Citation Nr: 1802781 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 14-23 609 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for a lumbar spine disability. 2. Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for a cervical spine disability. 3. Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for sinusitis and rhinitis. 4. Entitlement to service connection for a lumbar spine disability. 5. Entitlement to service connection for a cervical spine disability. 6. Entitlement to service connection for sinusitis and rhinitis. 7. Entitlement to service connection for a right ankle disability. 8. Entitlement to service connection for radiculopathy of the left upper extremity. 9. Entitlement to service connection for radiculopathy of the left lower extremity. 10. Entitlement to service connection for right ear hearing loss. 11. Entitlement to a rating in excess of 10 percent for traumatic brain injury (TBI). REPRESENTATION Appellant represented by: Karl A. Kazmierczak, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Dworkin, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1986 to January 1990. This case comes before the Board of Veterans' Appeals (Board) on appeal from March 2011 and March 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in July 2017, and a transcript of that hearing has been associated with the claims file. The issue of entitlement to service connection for sinusitis and rhinitis is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In July 2017, prior to the promulgation of a decision in the appeal, the Veteran withdrew the appeal of the claims for service connection for right ear hearing loss and entitlement to an increased rating for TBI. 2. The evidence received subsequent to the most recent final denial of service connection for a lumbar spine disability, cervical spine disability, and sinusitis and rhinitis is new and material because it raises a reasonable possibility of substantiating the claims. 3. The competent evidence of record is at least in equipoise as to whether the Veteran's lumbago and myofascial syndrome were incurred in active service. 4. The competent evidence of record is at least in equipoise as to whether the Veteran's cervical spondylosis with kyphosis and stenosis was incurred in active service. 5. The competent evidence of record is at least in equipoise as to whether the Veteran's left upper extremity radiculopathy was incurred in active service. 6. The competent evidence of record is at least in equipoise as to whether the Veteran's left lower extremity radiculopathy was incurred in active service. 7. The preponderance of the evidence is against a finding that the Veteran has a current right ankle disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal of the claim for entitlement to service connection for right ear hearing loss have been met. 38 U.S.C. § 7105 (b)(2) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 2. The criteria for withdrawal of a substantive appeal of the claim for entitlement to an increased rating for TBI have been met. 38 U.S.C. § 7105 (b)(2) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 3. As new and material evidence has been received since the most recent final rating decisions, the requirements to reopen a claim for service connection for a lumbar spine disability, cervical spine disability, and sinusitis and rhinitis have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 4. Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for lumbar degenerative joint disease and degenerative disc disease have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 5. Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for cervical degenerative joint disease and degenerative disc disease have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 6. Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for left upper extremity radiculopathy have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 7. Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 8. The criteria for service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012), 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawal During the July 2017 Board hearing, the Veteran expressed his desire to withdraw from appellate review his claims for entitlement to service connection for right ear hearing loss and entitlement to an increased rating for TBI. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R §§ 20.202, 20.204(b) (2017). Withdrawal may be made by the Veteran or the authorized representative. 38 C.F.R. § 20.204 (c) (2017). As a result of the Veteran's withdrawal of his appeal as to the claims of entitlement to service connection for right ear hearing loss and entitlement to an increased rating for TBI, no allegation of error of fact or law remains before the Board for consideration as to these issues. Therefore, the Board does not have jurisdiction to review the appeal as to these issues, and they are dismissed. II. Duty to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.159 (2017); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided with 38 U.S.C. § 5103(a)-compliant notice in August 2010 and May 2015. The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The Veteran was provided VA examinations with respect to the claims decided herein. The examinations adequately provide the findings necessary to a resolution to the appeal. The Veteran has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). III. 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 the lumbar spine, cervical spine, and sinusitis/rhinitis disabilities, the Board notes that the claims were previously denied in March 2011, September 2011, and September 2014 rating decisions, respectively, on the basis there was no evidence of record to show that the claimed disabilities were related to active service. Since the March 2011, September 2011, and September 2014 rating decisions were issued, newly received evidence includes a May 2015 private examination report shows that the cervical spine and lumbar spine disabilities were related to an in-service motorcycle accident. Regarding the Veteran's claim for entitlement to service connection for sinusitis and rhinitis, the newly submitted VA treatment records shows that he has been treated for these conditions, he has testified that this condition onset during service, and he has reported that these conditions have persisted since service. 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 March 2011, September 2011, and September 2014 rating decisions. Furthermore, the new evidence is material because it relates to unproven elements of the claim previously denied in the previous rating decisions. Specifically, that newly submitted evidence suggests that the Veteran's lumbar spine, cervical spine, and sinusitis/rhinitis disabilities may have been caused by service. This evidence is thus material to the Veteran's claims. Accordingly, the Board finds that the low threshold for reopening these claims have been met. Shade v. Shinseki, 24 Vet. App. 110 (2010). Therefore, the Board finds that the newly submitted evidence is material, and the Veteran's claims are reopened. IV. 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 Veteran contends that his current lumbar spine disability, cervical spine disability, left upper extremity radiculopathy, and left lower extremity radiculopathy were incurred during active service and specifically due to an in-service motor vehicle accident. A review of the Veteran's service treatment records shows that in April 1986 he was treated for head pain after being struck and pushed against a table. No numbness was noted. His back was noted as normal and nontender with extremities evaluated as normal. A May 1986 service treatment record shows that the Veteran's neck was evaluated as normal and noted to be supple. A May 1987 service treatment record shows that the Veteran reported right arm issues after a motorcycle accident. No fractures, soft tissue injuries, or other injuries were shown. A November 1989 separation examination report shows that he was evaluated with clinically normal spine, feet, extremities, and neurological systems. He also self-reported no back or extremities issues. An April 2007 private treatment record shows that the Veteran reported a two day history of left sided neck pain radiating to the left arm. No injury was reported. A May 2007 private treatment records shows that the Veteran reported neck pain for the last month with no clear cut injury. He reported persistent neck pain and left radicular pain going down the left arm. The Veteran did report two previous motor vehicle accidents in his youth. Imagining of the cervical spine was noted to show mild arthritis. A December 2010 VA treatment record shows the Veteran reported neck trauma with longstanding numbness and tingling in the last three digits of the right hand and ball of the left foot for the last 24 years. An April 2014 private treatment record shows x-rays indicating mild degeneration of the thoracic spine. A May 2015 private examination report shows that the Veteran was treated for complaints of pain through his neck, left arm, and lower back. He also reported left gluteal and left leg numbness. The private examiner noted that a review of the Veteran's medical records shows he was involved in multiple incidents in service such as assaults and car accidents that caused head injuries. The examiner specifically noted a 1987 car accident in which the Veteran reported having significant neck pain at the time. The Veteran also reported that after a motorcycle accident in 1988 he also hit his helmeted head on the asphalt. The examiner diagnosed the Veteran with cervical spondylosis and discopathy with kyphosis and stenosis, as well as lumbago, myofascial syndrome, and sciatic neuritis. The examiner opined that the Veteran's diagnosis and chronic pains were at least as likely as not caused or a result of military service. The examiner noted a rich history of injuries to his head, neck, and low back during service from accidents. A June 2015 VA examination shows that the examiner diagnosed the Veteran with cervical and lumbar degenerative joint disease and degenerative disc disease, as well as radiculopathy in the left upper and lower extremities. The examiner opined that the Veteran's cervical disability, low back disability, and left sided upper and lower extremity radiculopathy were less likely than not related to active service. The examiner noted that the Veteran's service treatment records were absent for low back or neck pain following accidents and traumas during service. Additionally, the examiner noted that there was no evidence of treatment for the back or neck with a year of discharge from service. The Board notes the law mandates that when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, reasonable doubt shall be resolved in favor of the claimant. 38 U.S.C. § 5107 (b) (2012). When a reasonable doubt arises regarding service origin, that doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102 (2017). An accurate determination of etiology is not a condition precedent to granting service connection; nor is definite etiology or obvious etiology. Alemany v. Brown, 9 Vet. App. 518 (1996); 38 U.S.C. § 5107 (b) (2012). Further, a Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. When the evidence is in relative equipoise, the law dictates that the appellant prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board is aware of the conflicting medical evidence as to whether the Veteran's current cervical spine disability, low back disability, and left upper and left lower radiculopathy are related to service. However, the Board concludes that in this case, as it now stands, the evidence of record is at least in relative equipoise. The Board finds that none of the medical opinions are more probative than the other opinions of record. The Veteran's private examination report dated May 2015 reported that the Veteran's cervical spine disability, low back disability, and left upper and left lower radiculopathy were related to his noted in-service motor vehicle accidents and head injuries. The June 2015 VA examiner, in contrast, determined that the Veteran's cervical spine disability, low back disability, and left upper and left lower radiculopathy were not incurred in or related to active service. Each medical opinion is supported by a reasoned analysis of medical facts. Neives-Rodriguuez v. Peake, 22 Vet. App. 295 (2008). The Board finds that the medical opinions and diagnoses in this case are at least in equipoise as to whether the Veteran's cervical degenerative joint disease and degenerative disc disease, lumbar degenerative joint disease and degenerative disc disease, and left upper and left lower radiculopathy are related to his active service. When evidence is in relative equipoise, reasonable doubt must be decided in the appellant's favor. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for cervical degenerative joint disease and degenerative disc disease, lumbar degenerative joint disease and degenerative disc disease, and left upper and left lower radiculopathy is warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Right Ankle With regards to the Veteran's claim for entitlement to service connection for a right ankle disability, the Veteran asserts that his disability is related to an in-service ankle injury. A May 1987 service treatment record shows that the Veteran was treated for right ankle trauma while playing softball. Range of motion was slightly diminished and X-rays were noted to be within normal limits. The Veteran's right ankle was assessed with a ligament strain noted with an abrasion. A November 1989 separation examination report showed that the Veteran was clinically assessed with normal lower extremities and self-reported no ankle conditions. A December 2011 VA examination report concerning the right ankle showed that the Veteran had no disability of the right ankle. Range of motion evaluations and X-rays showed no ankle abnormalities. The examiner reported that the Veteran had a normal examination of the right ankle. In this case, the Board finds that the preponderance of the evidence of record is against a finding that the Veteran has a current disability affecting the right ankle. While the Veteran has reported a right ankle pain, a diagnosis of pain is not a disability for which service connection may be awarded. Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001) (indicating that pain, alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted). In this case, there is no underlying diagnosed malady or condition showed in the medical evidence of record concerning a right ankle disability. The threshold question is whether the Veteran has a currently diagnosed right ankle disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992); 38 C.F.R. § 3.304 (f) (2017). The diagnosis of a right ankle disability is a complex medical question. The Veteran does not possess the education or professional experience of a healthcare provider. The complex question of whether a right ankle disability is present requires expertise in medical treatments. As the Veteran has not been demonstrated to have such expertise, his reports are not competent and have no probative value to show a current right ankle disability. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, as there is no credible and competent evidence of any currently diagnosed right ankle disability during the period on appeal, the Board finds that the preponderance of the competent evidence of record is against a finding that any right ankle disability is related to service or any event during service. Congress has specifically limited entitlement to service connection to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). As the preponderance of the evidence is against the claim, service connection for a right ankle disability must be denied. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence has been received, and the claim for entitlement to service connection for a lumbar spine disability is reopened. New and material evidence has been received, and the claim for entitlement to service connection for a cervical spine disability is reopened. New and material evidence has been received, and the claim for entitlement to service connection for sinusitis and rhinitis is reopened. Entitlement to service connection for lumbar degenerative joint disease and degenerative disc disease is granted. Entitlement to service connection for cervical degenerative joint disease and degenerative disc disease is granted. Entitlement to service connection for radiculopathy of the left upper extremity is granted. Entitlement to service connection for radiculopathy of the left lower extremity is granted. Entitlement to service connection for a right ankle disability is denied. The claim for entitlement to service connection for right ear hearing loss is dismissed. The claim for entitlement to a rating in excess of 10 percent for TBI is dismissed. REMAND In McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006), the Court held that in disability compensation claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service- connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. Here, there is evidence of a current disability as shown by a current treatment for a sinusitis/rhinitis condition. Further, service treatment records show that the Veteran was treated for allergies during service, and he has reported treatment for such a condition since separation from service. Thus, under the "low threshold" standard of Mclendon, an examination to determine if there is a nexus between the Veteran's claimed sinusitis and rhinitis and his service is warranted. Accordingly, the case is REMANDED for the following action: 1. Schedule an appropriate VA examination to address the nature and etiology of the Veteran's sinusitis and rhinitis. All indicated studies should be performed. The claims folder should be provided to the examiner for review of pertinent documents. After the foregoing has been completed, please provide an opinion on the following: (a) Diagnose any current sinusitis/rhinitis disability. (b) Is it at least as likely as not (50 percent or more probability) that any diagnosed sinusitis/rhinitis disability had its onset in or is etiologically-related to any period of the Veteran's active duty service or manifested within one year after any period of the Veteran's active duty? In rendering the requested opinions, specifically consider and discuss the Veteran's contentions, the lay statements of record, his service treatment records, and his VA and private medical records. Consideration must also be given to the Veteran's lay statements of experiencing sinusitis and rhinitis both during and after service. 2. Then, readjudicate the claim. If any decision is 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 matter 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 (2012). ______________________________________________ CAROLINE B. FLEMING Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs