Citation Nr: 18140753 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 18-17 059 DATE: October 5, 2018 ORDER New and material evidence having been received, the request to reopen the claim of entitlement to service connection for a cervical spine disability is granted. New and material evidence having been received, the request to reopen the claim of entitlement to service connection for a lumbar spine disability is granted. New and material evidence having been received, the request to reopen the claim of entitlement to service connection for neuropathy of the right upper extremity is granted. New and material evidence having been received, the request to reopen the claim of entitlement to service connection for neuropathy of the left upper extremity is granted. New and material evidence having been received, the request to reopen the claim of entitlement to service connection for radiculopathy of the right lower extremity is granted. New and material evidence having been received, the request to reopen the claim of entitlement to service connection for radiculopathy of the left lower extremity is granted. REMANDED The claim of entitlement to service connection for a right shoulder disability is remanded. The claim of entitlement to service connection for a left shoulder disability is remanded. The claim of entitlement to service connection for a cervical spine disability is remanded. The claim of entitlement to service connection for a lumbar spine disability is remanded. The claim of entitlement to service connection for a right hip disability is remanded. The claim of entitlement to service connection for a left hip disability is remanded. The claim of entitlement to service connection for a right knee disability is remanded. The claim of entitlement to service connection for a left knee disability is remanded. The claim of entitlement to service connection for a right ankle disability is remanded. The claim of entitlement to service connection for a left ankle disability is remanded. The claim of entitlement to service connection for a bilateral foot disability is remanded. The claim of entitlement to service connection for a bilateral hearing loss disability is remanded. The claim of entitlement to service connection for tinnitus is remanded. The claim of entitlement to service connection for sleep apnea is remanded. The claim of entitlement to service connection for neuropathy of the right upper extremity is remanded. The claim of entitlement to service connection for neuropathy of the left upper extremity is remanded. The claim of entitlement to service connection for radiculopathy of the right lower extremity is remanded. The claim of entitlement to service connection for radiculopathy of the left lower extremity is remanded. The claim of entitlement to service connection for a psychiatric disorder is remanded. The claim of entitlement to a total rating due to unemployability caused by service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. In an unappealed rating decision, dated in December 2012, the agency of original jurisdiction (AOJ) denied the appellant’s claim of entitlement to service connection for a cervical spine disability. 2. Evidence associated with the record since the December 2012 decision is neither cumulative nor redundant and, by itself or in connection with evidence previously assembled, relates to an unestablished fact or raises a reasonable possibility of substantiating the claim of entitlement to service connection for a cervical spine disability. 3. In an unappealed rating decision, dated in December 2012, the AOJ denied the appellant’s claim of entitlement to service connection for a lumbar spine disability. 4. Evidence associated with the record since the December 2012 decision is neither cumulative nor redundant and, by itself or in connection with evidence previously assembled, relates to an unestablished fact or raises a reasonable possibility of substantiating the claim of entitlement to service connection for a lumbar spine disability. 5. In an unappealed rating decision, dated in December 2012, the AOJ denied the appellant’s claim of entitlement to service connection for neuropathy of the right upper extremity. 6. Evidence associated with the record since the December 2012 decision is neither cumulative nor redundant and, by itself or in connection with evidence previously assembled, relates to an unestablished fact or raises a reasonable possibility of substantiating the claim of entitlement to service connection for neuropathy of the right upper extremity. 7. In an unappealed rating decision, dated in December 2012, the AOJ denied the appellant’s claim of entitlement to service connection for neuropathy of the left upper extremity. 8. Evidence associated with the record since the December 2012 decision is neither cumulative nor redundant and, by itself or in connection with evidence previously assembled, relates to an unestablished fact or raises a reasonable possibility of substantiating the claim of entitlement to service connection for neuropathy of the left upper extremity. 9. In an unappealed rating decision, dated in December 2012, the AOJ denied the appellant’s claim of entitlement to service connection for radiculopathy of the right lower extremity. 10. Evidence associated with the record since the December 2012 decision is neither cumulative nor redundant and, by itself or in connection with evidence previously assembled, relates to an unestablished fact or raises a reasonable possibility of substantiating the claim of entitlement to service connection for radiculopathy of the right lower extremity. 11. In an unappealed rating decision, dated in December 2012, the denied the appellant’s claim of entitlement to service connection for radiculopathy of the left lower extremity. 12. Evidence associated with the record since the December 2012 decision is neither cumulative nor redundant and, by itself or in connection with evidence previously assembled, relates to an unestablished fact or raises a reasonable possibility of substantiating the claim of entitlement to service connection for radiculopathy of the left lower extremity. CONCLUSIONS OF LAW 1. The AOJ’s December 2012 rating decision, which denied the appellant’s claim of entitlement to service connection for a cervical spine disability, is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received to reopen the appellant’s claim of entitlement to service connection for a cervical spine disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The AOJ’s December 2012 rating decision, which denied the appellant’s claim of entitlement to service connection for a lumbar spine disability, is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 4. New and material evidence has been received to reopen the appellant’s claim of entitlement to service connection for a lumbar spine disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The AOJ’s December 2012 rating decision, which denied the appellant’s claim of entitlement to service connection for neuropathy of the right upper extremity, is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 6. New and material evidence has been received to reopen the appellant’s claim of entitlement to service connection for neuropathy of the right upper extremity. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 7. The AOJ’s December 2012 rating decision, which denied the appellant’s claim of entitlement to service connection for neuropathy of the left upper extremity, is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 8. New and material evidence has been submitted to reopen the appellant’s claim of entitlement to service connection for neuropathy of the left upper extremity. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 9. The AOJ’s December 2012 rating decision, which denied the appellant’s claim of entitlement to service connection for radiculopathy of the right lower extremity, is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 10. New and material evidence has been submitted to reopen the appellant’s claim of entitlement to service connection for radiculopathy of the right lower extremity. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 11. The AOJ’s December 2012 rating decision, which denied the appellant’s claim of entitlement to service connection for radiculopathy of the left lower extremity, is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 12. New and material evidence has been submitted to reopen the appellant’s claim of entitlement to service connection for radiculopathy of the left lower extremity. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served in the Army National Guard and had active duty for training from July 1969 to November 1969. In November 2003, the appellant retired, after more than 33 years of honorable service. Service Connection The appellant seeks service connection for a cervical spine disability, a lumbar spine disability, neuropathy of each upper extremity, and radiculopathy affecting each lower extremity. Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, the evidence must show (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Cuevas v. Principi, 3 Vet. App. 542 (1992). Active military service includes active duty, any period of active duty for training ("ACDUTRA") during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and any period of inactive duty training ("INACDUTRA") during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 C.F.R. § 3.6(a). Confirmation of periods of ACDUTRA or INACDUTRA may be made by contacting the service department, including the State Adjutant General, the appellant’s unit, and the Defense Finance and Accounting Service. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease that is initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 A review of the record discloses that this is not the appellant’s first claim entitlement to service connection for a cervical spine disability; a lumbar spine disability; neuropathy of each upper extremity; and radiculopathy of each lower extremity. In December 2012, the AOJ denied those claims, because there was no competent, credible evidence of a nexus to service. The appellant disagreed with those decisions, and in March 2016, he was issued a Statement of the Case (SOC). However, he did not submit a timely substantive appeal with respect to any of those decisions; and therefore, they became final under the law and regulations then in effect. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. In October 2016, the appellant requested that VA reopen his claims for service connection for cervical spine disability; lumbar spine disability; radiculopathy of both upper extremities; and neuropathy of both lower extremities. Generally, a claim which has been denied by the AOJ may not thereafter be reopened and allowed, and a claim based upon the same factual basis may not be considered. 38 U.S.C. § 7105. The 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, the VA shall reopen the claim and review the former disposition of the claim. When a veteran seeks to reopen a final decision based on new and material evidence, the Board must first determine whether the veteran has, in fact, presented new and material evidence under 38 C.F.R. § 3.156. Evidence offered by a claimant to reopen a claim is presumed credible for the limited purpose of ascertaining its materiality. Justus v. Principi 3 Vet. App. 510, 512 (1992). New evidence means existing evidence not previously submitted to VA decisionmakers. 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. Evidence added to the record since December 2012, includes a May 2016 statement from C. E. M.-Q., M.D. He opines that the foregoing disabilities were more likely than not secondary to the appellant’s military service. Such evidence is new in the sense that it has not previously been before VA. It is also material as it relates to an unestablished fact necessary to substantiate the claims. It suggests a nexus between the cervical spine disability, lumbar spine disability, upper extremity neuropathy, and lower extremity radiculopathy and service and raises a reasonable possibility of substantiating the claims. Because it is new and material, it meets the criteria to reopen the claims. To that extent, the appeal is granted. REASONS FOR REMAND Because the new and material evidence has been presented, the Board may proceed to evaluate the merits of the claims of service connection for a cervical spine disability, lumbar spine disability, upper extremity neuropathy, and lower extremity radiculopathy. 38 C.F.R. § 3.159; Elkins v. West, 12 Vet. App. 209 (1999). In October 2016, the appellant also claimed entitlement to service connection for the following: the shoulders, the hips, the knees, the ankles, and the feet; a bilateral hearing loss disability; tinnitus; sleep apnea; and a psychiatric disability. In addition, he claimed entitlement to a TDIU. In his February 2018 statement, C. E. M.-Q., M.D. opined those disabilities were related to service. To date, however, the appellant has not identified any dates, times, locations, or circumstances in service when his claimed disabilities were first manifested. Neither the appellant’s service personnel records nor evidence documenting his Army National Guard retirement points have been associated with his VBMS and Virtual VA/Legacy files. In September 2003, the appellant reported that he had a claim pending for Social Security disability benefits and that he was awaiting a hearing on the matter. In August 2012 and November 2016, the appellant reported that he was receiving Social Security benefits. Documents such as his original award letter and transcript of any associated hearing have not been associated with his VBMS and Virtual VA/Legacy files. To date, the appellant has not been examined by VA to determine the nature and etiology of any disabilities for which he seeks service connection. In as much as there may be outstanding relevant evidence in this case, it is REMANDED for the following action: 1. Ensure that all records are translated into English. This should include, but is not limited to, all records from a non-government medical facility, filed on October 9, 2012, e.g., pages 58, 66, 67, 77, 92, 93, 96, 97, 102, and 103. 2. Ask the appellant for additional information regarding his claimed disabilities, such as the dates, times, locations, and circumstances in service when he began to experience symptoms in any of his joints for which he seeks service connection; when he began to have difficulty hearing; when he began to have difficulty sleeping; or when he began to feel stress. 3. Obtain the appellant’s service personnel records, including, but not limited to, any periods of ACDUTRA or INACDUTRA during which he began to experience joint symptoms, difficulty hearing, difficulty sleeping, or stress; documentation of his Army National Guard retirement points; and his enlisted efficiency reports. 4. Ask the Social Security Administration for documentation of the appellant’s Social Security benefits. Such documents should include, but are not limited to, his original award letter, the transcript of any associated hearing, and associated medical records. 5. After the actions in parts 2, 3, and 4 have been completed, schedule the appellant for an orthopedic examination to determine the nature and etiology of any cervical spine disability; lumbar spine disability; or disabilities of the shoulders, hips, knees, ankles, and feet found to be present. The appellant’s VBMS and Virtual VA/Legacy files, and a copy of this remand must be made available to the examiner for review in conjunction with the examination, and the examiner must acknowledge receipt and review of these materials in any report generated as a result of this remand. If disabilities of the cervical spine, lumbar spine, shoulders, hips, knees, ankles, and/or feet are diagnosed, the examiner must identify and explain the elements supporting each diagnosis. The examiner must opine whether it is at least as likely as not (at least a 50/50 chance) that any of the foregoing disabilities are due to any disease, injury, or event in service. In so doing, the examiner must address the May 2016 statement of the appellant’s private physician, C.E.M.-Q., M.D. For all opinions, the examiner must state HOW AND WHY he or she reached the opinion they did. If an opinion cannot be rendered without resort to speculation, the examiner must state why that is so: for example, whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts; or by a deficiency in the record or the examiner, i.e., additional facts are required; or the examiner does not have the needed knowledge or training. 5. After the actions in parts 2, 3, and 4 have been completed, schedule the appellant for a neurologic examination to determine the nature and etiology of any cervical spine disability; lumbar spine disability; neuropathy of the upper extremities; or radiculopathy of the lower extremities found to be present. The appellant’s VBMS and Virtual VA/Legacy files, and a copy of this remand must be made available to the examiner for review in conjunction with the examination, and the examiner must acknowledge receipt and review of these materials in any report generated as a result of this remand. If disabilities of the cervical spine or lumbar spine, neuropathy of the upper extremities, and/or radiculopathy of the lower extremities are diagnosed, the examiner must identify and explain the elements supporting each diagnosis. The examiner must opine whether it is at least as likely as not that disabilities of the cervical spine or lumbar spine, neuropathy of the upper extremities, and/or radiculopathy of the lower extremities are due to any disease, injury, or event in service. In so doing, the examiner must address the May 2016 statement of the appellant’s private physician, C.E.M.-Q., M.D. For all opinions, the examiner must state HOW AND WHY he or she reached the opinion they did. If an opinion cannot be rendered without resort to speculation, the examiner must state why that is so: for example, whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts; or by a deficiency in the record or the examiner, i.e., additional facts are required; or the examiner does not have the needed knowledge or training. 6. After the actions in parts 2, 3, and 4 have been completed, schedule the appellant for an audiologic examination to determine the nature and etiology of any hearing loss disability and/or tinnitus found to be present. The appellant’s VBMS and Virtual VA/Legacy files, and a copy of this remand must be made available to the examiner for review in conjunction with the examination, and the examiner must acknowledge receipt and review of these materials in any report generated as a result of this remand. If a hearing loss disability and/or tinnitus are diagnosed, the examiner must identify and explain the elements supporting each diagnosis. The examiner must opine whether it is at least as likely as not that the hearing loss disability and tinnitus are due to any disease, injury, or event in service. In so doing, the examiner must address the May 2016 statement of the appellant’s private physician, C.E.M.-Q., M.D. For all opinions, the examiner must state HOW AND WHY he or she reached the opinion they did. If an opinion cannot be rendered without resort to speculation, the examiner must state why that is so: for example, whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts; or by a deficiency in the record or the examiner, i.e., additional facts are required; or the examiner does not have the needed knowledge or training. 7. After the actions in parts 2, 3, and 4 have been completed, schedule the appellant for a sleep examination to determine the nature and etiology of any sleep disorder found to be present. The appellant’s VBMS and Virtual VA/Legacy files, and a copy of this remand must be made available to the examiner for review in conjunction with the examination, and the examiner must acknowledge receipt and review of these materials in any report generated as a result of this remand. If a sleep disorder is diagnosed, the examiner must identify and explain the elements supporting each diagnosis. The examiner must opine whether it is at least as likely as not that the sleep disability is due to any disease, injury, or event in service. In so doing, the examiner must address the May 2016 statement of the appellant’s private physician, C.E.M.-Q., M.D. For all opinions, the examiner must state HOW AND WHY he or she reached the opinion they did. If an opinion cannot be rendered without resort to speculation, the examiner must state why that is so: for example, whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts; or by a deficiency in the record or the examiner, i.e., additional facts are required; or the examiner does not have the needed knowledge or training. 8. After the actions in parts 2, 3, and 4 have been completed, schedule the appellant for a psychiatric examination to determine the nature and etiology of any psychiatric disorder found to be present. The appellant’s VBMS and Virtual VA/Legacy files, and a copy of this remand must be made available to the examiner for review in conjunction with the examination, and the examiner must acknowledge receipt and review of these materials in any report generated as a result of this remand. If a psychiatric disorder(s) is diagnosed, the examiner must identify and explain the elements supporting each diagnosis. The examiner must opine whether it is at least as likely as not that any psychiatric disability is due to a disease, injury, or event in service. In so doing, the examiner must address the May 2016 statement of the appellant’s private physician, C.E.M.-Q., M.D. For all opinions, the examiner must state HOW AND WHY he or she reached the opinion they did. If an opinion cannot be rendered without resort to speculation, the examiner must state why that is so: for example, whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts; or by a deficiency in the record or the examiner, i.e., additional facts are required; or the examiner does not have the needed knowledge or training. 9. A copy of the notice informing the appellant of the date, time, and location of each examination must be associated with the appellant’s VBMS and Virtual VA/Legacy files. If that notice is returned by the Post Office as undeliverable, that fact must be noted in writing and associated with those files. The appellant is advised that it is his responsibility to report for all scheduled VA examinations and to cooperate in the development of his claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655. 10. The claim of entitlement to a TDIU will be held in abeyance pending the foregoing development. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Harold A. Beach, Counsel