Citation Nr: 1414981 Decision Date: 04/07/14 Archive Date: 04/15/14 DOCKET NO. 09-48 283 ) 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 presented to reopen a claim for service connection for a bilateral knee disability, claimed as secondary to a low back disability. 2. Whether new and material evidence has been presented to reopen a claim for service connection for a bilateral ankle disability, claimed as secondary to a low back disability. 3. Entitlement to service connection for a bilateral knee disability, claimed as secondary to a low back disability. 4. Entitlement to service connection for a bilateral ankle disability, claimed as secondary to a low back disability. 5. Entitlement to service connection for type II diabetes mellitus, claimed as secondary to service-connected low back disability. 6. Entitlement to service connection for a kidney disability, claimed as secondary to service-connected low back disability. 7. Entitlement to service connection for sleep problems, claimed as secondary to low back disability. 8. Entitlement to service connection for a bilateral elbow disability, claimed as secondary to low back disability. 9. Entitlement to service connection for a bilateral hand disability, claimed as secondary to low back disability. 10. Entitlement to a disability rating in excess of 40 percent for traumatic lumbar myositis with L5-S1 bulging disc (low back disability). 11. Entitlement to a disability rating in excess of 20 percent for tarsal tunnel syndrome of the left foot. 12. Entitlement to a disability rating in excess of 10 percent for right lumbosacral radiculopathy of the lower extremity. 13. Entitlement to a compensable disability rating for fatty liver with mild liver function test abnormalities. 14. Entitlement to a compensable disability rating for esophagitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Evan M. Deichert, Counsel INTRODUCTION The Veteran served on active duty from June 1977 to December 1978. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision of August 2008 of the San Juan, Puerto Rico, Department of Veterans Affairs (VA) Regional Office (RO) that denied each of the Veteran's claims. . The Veteran's claims for service connection for diabetes and for a kidney disability were denied in a May 2007 rating decision. The Veteran again sought service connection for these claimed disabilities in his August 2007 claim that gave rise to this appeal. As this current claim was filed within a year of his May 2007 denial, that denial was never final, and the Veteran does not need to present new and material evidence to first reopen these claims. The issues have been recharacterized to comport with the evidence of record, including the procedural posture of the case. All of the Veteran's claims, with the exception of his new and material evidence claims, 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. Service connection for bilateral knee and ankle disabilities was denied in a February 2006 Board decision on the bases that his claimed disabilities were not related to his active service and were not secondary to his service-connected low back disability. 2. The additional evidence presented since the previous Board denial raises a reasonable possibility of substantiating the Veteran's claims for service connection for bilateral knee and ankle disabilities. CONCLUSIONS OF LAW 1. The criteria for reopening the claim of entitlement to service connection for a bilateral knee disability have been met. 38 U.S.C.A. §§ 5107, 5108 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a) (2013). 2. The criteria for reopening the claim of entitlement to service connection for a bilateral ankle disability have been met. 38 U.S.C.A. §§ 5107, 5108 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. With respect to the Veteran's claims to reopen his previously denied claims for service connection, the Board is granting in full the benefits sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. II. New and Material Evidence Claims The Veteran first sought service connection for his claimed knee and ankle disabilities in December 1998. After the RO denied his claim in September 1999, he perfected his appeal to the Board. In a February 2006 decision, the Board denied the Veteran's claims for service connection. The Board concluded that the Veteran did not suffer from knee or ankle disabilities during his active service; that his claimed knee and ankle disabilities were not related to his active service; and that the Veteran's knee and ankle disabilities were not secondary to or aggravated by his service-connected low back disability. Board denials are considered final as of the date they are issued. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2013). A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). In a May 2005 letter, the Veteran's private physician stated that the Veteran suffers from right lumbosacral radiculopathy, and that this radiculopathy results in stiffness and swelling of his knees and ankles. This evidence was not before the Board at the time of his February 2006 denial. It relates to an unestablished fact necessary to substantiate his claims (i.e., whether his disabilities are secondary to a service-connected disability). Reopening the Veteran's claims for service connection for bilateral knee and bilateral ankle disabilities is warranted. ORDER New and material evidence having been presented, the claim of entitlement to service connection for a bilateral knee disability is reopened. New and material evidence having been presented, the claim of entitlement to service connection for a bilateral ankle disability is reopened. REMAND For numerous reasons, the Veteran's remaining claims require a remand. Given the sheer number of claims, the Veteran's inconsistency in describing his symptoms, and the general confusion over what exactly is being sought, the development in this case has been inconsistent at best. The Board seeks to rectify these problems. First, with respect to the Veteran's claims for service connection for bilateral knee and ankle disabilities, though the Veteran has consistently contended that his knee and ankle disabilities are secondary to his service-connected low back disability, his private physician suggested that these disabilities could be secondary to his service-connected radiculopathy. While the physician's opinion is enough to warrant reopening the Veteran's claims, it is not enough to grant service connection outright. Though the Veteran underwent a VA examination in September 2006, the conclusions from that examination are inadequate. Remand for a new examination is required. With regard to the Veteran's claims for service connection for diabetes and for a kidney condition, the Veteran underwent examinations in October 2006 and September 2006, respectively. The opinions offered in these examinations are inadequate. Having granted the Veteran examinations, VA is obligated to ensure that they are adequate. New examinations are required. With respect to the Veteran's claim for service connection for sleep problems, he has consistently contended that his service-connected back disability prevents him from sleeping in certain positions, and that he does not have restful sleep as a result. At a VA sleep study in January 2010, he repeated these contentions. He was diagnosed as suffering from sleep apnea, but no etiology for this disability was provided. A VA examination is necessary to determine whether this disability (or any other sleep disability) is related to service or to the Veteran's service-connected back disability. It is difficult to determine whether the Veteran's claims for service connection for a bilateral elbow disability and for a bilateral hand disability are referring to musculoskeletal complaints (such as arthritis) or nerve complaints (such as radiculopathy). The evidence shows that, as early as 1997, the Veteran made complaints regarding bilateral elbow pain, and he was diagnosed in February 1997 as suffering from bilateral olecranon enthesopathy. In more recent letters, the Veteran describes complaints with his elbows and hands that are consistent with radiculopathy like symptoms. A VA examination is required to determine from what pathology the Veteran suffers and its etiology. With respect to the Veteran's claims for increased ratings for each of his service-connected disabilities, the Veteran last underwent examinations in May 2008. Since that time, he has consistently stated that his disabilities have worsened. Given the Veteran's statements and the almost six years that have passed since his examinations, new examinations are warranted. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA joints examination by an appropriate medical professional for the Veteran's claimed knee, ankle, elbow, and hand disabilities. The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, VBMS, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA or VBMS, any relevant treatment records contained in those files that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. After examining the Veteran, the examiner is to answer the following questions: a. From what (if any) disabilities of the knees, ankles, elbows, and hands does the Veteran currently suffer? b. Is it at least as likely as not (a 50 percent or greater probability) that any identified disabilities of the knees, ankles, elbows, and hands are related to the Veteran's active service? If not, c. Is it at least as likely as not that any identified disabilities of the knees, ankles, elbows, and hands are caused by any of the Veteran's service-connected disabilities, including his low back disability and radiculopathy? If not, d. Is it at least as likely as not that any identified disabilities of the knees, ankles, elbows, and hands have been aggravated by the Veteran's service-connected low back disability or radiculopathy? The term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. Schedule the Veteran for a VA examination before an appropriate medical professional to determine the nature and etiology of his claimed diabetes and kidney disability. The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, VBMS, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA or VBMS, any relevant treatment records contained in those files that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. After examining the Veteran, the examiner is to answer the following questions: a. From what (if any) kidney disability does the Veteran suffer or has suffered from since August 2006? b. Is it at least as likely as not that the Veteran's diabetes or any identified kidney disability is proximately due to or the result of any of the Veteran's service-connected disabilities? In answering this question, the examiner must discuss whether any medication used to treat the Veteran's service-connected disabilities could have resulted in kidney stones or any other kidney disability. c. Is it at least as likely as not that the Veteran's diabetes or any identified kidney disability has been aggravated by any of the Veteran's service-connected disabilities? The term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Schedule the Veteran for a VA examination by an appropriate medical professional to determine the nature and etiology of his claimed sleep problems. The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, VBMS, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA or VBMS, any relevant treatment records contained in those files that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. After examining the Veteran, the examiner is to answer the following questions: a. From what (if any) sleep disability does the Veteran currently suffer? b. Is it at least as likely as not that any identified sleep disability is proximately due to or the result of any of the Veteran's service-connected disabilities? c. Is it at least as likely as not that any identified sleep disability has been aggravated by any of the Veteran's service-connected disabilities? The term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Schedule the Veteran for review examinations for each of his currently service-connected disabilities. Each examiner is to provide the current nature and severity of his service-connected disabilities. With respect to the claim for an increased rating for the Veteran's fatty liver, the examiner must state what specific disability the Veteran suffers from, and describe the manifestations. 5. Then, readjudicate the appeal. If any of the benefits sought remain denied, issue a Supplemental Statement of the Case and return the case to the Board. The appellant has the right to submit additional evidence and argument on the 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. 2013). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs