Citation Nr: 1340932 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 10-49 705 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Whether new and material has been received to reopen service connection for upper back disorder, and if so, whether service connection is warranted. 2. Entitlement to service connection for a neck disorder. 3. Entitlement to a compensable evaluation (rating) for bilateral hearing loss. 4. Entitlement to an increased rating in excess of 10 percent for residuals of gall bladder removal. 5. Entitlement to an initial rating in excess of 20 percent for mechanical low back pain with intervertebral disc syndrome. 6. Entitlement to an initial rating in excess of 10 percent for plantar fasciitis of the left foot. 7. Entitlement to an initial rating in excess of 10 percent for plantar fasciitis of the right foot. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from June 2001 to July 2003. This matter comes on appeal before the Board of Veterans' Appeals (Board) from an April 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which denied a compensable rating for bilateral hearing loss, denied a compensable rating for residuals of gall bladder removal, denied an initial rating in excess of 20 percent for mechanical low back pain with intervertebral disc syndrome, denied an increased rating in excess of 10 percent for plantar fasciitis of the left and right foot, and denied service connection for a neck disorder. The April 2008 rating decision also reopened the claim for service connection for an upper back disorder and denied the claim on the merits. Regardless of the RO's determination as to the matter of new and material evidence, the Board is bound to decide the threshold issue of whether the evidence is new and material before addressing the merits of a claim. Barnett v. Brown, 8 Vet. App. 1 (1995) (citing 38 U.S.C. §§ 5108, 7104(b)). In a subsequent August 2010 rating decision, the RO granted a 10 percent rating for residuals of gall bladder removal, effective March 2007, the date of the Veteran's claim for an increased rating. Although the RO granted a higher 10 percent disability rating for residuals of gall bladder removal, the claim remains in controversy because the Veteran is not in receipt of the maximum benefit allowable. See A.B. v. Brown, 6 Vet. App. 35 (1993). The Veteran testified before the undersigned Veterans Law Judge in a February 2013 Board videoconference hearing. A transcript of the hearing is included in the VA paperless claims processing system. The issue of service connection for bilateral tinnitus has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issues of (1) service connection for upper back disorder, (2) service connection for a neck disorder, (3) a compensable rating for bilateral hearing loss, (4) an increased rating in excess of 10 percent for residuals of a gall bladder removal, (5) an initial rating in excess of 20 percent for mechanical low back pain with intervertebral disc syndrome, (6) an initial rating in excess of 10 percent for plantar fasciitis of the left foot, and (7) an initial rating in excess of 10 percent for plantar fasciitis of the right foot 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. On March 6, 2009, the Board issued a decision denying an appeal for an initial rating in excess of 20 percent for mechanical low back pain with intervertebral disc syndrome. 2. A pertinent February 2008 VA spine examination report had been conducted by the RO but was not associated with the claims file at the time of the March 6, 2009 Board decision. 3. An unappealed May 2006 rating decision denied service connection for an upper back disorder. 4. The Veteran did not submit a timely notice of disagreement to the May 2006 rating decision. 5. The evidence received since the May 2006 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for an upper back disorder. CONCLUSION OF LAW 1. The March 6, 2009 Board decision, denying an appeal for an initial rating in excess of 20 percent for mechanical low back pain with intervertebral disc syndrome, is vacated. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.904 (2013). 2. The May 2006 rating decision, which denied service connection an upper back disorder, became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2013). 3. The evidence received subsequent to the May 2006 rating decision is new and material to reopen service connection for an upper back disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.156(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Vacatur The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C.A. § 7104(a); 38 C.F.R. § 20.904. A Board decision was issued on March 6, 2009, which denied the Veteran's appeal for an initial rating in excess of 20 percent for mechanical low back pain with intervertebral disc syndrome. In February 2008, the Veteran underwent a VA spine examination; however, the report was not associated with the claims file at the time of the March 6, 2009 Board decision. Thus, the Board finds that the February 2008 VA examination report was constructively in the possession of VA and should have been considered by the Board. In this case, issuance of a decision without consideration of the additional evidence was a denial of due process. Accordingly, the Board vacates its March 6, 2009 decision in this matter. See 38 U.S.C.A. § 7104(a); 38 C.F.R. § 20.904. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013). The claim of whether new and material evidence has been received to reopen the claim for service connection for an upper back disorder has been considered with respect to VA's duties to notify and assist. Given the favorable outcome of this decision (reopening of the claim for service connection), no conceivable prejudice to the Veteran could result from this decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Reopening Service Connection for an Upper Back Disorder In a May 2006 rating decision, the RO denied service connection for an upper back disorder, finding that the evidence of record did not demonstrate any complaints, diagnosis, or treatment for an upper back disorder. The Veteran was properly notified of the May 2006 rating decision, did not appeal, and it became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. A claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. 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). The evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence of record at the time of the May 2006 rating decision included statements from the Veteran, service treatment records, and VA treatment records from January 2004 to October 2004. Evidence received since the May 2006 rating decision includes, in pertinent part, a February 2008 VA spine examination report which revealed tenderness in the thoracolumbar spine. Further, during the February 2013 VA Board hearing, the Veteran testified that he experiences constant pain throughout the entire spine. He further testified that, although the pain initially began in the low back, it had now progressed up his spine and into his neck. The Veteran also stated that his upper back disorder was due to his service-connected lumbar spine disability. A June 2006 VA treatment record reveals that results from an MRI showed minimal central disc bulges at T4-T5 and T6-T7. The Board finds that the February 2008 VA spine examination report, the February 2013 Board hearing testimony, and the June 2006 VA treatment record, obtained after the May 2006 rating decision, reflect some evidence that the Veteran has upper back pain, tenderness, and minimal central disc bulges at T4-T5 and T6-T7. As such, there is a reasonable possibility that this new evidence, relates to an unestablished fact (current diagnosis), may substantiate the claim for service connection for an upper back disorder, to include as due to service-connected lumbar spine disability. Accordingly, new and material evidence has been received to reopen service connection for an upper back disorder. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). ORDER The Board's March 6, 2009 decision denying the appeal for an initial rating in excess of 20 percent for mechanical low back pain with intervertebral disc syndrome is vacated. New and material evidence having been received, the appeal to reopen service connection for an upper back disorder is granted. REMAND Lumbar, Thoracic, and Cervical Spines The Veteran seeks an initial rating in excess of 20 percent for the lumbar spine disability (i.e., mechanical low back pain with intervertebral disc syndrome). The Veteran also seeks service connection for upper back and neck disorders. The Veteran was last afforded a VA spine examination in February 2008. During the February 2013 Board hearing, the Veteran testified that his doctors have discussed surgery options to release the pain in his lower, middle, and upper back. In an August 2010 VA treatment note, the Veteran reported that his low back pain was bothering him "worse than normal." Given that the last VA spine examination was provided over five years ago, and the Veteran's allegations that his lumbar back pain has worsened, a new VA spine examination is warranted to assist in determining the current severity of the lumbar spine disability. As for the claims for service connection for the thoracic and cervical spine, the Veteran maintains that these disorders are secondary to his service-connected lumbar spine disability. The Board notes that the Veteran has not been afforded a VA examination to address the etiology of the claimed thoracic and cervical spine disorders. The medical evidence of record reveals minimal central disc bulges at T4-T5 and T6-T7 and minimal degenerative changes at C3-C4 and C5-C6. See December 2004 and June 2006 VA treatment record. Given the Veteran's assertions, the VA spine examination obtained on remand should also address the nature and etiology of the Veteran's thoracic and cervical spine disorders, to include whether any diagnosed thoracic or cervical spine disorders are caused or permanently aggravated by the service-connected lumbar spine disability. Left and Right Foot Plantar Fasciitis The Veteran seeks an initial rating in excess of 10 percent for plantar fasciitis of the left and right foot. At the February 2013 Board hearing, the Veteran testified that he was undergoing surgery on March 1, 2013 on the left foot because the first surgery, conducted in 2007, was unsuccessful. These VA medical records, discussing the purported March 2013 foot surgery, are necessary in order to properly adjudicate the Veteran's claims for an increased rating and should be obtained and associated with the claims file. Further, in the last VA foot examination, conducted in February 2008, the Veteran stated that the pain from the bilateral plantar fasciitis was a 6 out of a scale from 1 to 10. In a later January 2009 VA treatment note, the Veteran stated that his pain was an 8 out of 10. In a March 2011 VA treatment note, the Veteran reported the pain as a 6 to 8 out of 10. For these reasons, the Board finds that a new VA foot examination is necessary to assist in determining the current severity of the Veteran's bilateral plantar fasciitis. Bilateral Hearing Loss The Veteran seeks a compensable disability rating for bilateral hearing loss. The Veteran was last afforded a VA audiological examination in February 2008. In a written statement dated November 2010, the Veteran noted that he had been prescribed hearing aids and that his hearing had worsened. Further, during the February 2013 Board hearing, the Veteran testified that he underwent a hearing test in approximately December 2012. The Board notes that the most recent VA treatment record is dated September 2012. As such, on remand, updated VA treatment record should be obtained. Also, if VA treatment records do not contain an audiological examination adequate for rating purposes, the Veteran should be afforded a VA audiological examination in order to properly assess the current severity of the hearing loss disability. Gall Bladder The Veteran seeks an increased rating in excess of 10 percent for residuals of gall bladder removal. During the February 2013 Board hearing, the Veteran testified that he had an endoscopy about two months ago (i.e., December 2012), which was fee-based out because the VA medical centers at Peoria and Danville no longer had specialists that would perform that procedure. The Veteran further testified that the doctor who performed the endoscopy told him that his symptoms were "moderate" at that time, and that he wanted to follow-up and prescribe medication. On remand, efforts should be made to obtain and associate with the claims file any records pertaining to the endoscopy. A VA examination should also be provided if deemed necessary to properly evaluate residuals of the gall bladder surgery. The last VA treatment record is dated September 12, 2012 (in Virtual VA paperless claims processing system). On remand, updated VA treatment records should be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC should obtain all VA treatment records from September 13, 2012 to the present. (Note: the Veteran reported receiving a hearing test and endoscopy through VA in approximately December 2012). Any documents received by VA should be associated with the record. Any negative responses should be properly documented in the record. 2. Thereafter, schedule the Veteran for a VA spine examination (lumbar, thoracic, and cervical) to assist in determining the current severity of the lumbar spine disability and the nature and etiology of the claimed thoracic and cervical spine disorders. The relevant documents in the claims folder should be made available to the examiner, who should indicate on the examination report that (s)he has reviewed the documents in conjunction with the examination. In regard to the lumbar spine, the examiner should conduct range of motion testing in degrees using a goniometer. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain and the specific excursion(s) of motion, if any, accompanied by pain. The extent of any incoordination, weakened movement, and excess fatigability on use should also be described by the examiner. If feasible, the examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner should indicate whether the Veteran's lumbar spine disability is so severe so as to result in incapacitating episodes (i.e., episodes in which his adverse symptomatology required bed rest ordered by a physician). If so, the examiner should comment on the duration and frequency of such incapacitating episodes. The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes flare-ups), and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. If feasible, the examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. As to the claimed thoracic and cervical spine disorders, the VA examiner should identify all current spine disorders by diagnosis and offer the following opinions: (a) For each of the spine disabilities diagnosed, the VA examiner should state whether it is at least as likely as not (i.e., 50 percent or greater probability), that any current spine disability (thoracic and/or cervical) is etiologically related to service. (b) Is it as likely as not that the Veteran's thoracic and/or cervical spine disorders are caused or aggravated (permanently worsened in severity beyond a natural progression) by the service-connected lumbar spine disability? If it is the examiner's opinion that there is aggravation, he or she should identify the baseline level of severity of the thoracic and/or cervical spine disorders prior to the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity. The VA examiner is requested to provide a rationale for any opinion provided. In the report, the examiner should refer to all medical and lay evidence of record used in making the conclusions. If the examiner is unable to answer the questions presented without resort to speculation, he or she should so indicate the reason. 3. Schedule the Veteran for a VA foot or orthopedic examination to assist in determining the current severity of the left and right plantar fasciitis disabilities. (This examination may be conducted in conjunction with the spine examination.) All indicated tests and studies should be conducted. The relevant documents in the claims folder should be made available to the examiner for review before the examination. The examination report should specifically address the rating criteria necessary to evaluate service connected plantar fasciitis. Specifically, the examiner should state whether the foot disabilities are best characterized as "moderate," "moderately severe," or "severe." The examiner should also discuss the impact of such symptoms on the Veteran's activities and social and occupational functioning. 4. After reviewing VA treatment records obtained pursuant to this remand, the RO should determine whether VA examinations are necessary in order to properly assess the current severity of the Veteran's hearing loss and gall bladder disabilities. (Note: the Veteran reported receiving a hearing test and endoscopy through VA in approximately December 2012). 5. After completing the requested actions, and any additional notification and/or development deemed warranted, the issues of service connection for upper back disorder, service connection for a neck disorder, compensable rating for bilateral hearing loss, an increased rating in excess of 10 percent for residuals of a gall bladder removal, an initial rating in excess of 20 percent for mechanical low back pain with intervertebral disc syndrome, an initial rating in excess of 10 percent for plantar fasciitis of the left foot, and an initial rating in excess of 10 percent for plantar fasciitis of the right foot should be readjudicated in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and representative an appropriate supplemental statement of the case, and should afford them the appropriate time period for response. 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). The Veteran is advised to appear and participate in any scheduled VA examination(s), as failure to do so may result in denial of the claim(s). See 38 C.F.R. § 3.655 (2013). 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. 2013). ______________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs