Citation Nr: 1804905 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-16 263 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether new and material evidence has been received to reopen the claim for right hip and leg numbness and pain, now claimed as pain in right side of the body. 2. Entitlement to service connection for a right hip and leg numbness and pain, now claimed as pain in right side of the body. 3. Entitlement to service connection for a right knee condition. 4. Entitlement to service connection for a back condition. 5. Entitlement to an initial compensable disability rating for bilateral hearing loss. 6. Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Mary Long, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD N. Stevens, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1975 to September 1975. These matters come before the Board of Veterans' Appeals, on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Muskogee, Oklahoma. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in May 2017. A copy of the hearing transcript is of record. The issues of entitlement to an initial compensable disability rating for bilateral hearing loss and entitlement to a TDIU due to service-connected disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Evidence associated with the claims file since March 2011 is new and raises a reasonable possibility of substantiating the claim of entitlement to service connection for right hip and leg numbness and pain, now claimed as pain in right side of the body. 2. The preponderance of the evidence of record shows that the Veteran's currently diagnosed right hip and leg numbness and pain are related to service. 3. The preponderance of the evidence of record shows that the Veteran's currently diagnosed right knee disability is related to service. 4. The preponderance of the evidence of record shows that the Veteran's currently diagnosed low back disability is related to service. CONCLUSION OF LAW 1. Evidence received since the March 2011 Board decision that denied service connection for right hip and leg numbness and pain, the last final denial with respect to that issue, is new and material; the claim is reopened. 38 U.S.C. §§ 7104 (2012); 38 C.F.R. §§ 3.104, 20.1100, 20.1104 (2017). 2. The Veteran's right hip and leg numbness and pain were incurred in service. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 3. The Veteran's right knee disability was incurred in service. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 4. The Veteran's low back condition was incurred in service. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Petition to Reopen Previously Denied Claim In December 2005, the AOJ denied the Veteran's claim for service connection for a right hip and leg numbness and pain, now claimed as pain on right side of the body. He perfected his appeal to the Board, and in March 2011, the Board denied his claim. The Veteran did not appeal the Board decision. When a rating decision issued by the AOJ is affirmed by the Board, that determination is considered final. See 38 U.S.C. § 7104 (2017); 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1100, 20.1104 (2017). The Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. 38 U.S.C. § 7104 (b) (2017); King v. Shinseki, 23 Vet. App. 464 (2010); DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) (holding that res judicata generally applies to VA decisions). However, the finality of a previously disallowed claim can be overcome by the submission of new and material evidence. 38 U.S.C. § 5108 (2012). 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a) (2017). In determining whether evidence is new and material for purposes of deciding whether a claim should be reopened, "the credibility of the evidence is to be presumed." Savage v. Gober, 10 Vet. App. 488 (1997); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Only in cases in which the newly submitted evidence is "inherently false or untrue" does the presumption of credibility not apply. Duran v. Brown, 7 Vet. App. 216, 220 (1994). The evidence received since the March 2011 Board decision includes hearing testimony, a buddy statement, and a recent positive private medical opinion. The Board finds that the new evidence received since the March 2011 Board decision is not cumulative or redundant of the evidence of record at the time of the prior decision and raises a reasonable possibility of substantiating the Veteran's claim. Thus, the threshold for reopening a claim has been met. Therefore, since the new evidence is material, the Veteran's claim for service connection for a right hip and leg numbness and pain, now claimed as pain on right side of the body is reopened. II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017). If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303 (a), (b), 3.309(a) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d) (2017). Service connection for certain chronic disabilities, including arthritis, may be presumed to have been incurred in service if shown to a compensable degree within one year following separation from qualifying service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309 (2017). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (2017); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows or fails to show, on the claim. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102 (2017). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). A. Right Hip and Leg Numbness and Pain The Veteran has been diagnosed with mild degenerative arthritis of the right hip. In his May 2017 Board hearing, he competently and credibly testified that he injured his right hip in service and was treated for it, and his hip and right leg have continued to bother him since. The first and second elements of a service connection claim are satisfied. Shedden, 381 F.3d at 1166-67. In July 2017, the Veteran's private physician provided a positive nexus opinion, relating the Veteran's right hip and leg numbness and pain condition to his period of service. Dr. J. W. E. opined that it is more likely than not that the Veteran's right hip condition is caused by his fall in service. Dr. J. W. E. explained that as a result of the fall, the Veteran developed: spondylolisthesis and degenerative arthritis [that] are causing impingement of the right L5, and S1 spinal nerves down the right leg. The fall also contused his right lateral hip and greater trochanter causing injury to the right hip joint, contributing to and aggravating the traumatic arthritis in his right hip. The injury to his back and the deranged discs are causing impingement of the right L5 and SI spinal nerves clown the right leg causing weakness down the right leg making the right hip and right knee not to move in a normal rhythmical manner with the activities of daily living or walking which has made the right hip and right knee develop greater arthritis than if he was not having spinal nerve impingement down his right leg. The symptoms he has in his right leg with shooting pain into the dorsal an and lateral aspects of the right foot, the right leg almost giving way frequently, and the weakness in his right leg climbing stairs, are due to the spinal nerves in the spine being impinged down the right leg. The tingling he has in the back of his right side with sitting and him having to keep changing his weight are due to the injury to the piriformis muscle in the right buttock, which impinges the sciatic nerve causing sensory loss. This does not cause much impairment down the right leg as does the spine. It is very uncomfortable doing the activities of daily living and makes it difficult for him to sit. The positive opinion of his private physician is highly probative evidence in support of the Veteran's claim. There is no medical or lay evidence to contradict the examiner's finding. As the preponderance of the evidence is in favor of the Veteran's claim, the nexus element of a service connection claim for right hip and leg numbness and pain is met. Shedden, 381 F.3d at 1166-67. Service connection for right hip and leg numbness and pain is, therefore, is granted. B. Right Knee Condition The Veteran has been diagnosed with osteoarthritis of the right knee. In his May 2017 Board hearing, he competently and credibly testified that he injured his right knee in service and was treated for it, and his knee has continued to bother him since. The first and second elements of a service connection claim are satisfied. Shedden, 381 F.3d at 1166-67. In July 2017, the Veteran's private physician provided a positive nexus opinion, relating the Veteran's right knee disability to his period of service. Dr. J. W. E. opined that it is more likely than not that the Veteran's right knee disability is caused by his fall in service. Dr. J. W. E. explained that as a result of the fall, the Veteran had a direct contusion to the lateral aspect of the right knee joint and lateral patella, which has continued to hurt from the direct contusion of the bones of the right knee causing traumatic arthritis in the right knee... He fell while repelling and landed on his right side straining his back and right hip and contusing his right knee. The positive opinion of his private physician is highly probative evidence in support of the Veteran's claim. There is no medical or lay evidence to contradict the examiner's finding. As the preponderance of the evidence is in favor of the Veteran's claim, the nexus element of a service connection claim for a right knee condition is met. Id. Service connection for a right knee condition is, therefore, is granted. C. Back Condition The Veteran has been diagnosed with spondylolysis. In his May 2017 Board hearing, he competently and credibly testified that he injured his back in service and was treated for it, and his back has continued to bother him since. The first and second elements of a service connection claim are satisfied. Shedden, 381 F.3d at 1166-67. In July 2017, the Veteran's private physician provided a positive nexus opinion, relating the Veteran's chronic back condition to his period of service. Dr. J. W. E. opined that it is more likely than not that the Veteran's chronic back condition is caused by his fall in service. Dr. J. W. E. explained that as a result of the fall, the Veteran had [sustained] acute strain of the muscles and ligaments in his low back, which has contributed to the spondylolisthesis or slipping of the lower vertebrae. The straining of the muscles and ligaments in his back and the ligaments of the vertebrae has caused looseness of the lower lumbar vertebrae contributing to and aggravating traumatic arthritis and degenerative spine. The positive opinion of his private physician is highly probative evidence in support of the Veteran's claim. There is no medical or lay evidence to contradict the examiner's finding. As the preponderance of the evidence is in favor of the Veteran's claim, the nexus element of a service connection claim for a chronic back condition is met. Id. Service connection for a chronic back condition is, therefore, is granted. ORDER New and material evidence having been received; the claim for service connection for right hip and leg numbness and pain, now claimed as pain on right side of the body is reopened. Service connection for right hip and leg numbness and pain is granted subject to the laws and regulations governing the payment of monetary benefits. Service connection for a right knee condition is granted subject to the laws and regulations governing the payment of monetary benefits. Service connection for a back condition is granted subject to the laws and regulations governing the payment of monetary benefits. REMAND VA's duty to assist includes providing a new medical examination when a Veteran asserts or provides evidence that a disability has worsened and the available evidence is too old for an adequate evaluation of the current condition. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also 38 C.F.R. § 3.326 (a) (2014). Examinations will be requested whenever VA determines, as in this case, that there is a need to determine the current severity of a disability. At his May 2017 video conference hearing, the Veteran credibly testified that his bilateral hearing loss disability, especially in the left ear, had increased in severity. Specifically, he stated that he has to turn up the volume on the TV "pretty loud[ly]," he cannot understand callers on the phone most of the time, and he raises his voice in conversation because he cannot "hear [himself] talk sometimes." As the Veteran has alleged that his hearing loss has worsened, a remand is warranted to provide a new audiological examination so that the Board may fairly and accurately assess his current symptoms and make an informed decision. Additionally, although the AOJ did not certify the issue of a TDIU as part of this appeal, the Board will consider the issue of entitlement to a TDIU as part of the claim for an increased rating for bilateral hearing loss disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). The record contains evidence that the Veteran has been unable "to work since the early 1990s because of his back, right hip and right knee pain, numbness down his right leg and his right leg giving way." As the outcome of the readjudication of the Veteran's bilateral hearing loss rating claim and the ratings assigned by the RO for the service connection claims granted in this decision may have a substantial effect on the merits of his claim for a TDIU, the claim for a TDIU is inextricably intertwined and remanded with the underlying increased rating claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered); see also Tyrues v. Shinseki, 23 Vet. App. 166, 178 (2009). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of his bilateral hearing loss. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must provide all findings, along with a complete rationale for any opinions provided. 2. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. The Veteran 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. §§ 5109B, 7112 (2012). ______________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs