Citation Nr: 1640602 Decision Date: 10/14/16 Archive Date: 10/27/16 DOCKET NO. 13-32 726 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for a low back disorder. 2. Whether new and material evidence has been received to reopen a claim of service connection for bilateral shin splints. 3. Entitlement to service connection for a low back disorder. 4. Entitlement to service connection for an upper back disorder. 5. Entitlement to service connection for arthritis of the spine. 6. Entitlement to service connection for a neck disorder. 7. Entitlement to service connection for a bilateral shoulder disorder. 8. Entitlement to service connection for a bilateral foot disorder. 9. Entitlement to service connection for bilateral upper extremity peripheral neuropathy. 10. Entitlement to service connection for bilateral lower extremity peripheral neuropathy. 11. Entitlement to service connection for fibromyalgia. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Bonnie Yoon, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1993 to December 1993. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The issue of entitlement to service connection for depression has been raised by the record during the Veteran's January 2016 hearing before the Board, but has not been adjudicated by the RO. To the extent that the Veteran desires to file a claim for this disorder, she is advised that a complete claim on an application form prescribed by VA regulations is required. 38 C.F.R. § 3.155 (2015). Therefore, the Board does not have jurisdiction over this issue, and it is referred to the RO for appropriate action. 38 C.F.R. § 19.9(b) (west 2014). The issues of whether new and material evidence has been received to reopen a claim of service connection for bilateral shin splints, entitlement to service connection for a low back disorder, an upper back disorder, arthritis of the spine, a neck disorder, a bilateral shoulder disorder, a bilateral foot disorder, bilateral upper extremity peripheral neuropathy, bilateral lower extremity peripheral neuropathy, and fibromyalgia are addressed in the remand portion of the decision below. FINDINGS OF FACT 1. The Veteran's claim for entitlement to service connection for low back pain was originally denied in a June 1994 rating decision. The claim was most recently denied in a March 2006 rating decision on the basis that no new and material evidence had been received. The Veteran did not file a timely notice of disagreement, and no relevant evidence was submitted within the appeal period for that decision that was not considered by the RO. 2. The additional evidence received since the March 2006 rating decision submitted to reopen the Veteran's claim for entitlement to service connection for a low back disorder relates to an unestablished fact and raises a reasonable possibility of substantiating the claim for entitlement to service connection for a low back disorder. CONCLUSIONS OF LAW 1. The March 2006 rating decision is final. 38 U.S.C.A. § 7105 (West 2015); 38 C.F.R. § 20.1103 (2015). 2. Evidence submitted to reopen the claim of entitlement to service connection for a low back disorder is new and material, and the claim is reopened. 38 U.S.C.A. § 5108 (West 2015); 38 C.F.R. § 3.156 (a) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA may reopen and review a claim, which has been previously denied, if new and material evidence is submitted by or on behalf of a Veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156 (a). The Board must determine whether new and material evidence has been presented before it can reopen a claim to readjudicate an issue on its merits. The issue of reopening a claim goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. The Board is required to first consider whether new and material evidence is presented before the merits of a claim can be considered, regardless of the RO's action. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Service connection for low back pain was originally denied in a June 1994 rating decision by the RO on the basis that there was an absence of a diagnosis of a chronic disease or disability of the spine at separation. The Veteran's claim was most recently denied in a March 2006 rating decision, on the basis that no new and material evidence had been received to reopen the Veteran's claim. The Veteran did not file a timely notice of disagreement, and no relevant evidence was submitted within the appeal period for that decision that was not considered by the RO. As such, the March 2006 rating decision is final. 38 U.S.C.A. § 7105 (c); 38 C.F.R. § 20.1103. A claim which has been finally denied may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The evidence received since the March 2006 rating decision includes a medical report received in September 2008 from Woodall Chiropractic Center. The report, dated October 1993, includes diagnoses of lumbar neuritis, lumbar myofascitis, and degeneration of lumbar or lumbosacral intervertebral disc syndrome. This evidence is new as it was not previously considered and material as it pertains to an unestablished fact of the claims that was previously lacking, i.e. a diagnosis of a disability of the spine in service. For the purposes of reopening, this is adequate evidence to raise a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Therefore, the claim is reopened. ORDER New and material evidence having been received, the claim of entitlement to service connection for a low back disorder, is reopened, and to this extent only, the appeal is granted. (CONTINUED ON NEXT PAGE) REMAND Regarding all the claims on appeal, the Veteran stated at her January 2016 Board hearing that she began receiving treatment for her medical conditions in 2008 at the Overton Brooks VA Medical Center in Shreveport, Louisiana. A review of the claims file reveals that there are only VA treatment records from August 2008 and April 2010 and radiology reports from August 2008 to July 2009. On remand, the Veteran's complete VA treatment records should be obtained and associated with the claims file. Additionally, the Veteran has indicated that while being transported to undergo a bone scan at a VA Hospital in 1993, she was dropped on the ground onto concrete when the legs from the stretcher she was on did not open on the side where her head was. She claims that her back and neck injuries and arthritis were the result of this incident. Service treatment records from September 1993 document this incident, and there is an August 1993 Nuclear Medicine Report from the VA Hospital in Richmond, Virginia. However, it is unclear as to whether there may be any additional records. On remand, any VA treatment records from the VA Hospital in Richmond, Virginia from August 1993 should be obtained. Regarding the claim for service connection for a foot disorder, the Veteran indicated at her January 2016 hearing before the Board, that her feet began to hurt during basic training. Service treatment records show that in June 1993, the Veteran complained of her legs and feet hurting. Post-service VA outpatient treatment records dated in October 2008 show a diagnosis of chronic bilateral feet pain. Radiology reports from October 2008 note posterior plantar spurring calcaneus in the right and left foot, and a deformity in the left foot which was noted as being "probably developmental or due to old trauma." In consideration of the above, and as the Veteran has not been afforded a VA examination in connection with this issue, the Board finds that on remand, a VA examination to determine whether the Veteran has a foot disability related to service is warranted. 38 U.S.C.A. § 5103A(d)(2) (West 2014); 38 C.F.R. § 3.159 (c)(4)(i) (2015); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). As discussed above, the claim for service connection for a low back disorder has been reopened. The record reflects that the Veteran was afforded a VA spine examination in July 2009. The examiner diagnosed mild disc base narrowing at L4-5, and provided an opinion that the Veteran's current low back disorder was not associated with her low back pain in service. The rationale provided was that while the Veteran complained of low back pain in service, a lumbar spine series performed in August 1993 reported a normal x-ray, and a whole body bone scan was normal. However, it does not appear that the examiner considered the October 1993 report from the Woodall Chiropractic Center, which was received in September 2008, and includes diagnoses of lumbar neuritis, lumbar myofascitis, and degeneration of lumbar or lumbosacral intervertebral disc syndrome. Because the examiner did not consider all of the relevant evidence in rendering an opinion regarding the Veteran's low back disorder and its potential relation to service, the Veteran should be afforded a new VA examination on remand. See Barr v. Nicholson, 21 Vet. App. 303 (2007). With regard to the claim for service connection for a bilateral shoulder disorder, the July 2009 VA examiner determined that the Veteran's bilateral shoulder pain was not due to overuse, overstraining, and from being dropped from a stretcher while in service. The rationale was that shoulder x-rays revealed normal radiographic films. However, the examiner also diagnosed right and left shoulder strain. Additionally, the Veteran indicated during her January 2016 hearing before the Board that her shoulder disorder resulted from hunching and finding a comfortable way to move due to her back disorder. As the July 2009 VA examiner provided conflicting information, and that the Veteran has claimed that her shoulder disorder is the result of her back disorder; the Board finds that a new VA examination is also warranted in this case. Id. Regarding the claims for service connection for an upper back disorder and a neck disorder, the July VA 2009 examiner diagnosed cervical strain and also determined that these disorders were not due to overuse, overstraining, and from being dropped from a stretcher while in service. The rationale was that there were no entries found in the service treatment records where the Veteran was seen for complaints of upper back or neck pain. However, the rationale is inadequate as the examiner did not specifically address the Veteran's contentions that these disorders were the result of being dropped from a stretcher in 1993. A new examination is also warranted with regard to these issues. Id. As to the claim for service connection for fibromyalgia, the Veteran contends that her fibromyalgia is related to the 1993 incident where she was dropped from a stretcher, as well as her medical disorders she experiences, including her back, feet, neck, and shoulder disorders. As the record reflects that the Veteran has been diagnosed with fibromyalgia, and has not been afforded a VA examination in connection with this issue, on remand a VA examination to determine whether the Veteran's fibromyalgia is related to service is warranted. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159 (c)(4)(i); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is remanded for the following actions: 1. The RO must contact the Veteran and afford her the opportunity to identify or submit any additional pertinent evidence in support of her claims. Based on her response, the RO must attempt to procure copies of all records which have not previously been obtained from identified sources. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. Regardless of the Veteran's response, the RO must attempt to obtain: (a) The Veteran's complete VA treatment records from the Overton Brooks VA Medical Center in Shreveport, Louisiana. (b) All VA treatment records from the VA Hospital in Richmond, Virginia from August 1993. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claims; and (d) that she is ultimately responsible for providing the evidence. The Veteran and her representative must then be given an opportunity to respond. 2. After completion of the above, the Veteran must be afforded an appropriate VA examination to determine whether a foot disorder is related to military service. The electronic claims file and a copy of this remand must be provided to, and reviewed by, the examiner. Any indicated diagnostic tests and studies must be accomplished. All pertinent symptomatology and findings must be reported in detail. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state: Whether any currently or previously diagnosed bilateral foot disorder is due to the Veteran's active duty service. The examiner must state upon what specific evidence each determination is based. The examiner must take note of and discuss VA outpatient treatment records dated in October 2008, which show a diagnosis of chronic bilateral feet pain, and radiology reports from October 2008 that show posterior plantar spurring calcaneus in the right and left foot, and a deformity in the left foot, which was noted as being "probably developmental or due to old trauma." A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. The Veteran must be afforded an appropriate VA examination to determine whether a low back disorder is related to military service. The electronic claims file and a copy of this remand must be provided to, and reviewed by, the examiner. Any indicated diagnostic tests and studies must be accomplished. All pertinent symptomatology and findings must be reported in detail. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state: Whether any currently or previously diagnosed low back disorder is due to the Veteran's active duty service. The examiner must state upon what specific evidence each determination is based. The examiner must take note of and discuss the October 1993 report from the Woodall Chiropractic Center, which was received in September 2008, and includes diagnoses of lumbar neuritis, lumbar myofascitis, and degeneration of lumbar or lumbosacral intervertebral disc syndrome. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 4. The Veteran must be afforded an appropriate VA examination to determine whether the Veteran has a bilateral shoulder disorder that is related to military service. The electronic claims file and a copy of this remand must be provided to, and reviewed by, the examiner. Any indicated diagnostic tests and studies must be accomplished. All pertinent symptomatology and findings must be reported in detail. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state: Whether any currently or previous diagnosis of a bilateral shoulder disorder is due to the Veteran's active duty service. The examiner must state upon what specific evidence each determination is based. The examiner must discuss the Veteran's statements of being injured when she was dropped on the ground onto concrete from the stretcher she was on when being transported to undergo a bone scan at a VA Hospital in 1993. The examiner must also state whether any diagnosed bilateral shoulder disorder is proximately due to or aggravated by a diagnosed low back, upper back, or neck disorder. The examiner must state upon what specific evidence each determination is based. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 5. The Veteran must be afforded an appropriate VA examination to determine whether the Veteran has an upper back disorder and/or neck disorder that is related to military service. The electronic claims file and a copy of this remand must be provided to, and reviewed by, the examiner. Any indicated diagnostic tests and studies must be accomplished. All pertinent symptomatology and findings must be reported in detail. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state: Whether the Veteran any currently or previous diagnosis of an upper back disorder and/or neck disorder is due to the Veteran's active duty service. The examiner must state upon what specific evidence each determination is based. The examiner must discuss the Veteran's statements of being injured when she was dropped on the ground onto concrete from the stretcher she was on when being transported to undergo a bone scan at a VA Hospital in 1993. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 6. The Veteran must be afforded an appropriate VA examination to determine whether the Veteran's fibromyalgia is related to military service. The electronic claims file and a copy of this remand must be provided to, and reviewed by, the examiner. Any indicated diagnostic tests and studies must be accomplished. All pertinent symptomatology and findings must be reported in detail. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state: Whether any currently or previously diagnosed fibromyalgia is related to the Veteran's active duty service, including the 1993 incident where she was dropped from a stretcher. The examiner must also state whether fibromyalgia is proximately due to or aggravated by a diagnosed low back, upper back, neck, feet, or shoulder disorder. The examiner must state upon what specific evidence each determination is based. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 7. The RO must notify the Veteran that it is her responsibility to report for all examinations scheduled, and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655. In the event that the Veteran does not report for a scheduled examination, documentation must be obtained and associated with the evidence of record that shows that notice scheduling the examination was sent to her last known address. Documentation must be also be obtained and associated with the evidence of record demonstrating any notice that was sent was returned as undeliverable. 8. The RO must review the examination reports and ensure that all requested development has been completed in full. If the reports are deficient in any manner, undertake corrective actions prior to any further adjudication of the claims. 9. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the RO must readjudicate the Veteran's claims on appeal. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and her representative. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. No action is required by the Veteran until she receives further notice; however, she may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs