Citation Nr: 1756080	
Decision Date: 12/05/17    Archive Date: 12/15/17

DOCKET NO.  13-11 555	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1. Entitlement to service connection for a lumbar spine disability, to include as secondary to service-connected right knee disability.

2. Entitlement to an effective date earlier than September 15, 2011, for the grant of service connection for internal derangement, tendonitis, and strain of the right shoulder. 

3. Entitlement to an initial rating in excess of 10 percent for internal derangement, tendonitis, and strain of the right shoulder.  


REPRESENTATION

Appellant represented by:	Roger Hale, Attorney




WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

C. Taylor, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1981 to April 1987.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2012 and January 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. A Notice of Disagreement (NOD) was filed in July 2012. Statements of the Case (SOC) were issued in February 2013 and August 2013. A substantive appeal (VA Form-9) was filed in April 2013. Supplemental Statements of the Case (SSOCs) were issued in August 2013 and March 2017.

In December 2015, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). The transcript of the hearing is of record. 

The Board remanded the appeal to the Agency of Original Jurisdiction (AOJ) for further development in May 2016. The appeal is now before the Board for further appellate action.  

The Board notes that the Veteran filed a timely NOD to a March 2017 rating decision denying clear and unmistakable error (CUE) in a February 1990 rating decision that denied entitlement to service connection for a right shoulder disability and November 2002, May 2003, and April 2004 rating decisions that confirmed and continued the denial due to a lack of new and material evidence submitted with regard to the service connection claim. When an NOD has been filed with regard to an issue, and an SOC has not been issued, the appropriate Board action is to remand the issue to the agency of original jurisdiction for issuance of an SOC.  Manlincon v. West, 12 Vet. App. 238 (1999). However, a review of the claims file shows that the AOJ acknowledged receipt of the NOD in September 2017 and is actively developing that claim. Accordingly, the Board declines to exercise jurisdiction over the claim for Manlincon purposes as no such action on the part of the Board is warranted at this time.  

As the outcome of the Veteran's claim alleging CUE in the February 1990, November 2002, May 2003, and April 2004 rating decisions impact his pending claim for an effective date prior to September 15, 2011, for the award of service connection for internal derangement, tendonitis, and strain of the right shoulder, such claims are inextricably intertwined. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). As such, Board consideration of the Veteran's appeal concerning his claim for an effective date prior to September 15, 2011, for the award of service connection for internal derangement, tendonitis, and strain of the right shoulder must be deferred pending the AOJ's adjudication of his CUE claim. 

Regarding the issues of evaluation of post-operative internal derangement of the right knee, currently 10 percent disabling and evaluation of bilateral hearing loss of the left ear, currently noncompensable, the Veteran filed a timely NOD to an August 2016 rating decision denying higher ratings for each disability. Thereafter, in September 2017 the RO issued an SOC and the Veteran filed a timely substantive appeal, which included a request to appear at a travel board hearing. With regard to the issue of evaluation of right knee scar, currently noncompensable, the Veteran filed a timely NOD to a September 2016 rating decision, which denied a higher rating. The RO issued an SOC in August 2017 and the Veteran filed a timely substantive appeal, in which he requested a videoconference hearing. None of the issues have been certified to the Board. 

The Board is cognizant that certification of issues on appeal by the AOJ is used for administrative purposes and neither confers nor deprives the Board of appellate review. When an appeal is certified to the Board, the record is transferred to the Board, the Veteran and his/her representative, if any, will be notified in writing of the certification and transfer, the time limit for requesting a change in representation, for requesting a personal hearing, and for submitting additional evidence. See 38 C.F.R. §19.36, 20.1304 (a) (2017).  As the required notifications have not been sent with regard to the VA Form 9s in September and October 2017, and in light of the outstanding hearing requests, the Board declines to take any further action on the issues of evaluation of a right knee disability, bilateral hearing loss, and right knee scar at this time. This delay is needed to ensure that the Veteran is afforded full due process in the matters. See 38 C.F.R. § 3.103; Gray v. McDonald, 27 Vet. App. 313, 327 (2015) (due process protections apply to disability compensation proceedings before the Board) (citing Cushman v. Shinseki, 576 F. 3d 1290(Fed.Cir.2009)); see also Carter v. McDonald, 794 F.3d 1342, 1346 (Fed. Cir. 2015). 

A review of the Veteran's claims file revealed that the Veteran submitted additional medical evidence in November 2016 without a waiver of AOJ initial review. Generally, a waiver is necessary prior to the Board reviewing such evidence in the first instance. See 38 C.F.R. § 20.1304 (c). However, as the Board is granting the Veteran's claim of entitlement to service connection for a lumbar spine disability, to include as secondary to service-connected right knee disability in full, there is no prejudice in the Board reviewing this evidence in the first instance.

The Board reviewed the Veteran's electronic claims file which includes records in Virtual VA and Veterans Benefits Management System (VBMS) databases prior to rendering its decision. 

The issue of entitlement to an initial rating in excess of 10 percent for internal derangement, tendonitis, and strain of the right shoulder is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. 


FINDING OF FACT

The evidence of record is in relative equipoise as to whether the Veteran's lumbar spine disability is attributable to his military service. 


CONCLUSION OF LAW

Resolving reasonable doubt in the Veteran's favor, his lumbar spine disability was incurred in active duty service.  38 U.S.C. §§ 1131, 5107(b) (West 2012); 38 C.F.R. §§ 3.102, 3.303 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist 

In September 2011 and August 2012 letters, VA notified the Veteran of the evidence required to substantiate his claim. The Veteran was informed of the evidence VA would attempt to obtain and of the evidence that the Veteran was responsible for providing. See Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5103, 5103A; see also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). The Board finds that the VCAA requirements to notify and assist have been satisfied in this appeal.

In May 2016, the Board remanded the case for additional development. The Board finds that the RO has substantially complied with the remand directives such that no further action is necessary in this regard.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). 

II. Service Connection 

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if preexisting such service, was aggravated thereby.  38 U.S.C.A. §§ 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303(a) (2016).

Generally to establish entitlement to service connection, a veteran must show evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the current disability and an in-service injury or disease. All three elements must be proved. See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Factual Background and Analysis 

The existence of a present disability is established through the Veteran's medical treatment records and examination reports produced during the course of his appeal. These records contain a diagnosis of a lumbar spine disability, variously diagnosed as spondylosis with disc space narrowing L4-5 along with a first-degree spondylolisthesis of L4, lumbar spondylolisthesis status post (s/p) surgery, spinal fusion, and lumbosacral strain. Service treatment records (STRs) indicate an in-service injury. An undated Air Force Reserves medical record indicates that the Veteran was diagnosed with L4-5 spondylolisthesis in 1982. A January 1986 STR indicated that the Veteran was diagnosed with back strain and placed on a profile with restricted duties from January 14, 1986 to January 19, 1986. With regard to the Veteran's currently diagnosed lumbar spine disability, the Board finds that there is unfavorable and favorable medical opinion evidence.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107 (b) (West 2012); 38 C.F.R. § 3.102 (2017). As such, the Board resolves reasonable doubt in favor of the Veteran and finds that his lumbar spine disability is attributable to his military service.  

A review of the clinical evidence revealed a May 2006 medical opinion, generated by the Veteran's private physician, Dr. S.C., in which he opined that the Veteran's January and March 1986 back injuries resulted in a stress fracture that went undiagnosed until September 1990. After reviewing the September 1990 x-ray, the October 2002 magnetic resonance imaging (MRI), and the August 2003 MRI which revealed isthmic spondylolisthesis at L4/L5 and a moderate disc bulge resulting in moderate left and mild foraminal stenosis at the L5/S1 level, Dr. S.C. concluded that the origin and cause of the Veteran's degenerative back disease dates to injuries he suffered in service prior to his first visit to Dr. S.C. for treatment in August 1987.

On the contrary, a December 2012 VA examiner concluded that it is less likely than not that the Veteran's lumbar spine disability was incurred in or caused by the Veteran's military service. The examiner's rationale was that the September 1990 x-ray finding of acute lumbar spine pars defect was not consistent with the Veteran's January 1986 injury. The Veteran had multiple entries for acute and chronic spine complaints in his STRs; however, the injury specific dates identified in the record were from the September 1990 spine x-ray showing:  

a defect in the pars interarticularis of l4 bilaterally with minimal displacement. No definite subluxation of L4 is seen on the upright view. The appearance of the margin of the defects suggests an acute injury. No other abnormalities are seen. 
The December 2012 examiner explained that based on common medical knowledge, an acute finding on x-ray refers to an injury that is days, up to a few weeks old. After several weeks, evidence of the body's bony healing process is visible on x-ray. Given the Veteran's injury date of January 1986 and his discharge date in 1987, the finding on x-ray does not correlate with the acute finding on x-ray. The examiner noted that no report of injury on duty after discharge was identified in the record to correlate with the injury. The examiner noted that the February 2004 specialty examination stated that the Veteran was diagnosed with lumbar spondylolisthesis as a result of injury incurred on the job in April 2002. The examiner opined that based on the available evidence, there was no permanent spine injury found related to the Veteran's military service.  The examiner noted that the January 1986 injury was diagnosed as a lumbar strain, indicating a self-limited condition. An April 1986 fall on the flight line did not result in a complaint of, or diagnosis of a spine condition. A July 1986 examination record revealed no spinal problems. The examiner noted that there were medical visits for other complaints, but none of the records documented back pain or injury as a concomitant complaint. The examiner ultimately concluded that the evidence does not show that a low back disability was caused by the Veteran's January 1986 lumbar spine strain.
	
In September 2017 private medical opinion, Dr. J.E. determined that it is more likely than not that the Veteran's duties in the Air Force and fire department with lifting hoses and gear as well as moving barrels of sand caused multiple repetitive strains of the iliolumbar ligaments and lower L4, L5, and S1 interspinous ligaments of the Veteran's back. According to Dr. J.E., this caused instability of the Veteran's back, which made him more prone to restraining the back while working as a firefighter in service. The Veteran's back instability caused disability that continued, even when he was not active.  Dr. J.E. opined that it is more likely than not that the Veteran's back condition is related to his military service because the Veteran's symptoms manifested in service and the Veteran was diagnosed with spondylolisthesis in service, which is consistent with an injury such as strained ligaments caused by lifting and movement of the lumbar vertebrae. Dr. J.E. explained that his medical opinion was based upon examination of the Veteran, a review of the records, the examiner's education, training, experience, and upon reasonable medical probability and reasonable medical certainty.  

Upon review of the aforementioned medical opinion evidence, the Board finds that there is an approximate balance of positive and negative evidence.  In instances where reasonable doubt arises regarding service origin, such doubt will be resolved in favor of the claimant.  38 U.S.C. § 5107(b) (West 2012); 38 C.F.R. § 3.102  (2017). The Court of Appeals for Veterans Claims (Court) reiterated in Wise that "[b]y requiring only an 'approximate balance of positive and negative evidence' to prove any issue material to a claim for veterans benefits, 38 U.S.C. § 5107 (b), the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such benefits." Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (citing Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990)).  Accordingly, the Board finds that service connection for a lumbar spine disability is warranted.


ORDER

Entitlement to service connection for a lumbar spine disability is warranted. 


REMAND

Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the appealed issue of entitlement to an initial rating in excess of 10 percent for internal derangement, tendonitis, and strain of the right shoulder.

The Veteran claimed entitlement to an initial rating in excess of 10 percent for internal derangement, tendonitis, and strain of the right shoulder. The Veteran was afforded a VA shoulder and arm examination in August 2016. The Veteran was diagnosed with rotator cuff tendonitis. The Veteran reported flare-ups and difficulty raising his right arm above his head. Range of motion (ROM) testing revealed flexion to 100 degrees, abduction to 95 degrees, external rotation to 60 degrees, and internal rotation to 61 degrees. 

The Board observes that a new precedential opinion that directly impacts this case was issued by the Court. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The final sentence provides that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." The Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of   § 4.59. In this case, the August 2016 VA examination report does not comply with Correia. Accordingly, the Veteran must be afforded a new VA examination to evaluate the ROM of his right shoulder in active/passive motion, with weight-bearing and nonweight bearing, and to determine the range of motion of the opposite, undamaged left shoulder.  

Accordingly, the case is REMANDED for the following action:

1. Schedule the Veteran for a VA shoulder and arm conditions examination to determine the level of impairment of the Veteran's right shoulder disability.  The electronic claims file and copy of this Remand must be made available to and be reviewed by the examiner.  All tests deemed necessary should be conducted and the results reported in detail.

In order to comply with the Court's recent precedential decision in Correia v. McDonald, 28 Vet. App. 158 (2016), the examiner must test and record the range of motion for BOTH shoulders in active motion, passive motion, weight-bearing, and nonweight-bearing.  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.

The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups.  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.  In regard to flare-ups, if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran's functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so.  

2. After undertaking any other development deemed appropriate, the AOJ should re-adjudicate the claims.  If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished an SSOC and given the opportunity to respond thereto before the case is returned to the Board. 

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

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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 2014).



______________________________________________
TANYA SMITH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs