Citation Nr: 18143252 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 18-27 413 DATE: October 18, 2018 ORDER New and material having been received, the claim of entitlement to service connection for cervical strain is reopened. REMANDED Entitlement to service connection for a cervical disorder is remanded. Entitlement to service connection for an eye disorder is remanded. Entitlement to service connection for a gastrointestinal disorder, to include umbilical hernia, is remanded. Entitlement to service connection for a skin disorder, to include chronic urticaria, is remanded. Entitlement to an initial rating in excess of 40 percent for a lumbar spine disability is remanded. Entitlement to an initial rating in excess of 20 percent for a right ankle disability is remanded. FINDINGS OF FACT 1. In a May 2008 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for cervical strain; a timely notice of disagreement (NOD) was not filed, and no new and material evidence was received within the appeal period. 2. Additional evidence received since the May 2008 decision is new, relates to an unestablished fact necessary to substantiate the claim of service connection for cervical strain, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The May 2008 decision denying the claim of entitlement to service connection for cervical strain is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. 2. New and material evidence has been received since the May 2008 decision to reopen the claim of entitlement to service connection for cervical strain. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1971 to May 1973. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). A December 2014 rating decision reopened the claim of entitlement to service connection for cervical strain, and denied service connection for cervical degenerative disc disease (DDD). The Veteran requested reconsideration, and the March 2015 rating decision confirmed and continued the denial of service connection for cervical DDD. However, even where the AOJ determines that new and material evidence has been received to reopen a claim, or that an entirely new claim has been received, the Board is not bound by that determination and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). [In July 2018, the Board remanded the issues of entitlement to service connection for an acquired psychiatric disorder and total disability based on individual unemployability (TDIU) for further development. As the requested development has not been completed, those issues are not currently before the Board and will be the subject of separate Board decision.] New and Material Evidence Whether new and material has been received to reopen the claim of entitlement to service connection for cervical strain. After reviewing the record, the Board finds that new evidence has been received since the final prior decision, and such evidence is material to the issue of service connection for cervical strain. In May 2008, the AOJ denied service connection for cervical strain based on the lack of a nexus between a current disorder and the Veteran’s period of service. The Veteran did not file a timely NOD and no new and material evidence was received within the appeal period; therefore, the May 2008 decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(b), 20.1103. Consequently, the Board will consider evidence received since the May 2008 decision. In April 2013, a private physician opined that the Veteran’s cervical spine disorder is related to his period of service. 04/25/2013, Third Party Correspondence. The Board finds that this evidence is new and that it directly pertains to the basis for the prior final denial (nexus), by addressing whether a cervical disorder had its onset in or is otherwise related to service. Therefore, the claim of entitlement to service connection for cervical strain is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND 1. Entitlement to service connection for a cervical disorder is remanded. In November 2014, a VA examiner opined that it is less likely than not that the Veteran’s DDD of the cervical spine was incurred in or related to his period of service. The Board notes that in addition to cervical DDD, the record contains diagnoses of arthritis and intervertebral disc syndrome (IVDS). The November 2014 VA examiner did not address whether arthritis or IVDS had their onset in or are otherwise related to service, or the Veteran’s contention that he injured his neck at the same time he injured his back during service in December 1972. The Board acknowledges the April 2013 private physician’s opinion that a cervical condition is related to the Veteran’s period of service. However, the Board finds that the opinion does not provide a sufficient basis on which to grant service connection, as it does not include a rationale in support. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Accordingly, the AOJ should obtain an addendum etiology opinion for the Veteran’s current neck disorder. 2. Entitlement to service connection for an eye disorder is remanded. The Veteran contends that he has a current eye disorder that relates to his in-service complaints of and treatment for the eyes, thus indicating a potential nexus between a current disorder and his period of service. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (stating that “[t]his is a low threshold” for meeting the requirement to trigger VA’s duty to assist to provide an examination). Accordingly, the AOJ should schedule the Veteran for an examination to determine the etiology of any diagnosed eye disorders.   3. Entitlement to service connection for a gastrointestinal disorder, to include umbilical hernia, is remanded. The Veteran contends that he has abdominal pain that relates to his in-service complaints of and treatment for abdominal pain, thus indicating a potential nexus between a current disorder and his period of service. See McLendon, 20 Vet. App. at 83. Accordingly, the AOJ should schedule the Veteran for an examination to determine the etiology of any diagnosed gastrointestinal disorders, to include umbilical hernia. 4. Entitlement to service connection for a skin disorder, to include chronic urticaria, is remanded. The Veteran contends that he has a current skin disorder that had its onset during service, thus indicating a potential nexus between a current disorder and service. See McLendon, 20 Vet. App. at 83. Accordingly, the AOJ should schedule the Veteran for an examination to determine the etiology of any diagnosed skin disorders, to include chronic urticaria. 5. Entitlement to an initial rating in excess of 40 percent for a lumbar spine disability is remanded. Due to the limited range of motion of the lumbar spine, an opinion is required to determine whether the Veteran has any symptoms which may form the basis for finding unfavorable ankylosis. 6. Entitlement to an initial rating in excess of 20 percent for a right ankle disability is remanded. The Veteran contends that his right ankle is ankylosed between 30 and 40 degrees in plantar flexion, which would indicate an increase in severity since the most recent VA examination in November 2014. Accordingly, a new VA examination should be provided to determine the current severity of the right ankle disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997). The matters are REMANDED for the following actions: 1. Obtain the Veteran’s complete service treatment records, to include treatment at Darnall Army Medical Center. 2. Obtain the Veteran’s VA treatment records for the period from March 2015 to the present. 3. Ask the Veteran to complete a VA Form 21-4142 for Dr. M.E.F. Make two requests for the authorized records from Dr. M.E.F., unless it is clear after the first request that a second request would be futile. 4. After completing directives #1-3, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diagnosed cervical disorder, to include DDD, arthritis, and IVDS. The clinician should review the virtual file, including a copy of this Remand. The clinician is to address the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that any diagnosed cervical disorder (to include DDD, arthritis, and IVDS) manifested during or is otherwise related to the Veteran’s period of active service, to include due to a December 1972 incident that involved an injury to the lower back. (b.) Whether it is at least as likely as not (50 percent or greater probability) that arthritis of the cervical spine (i) manifested to a compensable degree within one year of May 9, 1973, or (ii) was noted during service with continuity of the same symptomatology since service. 5. After completing directives #1-3, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diagnosed eye disorder. The clinician should review the virtual file, including a copy of this Remand. The clinician is to address the following: (a.) Identify all disorders of the eyes that are currently present (or present any time from August 22, 2012, to the present). If the examiner disagrees with a diagnosis already established in the medical records, he/she should so state and explain why. (b.) Whether it is at least as likely as not (50 percent or greater probability) that any diagnosed eye disorder manifested during or is otherwise related to the Veteran’s period of active service, to include in-service eye complaints. 6. After completing directives #1-3, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diagnosed gastrointestinal disorder, to include umbilical hernia. The clinician should review the virtual file, including a copy of this Remand. The clinician is to address the following: (a.) Identify all gastrointestinal disorders that are currently present (or present any time from August 22, 2012, to the present). Specifically, state whether umbilical hernia is present. If the examiner disagrees with a diagnosis already established in the medical records, he/she should so state and explain why. (b.) Whether it is at least as likely as not (50 percent or greater probability) that any diagnosed gastrointestinal disorder manifested during or is otherwise related to the Veteran’s period of active service, to include in-service treatment for abdominal pain. 7. After completing directives #1-3, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diagnosed skin disorder, to include chronic urticaria. The clinician should review the virtual file, including a copy of this Remand. The clinician is to address the following: (a.) Identify all skin disorders that are currently present (or present any time from August 22, 2012, to the present). Specifically, state whether chronic urticaria is present. If the examiner disagrees with a diagnosis already established in the medical records, he/she should so state and explain why. (b.) Whether it is at least as likely as not (50 percent or greater probability) that any diagnosed skin disorder manifested during or is otherwise related to the Veteran’s period of active service. The examiner should consider and discuss lay evidence that the Veteran has experienced symptoms of urticaria since his period of service. 8. After completing directives #1-3, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbar disability. The examiner should review the virtual file, including a copy of this Remand. The examiner should address the following: (a.) The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and after repetitive use over time. To the extent possible, the examiner should identify any symptoms and functional impairments due to the lumbar disability alone and discuss the effect of the Veteran’s lumbar disability on any occupational functioning and activities of daily living. (b.) Specifically, state whether the Veteran has ankylosis of the lumbar spine. The examiner should consider and discuss whether pain effectively limits range of motion to such a degree that the Veteran’s disability picture more closely approximates ankylosis of the lumbar spine. (c.) If any of the following symptoms are present, state whether they are due to the service-connected lumbar spine disability: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; and/or neurologic symptoms due to nerve root stretching. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 9. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right ankle disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and after repetitive use over time. To the extent possible, the examiner should identify any symptoms and functional impairments due to the right ankle disability alone and discuss the effect of the Veteran’s right ankle disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Gelber, Associate Counsel