Citation Nr: 1320026 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 09-47 688 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for bilateral radiculopathy of the lower extremeties, to include as secondary to the service-connected fibromyositis of the lumbar paravertebral muscles (hereinafter "lumbar spine disability"), and if so, whether service connection is warranted. 2. Entitlement to service connection for bilateral neuropathy of the lower extremeties, to include as secondary to the service-connected lumbar spine disability. 3. Entitlement to an evaluation in excess of 40 percent for the service-connected lumbar spine disability. 4. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from September 1963 to September 1965. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The RO, in pertinent part, denied service connection for bilateral neuropathy of the lower extremities, determined that new and material evidence had not been submitted to reopen the claim for bilateral radiculopathy of the lower extremities, and denied entitlement to TDIU. The RO additionally awarded an increased 40 percent evaluation for the service-connected lumbar spine disability effective from September 2008. As the Veteran is presumed to be seeking the maximum benefit allowed by law and regulation, it follows that his claim remains in controversy as less than the maximum benefit available has been awarded. See AB v. Brown, 6 Vet. App. 35 (1993). The Veteran requested a hearing before the RO. The matter was scheduled for March 2010. The Veteran withdrew his request in February 2010. As such, there are no outstanding hearing requests of record. The reopened claim for bilateral radiculopathy of the lower extremities (under a merits analysis) , as well as the claims of service connection for bilateral neuropathy of the lower extremeties, an evaluation in excess of 40 percent for the service-connected lumbar spine disability, and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. An August 2005 rating decision denied a claim of service connection for bilateral radiculopathy of the legs; the Veteran did not appeal the decision nor was new and material evidence pertinent to the issue received within one year of notice of the decision. 2. Certain items of evidence received since the August 2005 rating decision are not cumulative and redundant, and relate to an unestablished fact that is necessary to substantiate the claim of service connection for radiculopathy of the bilateral lower extremeties. CONCLUSION OF LAW New and material evidence has been received to reopen the Veteran's claim for service connection for bilateral radiculopathy of the lower extremities. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.156, 20.302, 20.1103 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Further, the Court issued a decision in Kent v. Nicholson, 20 Vet. App. 1 (2006). In that decision, the Court held that VA must notify a claimant of the evidence and information that is necessary to reopen the claim, and must notify the claimant of the evidence and information that is necessary to establish his entitlement to service connection. In that regard, the Court noted that VA's obligation to provide a claimant with notice of what constitutes new and material evidence to reopen a service-connection claim may be affected by the evidence that was of record at the time that the prior claim was finally denied. The Court further stated that the VCAA requires, in the context of a claim to reopen, the Secretary to look at the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. Though the RO did not provide the bases for the denial of the claim for radiculopathy of the bilateral lower extremeties in the prior decision, there is no prejudice to the Veteran in light of the reopening of the claim of service connection. It is anticipated that any deficiencies will be remedied by the actions directed in the remand section of this decision. II. Analysis The Board has reviewed all the evidence in the Veteran's paper claims file and Virtual VA record, which does not contain any additional pertinent information. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on her behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran seeks to reopen his claim of service connection for radiculopathy of the bilateral lower extremeties. The record indicates that originally in an August 2005 rating decision, the RO denied a claim for bilateral radiculopathy of the legs on the basis that the claimed condition was not related to the service-connected lumbar spine disability. The RO additionally found that radiculopathy of the legs was not shown during the Veteran's active military service. The Veteran did not appeal this decision. No new and material evidence was received in the year following the issuance of the decision as it pertains to the issue on appeal. See generally 38 C.F.R. § 3.156. The August 2005 rating decision therefore became the last final decision on any basis. 38 U.S.C.A. § 7105(c). The Board must first address the issue of whether new and material evidence has been received to reopen the claim because it determines the Board's jurisdiction to reach the underlying claim and to adjudicate the claim de novo. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). Of record at the time of the August 2005 rating decision were the Veteran's service treatment records, which were negative for radiculopathy of the bilateral legs, including the August 1965 separation examination. Post-service, the September 1966 examination was essentially negative. However, a VA respiratory examination conducted in September 1966 included a diagnosis was backache, probably due to discogenic disease. An October 1967 examination found no spasm, but there was limited forward bending and straight leg raising elicited pain at 60 degrees. Upon VA examination in July 1968 the examiner noted alleged reduction in sensory acuity in the entire left lower extremity without specific patterns. There was slight atrophy in the left lower extremity. The neurological examination revealed no paresis or paralysis. In October 1969, the Veteran complained of low back pain radiating to the left flank. The diagnosis was kidney stones. In August 1970, VA examination found some spasms of the lumbar muscles. Straight leg raising elicited pain at 60- degrees, but there was no neurological deficit. VA outpatient treatment records dated in 2001 showed no gross motor or sensory deficit. Upon VA examination in July 2005, the Veteran reported a heavy sensation in his legs. He had diminished pinprick and smooth sensation in the legs not following any specific dermatomal pattern (nonradicular). An electromyography (EMG) conducted in August 2005 showed no evidence of lumbar radiculopathy. The examiner opined radiculopathy of the legs, if confirmed, was less likely than not related to the service-connected lumbar spine disability. The examiner additionally noted that if the magnetic resonance imaging (MRI) came back positive for discogenic disease with a herniated disc (which contained no evidence of herniated or bulging disc), radiculopathy of the legs was more likely than not etiologically related to the herniated disc and less likely than not etiologically related to the service-connected lumbar spine disability. Evidence submitted subsequent to the August 2005 rating decision includes an August 2008 letter from Dr. R.A.C.R., which notes complaints of burning sensation at the soles of his feet and some evidence of atrophy in the left leg. The September 2008 VA examiner found no evidence of radiculopathy. A February 2010 EMG revealed bilateral radiculopathy. The March 2010 VA examiner noted that a March 2010 EMG showed left S1 radiculopathy. The examiner opined that S1 radiculopathy was not related to the service-connected lumbar spine disability. An August 2010 statement from Dr. N.A.O. indicated it was probable that radiculopathy was related to his service-connected lumbar spine disability. As noted previously, in the August 2005 rating decision, the RO denied the claim for bilateral radiculopathy of the legs on the basis that the claimed condition was not related to the service-connected lumbar spine disability or shown during the Veteran's active military service. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of 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 VA's duty to assist or through consideration of an alternative theory of entitlement. The record contains competing medical opinions as to the etiology of the claimed radiculopathy of the bilateral lower extremities, with one opinion suggesting a possible relationship to the service-connected lumbar spine disability. These "new" records are "material" when considered with the previous evidence of record. They relate to an unestablished fact necessary to substantiate the Veteran's claim and raise a reasonable possibility of substantiating the claim. Therefore, the Veteran's claim for service connection for radiculopathy of the bilateral lower extremeties is reopened. See 38 C.F.R. § 3.156(a). ORDER New and material evidence has been received to reopen the claim of service connection for bilateral radiculopathy of the lower extremities. The appeal to this extent is allowed. REMAND Further development is necessary prior to a merits analysis of the Veteran's claim for bilateral radiculopathy of the lower extremities, as well as the claims of entitlement to service connection for bilateral neuropathy of the lower extremities and TDIU. The claim for an evaluation in excess of 40 percent for the service-connected lumbar spine disability is deferred for the reasons set forth below. The Veteran contends that he is entitled to service connection for bilateral radiculopathy and neuropathy of the lower extremeties. Specifically, he claims the conditions are secondary to the service-connected lumbar spine disability. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). The Board finds that a new VA examination and opinion are necessary to determine whether the Veteran currently has bilateral neuropathy and/or radiculopathy and if so, whether the claimed conditions are related to service-connected lumbar spine disability. See McClendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). Notably, an EMG done in August 2005 showed no evidence of lumbar radiculopathy or neuropathy. A July 2005 MRI showed no evidence of herniated or bulging disc. The July 2005 VA examiner opined radiculopathy of the legs, if confirmed, was less likely than not related to the service-connected lumbar spine disability. The examiner opined if the MRI came back positive for discogenic disease with a herniated disc, radiculopathy of the legs was more likely than not etiologically related to the herniated disc and less likely than not etiologically related to the service-connected lumbar spine disability. The September 2008 VA examiner found no evidence of radiculopathy. The Veteran was instead diagnosed with peripheral neuropathy. The examiner opined, "above mentioned condition is not related to any neurological injuries. This is a condition affecting muscles not nerves for which a radiculopathy (actually not present) or a neuropathy are not related in terms of etiology or pathophysiology with it." In August 2008, VA treatment providers noted the Veteran complained of bilateral foot pain, numbness, and paresthesias. The provider indicated it was explained to the Veteran that these symptoms were mostly related to his diabetic neuropathy. A February 2010 EMG revealed bilateral radiculopathy. The March 2010 VA examiner noted that a March 2010 EMG showed left S1 radiculopathy. The examiner opined that S1 radiculopathy was not related to service-connected lumbar spine disability as it was not part of the etiology for the development of lumbar radiculopathy. The examiner indicated lumbar radiculopathy and fibromyositis were from two different disease entities with different pathology process. An August 2010 statement from Dr. N.A.O. indicated it was probable that radiculopathy and neuropathy were related to his service-connected lumbar spine disability. A March 2012 letter from Dr. H.A.S.R. indicated the Veteran was diagnosed with discogenic disease, neuropathy, and S1 radiculopathy. The Board finds that there are conflicting diagnoses in the record as to whether the Veteran has radiculopathy, neuropathy, and discogenic disease. There is also some indication in the record that the Veteran has diabetic neuropathy, though not specifically confirmed, which may be causing some of the claimed symptoms. No rationale was provided for the July 2005 VA or August 2010 private opinions. The September 2008 VA opinion is simply not clear. The March 2010 VA examiner did not provide an opinion as to whether any currently diagnosed S1 radiculopathy was aggravated by the service-connected lumbar spine disability. For these reasons the Veteran should be scheduled for a new VA examination. The examiner is directed to answer the specific questions set forth in the numbered paragraphs below. The pertinent facts delineated in the decision portion are incorporated by reference. With regard to the claim for TDIU, the record compiled for appellate review of this matter to this point appears incomplete. It appears the Veteran is a Vocational Rehabilitation Participant; however, his vocational rehabilitation folder has not been associated with the claims folder. Such must be sought upon Remand. 38 C.F.R. § 3.159(c)(2). Further, the Veteran alleges that he is unemployable due to his service-connected lumbar spine disability. He has not been afforded an adequate VA examination to determine the impact of the service connected disability on his employability. Such an examination is necessary. 38 C.F.R. § 3.159(c)(4). The Board notes the Veteran was afforded an examination in March 2010 and the examiner indicated the Veteran's lumbar spine disability caused time lost from work in the last 12-month period, though the period of time lost was unknown. The examiner opined the Veteran's lumbar spine disability did not have significant effects on occupational functioning; however, in light of the possibility that Vocational Rehabilitation records are missing from the record, this examination is inadequate (with respect to the TDIU claim) as it is essential that each disability be viewed in relation to its history. 38 C.F.R. § 4.1. Any missing and/or ongoing VA medical treatment records pertinent to the issues must be obtained upon Remand. 38 C.F.R. § 3.159(c)(2). Finally, since current medical information regarding the claims for bilateral radiculopathy and neuropathy will be developed in connection with the secondary service connection theories, consideration of the issue of a higher rating for the service-connected lumbar spine disability is deferred. The RO should ensure that all due process requirements are met. The RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claims on appeal. 38 U.S.C.A. § 5103A (b) (West 2002). Accordingly, the case is REMANDED for the following action: 1. Take all indicated action in order to obtain copies of any VA clinical records not on file pertaining to treatment of the issues on appeal. All records and/or responses received should be associated with the claims file. 2. Obtain copies of the Veteran's Vocational Rehabilitation Folder. All records and/or responses received should be associated with the claims file. 3. After completion of the foregoing, schedule the Veteran for the appropriate VA examination to determine the nature and etiology of the claimed bilateral radiculopathy and neuropathy of the lower extremities. The Veteran's entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner before the examination. If the examiner does not have access to Virtual VA, any relevant treatment records in Virtual VA that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. All indicated tests or studies must be completed. The examiner should describe all findings in detail. All current disorders of the lower extremities, including radiculopathy and/or neuropathy, should be clearly reported. The examiner should then offer opinion in response to the following: a) Is it at least as likely as not (a 50% or higher degree of probability) that any currently diagnosed bilateral neuropathy and radiculopathy were manifested during service or are otherwise causally related to service? b) Is it at least as likely as not (a 50% or higher degree of probability) that any currently diagnosed bilateral neuropathy and radiculopathy of the lower extremities are proximately due to or caused by the service-connected lumbar spine disability? In answering this question, the examiner must indicate whether there is any other non-service connected disability, including, but not limited to, discogenic disease and/or diabetic neuropathy, producing the claimed symptoms (radiating pain, numbness, paresthesias, etc). c) Is it at least as likely as not (a 50% or higher degree of probability) that any current radiculopathy or neuropathy of the bilateral lower extremities have been aggravated by the service-connected lumbar spine disability? A detailed rationale should be furnished for all opinions. Note: if the examiner concludes that there is insufficient information to provide an etiology opinion without resorting to mere speculation, the examiner should state whether the inability to provide a definitive opinion was due to a need for further information (please identify) or because the limits of medical knowledge had been exhausted regarding the etiology of the claimed conditions. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 4. After completion of the foregoing, the RO should arrange for the Veteran to be examined by an appropriate physician to assess the cumulative effect that his service connected disabilities would be expected to have on employability. The Veteran's entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner before the examination. If the examiner does not have access to Virtual VA, any relevant treatment records in Virtual VA that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. Based on review of the record and examination of the Veteran, the examiner should provide opinions responding to the following: (a) Please discuss the functional limitations associated with, and expected effect on employment resulting from the Veteran's service connected disabilities alone (not including the effects of any non-service connected disabilities). (b) Please identify any/all types of employment that would be precluded by the limitations due to the Veteran's service-connected disabilities and also any types of employment that would remain feasible despite the service-connected disabilities. A detailed rationale should be furnished for all opinions. Note: if the examiner concludes that there is insufficient information to provide an etiology opinion without resorting to mere speculation, the examiner should state whether the inability to provide a definitive opinion was due to a need for further information (please identify) or because the limits of medical knowledge had been exhausted regarding the etiology of the claimed conditions. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 5. In the interest of avoiding further remand, the RO should ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. 6. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the issues in light of all evidence of record, to include any pertinent evidence contained within Virtual VA. Such readjudication of the claim for TDIU must determine whether referral to the Director of Compensation and Pension Service is warranted for extra-schedular consideration. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. The Veteran 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). These claims 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). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs