Citation Nr: 1323514	
Decision Date: 07/24/13    Archive Date: 08/01/13

DOCKET NO.  09-47 306	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of service connection for a heart disability.

2.  Whether new and material evidence has been received to reopen a claim of service connection for a lumbar spine disability.

3.  Entitlement to a combined rating in excess of 20 percent for a right knee disability.

4.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Veteran represented by:	Colorado Department of Military and Veterans Affairs


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

L. B. Yantz, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from March 1981 to June 1990.  These matters are before the Board of Veterans' Appeals (Board) on appeal from October 2008 and April 2009 rating decisions of the Denver, Colorado Department of Veterans Affairs (VA) Regional Office (RO).  In March 2013, a videoconference hearing was held before the undersigned.  A transcript of the hearing is associated with the Veteran's claims file.

The Veteran had also initiated appeals of denials of service connection for left arm weakness and right arm weakness.  A March 2010 rating decision granted service connection for left side cervical radiculopathy, and an October 2012 rating decision granted service connection for right upper extremity cervical radiculopathy.  Consequently, those matters are not before the Board.

The Board notes that it has reviewed both the Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system) to ensure that the complete record is considered.  Additional documents pertinent to this appeal in Virtual VA have been printed and associated with the physical claims file.

The issues of service connection for a heart disability and a lumbar spine disability, both on de novo review, and the issues seeking a higher combined rating for a right knee disability and a TDIU rating, are being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran if action on his part is required.


FINDINGS OF FACT

1.  An unappealed November 1990 rating decision denied the Veteran service connection for a heart disability, finding in essence that there was no evidence of a current heart disability.

2.  Evidence received since the November 1990 rating decision suggests that the Veteran has a current heart disability; relates to an unestablished fact necessary to substantiate the claim of service connection for a heart disability; and raises a reasonable possibility of substantiating such claim.

3.  An unappealed March 2005 rating decision denied reopening the Veteran's claim for service connection for a lumbar spine disability, finding in essence that no new and material evidence (pertaining to whether the Veteran had a current lumbar spine disability) had been submitted to reopen the claim.

4.  Evidence received since the March 2005 rating decision suggests that the Veteran has a current lumbar spine disability; relates to an unestablished fact necessary to substantiate the claim of service connection for a lumbar spine disability; and raises a reasonable possibility of substantiating such claim.


CONCLUSIONS OF LAW

1.  New and material evidence has been received, and the claim of service connection for a heart disability may be reopened.  38 U.S.C.A. §§ 5108, 7105(c) (West 2002); 38 C.F.R. § 3.156(a) (2012).

2.  New and material evidence has been received, and the claim of service connection for a lumbar spine disability may be reopened.  38 U.S.C.A. §§ 5108, 7105(c) (West 2002); 38 C.F.R. § 3.156(a) (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The VCAA applies to the instant claims to reopen.  However, inasmuch as this decision reopens the claims, there is no need to belabor the impact of the VCAA on these matters (as any notice or duty to assist omission is harmless).

Legal Criteria, Factual Background, and Analysis

A November 1990 rating decision denied the Veteran service connection for a heart disability.  He was furnished notice of that determination and notice of his appellate rights.  He did not appeal that decision, nor did he submit new and material evidence within one year following notice; therefore it is final.  38 U.S.C.A. § 7105; 38 C.F.R. § 3.156.

A March 2005 rating decision denied reopening a claim of service connection for a lumbar spine disability.  The Veteran was furnished notice of that determination and of his appellate rights.  He filed a notice of disagreement in April 2005, but before a statement of the case (SOC) could be issued, he submitted a statement in May 2006 withdrawing the appeal.  As he did not continue his appeal of that decision, nor submit new and material evidence within one year following notice, it is final.  38 U.S.C.A. § 7105; 38 C.F.R. § 3.156.

A claim which is the subject of a prior final decision may be reopened if new and material evidence is received.  38 U.S.C.A. § 5108.
New and material evidence is defined by regulation.  See 38 C.F.R. § 3.156.  New evidence means evidence not previously submitted to agency decision-makers.  Material evidence is 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 establishing the claim.  38 C.F.R. § 3.156(a).

The Court has held that the phrase 'raises a reasonable possibility of establishing the claim' must be viewed as enabling rather than precluding reopening.  Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

The Veteran's claim of service connection for a heart disability was denied by a November 1990 RO rating decision essentially on the basis that there was no evidence of a current heart disability.  His claim of service connection for a lumbar spine disability was not reopened by a March 2005 RO rating decision essentially on the basis that no new and material evidence (pertaining to whether he had a current lumbar spine disability) had been submitted to reopen the claim.

Regarding the heart, evidence received since the November 1990 rating decision includes, most significantly, VA treatment records dated in August 2003, November 2003, December 2003, June 2007, January 2010, and August 2011.  The August 2003 record noted that a February 2003 echocardiogram had revealed mild hypertrophy in the left ventricle.  The November 2003 record noted that a November 2003 dipyridamole-thallium (dip-thall) scan showed an area of mild reversibility in a small region of the anterior apex consistent with ischemia, and that a 1998 catheterization had shown a 30 to 40 percent proximal left anterior descending (LAD) lesion present.  The December 2003 record reiterated that the November 2003 dip-thall scan had shown mild anteroapical ischemic changes.  The June 2007 record noted that a June 2007 carotid doppler had revealed mild diffuse atherosclerotic changes but no measurable stenosis.  The January 2010 record noted that the Veteran, in reviewing his past medical history, reported that he had a diagnosis of cardiac arrhythmias.  The August 2011 record noted that heart tones were audible with murmur noted.

Regarding the lumbar spine, evidence received since the March 2005 rating decision includes, most significantly, an April 2008 VA treatment record, a September 2009 VA MRI report, and a January 2013 private treatment record.  The April 2008 record noted that lower back x-rays showed mild degenerative disc disease (DDD) at L4-5 and L5-S1.  The September 2009 MRI revealed broad-based bulge of the annulus L4/L5 associated with foraminal compromise and potential effacement of the L5 roots.  The January 2013 record noted a diagnosis of lumbago.

As the claims of service connection for a heart disability and a lumbar spine disability were previously denied on the basis that there was no evidence that the Veteran had a current heart and/or lumbar spine disabilities, for evidence to be new and material in the matters, it would have to be evidence not previously of record that tends to show that he does indeed have current disabilities of the heart and lumbar spine.  The aforementioned treatment records suggest that the Veteran has been diagnosed with heart disabilities (including mild hypertrophy in the left ventricle, mild anteroapical ischemic changes, proximal left LAD lesion, mild diffuse atherosclerotic changes, cardiac arrhythmias, and murmur) as well as lumbar spine disabilities (including DDD at L4-5 and L5-S1, broad-based bulge of the annulus L4/L5 associated with foraminal compromise and potential effacement of the L5 roots, and lumbago).  They relate to an unestablished fact necessary to substantiate the claims of service connection for a heart disability and a lumbar spine disability and raise a reasonable possibility of substantiating those claims (particularly in light of the low threshold standard endorsed by the Court in Shade, supra).  Therefore, they are both new and material, and these claims may be reopened.  38 U.S.C.A. § 5108.

De novo review of both claims is addressed in the remand below.



ORDER

The appeal to reopen a claim of service connection for a heart disability is granted.

The appeal to reopen a claim of service connection for a lumbar spine disability is granted.


REMAND

On review of the record the Board has found that further development is needed for VA to fulfill its duties mandated under the VCAA.

The record reflects that the Veteran was awarded Social Security Administration (SSA) disability benefits; the disability(ies) on which the award was based are not specified in the current record.  The medical records considered by SSA in connection with the award are constructively of record, may contain pertinent information, and must be secured.  See Murincsak v. Derwinski, 2 Vet. App. 363 (1992).

The most recent VA treatment records in the claims file are dated in September 2012.  In a March 2013 statement (submitted on the date of his hearing), the Veteran noted that he was continuing to receive treatment at the VA Medical Center in Denver and at the VA Outpatient Clinic in Colorado Springs,.  As reports of ongoing VA treatment are constructively of record (and are likely to contain pertinent information), they must be obtained.  See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992).  In addition, any private treatment records pertaining to the claimed disabilities also have bearing on the instant claims and must be secured.

Service Connection - Heart Disability

The Veteran's service treatment records (STRs) document complaints of chest pain.

The postservice medical evidence documents the following cardiac diagnoses for the Veteran: mild hypertrophy in the left ventricle; mild anteroapical ischemic changes; proximal left LAD lesion; mild diffuse atherosclerotic changes; cardiac arrhythmias; and murmur.

In light of the above, an examination to ascertain the nature and likely etiology of any current heart disability is needed.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4).

Service Connection - Lumbar Spine Disability

The Veteran's STRs document numerous complaints of low back pain.  In April 1990, a Medical Evaluation Board (MEB) found that he had a diagnosis of DDD with chronic low back pain at L5-S1 and L4-L5, originating in 1983.

The postservice medical evidence has documented the Veteran's ongoing complaints of low back pain as well as the following lumbar spine diagnoses: DDD at L4-5 and L5-S1; broad-based bulge of the annulus L4/L5 associated with foraminal compromise and potential effacement of the L5 roots; and lumbago.

The Veteran has additionally contended that his current lumbar spine disability was caused or aggravated by his service-connected cervical spine disability.  He should be informed of the specific information and evidence necessary to substantiate a claim for service connection on a secondary basis.

In light of the above, an examination to ascertain the nature and likely etiology of any current lumbar spine disability (to include whether any such disorder was caused or aggravated by his service-connected cervical spine disability) is needed.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4).

Increased Rating - Right Knee Disability

The Veteran seeks an increase in the rating for his service-connected right knee disability, rated as 20 percent combined (based on a formulation of 10 percent for degenerative joint disease (DJD) of the right knee with limitation of motion under Diagnostic Codes (Codes) 5003-5260 and 10 percent for instability under Codes 5003-5257.  He was most recently afforded a VA examination for his right knee disability in September 2012.  Given the allegations of worsening since at theMarch 2013 hearing, a contemporaneous examination to assess the severity of this disability is necessary.

TDIU

The claim for a TDIU rating is inextricably intertwined with the other claims on appeal, as the evidence received in connection with the other claims could materially affect the outcome of the TDIU claim.  See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated).  Therefore, the claim for a TDIU must be readjudicated after the other claims on appeal are readjudicated following the completion of the development requested on remand.

Accordingly, the case is REMANDED for the following:

1.  The RO should review the record and take any necessary action to ensure compliance with all VCAA notice and assistance requirements, to specifically include furnishing the Veteran notice of the specific information and evidence necessary to substantiate a claim of secondary service connection.

2.  The RO should secure from SSA complete copies of all records pertaining to the Veteran, including any decisions and any medical evidence relied upon in making those decisions.  If such is provided by disc, the RO should print out the records and associate the copies with the claims file.  Any negative search result is to be noted in the record and communicated to the Veteran.
3.  The RO should ask the Veteran to identify the provider(s) of any additional (records of which are not already associated with the record) treatment or evaluation he has received for his claimed disabilities, and to provide all releases necessary for VA to secure any private records of such treatment or evaluation.  The RO should obtain complete records of all such treatment and evaluation from all sources identified.  If any records requested are unavailable, the reason must be explained for the record.  In addition, the RO should secure for the record complete copies of the clinical records of all VA treatment the Veteran has received for his claimed disabilities since September 2012.  If any records requested are unavailable, the reason must be explained for the record.

4.  After the development sought above is completed, the RO should arrange for a heart examination of the Veteran to ascertain the nature and likely etiology of any current heart disability.  The Veteran's entire record (to include the claims file with this remand and the records in Virtual VA) must be reviewed by the examiner in conjunction with the examination.  Any tests or studies indicated should be completed.  Based on review of the record and examination of the Veteran, the examiner must provide opinions that respond to the following:

(a)  Please identify (by medical diagnosis) each disability entity of the heart found.  If no heart disability is diagnosed, please reconcile that conclusion with the medical evidence of record cited above.

(b)  As to any/each heart disability entity diagnosed, please identify the most likely etiology.  Specifically, is it at least as likely as not (a 50% or better probability) that such was incurred or aggravated during the Veteran's active service.  The examiner must specifically consider and address the relevant findings documented in the Veteran's STRs.

The examiner must explain the rationale for all opinions, citing to supporting clinical data, as appropriate.

5.  After the development sought above (pursuant to Instructions 1-3) is completed, the RO should arrange for an orthopedic examination of the Veteran to ascertain the nature and likely etiology of any current lumbar spine disability, and to assess the severity of his service-connected right knee disability.  The Veteran's entire record (to include the claims file with this remand and the records in Virtual VA) must be reviewed by the examiner in conjunction with the examination.  Any tests or studies indicated should be completed.  Based on review of the record and examination of the Veteran, the examiner must provide opinions that respond to the following:

For the lumbar spine:

(a)  Please identify (by medical diagnosis) each disability entity of the lumbar spine found.  If no lumbar spine disability is diagnosed, please reconcile that conclusion with the medical evidence of record.

(b)  As to any/each lumbar spine disability entity diagnosed, please identify the most likely etiology.  Specifically, is it at least as likely as not (a 50% or better probability) that such was incurred or aggravated during the Veteran's active service, or was caused or aggravated by his service-connected cervical spine disability.  The examiner must specifically consider and address the relevant findings documented in the Veteran's STRs.

The examiner must explain the rationale for all opinions, citing to supporting clinical data, as appropriate.

For the right knee:

All examination findings should be reported to allow for application of pertinent VA rating criteria.  The examiner is requested to comment on any functional loss and/or limitations due to the disability.

The examiner should conduct range of motion studies (and note any limitations due to pain, weakness, incoordination, or lack of endurance); note whether there is arthritis in the knee; and make specific findings as to whether there is subluxation or instability, and if so, the degree of each.

The examiner must explain the rationale for all opinions.

6.  The RO should ensure that all of the development sought is completed, arrange for any further development suggested by any additional evidence received, and then review the record and readjudicate the claims on appeal (TDIU after any further development indicated, and in light of the determinations made on the other issues).  If any benefit sought remains denied, the RO should issue an appropriate supplemental SOC and afford the Veteran and his representative the opportunity to respond.  The case should then be returned to the Board.
The Veteran has the right to submit additional evidence and argument on the 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 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).



______________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs