Citation Nr: 18140139 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 11-19 529 DATE: October 2, 2018 ORDER New and material evidence having been received, entitlement to service connection for a left knee disability is reopened. New and material evidence having been received, entitlement to service connection for a right knee disability is reopened. New and material evidence having been received, entitlement to service connection for a left hip disability is reopened. New and material evidence having been received, entitlement to service connection for a right hip disability is reopened. New and material evidence having been received, entitlement to service connection for a left shoulder disability is reopened. New and material evidence having been received, entitlement to service connection for a right shoulder disability is reopened. New and material evidence having been received, entitlement to service connection for a low back disability is reopened. REMANDED The issues of entitlement to service connection for an upper back disability, entitlement to a disability rating greater than 10 percent for bilateral hearing loss, and entitlement to a total disability rating based on individual unemployability (TDIU) are remanded. Additionally, having reopened the issues of entitlement to service connection for bilateral knee, hip, and shoulder disabilities as well as a low back disability, the Board remands them as well for further development. FINDING OF FACT The issues of service connection for a low back disability and for disabilities of both knees were initially denied in a July 2005 rating decision. Thereafter, the issues of service connection for disabilities of the hips, shoulders, knees, and low back were denied in an August 2006 rating decision. Evidence received since the August 2006 rating decision relates to prior unestablished facts. CONCLUSIONS OF LAW 1. The August 2006 rating decision is final; new and material evidence has been received to reopen the claim of entitlement to service connection a left knee disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103. 2. The August 2006 rating decision is final; new and material evidence has been received to reopen the claim of entitlement to service connection a right knee disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103. 3. The August 2006 rating decision is final; new and material evidence has been received to reopen the claim of entitlement to service connection a left hip disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103. 4. The August 2006 rating decision is final; new and material evidence has been received to reopen the claim of entitlement to service connection a right hip disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103. 5. The August 2006 rating decision is final; new and material evidence has been received to reopen the claim of entitlement to service connection a left shoulder disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103. 6. The August 2006 rating decision is final; new and material evidence has been received to reopen the claim of entitlement to service connection a right shoulder disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103. 7. The August 2006 rating decision is final; new and material evidence has been received to reopen the claim of entitlement to service connection a low back disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from September 1967 to March 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction of the Veteran’s claims file now resides with the Columbia, South Carolina RO. In April 2011, the Veteran testified before a Decision Review Officer at the RO. A transcript of that hearing is of record. Then, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ) in March 2016. A transcript of the hearing is associated with the claims file. Thereafter, in August 2016, the Veteran was informed that the VLJ who conducted the March 2016 hearing was no longer employed by the Board. In January 2017, the Veteran informed VA that he wanted another Board hearing. This second Board hearing was conducted in March 2018 before the undersigned VLJ. A transcript of that hearing is also associated with the claims file. New and Material Evidence As indicated above, the Board finds that new and material evidence has been received to reopen claims of entitlement to service connection for disabilities of the bilateral knees, hips, and shoulders as well as a low back disability. In making this determination, the Board first notes that the issues of a low back disability and the knees were initially denied in a July 2005 rating decision. In denying the low back and right knee disabilities, the RO found that there were no injuries in service and no nexus linking a current low back and a right knee disability to service. Regarding the left knee, the RO determined that the Veteran had a left knee disability that preexisted service and there was no aggravation of this disability in service. The Veteran was notified of this decision via a letter issued later in July 2005. Thereafter, in January 2006, the Veteran filed a new claim for service connection for his low back and knees. The Veteran also claimed service connection for disabilities of both shoulders and hips. In an August 2006 rating decision, the RO continued its denial of service connection for both knees and the low back. Additionally, the RO denied the issues of the shoulders and hips as it concluded that there were no injuries to these areas in service as well as any competent and adequate medical opinions linking disabilities of the shoulders and hips to service. The Veteran was notified of this rating decision via a letter issued later in August 2006. He neither appealed nor submitted any evidence within one year of notification. Accordingly, the August 2006 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). 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). Evidence received since the August 2006 rating decision includes VA and private treatment records, lay statements, VA examination report, VA medical opinions, and several etiological opinions provided by a non-VA physician Dr. Sellman. This evidence is “new,” as it was not previously submitted to agency decision makers. It is also “material,” as it addresses the reasons for the prior denials. Specifically, in statements dated November 2008, April 2010, and June 2011, Dr. Sellman discussed the causes of disabilities of the Veteran’s weight-bearing joints. Additionally, in June 2011 and November 2012, VA clinicians opined as to the etiology of disabilities of the knees, hips, shoulders, and low back. These opinions relate to unestablished facts that are necessary to substantiate the Veteran’s claims—i.e., links between service and his current disabilities of the knees, hips, shoulders, and low back. As such, the claims are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). REASONS FOR REMAND 1. Service Connection for Bilateral Knee, Bilateral Hip, Bilateral Shoulder, Low Back, and Upper Back Disabilities Having reopened the issues of entitlement to service connection for the above disabilities, the Board remands them for adjudication by the RO in the first instance. Additionally, the Board remands the issue of service connection for an upper back disability for further development In making this determination, the Board notes that the record currently contains several medical opinions regarding the etiology of the above disabilities. However, the Board finds them all to be inadequate for adjudicative purposes. Firstly, Dr. Sellman’s November 2008 opinion is inadequate as it did not provide a definite conclusion. Instead, Dr. Sellman merely stated that most of the Veteran’s prior medical records were not relevant, that he listened to the Veteran describe his service duties, and requested that VA make a connection between the Veteran’s military duties and the current state of the Veteran’s joints, if possible. Next, in a statement dated April 2010, Dr. Sellman stated that he reviewed the Veteran’s service treatment records (STRs) and concluded that it was more likely than not that the Veteran’s left knee condition manifested while the Veteran was on active duty and continued since discharge. But, Dr. Sellman did not provide an explanatory rationale for his conclusion. In June 2011, the Veteran was afforded a VA joints examination wherein he was diagnosed with: (1) bilateral knee strain with x-rays showing progressive bilateral tricompartmental knee osteoarthritis, severe in the medial compartments; (2) bilateral shoulder strain with x-rays showing advanced acromioclavicular and glenohumeral joint arthropathy; (3) bilateral hip strain status post bilateral hip replacements with x-rays showing bilateral total hip arthroplasties without evidence of complication; and (4) lumbar spine strain with x-rays showing degenerative disc space narrowing throughout the lumbar spine. Thereafter, the examiner opined that it was less likely than not that these diagnosed conditions were related to military service. In support of this conclusion, the examiner inappropriately (1) relied upon a lack of documented injuries in the Veteran’s STRs, and (2) discounted the Veteran’s lay description of his in-service job duties merely because there was not another source within the Veteran’s claims file that discussed his job duties. See Buchanon v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that “lay evidence cannot lack credibility merely because it is unaccompanied by contemporaneous medical evidence.”) Dr. Sellman also produced another statement in June 2011 regarding the etiology of the Veteran’s conditions. Dr. Sellman indicated that the Veteran had deteriorating hip, knee, shoulder, and back joints. Dr. Sellman then stated that he believed that the Veteran’s joint degeneration was caused by or aggravated by the Veteran’s military service. In support of this determination, Dr. Sellman first stated that the Veteran is a large man who had specific duties in service that required him to hand-lift extremely heavy bombs. Dr. Sellman stated that this repetitive lifting of unusually heavy weights put extreme pressure on the Veteran’s bones and that joint damage to weight-bearing structures would be inevitable. The Board finds this opinion to be inadequate as well because it lacks specificity. Specifically, Dr. Sellman referred to joint deterioration in a vague sense when stating how the Veteran’s in-service duties would place extreme pressure on bones. Lastly, in November 2012, the June 2011 VA examiner provided an addendum opinion to the June 2011 VA examination report. After reviewing additional documents that had been associated with the claims file, including Dr. Sellman’s June 2011 opinion, the examiner stated that no change was necessary to the conclusion that it was less likely than not that the Veteran’s diagnosed knee, shoulder, hip, and back conditions were related to service. However, the examiner inappropriately (1) relied upon a lack of documented injuries in the Veteran’s STRs, and (2) relied upon prior rating decisions denying service connection in supporting her conclusion. Accordingly, the Board remands the issues of service connection for bilateral knee, bilateral hip, bilateral shoulder, low back, and upper back disabilities for the provision of new medical opinions. Relatedly, the Board notes that the Veteran has contended repeatedly throughout the pendency of the appeal that he was told that STRs from the time period of June 1970 through December 1970 were destroyed. The Veteran has stated that he served aboard the USS Oriskany during this time period and that these records document several incidents where he received medical treatment for his back. On remand, the RO should verify whether these records are missing or the Veteran’s complete STRs are already associated with the claims file. 2. A Disability Rating Greater than 10 Percent for Bilateral Hearing Loss The United States Court of Appeals for Veterans Claims (Court) has held that VA’s statutory duty to assist includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Where the evidence of record does not reflect the current state of the Veteran’s disability, a new VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). In this case, the Veteran was last provided a VA examination regarding his bilateral hearing loss in November 2015. During his March 2018 Board hearing, the Veteran testified that his hearing loss had increased in severity since the last VA examination. See Hearing Tr. at 4-5. Accordingly, as the Board remands the issue of a disability rating greater than 10 percent for bilateral hearing loss for the provision of new VA examination. 3. Entitlement to a TDIU During the March 2018 Board hearing, the Veteran’s representative indicated that the Veteran’s TDIU claim was based upon his pending claims for service connection for both knees, hips, and shoulders as well as the low and upper back. See Hearing Tr. at 3. As those issues are being remanded and they affect the outcome of entitlement to a TDIU, a final decision on the issue of a TDIU would be premature at this point. Where a pending claim is inextricably intertwined with a claim currently on appeal, the appropriate remedy is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain updated VA treatment records and associate them with the claims file—particularly those dated since July 2015. If no such records exist, the claims file should be annotated to reflect as such and the Veteran notified as such. 2. Obtain the Veteran’s service treatment records from the time period of June 1970 through December 1970, as well as any other service treatment records for the time period which he was assigned to the USS Oriskany. If those records are unavailable, the claims file should be annotated to reflect as such and the Veteran notified as such. 3. After the above has been completed to the extent possible, send the Veteran’s claims file to a VA orthopedist—or another appropriate clinician—to issue a medical opinion as to the nature and etiology of the Veteran’s bilateral knee, hip, and shoulder disabilities as well as his lower and upper back disabilities. The entire claims file, including a copy of this Remand, must be made available to and must be reviewed by the clinician. If the clinician determines that a new examination is necessary, one should be scheduled. 4. Thereafter, the clinician should address: (a.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s right knee disability was incurred in, caused by, or otherwise related to service—including as due to the cumulative effects of repeated heavy lifting in service. (b.) Whether a left knee disability clearly and unmistakably (undebatably) preexisted service. i. If a left knee disability clearly and unmistakably preexisted service, whether a left knee disability was clearly and unmistakably not aggravated by service. ii. If a left knee disability did not preexist service, or was not aggravated by service, whether it is at least as likely as not (50 percent probability or more) that the Veteran’s left knee disability was incurred in, caused by, or otherwise related to service—including as due to the cumulative effects of repeated heavy lifting in service. (c.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s right hip disability was incurred in, caused by, or otherwise related to service—including as due to the cumulative effects of repeated heavy lifting in service. (d.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s left hip disability was incurred in, caused by, or otherwise related to service—including as due to the cumulative effects of repeated heavy lifting in service. (e.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s right shoulder disability was incurred in, caused by, or otherwise related to service—including as due to the cumulative effects of repeated heavy lifting in service. (f.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s left shoulder disability was incurred in, caused by, or otherwise related to service—including as due to the cumulative effects of repeated heavy lifting in service. (g.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s low back disability was incurred in, caused by, or otherwise related to service—including as due to the cumulative effects of repeated heavy lifting in service. (h.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s upper back disability was incurred in, caused by, or otherwise related to service—including as due to the cumulative effects of repeated heavy lifting in service. The clinician should specifically comment upon the June 2011 statement by Dr. Sellman. In offering any opinion, the clinician must consider medical and lay evidence dated both prior to and since the filing of the claim (November 2008), including testimony presented at March 2016 and March 2018 Board hearings. Further, the clinician must provide a complete rationale for any opinion rendered. If the clinician cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). 5. After Items (1) and (2) have been completed to the extent possible, schedule the Veteran for a VA examination with an appropriate clinician to determine the current nature and severity his bilateral hearing loss. The claims file must be reviewed by the examiner in conjunction with the examination. All appropriate tests and studies should be conducted and the results reported in detail. In addition to objective test results, the examiner should fully describe the functional effects caused by the Veteran’s hearing loss, including the effect of his hearing loss on his occupational and daily functioning. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.S. Pettine, Associate Counsel