Citation Nr: 18140422 Decision Date: 10/03/18 Archive Date: 10/03/18 DOCKET NO. 16-36 211 DATE: October 3, 2018 ORDER Whether new and material evidence has been received to reopen service connection for an ear disability characterized by vertigo is granted. REMANDED Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for eustachian tube dysfunction is remanded. Entitlement to service connection for an ear disability characterized by vertigo is remanded. Entitlement to an increased rating for a total arthroplasty of the right knee is remanded. Entitlement to an increased rating for a left sacroiliac strain is remanded. Entitlement to an increased rating for limitation of extension of the right hip is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. In a June 2012 rating decision, the RO denied the Veteran service connection for benign paroxysmal positional vertigo. The Veteran did not perfect a timely appeal of this decision. 2. Records received since the June 2012 rating decision contain evidence not previously considered that suggests onset of benign paroxysmal positional vertigo in service. CONCLUSIONS OF LAW 1. The June 2012 rating decision denying service connection for benign paroxysmal positional vertigo is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Evidence received since the June 2012 rating decision is new and material and the claim of entitlement to service connection for an ear disability characterized by vertigo is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Whether new and material evidence has been received to reopen service connection for an ear disability characterized by vertigo The Veteran seeks to reopen service connection for an ear disability characterized by vertigo. A service connection claim for benign paroxysmal positional vertigo was previously and finally denied in a June 2012 rating decision, and the Veteran contends he has submitted new and material evidence since that time. Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed to the Board and remained denied, may not be reopened and allowed. 38 U.S.C. §§ 7104, 7105(c), (d)(3); 38 C.F.R. §§ 20.1100, 20.1103. An exception to this rule is 38 U.S.C. § 5108, which provides 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. 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Regardless of whether the RO determined new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board’s jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff’g, 8 Vet. App. 1 (1995)). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. Further analysis, beyond the evaluation of whether the evidence submitted in the effort to reopen is new and material, is neither required nor permitted. Id. at 1384. Any finding entered when new and material evidence has not been submitted “is a legal nullity.” Butler v. Brown, 9 Vet. App. 167, 171 (1996) (applying an identical analysis to claims previously and finally denied, whether by the Board or the RO). See Jackson v. Principi, 265 F.3d 1366, 1369 (2001) (the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board). Historically, the Veteran was denied service connection for benign paroxysmal positional vertigo within a June 2012 rating decision. The RO found the Veteran’s benign paroxysmal positional vertigo had its onset many years after service, and was not related to any disease, injury, or other incident therein. The Veteran did not file a timely notice of disagreement regarding this determination; thus, this rating decision became final. 38 U.S.C. § 7105(c). Since the prior final denial of the claim in June 2012, recent evidentiary submissions have included private treatment records and the Veteran’s own contentions. Specifically, the Veteran submitted a February 2013 statement from a private physician, R.M., M.D., who examined the Veteran on several occasions beginning in November 2011. Upon examination of the Veteran, Dr. M. diagnosed benign paroxysmal positional vertigo and opined that this disorder “likely has existed for over 40 years.” Having reviewed the evidentiary submissions since June 2012, the Board finds that new and material evidence to reopen service connection for an ear disability claimed as vertigo has been received. Specifically, Dr. M.’s statement suggests a longstanding history of vertigo dating back over 40 years, possibly to include the Veteran’s service period. Such a continuity of symptomatology was neither raised nor considered at the time of the prior June 2012 denial. This evidence is new, in that it was not of record at the time of the prior final denial. It is also not cumulative and redundant of evidence already of record, and is material, as this evidence suggests onset of a vertigo-related disorder during service, the lack of evidence of which was the basis of the prior final denial of service connection. Therefore, this claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for a right shoulder disability is remanded. The Veteran alleges he has a right shoulder disability resulting from a fall caused by his vertigo. As noted above, the Veteran has a pending service connection claim for an ear disability characterized by vertigo, and this issue is being remanded. Thus, adjudication of the Veteran’s service connection claim for a right shoulder disability must be deferred, as this issue is inextricably-intertwined with an issue being remanded herein. See Harris v. Derwinski, 1 Vet. App. 180 (1991). 2. Entitlement to service connection for eustachian tube dysfunction is remanded. 3. Entitlement to service connection for an ear disability characterized by vertigo is remanded. The Veteran seeks service connection for eustachian tube dysfunction and an ear disability characterized by vertigo. While the RO has, within a March 2012 VA examination, obtained medical opinions on the question of whether these disabilities had their onset in service or are otherwise related to a disease or injury therein, no medical opinion has been obtained on the question of secondary service connection. Service connection may be awarded for any disability which is proximately due to or the result of, or is otherwise aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. In the present case, the Veteran has been granted service connection for otitis externa of the right ear, and has asserted his vertigo and eustachian tube dysfunction are the result of or related to this disability. Thus, a new VA medical opinion to address this assertion is necessary. 4. Entitlement to an increased rating for a total arthroplasty of the right knee is remanded. 5. Entitlement to an increased rating for a left sacroiliac strain is remanded. 6. Entitlement to an increased rating for limitation of extension of the right hip is remanded. The Veteran seeks increased ratings for his service-connected disabilities of the low back, right knee, and right hip. Remand of these issues is required to afford the Veteran new VA examinations to assess the functional impairment resulting from these disabilities. Specifically, the prior examinations are insufficient for determining the proper disability rating for the Veteran’s service-connected orthopedic disabilities based on the recent holding of the U.S. Court of Appeals for Veterans Claims (Court) in Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Such an examination must, among other findings, determine range of motion on both active and passive motion, with and without weight-bearing. Accordingly, remand of these issues is warranted so that new examinations may be conducted and appropriate findings obtained. 7. Entitlement to a TDIU is remanded. The Veteran seeks a TDIU. Adjudication of this claim must also be deferred, as this issue is inextricably-intertwined with the issues being remanded herein. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate examination by a physician or similar expert in disorders of the ears to determine the nature and etiology of any current ear disorders, to include any eustachian tube dysfunction and/or benign paroxysmal positional vertigo. The claims folder must be made available to and reviewed by the examiner in connection with the examination, and a complete history should be elicited from the Veteran. The examiner must review the service treatment records, to include the Veteran’s in-service treatment for otitis externa and vertigo, as well as the February 2013 private medical opinion evidence submitted by the Veteran in 2014. The examiner is also reminded that the Veteran is competent report such observable symptomatology as vertigo and ear pain. All indicated tests and studies should be accomplished, if deemed necessary by the examiner. Upon review of the file, the examiner is asked to address the presence of any current disorder of the ears, to include eustachian tube dysfunction and/or benign paroxysmal positional vertigo. For any ear disorder identified, the examiner is asked to specifically address whether it is as likely as not (a 50 percent or greater probability) that such a disorder had its onset during service or manifested within a year thereafter. Additionally, for any disorder identified, the examiner is asked to state whether it is at least as likely as not that such a disorder is due to, the result of, or otherwise aggravated by the Veteran’s service-connected otitis externa. (For VA purposes, aggravation is defined as a permanent worsening of a disorder beyond the natural progress of the disorder.) The examiner is asked to provide a rationale for his/her opinion. 2. Schedule the Veteran for an appropriate VA examination so as to determine the current nature and extent of all impairment due to his service-connected right hip and knee disabilities. The record must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the entire record has been reviewed. All indicated tests should be performed and all findings should be reported in detail. The examiner must test and record the range of motion for the knee and hip in active motion, passive motion, weight-bearing, and nonweight-bearing. 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. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner is reminded that he/she should specify the degree of additional functional loss/motion due to pain, to include during flare-ups, or state why it was not feasible to provide such information, as required for an adequate examination. Additionally, as it relates to the knee, the examiner should determine whether the Veteran has ankylosis of the knee; instability or subluxation of the knee; nonunion of the tibia and fibula with loose motion and requiring knee braces; dislocated semilunar cartilages with frequent episodes of locking, pain, and effusion; or severe painful motion or weakness in either knee. As it relates to the instability/subluxation, the examiner is requested indicate whether the impairment is slight, moderate or severe in nature. To the extent possible, the examiner is asked to provide retrospective commentary on the Veteran’s impairment level of the knee and hip disabilities during the appeal period, to include the prior VA examinations performed in conjunction with this claim, and to comment on the range of motion movements that would be painful on passive use, in weight-bearing and non-weight-bearing. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3. Arrange for the Veteran to undergo a VA orthopedic examination to evaluate the severity of the service-connected lumbosacral spine disability. The examiner is asked to review all relevant records and conduct a clinical evaluation. Based on this review, the examiner is asked to provide an assessment of the current nature of the Veteran’s lumbosacral spine. Range of motion for the spine should be tested actively and passively, in weight-bearing and nonweight-bearing, and after repetitive use. The examiner should consider whether there is likely to be additional range of motion loss due to any of the following: (1) during flare-ups; and, (2) as a result of pain, weakness, fatigability, or incoordination. If so, the examiner is asked to describe the additional loss, in degrees, if possible. (Continued on the next page)   The examiner should also note the presence or absence of intervertebral disc syndrome and, if present, the frequency and duration of any incapacitating episodes. If for any reason 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. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel