Citation Nr: 18144058 Decision Date: 10/23/18 Archive Date: 10/23/18 DOCKET NO. 16-24 491A DATE: October 23, 2018 ORDER The request to reopen the claim of service connection for lumbar spine herniated nucleus pulposus is granted. The request to reopen the claim of service connection for a left hip disability is granted. Entitlement to service connection for lumbar disc herniation and lumbar spine disc disease is granted. Entitlement to left hip arthritis is granted. REMANDED Whether new and material evidence has been received to reopen a claim of service connection for adjustment disorder with mixed anxiety and depressed mood is remanded. Entitlement to an increased rating in excess of 10 percent for hiatal hernia is remanded. Entitlement to a compensable rating for Barrett's esophagus is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REFERRED The issue of whether there is clear and unmistakable error in December 1974 and November 2005 rating decisions was raised in a May 2014 statement and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDINGS OF FACT 1. A November 2005 rating decision denied service connection for lumbar spine herniated nucleus pulposus (claimed as degenerative disc disease) and a left hip disability. The Veteran was notified of the decision in correspondence issued the next month. The Veteran did not appeal the decision and no additional evidence was submitted within a year after the decision. Therefore, the decision is final. 2. Evidence received since the November 2005 rating decision is relevant and probative as to the issues of service connection for lumbar spine herniated nucleus pulposus and a left hip disability. 3. The Veteran’s lumbar disc herniation and lumbar disc disease are related to his active duty service. 4. The Veteran’s left hip arthritis is caused by his service-connected lumbar disc herniation and lumbar disc disease. CONCLUSIONS OF LAW 1. The November 2005 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. The evidence received since the November 2005 rating decision, which denied service connection for lumbar spine herniated nucleus pulposus, is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 3. The evidence received since the November 2005 rating decision, which denied service connection for a left hip disability, is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 4. The criteria for entitlement to service connection for lumbar disc herniation and lumbar disc disease have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 5. The criteria for entitlement to service connection for left hip arthritis have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1970 to March 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2012 and October 2013 rating decisions by the Department of Veterans Affairs (VA). The Board notes the Veteran stated that he believed service connection for a herniated nucleus pulposus lumbar spine was granted in a December 2005 rating decision. See January 2013 statement. The Board acknowledges that the December 2005 notification letter mailed with the November 2005 rating decision appears to state the Veteran has a service-connected spine disability rated at 10 percent, but the letter is clearly a typographical error. Specifically, the letter states that the Veteran’s disability rating for his spine “hasn’t changed” which cannot be an accurate statement because he had never been granted service connection for his disability. The Board regrets VA’s miscommunication. Although the Veteran’s representative stated that the issue of entitlement to service connection for radiculopathy was part of the current appeal “as a complication of the back condition,” see September 2017 correspondence, that issue is not currently before the Board. It does not appear the Veteran ever applied for compensation benefits associated with radiculopathy. However, the Board notes that service connection for radiculopathy may be granted after service connection for a spine disability is granted during the process of assigning a disability rating, see 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). However, the issue is not currently before the Board. New and Material Evidence Whether new and material evidence has been received to reopen claims of entitlement to service connection for lumbar spine herniated nucleus pulposus and a left hip disability. The issues of entitlement to service connection for lumbar spine herniated nucleus pulposus and a left hip disability were denied in a November 2005 rating decision on the basis that the disabilities were neither incurred in nor caused by the Veteran’s military service. The Veteran was notified of the decision in correspondence issued the next month, but he did not appeal the decision. No additional evidence was submitted within one year of the decision. Therefore, the November 2005 rating decision became final. Since that time, the Veteran submitted a private evaluation from Dr. U. Findley, MD, PA, who opined that it was at least as likely as not the Veteran’s lumbar disc herniation and lumbar disc disease is related to his military service and at least as likely as not that his left hip arthritis is related to his lumbar disc herniation and lumbar disc disease. See September 2017 private evaluation. This evidence is clearly “new,” because it postdates the November 2005 rating decision, and is also “material,” because it cures an evidentiary defect which existed at the time of the prior denial, the lack of a nexus to service or a service-connected disability. Consequently, the issues of service connection for lumbar spine herniated nucleus pulposus and a left hip disability may be reopened. Service Connection 1. Entitlement to service connection for a lumbar spine disability. The Veteran was diagnosed with a probable herniated nucleus pulposus shortly after his discharge from service. See May 1974 VA treatment records. While he initially reported his lumbar pain began in April 1974 (after service), see June 1974 VA treatment records, he soon thereafter reported that he believed his condition was due to a practical joke incident during service, where a chair was pulled out from under him. See August 1974 VA treatment records. He reported that he did not have a post-service injury from his discharge in March 1974 to his onset of pain one month later. See January 2013 statement. Treatment records have reflected consistent diagnoses of disc herniation in his lumbar spine. See, e.g., August 2004 private treatment records. In September 2017, Dr. Findley opined that it was at least as likely as not that the Veteran’s lumbar disc herniation and lumbar disc disease is related to his military service because his back condition is consistent with the injury during service and treatment undergone since that time. See September 2017 private evaluation. This opinion is uncontradicted by any other competent evidence of record. Thus, the evidence reflects the Veteran’s lumbar disc herniation and lumbar disc disease were incurred in and related to his military service, and service connection is warranted. 2. Entitlement to service connection for a left hip disability. The Veteran has moderate degenerative changes in the left hip as shown by x-ray. See August 2012 VA treatment records. Dr. Findley opined it was at least as likely as not that the Veteran’s left hip arthritis is related to his spine disability because the Veteran’s body attempted to compensate for radicular pain caused by his spine disability by shifting its efforts to the contralateral side, overstressing that extremity. Thus, the extra stress and weight accelerated the Veteran’s arthritis in the hip. See September 2017 private evaluation. This opinion is uncontradicted by the record. Thus, the evidence reflects the Veteran’s left hip arthritis is caused by his service-connected lumbar disc herniation and lumbar disc disease, and service connection is warranted. REASONS FOR REMAND 1. Whether new and material evidence has been received to reopen a claim of service connection for adjustment disorder with mixed anxiety and depressed mood is remanded. The Veteran stated that he has received treatment at the VA Medical Center (VAMC) in Orlando, Florida since January 2006. See December 2012 correspondence. It does not appear that complete VA treatment records have been retrieved. Thus, remand is necessary to obtain the Veteran’s VA treatment records. 2. Entitlement to an increased rating in excess of 10 percent for hiatal hernia is remanded. The Veteran’s most recent VA examination for his hiatal hernia occurred in August 2011. Since that time, he has indicated that the severity of his disability was not accurately reflected in the examination. See December 2012 correspondence. Because it has been over seven years since the last VA examination, remand for a new examination is required to assess the current severity of his service-connected disability. 3. Entitlement to a compensable rating for Barrett’s esophagus is remanded. While the Veteran underwent a VA examination in August 2011, it does not appear the symptoms associated with the rating criteria for the Veteran’s esophagus disability were ever specifically discussed aside from his hiatal hernia symptoms. See August 2011 VA examination; 38 C.F.R. § 4.114, Diagnostic Code 7203. Because it is unclear whether the Veteran’s esophagus disability was actually examined, remand for a new examination is necessary. 4. Entitlement to TDIU is remanded. This matter is inextricably intertwined with the Veteran’s other remanded issues; accordingly, it must be remanded as well. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran’s disabilities, to include from the Orlando VAMC, from January 2006 to July 2008, September 2009 to December 2010, March 2011 to May 2013, September 2013 to May 2015, and May 2016 to the present. 2. After the above development is completed, the AOJ should arrange for an examination of the Veteran to assess the current severity of his service-connected hiatal hernia. The examiner must review the entire record (including this remand) in conjunction with the examination and note such review was conducted. The examiner should provide a full description of the disability and report all signs and symptoms associated with the Veteran’s disability. 3. After the development in the first instruction is completed, the AOJ should arrange for an examination of the Veteran to assess the current level of severity of his service-connected Barrett’s esophagus. The examiner must review the entire record (including this remand) in conjunction with the examination and note such review was conducted. The examiner should provide a full description of the disability and report all signs and symptoms associated with the Veteran’s disability. Specifically, the examiner is asked to opine on the severity of the symptoms of the stricture of the Veteran’s esophagus separate from his hiatal hernia. 4. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Sandler, Associate Counsel