Citation Nr: 1803392 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-30 225 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received to reopen the claim for service connection for a low back disability. 2. Entitlement to service connection for a low back disability, including as secondary to service-connected bilateral knee and ankle arthritis. 3. Entitlement to service connection for shin splints. 4. Entitlement to service connection for bone spurs in the feet. 5. Entitlement to service connection for hypertension. 6. Entitlement to service connection for arthritis of the bilateral hips. 7. Entitlement to service connection for prostate cancer. 8. Entitlement to a rating higher than 10 percent for right knee osteoarthritis. 9. Entitlement to a rating higher than 10 percent for left knee osteoarthritis. 10. Entitlement to a rating higher than 10 percent for right ankle osteoarthritis. 11. Entitlement to a rating higher than 10 percent for left ankle osteoarthritis. 12. Entitlement to a rating higher than 10 percent for bilateral foot arthritis. 13. Entitlement to a total disability rating based on individual unemployability due to service connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Rutkin, Counsel INTRODUCTION The Veteran completed an honorable career in the U.S. Army, serving on active duty from June 1960 to September 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. Although the RO reopened the claim for a low back disability, the Board must determine independently whether reopening is warranted in order to establish that it has jurisdiction of this claim. See Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). The Board remanded this case in August 2015 to arrange for the Veteran to testify at a hearing before the Board. He since withdrew his request for a hearing in a September 2015 statement. The Veteran did not specifically appeal the denial of TDIU in the March 2012 rating decision, and this issue was not certified to the Board. Nevertheless, it remains on appeal as part and parcel of the claims for increased ratings, as reflected in the VA examination reports. See 38 C.F.R. §§ 3.340, 4.16 (2017); Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). The Board therefore has jurisdiction of this issue. See id. The Veteran's claim for hypertension was also denied in a November 2009 rating decision. He did not submit a notice of disagreement within one year of the decision. However, he submitted a new claim in July 2010. A VA medical opinion was provided in November 2010, less than a year after the Veteran was notified of the November 2009 decision. Although the VA opinion is ultimately negative, it provides some support for the claim, as the examiner observed that the Veteran's medications can cause hypertension. Accordingly, the Board finds that new and material evidence has been submitted within one year of the November 2009 decision, and thus that decision is not final. See Young v. Shinseki, 22 Vet. App. 461, 466 (2009); 38 C.F.R. §§ 3.156, 3.400(q) (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). Apart from the Veteran's petition to reopen the claim for a low back disability, all issues 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 claim for service connection for an acquired back disorder was last denied in a November 1984 decision of the Board. 2. Additional evidence received since the November 1984 Board decision is neither cumulative nor redundant of the evidence of record at the time of that decision, and relates to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The November 1984 Board decision is final with regard to the service connection claim for an acquired back disorder. 38 U.S.C. §§ 511, 7103, 7104 (2012); 38 C.F.R. § 20.1100 (2017). 2. New and material evidence has been received to reopen the claim for a low back disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran petitions to reopen the service connection claim for a low back disability. For the following reasons, the Board finds that reopening is warranted. Service connection for a low back disability-characterized as a "chronic, acquired back disorder-was last denied in a November 1984 decision of the Board. That decision is final. See 38 U.S.C. §§ 511(a), 7103, 7104(a) (2012); 38 C.F.R. § 20.1100 (2017). The Board notes that a November 2009 rating decision reopened and denied the claim. The Veteran submitted a timely notice of disagreement in July 2010. See 38 U.S.C. § 7105(a) (2012); 38 C.F.R. §§ 20.201, 20.302(a) (2017). However, in a September 2010 letter, the RO informed the Veteran that it was rescinding the November 2009 rating decision and would issue a new decision, which was the March 2012 decision appealed to the Board. In order to reopen a previously and finally disallowed claim, new and material evidence must be submitted by the claimant or secured by VA with respect to that claim since the last final denial, regardless of the basis for the denial. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). VA regulation defines "new and material evidence" as follows: "new evidence" means evidence not previously submitted to agency decision makers, and "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). In order to warrant reopening, the new evidence must neither be 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 Board denied service connection for a back disorder because it found that the Veteran's then-diagnosed spondylolysis was a congenital abnormality. It further found that the possible diagnosis of spondylolisthesis was not confirmed and not shown to have manifested in service. Since the November 1984 Board decision was issued, the Veteran submitted a November 2006 letter from a Dr. K.V. stating that the Veteran had degenerative disc disease of the lumbar spine secondary to a chronic limp due to bilateral knee and ankle arthritis. X-ray studies dated in September 2006 and November 2010 show diagnoses of spondylosis and degenerative changes of the spine. This evidence is new to the file and not redundant of evidence of record at the time of the November 1984 Board decision. Moreover, it relates to an unestablished fact necessary to substantiate the claim, namely whether the Veteran has an acquired disability of the lumbar spine (as opposed to a congenital abnormality) secondary to service-connected disability or linked to his back injury and back pain during service. See 38 C.F.R. §§ 3.303, 3.310 (2017); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). The Board finds that it raises a reasonable possibility of substantiating the claim. Accordingly, new and material evidence has been received to reopen the claim. See 38 C.F.R. § 3.156. ORDER The service connection claim for a low back disability is reopened; the appeal is granted to this extent only. REMAND The claims on appeal must be remanded for further development, as specified below. Such development is necessary to aid the Board in making an informed decision, and will help ensure that the claims are afforded every consideration. With regard to the claims for increased ratings, VA examinations of the Veteran's knees, ankles, and feet were last performed in July 2011, and are now over six years old. Thus, new examinations are warranted to assess the current level of severity of these disabilities. Moreover, the VA examination reports do not reflect that the range-of-motion testing required under Correia v. McDonald, 28 Vet. App. 158 (2016) and 38 C.F.R. § 4.59 (2017) was performed, or a finding by the VA examiner that such testing was not warranted or not possible. With regard to the service connection claim for a low back disability, a new VA opinion is required to make an informed decision. The November 2010 VA opinion concludes that there is no "identified pathological association" between the Veteran's arthritis of the knees, ankles, and feet and his degenerative disease of the spine without addressing whether the Veteran's abnormal gait due to these disabilities may have caused or aggravated his lumbar spine disability. (A March 2007 VA examination report documents that the Veteran walked with a limp.) Moreover, the November 2010 VA opinion does not address whether the Veteran's abnormal gait may have aggravated his lumbar spine pathology. The November 2006 letter from Dr. K.V., which provides a positive opinion, is not sufficient to make an informed decision on this issue, as it does not explain how the Veteran's abnormal gait caused or aggravated his lumbar spine degenerative disc disease, and does not identify a medically established baseline with regard to aggravation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); 38 C.F.R. § 3.310 (2017). A VA opinion should also be obtained addressing the likelihood that the Veteran's current lumbar spine pathology is directly linked to disease or injury incurred in service. In this regard, the service treatment records show that the Veteran reported tripping in the shower in 1966 and having back pain off and on ever since. They also show recurring back pain. A VA examination dated in December 1982, less than a year after the Veteran's separation from service, reflects that the Veteran had tenderness over the mid lumbosacral spine. Diagnoses of spondylosis at L5 with possible spondylolisthesis of L5 over S-1 were rendered based on an X-ray study. The Board finds there is at least an indication that the Veteran's current lumbar spine pathology may be related to his in-service injury and symptoms. See 38 C.F.R. § 3.159(c) (2017); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). With regard to the Veteran's shin splints, a VA examination should be performed. If shin splints or similar pathology is diagnosed, a VA opinion should be provided as to the likelihood that the shin splints are linked to physical training in boots during active service (as asserted in an October 2010 written statement, (VA Form 21-4138)), or caused or aggravated by the Veteran's service-connected bilateral foot and ankle disabilities. With regard to the claim for bone spurs of the feet, a VA opinion should be obtained addressing whether the bone spurs represent pathology distinct from the already service connected arthritis of the feet and ankles. VA x-ray studies of the ankles and feet in December 1982 (performed within a year of the Veteran's retirement from active service) and March 2007 show plantar calcaneal spurs. If the bone spurs are not considered a manifestation of the service-connected arthritis, the examiner must provide an opinion as the likelihood that they are secondary to the arthritis, or linked to physical training in boots during active service. See October 2010 VA Form 21-4138). With regard to hypertension, a new VA medical opinion must be obtained. The November 2010 VA opinion concludes that the Veteran's hypertension was less likely than not caused by taking nonsteroidal antiinflammatory (NSAID) medications such as Aleve for his service-connected disabilities of the knees because although these medications can cause hypertension (which usually occurs when initiating the medications), the Veteran continued to have hypertension when he decreased the dosage of the Aleve. The examiner also noted that the Veteran did not begin treatment for high blood pressure until several years after taking NSAID drugs. The Board finds that this opinion is not sufficient to make an informed decision. The fact that the Veteran did not begin treatment for hypertension until several years after starting on the NSAID drugs does not by itself show that he did not have high blood pressure shortly after he began taking the NSAIDS. Moreover, the examiner did not explain why the Veteran's hypertension would be expected to resolve solely because he decreased the dosage of his Aleve. In this regard, the examiner did not address whether the high blood pressure may have also decreased even if it still required antihypertensive medication, or whether the antihypertensive medication stabilized the Veteran's blood pressure so that it would not be possible to tell whether it responded to the change in dosage of Aleve. Finally, the examiner did not address whether the Veteran's hypertension may have been aggravated by the NSAID drugs, even if they did not cause it. Accordingly, a new VA opinion must be provided which addresses these issues. With regard to the claim for arthritis of the bilateral hips, a new VA medical opinion must be obtained. The December 2011 VA opinion concludes that the Veteran's hip pain was less likely than not related to service-connected disabilities of the knees, feet, and ankles because the Veteran was able to walk, and the arthritis of the knees, feet, and ankles was not severe enough to cause osteoarthritis of the hips. The examiner further stated that the Veteran did not have shortening of the limbs. The examiner did not address the fact that although the Veteran may be able to walk, he has an abnormal gait which may cause or aggravate arthritis of the hips. Moreover, although the Veteran does not have shortening of the limbs, the November 2006 letter by Dr. K.V. states that the Veteran had "functional" short leg syndrome associated with the limp. Finally, the December 2011 VA opinion does not address whether the Veteran's disabilities of the knees, ankles, and feet may have aggravated the bilateral hip arthritis. With regard to the claim for prostate cancer, the development procedures set forth in the Veterans Benefits Administration (VBA) Manual must be accomplished to the extent possible with regard to the Veteran's reported exposure to an herbicide agent while stationed in Korea (see June 2014 VA Form 9). In this regard, prostate cancer is a disease presumed to be linked to herbicide exposure. 38 C.F.R. § 3.309(e) 2017). His service personnel records show that he served in Korea in 1962, which is prior to April 1, 1968, and thus prior to the period for which a presumption of herbicide exposure based on service in Korea may be applicable in certain cases. See 38 C.F.R. § 3.307 (2017). When presumptive exposure to an herbicide agent based on service in Korea may not be established, the development procedures set forth in the VBA Manual must be followed, to the extent possible. See VBA Manual, M21 IV.ii.1.H.4.c. This development includes submitting a request for verification of herbicide exposure to the U.S. Joint Services Records Research Center (JSRRC), unless it is determined that there is insufficient information to submit such a request, in which case a formal finding by the JSRRC coordinator must be made to that effect. See id. While the Veteran's service in Korea occurred before the Vietnam Era (which did not begin until August 5, 1964 unless the Veteran served in the Republic of Vietnam during the period beginning February 28, 1961), the VBA Manual does not indicate that its development procedures for herbicide exposure claims based on service in Korea are limited to the Vietnam Era. 38 C.F.R. § 3.1(f) (2017). With regard to entitlement to TDIU, the Veteran should be sent a formal application for TDIU (VA Form 21-8940). The record does not reflect that he has submitted this form. Finally, a September 2010 printout from the Central Alabama VA Health Care System reflects that the Veteran receives treatment at VA. However, no VA treatment records are in the claims file. On remand, all VA treatment records dated since at least 2005 should be added to the file. 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. Obtain all available VA treatment records from the Central Alabama VA Health Care System dated since at least 2005 (or earlier, if warranted) and add them to the claims file. 2. Send the Veteran a VA Form 21-8940, Application for TDIU, with instructions to fill out and return the completed form. 3. Prostate cancer: Regarding the claim for prostate cancer due to herbicide exposure in Korea, undertake the development procedures set forth in the VBA Manual, M21 IV.ii.1.H.4.c, regarding verifying such exposure. These include submitting a request for verification of herbicide exposure to the JSRRC, unless it is determined that there is insufficient information to submit such a request, in which case a formal finding by the JSRRC Coordinator must be made to that effect. 4. Increased rating claims (bilateral knees, ankles, and feet): Arrange for VA examinations of the Veteran's knees, ankles, and feet to assess the current severity of his service-connected disabilities. In the examination report, the examiner must include all of the following: A. Active range of motion testing results. B. Passive range of motion testing results. C. Weightbearing range of motion testing results. D. Non-weightbearing range of motion testing results. If the examiner is unable to conduct one or more of the above tests or finds that it is unnecessary, the examiner must provide an explanation. In any event, the type of test performed (i.e. active or passive, weightbearing or nonweightbearing), must be specified. If the Veteran states that he has flare-ups, the examiner must elicit as much information as possible from the Veteran regarding the severity, frequency, and duration of such flare-ups, their effect on functioning, and precipitating and alleviating factors. If the examination is not performed during a flare-up, the examiner must provide an estimate of additional loss of range of motion during a flare-up. If the examiner is unable to provide an estimate of additional loss of motion during a flare-up, the examiner must provide a specific explanation as to why the available information, including the Veteran's own statements, is not sufficient to make such an estimate. 5. Low back disability: Obtain a VA medical opinion addressing direct and secondary service connection of the Veteran's low back disability, as specified below. If deemed warranted in order to render the opinion, a new VA examination should also be performed. * Direct service connection opinion: The examiner must render an opinion as to whether it is at least as likely as not (50% probability or more) that the Veteran's lumbar spine pathology is related to disease or injury incurred or aggravated in service, including tripping in the shower in 1966 with intermittent back pain thereafter, as reflected in the service treatment records. *Note: A VA examination dated in December 1982, less than a year after the Veteran's separation from service, reflects that the Veteran had tenderness over the mid lumbosacral spine, with x-ray diagnoses of spondylosis at L5 and possible spondylolisthesis of L5 over S-1. As deemed warranted, the examiner should address any current findings of spondylosis/ spondylolisthesis as a separate matter from the diagnoses of arthritis or disc disease in terms of a link to service. If the spondylosis or spondylolisthesis are found to be congenital defects, the examiner must specifically state whether they are static in nature (meaning they are incapable of improvement or deterioration). * Secondary service connection opinion: If the examiner cannot render a favorable opinion regarding direct service connection, the examiner must provide an opinion as to whether it is at least as likely as not (50% probability or more) that the Veteran's lumbar spine disability was caused or aggravated (i.e. worsened beyond a medically established baseline, and not due to the natural progression of the condition) by service-connected disabilities of the knees, ankles, and feet, including due to an associated abnormal gait. A complete explanation must be provided in support of the conclusion reached. 6. Shin splints: Arrange for a VA examination and medical opinion. If shin splints or similar pathology is diagnosed, the examiner must provide an opinion as to whether it is at least as likely as not (50% probability or more) linked to physical training in boots during active service (as asserted in an October 2010 written statement, (VA Form 21-4138)), or caused or aggravated by the Veteran's service-connected bilateral foot and ankle disabilities. 7. Bone spurs: The examiner who performs the foot examination (as directed above) must provide an opinion addressing whether the Veteran's bone spurs represent pathology distinct from the already service connected arthritis of the feet and ankles. If the bone spurs are not considered a manifestation of the service-connected arthritis, the examiner must provide an opinion as the likelihood that they are secondary to (i.e. caused or aggravated by) the arthritis, or linked to physical training in boots during active service. The examiner should consider (but need not discuss) a VA x-ray study of the ankles and feet in December 1982 showing plantar calcaneal spurs. 8. Hips: A new VA opinion must be obtained on the issue of secondary service connection. Specifically, the examiner must opine whether it is at least as likely as not (50% probability or more) whether the Veteran's bilateral hip arthritis was caused or aggravated (i.e. worsened beyond a medically established baseline, and not due to the natural progression of the condition) by the service-connected disabilities of the bilateral knees, ankles, and feet, including due to an abnormal gait associated with these disabilities. (The December 2011 VA opinion does not discuss the Veteran's abnormal gait, or the issue of aggravation.) 9. Hypertension: Request the examiner who rendered the November 2010 opinion to provide a supplemental opinion, as specified below. If an opinion cannot be obtained from that examiner within a reasonable time frame, the opinion may be rendered by a different medical professional. Secondary service connection opinion: The examiner must provide an opinion as to whether it is at least as likely as not (50% probability or more) that the Veteran's hypertension was caused or aggravated (i.e. worsened beyond a medically established baseline, and not due to the natural progression of the condition) by NSAID medications such as Aleve taken for his service-connected arthritis. In rendering the opinion, the examiner must consider the fact that although the Veteran did not begin treatment for hypertension until several years after starting on the NSAID drugs (according to the November 2010 opinion), this in itself does mean that he did not have high blood pressure shortly after he began the medication. The examiner must also explain why the Veteran's hypertension would be expected to resolve solely because he decreased (but apparently did not discontinue) the dosage of his Aleve (as indicated in the November 2010 VA opinion). In this regard, the examiner must discuss whether the high blood pressure would or did decrease concurrent with, or following, the decrease in the dosage of Aleve, notwithstanding the use of antihypertensive medication. The examiner should consider in this regard (but need not specifically discuss) whether the use of antihypertensive medication may have stabilized the Veteran's blood pressure, and if so whether this would complicate a determination of whether the Veteran's blood pressure responded to the decrease in dosage of Aleve. 10. Then, after completing any other development that may be indicated, readjudicate the claims. If any of the benefits sought are not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. All claims 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). ______________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs