Citation Nr: 1800600 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 17-22 143A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for bilateral hip bursitis; and, if so, whether the reopened claim should be granted. Entitlement to a disability rating in excess of 10 percent for mechanical lower back pain with scoliosis. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Edwards, Associate Counsel INTRODUCTION 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 Veteran had active service from May 1996 to October 1998. These matters come before the Board of Veterans Appeals (Board) on appeal from rating decisions by the Department of Veterans' Affairs (VA) Regional Offices (RO) in St. Paul, Minnesota and Atlanta, Georgia. By way of background, the RO denied reopening of the claim of service connection for bilateral hip bursitis in an October 2011 rating decision. In October 2012, the Veteran filed a notice of disagreement (NOD) as to the denial of reopening of the claim. An increased rating for mechanical low back pain was denied in a November 2012 rating decision. The Veteran submitted an NOD in December 2012. The NODs were timely, and the issues are properly before the board. In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995). In this decision, the Board is reopening the claim and granting service connection for bilateral hip bursitis. An increased rating for mechanical low back pain is denied. FINDINGS OF FACT 1. Evidence received since the most recent final decision is new and material - raising a reasonable possibility of substantiating her claim for service connection; the claim is reopened. 2. In resolving all doubt in the Veteran's favor, bilateral hip bursitis that manifested in service has continued to date. 3. The Veteran's low back disability has been manifested by flexion limited to, at worst, 70 degrees with pain, a combined range of motion of 150 degrees, and guarding and tenderness not resulting in abnormal gait or spinal contour, muscle spasms and pain. CONCLUSIONS OF LAW 1. Evidence received since the final rating decision is new and material for purposes of reopening the claim for service connection for bilateral hip bursitis; the claim is reopened. 38 U.S.C. §§ 5107; 5108 (2012); 38 C.F.R. §§ 3.156(a) , 20.1100 (2017). 2. The criteria for service connection for bilateral hip bursitis are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 3. The criteria for an increased rating for mechanical low back pain with scoliosis are not met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.102, 3.321, 3.326, 3.400(o), 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has considered the Veteran's claims and decided entitlement based on the evidence or record. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to her claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). New and Material Evidence Service connection for bilateral hip bursitis was finally denied by the Board in April 2004 based on a determination that medical evidence failed to show the presence of a current disability. This decision is final. Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303(a), 3.304. In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). A claim on which there is a final decision may be reopened if new and material evidence is presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108. "New" evidence means existing 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. 38 C.F.R. § 3.156(a). 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. Id. 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). Service connection for bilateral hip bursitis was denied due to lack of evidence of a currently diagnosed disability. Evidence received since the rating decision includes service treatment records, military personnel records, VA treatment records, and lay statements. This new evidence addresses previously unestablished facts necessary to substantiate the Veteran's claim for service connection, to include current diagnosis. Therefore, the claim is reopened. Service Connection For a chronic disability to be established through continuity of symptomatology, the claimant must demonstrate (1) evidence that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.309(a). The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 26 (1991). The Board may, however, consider a lack of contemporaneous medical evidence as one factor, among others, in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Veteran is diagnosed with bilateral hip bursitis. STRs show that she was involved in two MVAs in service and suffered from chronic hip and back pain. The Veteran was released from active duty due to back and hip disabilities. Physical therapy and quarterly injection therapy for the hip bursitis were recommended. Post-service VA treatment records show that the Veteran has received medical treatment and medication for chronic complaints with regard to her hip. In April 2017, the VA examiner opined that the Veteran's disability was not related to service due to the fact that there was no evidence of a chronic disability though subsequent VA treatment records showed a current diagnosis of bilateral hip bursitis. The Board finds the VA examiner's opinion to be inadequate because it does not take into account the Veteran's lay statements regarding her hip disability and fails to account for continuous treatment for joint pain from separation from service. The Veteran reported that the condition had progressed since onset and she had received multiple corticosteroid injections with limited pain relief. Post-service treatment records document the Veteran's reports of chronic pain and difficulty sitting and laying on her side since separation from service. The Veteran is competent to report pain. The Board finds the Veteran's credible lay statements and her contemporaneous statements in pursuit of medical treatment to be of significant probative value and the most persuasive evidence with regards to the question of whether her current hip pain has been chronic and continuous since service. The Board therefore concludes that, with the benefit of the doubt resolved in the Veteran's favor, a grant of service connection for bilateral hip bursitis is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Increased Rating Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The provisions of 38 C.F.R. § 4.45 state that when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The issue currently on appeal is entitlement to a disability rating in excess of 10 percent for mechanical lower back pain with scoliosis. Disabilities of the spine are evaluated under the General Rating Formula for Rating Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, DCs 5235-5243. The criteria for rating the Veteran's disability are set forth in a General Rating Formula for evaluating diseases and injuries of the spine as follows: Under the formula for rating spine disorders, a 10 percent evaluation is assigned where there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour. 38 C.F.R. § 4.71a, DCs 5235-5243. A 20 percent evaluation is assigned where there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent evaluation is warranted where there is evidence of forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent evaluation contemplates unfavorable ankylosis of the entire spine. Id. The Veteran has reported constant pain associated with her back and is being treated for chronic pain, thus, the Board recognizes the application of 38 C.F.R. §§ 4.40 and 4.45 and DeLuca. At a July 2014 VA examination, the Veteran had a full range of forward flexion with pain beginning at 70 degrees but no additional loss of range of motion due to pain. Combined range of motion was 150 degrees. The Veteran exhibited pain on palpation, localized tenderness, guarding without abnormal gait, and curvature of the spine. There was no additional loss of function due to pain, weakness, fatigability, or incoordination on examination. The Veteran's disability resulted in decreased ability to stand and walk for prolonged periods. X-rays showed exaggerated lumbar lordotic curvature but no evidence of osteoarthritis, degenerative disc disease, or fracture. VA treatment records show no significant changes when comparing x-rays of the Veteran's lumbar spine from August 2014 and November 2016. A January 2017 MRI was normal. The Veteran continued treatment for chronic back pain and reported muscle spasms and pain. Her son reported that she had increased difficulty climbing stairs and debilitating flare-ups on occasion. However, the Veteran's treatment records are silent for incapacitating episodes. The Board finds the Veteran's treatment records and contemporaneous statements to be the most probative evidence of record. Based on the foregoing, the Board finds that an increased rating of 20 percent is not warranted for the Veteran's back disability. The Veteran exhibits forward flexion greater than 60 degrees, combined range of motion greater than 120 degrees, and, the evidence weighs against a finding that the disability is manifested by muscle spasms and guarding not severe enough to result in an abnormal gait. The Veteran's current 10 percent rating is based on limited motion and pain. Under these circumstances, the benefit-of-the-doubt doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, entitlement to an increase rating must be denied ORDER Reopening of the claim of service connection for bilateral hip bursitis is granted. Service connection for bilateral hip bursitis is granted. An increased rating for mechanical lower back pain with scoliosis, currently rated as 10 percent disabling, is denied. ____________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs