Citation Nr: 1315025 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 05-04 717 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a spinal disability. 2. Entitlement to service connection for a spinal disability. 3. Entitlement to service connection for a right hip disability, to include as secondary to service-connected disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran had active military service from August 1977 to August 1980 and from November 1981 to June 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In June 2007, the Veteran testified at a travel board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was before the Board in November 2007, when the Board denied entitlement to service connection for a right hip disability, to include as secondary to service-connected disability, and remanded two unrelated claims. The Veteran appealed the Board's decision denying service connection to the United States Court of Appeals for Veterans Claims (Court). In a September 2009 order, the Court granted the parties' joint motion for remand, vacating the Board's November 2007 decision as to the right hip disability claim and remanded the case for compliance with the terms of the joint motion. Thereafter, in March 2010 the Board remanded the issue for additional development. This matter was again before the Board in May 2011, when the Board again denied entitlement to service connection for a right hip disability, to include as secondary to service-connected disability. The Veteran again appealed the Board's decision denying service connection to the Court. In a September 2012 Memorandum Decision the Court vacated the Board's decision as to the right hip disability claim and remanded the case for compliance with the Memorandum Decision. In the September 2012 Memorandum Decision the Court stated that: The record supports [the Veteran's] argument that the Board erred regarding the scope of his claim. The Board stated that [the Veteran] sought benefits for a right-hip condition and asserted that this condition was manifested by right-hip pain that had existed since service. Although he believed that this condition was caused by arthritis or some other disease specific to his right hip, it is well settled that a claimant does "not file a claim to receive benefits only for a particular diagnosis, but for the affliction his . . . condition, whatever that is, causes him." Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In limiting its analysis only to diseases concerning the right hip, and denying the claim based on a medical examiner's conclusion that the appellant does not have right-hip disease - with no assessment of whether there is a cause for the pain other than right-hip disease - the Board erred. Id. Although the Secretary asserts that Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008) (noting that a distinctly diagnosed disorder is the basis for a new claim for benefits), may be more applicable to [the Veteran's] case because he has a previously denied claim for a spinal disability, the Board's statement of reasons or bases does not include a discussion of how the evidence is impacted by holdings in either Clemons or Boggs. Specifically, the Board failed to address whether the pain in [the Veteran's] right hip results from a disability that is the same as his previously denied spinal disability, which would indicate that new and material evidence is required to reopen a claim, or whether his current hip pain stems from a different disability, which would constitute a new claim for benefits. See Boggs and Clemons, both supra. Remand is warranted for the Board to address these issues in the first instance. Hensley v. West, 212 F.3d 1225, 1263-64 (Fed. Cir. 2000) (remand warranted when lower court failed to make findings of fact essential to the decision); Schafrath v. Derwinski, 1 Vet. App. 589 (1991) (Board must consider and discuss all applicable provisions of law and regulation where they are made "potentially applicable through the assertions and issues raised in the record"). By virtue of the Court's determination that a claim of whether new and material evidence has been received to reopen a claim of entitlement to service connection for a spinal disability is part and parcel of the Veteran's claim of entitlement to service connection for a right hip disability, the Board finds that this claim is properly before the Board for adjudication. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Clemons v. Shinseki, 23 Vet. App. 1 (2009). For the sake of simplicity, the Board has identified this issue separately on the first page of this decision. The issue of entitlement to service connection for a right hip disability, to include as secondary to service-connected disability, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A November 2002 rating decision denied the appellant's claim of entitlement to service connection for a spinal disability. The appellant was notified of his appellate rights, but did not perfect an appeal of the decision. 2. Evidence associated with the claims file after the last final denial in November 2002 of the Veteran's claim of entitlement to service connection for a spinal disability is neither cumulative nor redundant of the evidence of record at that time and, when considered with the previous evidence of record, raises a reasonable possibility of substantiating the claim. 3. The Veteran's current degeneration of the L5-S1 neural foramen and low lying conus at L2-3 is due to his active service. CONCLUSIONS OF LAW 1. The November 2002 RO rating decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 2. Evidence received since the November 2002 RO rating decision regarding entitlement to service connection for a spinal disability is new and material and the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. Degeneration of the L5-S1 neural foramen and low lying conus at L2-3 was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West. 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board is granting in full the benefits sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Application to Reopen Entitlement to service connection for a spinal disability was denied by an RO rating decision dated in November 2002. This rating decision indicates that the basis for the RO's denial was a lack of evidence of treatment or diagnosis of a spinal disability in service and a lack of evidence that a chronic spinal disc condition was incurred or aggravated by military service. The evidence before VA at the time of the prior final decision consisted of the Veteran's service treatment records and records of treatment at MacDill Air Force Base Hospital. A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.160(d), 20.302, 20.1103 (2012). Thus, the November 2002 RO rating decision became final because the Veteran did not perfect an appeal. In addition, the Board notes that the Court found that the decision was final in its September 2012 Memorandum Decision in stating "his previously denied spinal disability, which would indicate that new and material evidence is required to reopen a claim." The claim of entitlement to service connection for a spinal disability may be reopened if new and material evidence is submitted. Manio v. Derwinski, 1 Vet. App. 140 (1991). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the 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 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. 38 C.F.R. § 3.156(a). 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 submitted 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 the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Following the RO's denial in November 2002, additional evidence was associated with the claims file, including the opinion of a VA physician dated in July 2012 that indicates that the Veteran: has complained about his lower back, along with radicular symptoms since he left the military. It is my opinion that his lower back pain which manifested itself initially as pelvis pain, is at least as likely as not caused by his pelvis pain due to an injury he sustained in the military. I base this on the fact, that nerve impingement of nerves leaving the pelvis, originate from the back and his initial complaints was a symptom[ ] of the real cause of his present pain. As of today he has difficulty sitting, standing and walking for long periods of time. He also complain[s] of radiating sharp pains down his right leg. His most recent MRI in February revealed moderate narrowing of the right L5-S1 neural foramen and low lying conus at L2-3. Both of these finding[s] could represent a progression in his symptoms. The Board has carefully reviewed the newly submitted evidence. The Board finds that the evidence is both new and material. The Board finds that this evidence is new as it has not been previously considered. In regard to whether the evidence is material, the Board notes that in order to warrant service connection the Veteran would have to show (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). The new evidence that was received reveals that the Veteran has had consistent low back pain since service and provides an opinion that it is related to an injury he sustained in service. As this evidence relates to an unestablished fact necessary to substantiate the claims, the Board finds that this evidence is also material. As such, the Board finds that the opinion of the VA physician, dated in July 2012, is both new and material and, therefore, the previously denied claim of entitlement to service connection for spinal disability is reopened. 38 C.F.R. § 3.156(a). III. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Veteran seeks entitlement to service connection for a spinal disability. In January 1990 the Veteran complained of a back injury. He complained of pain on the coccyx bone and reported that three weeks prior he fell on his coccyx. He could run and walk but he had pain while doing sit-ups and stretching. The assessment was possible fracture of the coccyx, healing. In March 2000 the Veteran complained of back pain after stumbling on steps. In August 2000 he complained of a possible pulled muscle in the back and the assessment was sciatica. In December 2000 the Veteran complained of low back pain, left sacroiliac for one week. The Veteran reported right sided low back pain in January 2001 and was assessed with chronic low back pain. A January 2001 radiology report revealed degenerative spurring anteriorly at L3 and L5 and minimal calcification in the broad based bulging disk with a minimal shallow central protrusion, which did not impress upon any of the neural structures at L5/S1. In February 2001 the Veteran was noted to have a history of chronic low back pain and to be diagnosed with chronic low back pain and degenerative spurring L3 L5. In March 2001 he was noted to complain of low back pain and right hip pain that radiates down the leg. He was noted to have a history of degenerative joint disease of the low back and was noted to have chronic back pain probably since the Army. The Veteran was assessed with sciatica and history or degenerative joint disease. The Veteran complained of right sided low back pain and was assessed with back pain May 2001. A July 2002 X-ray was interpreted to reveal a negative lumbar spine for the Veteran's age. In July 2003 the Veteran was afforded a VA Compensation and Pension (C&P) joints examination. Relevantly the Veteran reported that he had low back pain and that he was found to have degenerative changes in the lumbar spine on magnetic resonance imaging (MRI) scan. Relevant physical examination revealed that the Veteran had pain on straight leg raising on the right side when he reaches 40 degrees. The examiner noted that the Veteran had a MRI scan report with him that revealed lumbar spine problems. The examiner noted that the symptoms the Veteran was having in his right leg are due to his low back most likely, or a form of sciatic rather than ankle pain. A July 2004 radiology report revealed that the Veteran had a straightening of the normal lordosis of the lumbar spine and degenerative disc disease, L5-S1. The Veteran has been treated with physical therapy. In August 2004 the Veteran complained of low back pain and indicated that he had had the pain for a long time, since the 1970's when he was in the Army and that it worsened with PT. MRI in October 2004 revealed mild degenerative changes at L4-L5 without significant canal, lateral recess or foraminal narrowing, disk desiccation with diffuse disk bulge, facet and flavum hypertrophy at L5-S1. There was associated prominence of the epidural fat, suggesting a component of epidural lipomatosis. There was a mild central canal stenosis, mild to moderate lateral recess stenosis and moderate proximal foraminal stenosis with some mass effect on the exiting L5 nerve root on the right. In November 2004 the Veteran was seen for a complaint of lower back pain with weakness and numbness in the right leg. The pain was reported to have started during his military experience 20 years prior and that he had an increase in pain over the prior six months. The pain was located in the right lower lumbar paraspinal region and left right buttock region. The pain then radiates into the right lateral thigh and right lateral calf. The most provocative factor for the back was sitting. He took medication for four years and had ten weeks of physical therapy. The Veteran's condition was noted to have progressed since onset. After physical examination and review of diagnostic results the Veteran was diagnosed with thoracic or lumbosacral neuritits or radiculitis, unspecified; spinal stenosis, lumbar region; and displacement of the lumbar intervertebral disc without myelopathy. Review of a MRI scan showed an isolated degeneration of the L5-S1 disc in August 2007. In October 2007 it was indicated that the Veteran's lower back pain began in the 1970's while in the military and has worsened in intensity and frequency over the years. The Veteran reported injuries while riding in a tank in the 1980's. The Veteran was diagnosed with lumbar degenerative disc, lumbar subluxation. Also in October 2007 the Veteran was diagnosed with displacement of the lumbar intervertebral disc without myelopathy. The Veteran complained of chronic low back pain in December 2009. The Veteran was afforded a VA medical examination in August 2010. After examination the examiner relevantly reported: I do not feel that since the complaints that the patient voices at this time are consistent with his chronic low back pain related to his degenerative disk disease, rather than any pathology in the hip, I would agree with prior evaluators that there is no reason to suspect that there is any hip pathology or that this is at all related to any prior injury to the right ankle. In December 2011 the Veteran was treated for back pain. The Veteran was noted to have a normal lumbosacral spine upon diagnostic imaging. A MRI report dated in February 2013 reported as the impression that the Veteran had a prominent epidural fat narrowing the distal thecal sac, mild to moderate narrowing of the right L5-S1 neural foramen, and low lying conus at L2-3. As noted above, a VA physician dated in a statement dated in July 2012 indicates that the Veteran "complained about his lower back, along with radicular symptoms since he left the military." The physician rendered the opinion that "his lower back pain which manifested itself initially as pelvis pain, is at least as likely as not caused by his pelvis pain due to an injury he sustained in the military." The physician based the opinion "on the fact, that nerve impingement of nerves leaving the pelvis, originate from the back and his initial complaints was a symptom[ ] of the real cause of his present pain." In addition, the physician cited the Veteran's difficulties with sitting, standing and walking for long periods of time and radiating sharp pains down his right leg and discussed the Veteran's recent MRI. In a statement dated in February 2013 a private chiropractor reported that MRI reveals narrowing of the Veteran's thecal sac of the spinal cord, mild to moderate narrowing of the right L5-S1 neural foramen, similar to prior study, and low-lying conus at L2-3. The provider stated: [a]fter reviewing all the reports and diagnostics as well as treating [the Veteran], is my professional opinion that I agree with the VA examiner that the right hip complaints as well as the pain radiating into the right thigh, leg and buttock is also associated with the low back and does cause sciatic nerve to become agitated and refer pain to the hip, knee, ankle, and foot. The Board finds that entitlement to service connection for degeneration of the L5-S1 neural foramen and low lying conus at L2-3 is warranted. Service treatment records reveal that the Veteran was treated for a back injury wherein he complained of pain on the coccyx bone after a fall. Post service records reveal that the Veteran has been diagnosed with degeneration of the L5-S1 disc and degeneration of the L5-S1 neural foramen as well as degenerative disc disease, L5-S1. In addition, post service records reveal that the Veteran has competently and consistently complained of and/or has been treated for a back condition since separation from service. In July 2012 a VA physician rendered the opinion "that his lower back pain which manifested itself initially as pelvis pain, is at least as likely as not caused by his pelvis pain due to an injury he sustained in the military." As the evidence reveals that the Veteran's currently degeneration of the L5-S1 neural foramen and low lying conus at L2-3 is related to the Veteran's active service, service connection is granted. ORDER The previously denied claim for service connection for a spinal disability is reopened. Service connection for degeneration of the L5-S1 neural foramen and low lying conus at L2-3 is granted. REMAND In a statement from the Veteran's physician dated in July 2012 it was reported that the he had treated the Veteran "for the last couple years for various medical issues." Review of the claims file reveals that the complete VA treatment records regarding the Veteran dated to April 2010 have been obtained and associated. Review of the claims file also reveals that VA audiology treatment notes dated in 2010 and 2011 have been associated with the claims file. Review of the claims file further reveals that the Veteran has submitted relevant VA treatment records dated in January 2012, December 2012, and February 2013 as well as private treatment records from St. Joseph's Hospital dated in December 2011 and January 2012 and additional records from Florida Orthopaedic Institute dated in November 2007. However, it is unclear whether all of the Veteran's relevant treatment records have been obtained and associated with the claims file. VA is required to make reasonable efforts to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. See 38 U.S.C.A. § 5103A(b)(1); 38 C.F.R. § 3.159(c)(1). In Bell v. Derwinski, 2 Vet. App. 611 (1992), the Court held that VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body. Accordingly, attempts must be made to obtain all VA treatment records regarding the Veteran that are dated subsequent to April 2010 and, after obtaining adequate authorization, attempts must be made to obtain all treatment records regarding the Veteran from the Florida Orthopaedic Institute and St. Joseph's Hospital. The records associated with the claims file since the August 2010 VA examination include discussion of the Veteran's hip pain. In addition, a form completed by the Veteran's VA physician dated in December 2012 indicates that the Veteran has hip pain and an MRI positive for bilateral osteoarthritis. An examination is adequate if it "takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). As such, the Board finds it necessary to afford the Veteran another VA medical examination regarding whether the Veteran has any right hip disability distinct from his low back disability and, if so, whether any identified disability is related to the Veteran's active service, taking into account newly associated medical evidence. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain complete VA medical records pertaining to the Veteran date since April 2010. 2. After securing the proper authorization, request treatment records pertaining to the Veteran from Florida Orthopaedic Institute and St. Joseph's Hospital. Any additional pertinent records identified by the appellant during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the appellant, and associated with the claims file. 3. Thereafter, arrange for the Veteran to undergo an appropriate VA examination to determine the nature, extent, onset and etiology of any right hip disability found to be present. The claims folder should be made available to and reviewed by the examiner. The examiner should indicate in his/her report whether or not the claims file was reviewed. All indicated studies should be performed, and all findings should be reported in detail. The examiner should opine as to whether the Veteran has a separate and distinct hip disability apart from his symptoms of a back disability. The examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that any right hip disability found to be present is related to or had its onset during service. The examiner should also opine as to whether it is at least as likely as not that any right hip disability found to be present is proximately due to or permanently aggravated (chronically worsened) by any of the Veteran's service-connected disabilities. The examiner should comment upon the prior examinations of record. The rationale for all opinions expressed should be provided in a legible report. 4. Thereafter, readjudicate the Veteran's claim. If the benefit sought on appeal is not granted, issue the Veteran and his representative a supplemental statement of the case and provide the Veteran an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs