012 to the present.
2. Contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims, to include records from Dr. N.V. Based on the response received, attempt to procure copies of all records which have not previously been obtained from identified treatment sources.
3. After completing the development in 1) and 2), schedule the Veteran for examination(s) by an appropriate clinician to determine the nature and etiology of any low back, cervical spine, bilateral foot and bilateral knee disabilities.  


The examiner must address the following:
A)	The examiner should clearly identify all current chronic disability(ies) of the low back, cervical spine, bilateral foot, and bilateral knees that have existed since April 2012 (including whether there is any pain that causes functional impairment). 
B)	The examiner must opine whether it is at least as likely as not that any low back, cervical spine, bilateral foot, and bilateral knee disability is related to an in-service injury, event, or disease, including parachute jumps.  
C)	If the Veteran has symptoms and/or manifestations that are not attributable to a known clinical diagnosis for the low back, cervical spine, right or left foot, or right or left knee, then opine as to whether the Veteran has objective indications, as established by history, physical examination, and laboratory tests, of an undiagnosed illness or a medically unexplained chronic multi-symptom illness, manifested by joint pain or any other identified symptoms that has existed for six months or more or exhibited intermittent episodes of improvement and worsening over a six-month period.
A “medically unexplained chronic multi-symptom illness” is defined as a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. 
A complete rationale for all opinions must be provided.  If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation.  The clinician must indicate whether there was any further need for information or testing necessary to make a determination.  Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner.
4. After completing the development in 1) and 2), schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any psychiatric disability. 
The examiner should address the following:
A)	All current psychiatric disorders should be clearly diagnosed in accordance with official diagnostic criteria of the DSM.  The examiner should clearly indicate whether the criteria for PTSD have been met, and adequately explain why, providing supporting details.
B)	Provide an opinion whether any identified diagnosis is at least as likely as not related to the Veteran’s combat service during the Persian Gulf War.


C)	If it is determined that the Veteran does not have a diagnosis of a psychiatric condition in accordance with official diagnostic criteria, then the examiner should provide an opinion as to whether the Veteran has objective indications, as established by history and examination, of an undiagnosed illness or a medically unexplained chronic multi-symptom illness, manifested by neuropsychological signs or symptoms that has existed for six months or more or exhibited intermittent episodes of improvement and worsening over a six-month period.
A “medically unexplained chronic multi-symptom illness” is defined as a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. 
A complete rationale for all opinions must be provided.  If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation.  The clinician must indicate whether there was any further need for information or testing necessary to make a determination.  


Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner.
 
M. SORISIO
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S. Patel, Associate Counsel 

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