Citation Nr: 1751696	
Decision Date: 11/13/17    Archive Date: 11/22/17

DOCKET NO.  14-41 466	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland


THE ISSUES

1. Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for headaches.

2. Entitlement to service connection for headaches.

3. Entitlement to service connection for a neck disorder.

4. Entitlement to service connection for a left shoulder disorder.

5. Entitlement to a rating in excess of 10 percent for a thoracic kyphosis.

6. Entitlement to a rating in excess of 10 percent for bilateral pes planus.

7. Entitlement to a compensable rating for residuals for a left foot stress fracture.

8. Entitlement to a total disability rating based on individual unemployability (TDIU).

REPRESENTATION

Appellant represented by:	Kathy A. Lieberman, Attorney


ATTORNEY FOR THE BOARD

J. Dworkin, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 2000 to August 2001. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. Jurisdiction is now with the RO in Baltimore, Maryland.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012).

The issues of entitlement to increased ratings for thoracic kyphosis, bilateral pes planus, and residuals of a left foot stress fracture, TDIU, and the issues of entitlement to service connection for a neck disorder and left shoulder disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. The evidence received subsequent to the most recent final denial of service connection for headaches is new and material because it raises a reasonable possibility of substantiating the claim.

2. The competent evidence of record shows that headaches onset during active service.


CONCLUSIONS OF LAW

1. As new and material evidence has been received since the November 2001 rating decision, the requirements to reopen a claim for service connection for headaches have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).

2. Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for headaches have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. New and Material Evidence

Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c) (2012). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108 (2012).

New evidence is defined as evidence not previously submitted to agency decision-makers. Material evidence means existing 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 substantiating the claim. 38 C.F.R. § 3.156 (a) (2017).

The regulation does not require new and material evidence as to each previously unproven element of a claim and creates a low threshold for reopening claims. 38 C.F.R. § 3.156 (a) (2017); Shade v. Shinseki, 24 Vet. App. 110 (2010). 

For the purpose of determining whether new and material evidence has been submitted, the credibility of new evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510 (1992).

With regard to the claim concerning new and material evidence for headaches, the Board notes that the claim was previously denied in a November 2001 rating decision, on the basis there was no evidence of record to show that the Veteran's headaches were caused by service or due to a service connected disability.  

Since the November 2001 rating decision, newly received evidence includes updated private treatment records that show the Veteran's headache condition may have been caused or aggravated by service connected thoracic kyphosis. 

The Board finds that the evidence added to the claims file is new as it was not before the adjudicators at the time of the November 2001 rating decision. Furthermore, the new evidence is material because it relates to unproven elements of the claim previously denied in the November 2001 rating decision. Specifically, that newly submitted evidence suggests that the Veteran's headaches may have been caused or aggravated by his service connected disability. As the theory that the Veteran's headaches were caused by his service connected thoracic kyphosis was not considered at the time of the November 2001 rating decision, this evidence is thus material to the Veteran's claim of service connection for headaches.

Accordingly, the Board finds that the low threshold for reopening the claim has been met. Shade v. Shinseki, 24 Vet. App. 110 (2010). Therefore, the new evidence is material, and the Veteran's claim is reopened.


II. Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2017).  

The Board notes that a review of the Veteran's service treatment records shows no reports or complaints of headaches. However, prior to the Veteran being discharged from service he was provided a VA examination in August 2001 that showed a diagnosis of a tension headache condition. 

A December 2012 VA examination report shows that the Veteran was diagnosed with tension headaches.

The Veteran has also reported that his headaches onset during service and have continued since separation from service.

In reviewing the evidence of record, the Board finds that the evidence supports the Veteran's claim of entitlement to service connection for headaches. The Board notes that the Veteran was first diagnosed with tension headaches prior to separation from service in August 2001, and he has been diagnosed with tension headaches during the course of the appeal. Additionally, the Board finds that the Veteran is competent to report that he has experienced headaches since separation from service. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for headaches is warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
ORDER

New and material evidence has been received, and the claim for service connection for headaches is reopened.

Entitlement to service connection for headaches is granted.


REMAND

Increased Ratings

The Veteran asserts that his service-connected thoracic kyphosis, bilateral pes planus, and residuals of a left foot stress fracture warrant higher ratings. The Veteran last underwent VA examinations for these conditions in May 2010. In November 2014, the Veteran representative reported that the Veteran's conditions had worsened since the last VA examinations and requested new evaluations. As it has been nearly 7 years since the Veteran has been provided with a VA examination concerning his service connected conditions and there is an indication of worsening symptomatology, a remand is warranted to ensure that record contains evidence of the current severity of the Veteran's service-connected thoracic kyphosis, bilateral pes planus, and residuals of a left foot stress fracture. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017); Green v. Derwinski, 1 Vet. App. 121 (1991); Caffrey v. Brown, 6 Vet. App. 377 (1994).

Service Connection

The Veteran asserts that service connection is warranted for a neck disorder and left shoulder disorder. Specifically, the Veteran claims that the neck disorder and left shoulder disorder were caused or have been aggravated by his service connected thoracic kyphosis. The Board finds that as the Veteran has not been provided a VA examination to determine if his neck and left shoulder disorders were caused by or aggravated by his service connected thoracic spine disability, an examination should be scheduled for the Veteran and an etiological opinion will be requested. 

The Board also finds that the claim of entitlement to a TDIU is inextricably intertwined with the pending claims for service connection and increased ratings because an allowance of those claims could change the outcome of the TDIU claim. The appropriate remedy for inextricably intertwined issues it to remand them pending resolution of the inextricably intertwined issues. Harris v. Derwinski, 1 Vet. App. 180 (1991).

Accordingly, the case is REMANDED for the following action.

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1. Schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the current severity of his service-connected thoracic kyphosis, bilateral pes planus, and residuals of left foot fracture disabilities. The examiner must review the claims file and note that review in the examination report. The examiner must address each of the following:

A) With regard to each disability, all necessary tests, x-rays, and studies (including range of motion studies) should be conducted. The report should discuss any weakened movement, excess fatigability with use, incoordination, painful motion, or pain with use, and provide an opinion as to how those factors result in any additional limitation of function.

B) Additionally, the examiner must test the range of motion in active motion, passive motion, and (where appropriate) weight-bearing and nonweight-bearing settings. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.

2. Schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the diagnosis and etiology of his claimed left shoulder disorder and neck disorder. The examiner must review the claims file and note that review in the examination report. The examiner must address each of the following:

A) Provide a medical opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current left shoulder disorder and/or neck disorder began during the Veteran's active service.

B) Provide a medical opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current shoulder disorder and/or neck disorder has been caused by the Veteran's thoracic kyphosis.

C) Provide a medical opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current shoulder disorder and/or neck disorder is chronically worsened by the Veteran's thoracic kyphosis.

The examiner must support each opinion with a rationale.

3. Then readjudicate the claims with consideration of the requested VA examination reports and any new evidence submitted by the Veteran. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, 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. §§ 5109B, 7112 (West 2014).




______________________________________________
CAROLINE B. FLEMING
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs