Citation Nr: 1802606 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 07-27 987A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to a compensable rating prior to February 15, 2012, in excess of 10 percent from February 15, 2012, to December 23, 2013, and in excess of 20 percent thereafter for adductor tendonopathy of the left hip with degenerative joint disease. 2. Entitlement to a disability rating in excess of 10 percent for limitation of extension of the left hip. 3. Entitlement to a compensable rating for limitation of flexion of the left hip 4. Entitlement to a disability rating in excess of 10 percent for chondromalacia with mild degenerative joint disease of the left knee. 5. Entitlement to a disability rating in excess of 10 percent for instability of the left knee. 6. Entitlement to a disability rating in excess of 10 percent for chondromalacia with mild degenerative joint disease of the right knee. 7. Entitlement to a disability rating in excess of 10 percent for instability of the right knee. 8. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for hypertension. 9. Entitlement to service connection for high cholesterol. 10. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. N. Nolley, Associate Counsel INTRODUCTION The Veteran had honorable active duty service with the United States Army from August 1988 to August 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal of January 2005, July 2010, June 2013, and October 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The January 2005 rating decision continued the Veteran's 10 percent disability evaluations for limited motion and instability of the knees, bilaterally. The July 2010 rating decision again denied increased ratings for the Veteran's bilateral knee disorders and denied entitlement to TDIU benefits. In October 2011, the Veteran testified at a hearing before a Veterans Law Judge regarding his claim for an increased rating for adductor tendonopathy of the left hip with degenerative joint disease. A transcript of the hearing is of record. The law requires that the Veterans Law Judge who presides at a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C.A. § 7107 (c) (West 2014); 38 C.F.R. § 20.707 (2017). The Veteran was offered a hearing before a different Veterans Law Judge. In January 2017, the Veteran responded that he did not want another hearing. Thus, the Board will proceed with the matter on appeal. In June 2013, the RO denied to reopen the Veteran's claim for entitlement to service connection for hypertension and denied entitlement to service connection for cholesterol. In October 2015, the RO granted a separate 10 percent disability rating for limitation of extension of the left hip, and a separate noncompensable rating for limitation of flexion of the left hip, both effective February 15, 2012. This appeal was most recently before the Board in February 2017, when it was remanded for additional development. It has now been returned to the Board for further appellate action. The issues of entitlement to increased ratings for bilateral knee disorders, entitlement to service connection for hypertension, and entitlement to TDIU benefits are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An August 2005 rating decision denied the claim of entitlement to service connection for hypertension; the Veteran did not appeal the decision or submit any pertinent evidence within the appeal period. 2. Evidence received subsequent to the expiration of the appeal period includes evidence that is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim. 3. High cholesterol is not a disease or injury or the result of a service-connected disease or injury. CONCLUSIONS OF LAW 1. New and material evidence has been presented to reopen a claim of entitlement to service connection for hypertension. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017). 2. There is no legal basis for granting service connection for high cholesterol. 38 U.S.C.A. § 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veteran has not 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 a duty to assist argument). High Cholesterol The Veteran contends that he is entitled to service connection for high cholesterol. However, as outlined below, the finding of high cholesterol does not demonstrate a current disease or disability for VA purposes. High cholesterol is a laboratory finding. It is not a disease or injury, or a disability resulting from a disease or injury. See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (providing that diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are not, in and of themselves, disabilities.) The term "disability" as used for VA purposes refers to impairment of earning capacity. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). There is also no evidence to suggest that the Veteran's high cholesterol is a finding or symptom of a service-connected disability. Since service connection is only available for disabilities resulting from diseases and injuries, this claim must be denied because it is without legal merit New and Material Evidence Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. In general, Board decisions which are unappealed become final. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. 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). 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. 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The United States Court of Appeals for Veterans Claims (Court) has emphasized that the final sentence of 38 C.F.R. § 3.156 (a), especially the phrase "raise[s] a reasonable possibility of substantiating the claim," does not create a third element or separate determination in the reopening process, but is a component of the question of what is new and material evidence. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (noting that 38 U.S.C.A. § 5108 requires only new and material evidence to reopen). Shade further holds that 38 C.F.R. § 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]" Id. Further, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather, the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id., see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Court has elaborated on what constitutes "new and material evidence." New evidence is not that which is cumulative of other evidence already present in the record. In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). 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, 9 Vet. App. at 273. 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). The RO initially denied service connection in August 2005, based on its determination that the evidence did not show that the disorder was incurred in or caused by service. The RO also determined that the evidence did not show that his hypertension manifested to a compensable degree within one year following separation from service or that it was related to his service-connected bilateral knee disorders. The Veteran was notified of the denial by a letter dated in August 2005. He did not appeal the denial or submit any pertinent evidence within the appeal period. Therefore, the August 2005 rating decision became final as to the hypertension claim. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103 (2017). In a January 2012 rating decision, service connection was granted for diabetes mellitus. In March 2012, the Veteran filed a claim to reopen the issue of entitlement to service connection for hypertension. Relevant evidence received since the August 2005 rating decision includes the Veteran's statements that his hypertension was secondary to his service-connected diabetes mellitus. In his June 2013 notice of disagreement, the Veteran stated that 68 percent of people with diabetes mellitus also have hypertension. In his September 2017 substantive appeal, he stated that his primary care physicians told him that his diabetes caused his hypertension. The Veteran's statements constitute new and material evidence. This follows, because the evidence relates to previously unestablished elements that are necessary to grant entitlement to service connection for hypertension. Specifically, the newly received evidence provides a new theory of entitlement to service connection for hypertension not previously considered; namely whether the Veteran's hypertension was caused or aggravated by his service-connected diabetes mellitus. As stated previously, the Court has set forth a low threshold to reopen claims and based on the evidence combined with additional VA development, there is a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). New and material evidence sufficient to reopen the claims of service connection has been received. Adjudication of the Veteran's claim does not end with the determination that new and material evidence has been received. This matter must now be addressed on a de novo basis. For the reasons detailed in the remand section below, additional development is required for a full and fair adjudication of the underlying service connection claim. ORDER New and material evidence having been presented, the claim of entitlement to service connection for hypertension is reopened. Service connection for high cholesterol is denied. (CONTINUED ON NEXT PAGE) REMAND Left Hip In February 2017, the Board remanded the claim to obtain a retrospective medical opinion addressing the range of motion findings in the December 2008 and February 2012 VA examinations. The examiner was asked to provide an opinion as to the range of motion findings for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158 (2016). The examiner was instructed to support all opinions with rationale. The Veteran was provided a VA examination in June 2017. The VA examination report included the June 2017 passive range of motion findings. The VA examiner stated that it was difficult to complete active range of motion and that weight bearing range of motion was not feasible; however, the VA examiner did not include sufficient rationale as to why the testing could not be accomplished. While the June 2017 VA examination report included the December 2008 and February 2012 range of motion findings, the June 2017 VA examiner did not state whether the earlier range of motion findings were active or passive range of motion. Additionally, the June 2017 VA examiner did not provide retrospective medical opinions concerning the other range of motion testing required to comply with Correia. Accordingly, a remand is necessary to obtain another VA examination and retrospective medical opinion. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Knees The Board notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran's bilateral knee disorder was assessed in June 2008, August 2009, May 2010, and November 2011; however, the examiners did not conduct Correia-compliant testing. Based on the foregoing insufficiencies, a remand is required in order to obtain an adequate orthopedic examination, to include a retrospective medical opinion as to the findings included in the prior examinations conducted during the appeal. With respect to the ratings for bilateral knee instability, the disability benefits questionnaire (DBQ) utilized by VA examiners for examinations of the knee includes the collection of information related to knee instability. The Board finds that a remand of the matter of whether increased ratings for bilateral knee instability is warranted because the evidentiary development related to the bilateral knee disorder will likely also pertain to the instability of the knees. Hypertension As noted above, the Veteran asserted that his diabetes caused his currently diagnosed hypertension. The Veteran stated that his primary care physicians told him that his hypertension was caused by his diabetes mellitus. The Veteran has not been afforded a VA examination. Accordingly, the Board concludes that VA has a duty to provide the Veteran with a medical examination and obtain a medical opinion in this case to address secondary service connection. 38 U.S.C.A. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). TDIU The issue of entitlement to a TDIU is inextricably intertwined with the claims remanded herein. As such, consideration of the Veteran's TDIU claim must be deferred pending the outcome of the increased rating claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). Accordingly, the case is REMANDED for the following action: 1. The AOJ should undertake appropriate development to obtain any outstanding treatment records pertinent to the Veteran's claim. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Then, the AOJ should afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran's service-connected left hip disorder. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. The AOJ should ensure the examiner provides all information required for rating purposes, to specifically include both active and passive range of motion testing, as well as weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 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. Furthermore, if any opinion cannot be offered without resort to mere speculation, the examiner should clearly explain why this is the case and identify any additional evidence that may allow for a more definitive opinion. The examiner is also requested to review the VA examinations containing range of motion findings pertinent to the Veteran's left hip disorder conducted during the course of the appeal in December 2008, February 2012, and June 2017. With regard to each examination, the examiner is requested to offer an opinion as to the estimated range of motion findings for pain on both active and passive motion, on weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to do so, he or she should fully explain why. 3. Then, the AOJ should afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran's service-connected bilateral knee disorder. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed, including range of motion testing and stability testing. The AOJ should ensure the examiner provides all information required for rating purposes, to specifically include both active and passive range of motion testing, as well as weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 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. Furthermore, if any opinion cannot be offered without resort to mere speculation, the examiner should clearly explain why this is the case and identify any additional evidence that may allow for a more definitive opinion. The examiner is also requested to review the VA examinations containing range of motion findings pertinent to the Veteran's bilateral knee disorder conducted during the course of the appeal in June 2008, August 2009, May 2010, and November 2011. With regard to each examination, the examiner is requested to offer an opinion as to the range of motion findings for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to do so, he or she should explain why. 3. Then, the RO or the AMC should afford the Veteran a VA examination by a physician with sufficient expertise, to determine the nature and etiology of his currently diagnosed hypertension. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. Following the examination and a review of the relevant records and lay statements, the examiner should address the following: (a) Whether it is at least as likely as not (a 50 percent probability or greater) that the disorder was incurred in, was caused by, or is otherwise etiologically related to his military service. (b) Whether it is at least as likely as not (a 50 percent aggravated by his service-connected disabilities, to include his diabetes mellitus. The Board notes that the Veteran has asserted that his physician informed him that hypertension was, in his case, secondary to diabetes mellitus. A complete rationale must be provided for all opinions offered, and if the examiner cannot offer an opinion without resorting to mere speculation, the examiner should fully explain why this is the case and identify what additional evidence/information, if any, would allow for a more definitive opinion. 4. Finally, the RO or the AMC should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. The case should then be 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). 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). ______________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs