Citation Nr: 1319053 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 09-24 223 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for residuals of right tibia fracture to include arthritis of the right ankle. 2. Entitlement to a compensable disability rating for bilateral hearing loss. 3. Whether new and material evidence has been received to reopen a claim for service connection for a right shoulder disability, and if so, whether service connection is warranted. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and J.H. ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The Veteran served on active duty from February 1969 to January 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 and July 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In March 2013, the Veteran and J.H. testified before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is in the virtual file and has been reviewed. The United States Court of Appeals for Veterans Claims (Court) has held that a claim for a TDIU is part of an increased rating claim when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, in this case, the Veteran has not alleged, much less shown, that he is unemployable on account of his service-connected bilateral hearing loss or right tibia fracture residuals, meaning incapable of obtaining and maintaining substantially gainful employment because of this disability. According to May 2010 Reports of General Information, the Veteran had gotten a new job, laid off, but then called back to work. There is no subsequent evidence to the contrary. Therefore, a TDIU claim as concerning his hearing loss and/or right leg disability has not been inferred. See Roberson v. Principi, 251 F.3d 1378, 1384 (2001). See, too, Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009) (requiring cogent evidence of unemployability). Herein, the Board reopens the service connection claim for a right shoulder disability. That reopened claim and the increased rating claims also on appeal are remanded for further development. The Board acknowledges that the Veteran, through his representative, asked that his case be remanded to the RO directly. However, when appellants have representations, their cases are routinely handled by the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDINGS OF FACT 1. In an unappealed March 1990 rating decision, the RO denied the claim of entitlement to service connection for a right shoulder disability. 2. The additional evidence received since that last final decision relates to an unestablished fact necessary to substantiate the service connection claim for a right shoulder disability. CONCLUSIONS OF LAW 1. The RO's March 1990 rating decision denying the Veteran's claim of entitlement to service connection for a right shoulder disability is final and binding based on the evidence then of record. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.160, 20.200, 20.1103 (2012). 2. New and material evidence has been received since that decision to reopen this service connection claim for a right shoulder disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks to reopen a previously denied service connection claim for a right shoulder disability. He maintains that he has a right shoulder disability as a result of a motorcycle accident incurred during service in June 1971. He is currently service connected for residuals of right tibia fracture as a result of that accident. Without deciding whether the notice and development requirements of VCAA have been satisfied with respect to the Veteran's claim, the Board concludes that there is no prejudice in the Board adjudicating the Veteran's claim. This is so because the Board is taking action favorable to the Veteran by reopening his service connection claim for a right shoulder disability. See Bernard v. Brown, 4 Vet. App. 384 (1993). Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a)(2012). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160, 20.201, 20.302 (2012). To reopen a claim, new and material evidence must be presented or secured. 38 U.S.C.A. § 5108 (West 2002). "The Board does not have jurisdiction to consider [the previously adjudicated claim] unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find." Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The Board is neither required nor permitted to analyze the merits of a previously disallowed claim if new and material evidence is not presented or secured. Butler v. Brown, 9 Vet. App. 167, 171 (1996). When determining whether a claim should be reopened, the credibility of the newly-submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). Moreover, in Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the Court held that when evaluating the materiality of newly submitted evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Applicable here, "new" evidence is defined as existing evidence not previously submitted to agency decisionmakers. "Material" evidence means existing evidence that, by itself or when considered with 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) (2012). In this case, the RO denied the Veteran's original service connection claim for a right shoulder disability in a March 1990 rating decision. In so doing, the RO indicated that the service treatment records did not show a right shoulder injury or arthritis. At that time in 1990, there was also no evidence of a right shoulder disability. The Veteran did not appeal the March 1990 decision and it therefore became final. 38 U.S.C.A. § 7105(c)(West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). As the last final disallowance of the Veteran's service connection claim for a right shoulder disability is the March 1990 rating decision, the Board must now determine whether new and material evidence to reopen the claim has been received subsequent to the March 1990 rating decision. Evidence added to the claims file since the last final decision includes additional VA/"QTC" medical evidence, a hearing transcript, and lay statements. Notably, in support of the Veteran's claim to reopen, he submitted a VA Problem List that included an impression of arthralgia of the shoulder. Although it did not indicate which shoulder was involved, the Veteran has competently testified to having pain in his right shoulder. Pain alone, without a diagnosed or identifiable underlying malady or condition does not in and of itself constitute a disability for which service connection can be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). Nevertheless, this VA medical evidence raises a reasonable possibility that the Veteran may have a right shoulder disability that is related to service. Additionally, in support of the claim, he submitted a lay statement from R.L.C., a fellow service member. R.L.C. recalled that the Veteran experienced pain in his shoulder and arm after his in-service motorcycle accident. Presuming this lay statement regarding right shoulder symptoms after the in-service accident credible for the purposes of reopening the claim, it relates to an unestablished fact necessary to substantiate the claim, as it raises the possibility that any current right shoulder disability is related to service. 38 C.F.R. § 3.156 (2012). For these reasons, the Board finds that the evidence received since the March 1990 rating decision is new and material. Accordingly, the Veteran's service connection claimed for a right shoulder disability is reopened; however, as will be explained below, the Board is of the opinion that further development is necessary before the merits of the Veteran's claim can be addressed. ORDER New and material evidence having been received, the claim of entitlement to service connection for a right shoulder disability is reopened; to that extent, the appeal is granted. REMAND The Veteran testified that his bilateral hearing loss disability has worsened since his last VA formal audiology examination, which was conducted in May 2010. In this regard, he stated that his hearing has since deteriorated, noting that he has to read lips and has difficulty listening to conversations such as those on TV. The Veteran's representative reiterated the Veteran's contentions in December 2012 written argument as well as the videoconference hearing. Thus, in light of the Veteran's report of worsening auditory symptoms, the Board finds that VA is required to afford him a contemporaneous VA examination to assess the current nature, extent and severity of his bilateral hearing loss disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). The Board has no discretion and must remand this claim. Similarly, the Veteran testified that his service-connected right tibia fracture residuals have worsened in severity since his last "QTC"-sponsored VA examination in August 2012. In particular, he currently reports numbness in his leg and right knee swelling. The RO rated the Veteran's residuals of right tibia fracture as 10 percent disabling under Diagnostic Code 5262 which pertains to impairment of the tibia and fibula. Such code provides a 10 percent rating for malunion of the tibia and fibula with a slight knee or ankle disability. A 20 percent rating is assigned for malunion of the tibia and fibula with a moderate knee or ankle disability. A 30 percent rating is assigned for malunion of the tibia and fibula with a marked knee or ankle disability. A 40 percent rating is assigned for nonunion of the tibia and fibula with loose motion, requiring a brace. See 38 C.F.R. § 4.71a (2012). Thus, in light of the Veteran's report of worsening right leg symptoms, the Board finds that an additional VA examination is necessary to reassess the current nature, extent, and severity of his service-connected disability. Concerning the service connection claim, the Board also finds that a VA examination is necessary to determine the etiology of any currently diagnosed right shoulder disability. The VA medical evidence documents shoulder arthralgia, the service treatment records document a 1971 motorcycle accident, and the lay statements suggest a relationship between the two. Consequently, the underlying service connection claim for a right shoulder disability must also be remanded for further development. Lastly, efforts should be undertaken to ensure that the Veteran's complete VA treatment records have been obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file copies of the Veteran's complete treatment records for his hearing loss, right tibia residuals, and right shoulder from the Muskogee and Oklahoma City VA treatment facilities, dated from January 1973 to December 2008 and from February 2012 forward. 2. Thereafter, schedule the Veteran for an appropriate VA examination to determine the extent and severity of his bilateral hearing loss disability. The claims file should be made available to and reviewed by the examiner. All indicated tests, including an audiological evaluation, must be performed. The results should conform to VA regulations governing evaluation of hearing loss. The examiner should also fully describe the functional effects of the Veteran's hearing loss disability. The examiner should set forth a complete rationale for all findings and conclusions. 3. Also, schedule the Veteran for VA orthopedic and neurologic examinations to determine the extent and severity of his right tibia fracture residuals with arthritis of the right ankle. The claims file must be made available to the examiner and the examiner should indicate in his/her report whether or not the claims file was reviewed. Any indicated tests, including x-rays if indicated, should be accomplished. The examiner is asked to: a. Identify any orthopedic and neurological findings related to the Veteran's right tibia fracture residuals to include arthritis of the right ankle. b. Provide the Veteran's range of motion of the right knee and ankle in degrees and state the point at which any pain is demonstrated. c. Determine whether range of motion is reduced by weakness, fatigue, incoordination, swelling, deformity or atrophy of disuse, or pain. Critically, if pain on motion is found, the examiner should state whether this pain is debilitating, i.e. actually affects the normal working movements of the body such as excursion, strength, speed, coordination, or endurance. d. If pain actually causes limitation of motion as described above (as opposed to mere pain on motion that is not of sufficient severity to cause additional limitations) the examiner should state the additional degree of limitation in terms of degrees, if possible. e. Determine whether (i) repetitive use or (ii) flare-ups would be productive of additional limitation of motion due to weakness, fatigue, incoordination, swelling, deformity or atrophy of disuse, or debilitating pain. If the Veteran's range of motion is likely to be further reduced by debilitating pain due to repetitive use or flare-ups, the examiner should so state and describe the additional degree of limitation in terms of degrees, if possible. f. State whether the Veteran has actually or functionally, malunion of the right tibia and fibula with a moderate knee or ankle disability, or marked knee or ankle disability. g. State whether the Veteran has nonunion of the right tibia and fibula with loose motion, requiring a brace. h. State whether there is objective evidence of lateral instability or subluxation of the right knee and if so, the degree (i.e., slight, moderate, severe) of such instability and/or subluxation should be discussed. i. With regard to any neurological disability resulting from the service-connected disability, the specific nerve(s) affected should be specified, together with the degree of paralysis caused by service-connected disability. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 4. Schedule the Veteran for an appropriate VA examination to determine the etiology of the Veteran's right shoulder disability. The claims file should be made available and reviewed by the examiner. Any indicated studies should be performed. The examiner should indicate any right shoulder disabilities currently shown, and then determine whether it is at least as likely as not (a 50 percent or more likelihood) that any currently diagnosed right shoulder disability had its clinical onset during his active service or is otherwise related to his service. In particular, the examiner is asked to reconcile the opinion with the Veteran's contention that has a right shoulder disability as a result of the June 1971 motorcycle accident and has had continuing symptoms ever since. The examiner should provide a complete rationale for any opinion provided. 5. Thereafter, readjudicate the Veteran's increased rating claims for bilateral hearing loss and right tibia residuals to include right ankle arthritis, as well as the service connection claim for a right shoulder disability. If the benefits sought on appeal are not granted, issue a supplemental statement of the case and provide the Veteran an opportunity to respond. The case should be returned to the Board, if in order. 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). _________________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).