Citation Nr: 18145873 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 15-18 880A DATE: October 30, 2018 ORDER New and material evidence has been received, and the Veteran’s claim of service connection for a lumbar spine disability is reopened. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for left shoulder impingement syndrome is remanded. Entitlement to service connection for right shoulder impingement syndrome is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for right lower extremity peripheral neuropathy is remanded. Entitlement to service connection for left lower extremity peripheral neuropathy is remanded. Entitlement to service connection for right lower extremity radiculopathy is remanded. Entitlement to service connection for left lower extremity radiculopathy is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) secondary to medications taken for service-connected disabilities is remanded. Entitlement to service connection for erectile dysfunction secondary to medications for service-connected disabilities is remanded. Entitlement to service connection for alcohol use disorder, to include as secondary to posttraumatic headaches, peripheral vestibular disorder, and scars, is remanded. FINDINGS OF FACT 1. Service connection for a lumbar spine disability was denied in an April 2012 rating decision that was not appealed and became final. 2. Evidence added to the record since the April 2012 rating decision relates to unestablished facts necessary to substantiate the claim of service connection for a lumbar spine disability, and raises the possibility of substantiating the claim CONCLUSION OF LAW Evidence added to the record since the April 2012 rating decision, denying service connection for a lumbar spine disability, is new and material, and the claim for service connection is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from April 1978 to June 1982. VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Proper notice from VA must inform the veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Such notice must advise that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id.; 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The duty to notify was met in a letter to the Veteran. 38 U.S.C. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187. With respect to the duty to assist in this case, the Veteran’s service treatment records (STRs), private treatment records, and VA treatment records have been obtained and associated with the claims file. The Veteran was also provided with VA examinations. Overall, the VA examiners provided well-reasoned rationales for the opinions. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran and his representative have not made the regional office or the Board aware of any additional pertinent evidence that needs to be obtained in order to fairly decide the issues addressed in this decision, and have not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of these issues. As there is no indication that there are additional records that need to be obtained that would assist in the adjudication of the claim, the duty to assist has been fulfilled. Service Connection A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence is defined as evidence not previously submitted to agency 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(a). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. Courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim. Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be considered “competent.” However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). 1. New and material evidence to reopen the previously denied claim of service connection for a lumbar spine compression fracture Service connection for a lumbar spine disorder was denied in an April 2012 rating decision. A statement of the case was issued in August 2013, and the Veteran did not submit a substantive appeal. In addition, no relevant evidence was submitted within during the appeals period that was not considered in the statement of the case. See 38 C.F.R. §§ 3.156(b), 20.201, 20.202. Therefore, the April 2012 rating decision became final. At the time of the August 2013 statement of the case, the evidence of record included the STRs, which show that in March 1982 the Veteran was in an automobile accident. He was diagnosed with a concussion and had multiple contusions, abrasions, and lacerations, and he complained of back pain. The Veteran complained about back problems at May 1997 VA treatment. X-rays from November 2004 VA treatment showed no acute fracture line or dislocation of the lumbar spine. The Veteran reported to a VA emergency room in December 2004 with back pain. He was diagnosed with a muscle spasm. VA treatment records beginning in March 2005 indicate a diagnosis of lumbar sprain. April 2007 VA mental health treatment records note a history of back pain. At July 2009 VA treatment the Veteran complained of back pain on a daily basis. An MRI from October 2009 VA treatment showed an L1 compression fracture. At February 2010 and subsequent VA primary care treatment, it was noted that the Veteran was taking tramadol for on and off again pain due to spondylosis and an L1 compression fracture. A March 2010 bone scan from VA treatment showed degenerative joint disease throughout the thoracolumbar spine. The Veteran wrote at March 2010 private treatment for back pain that in 1979 he was in an automobile accident and that he had fallen at home a year before. The Veteran had private pain management treatment in March 2012 at which it was noted that he was “doing well” after a thoracic spine injection. The Veteran had a VA examination in April 2012 at which he was diagnosed with a lumbar spine L1 compression fracture with associated multilevel degenerative changes. It was noted that he was diagnosed in 2009. The Veteran reported intermittent low back pain in the lumbar area since an in-service motor vehicle accident. The examiner opined that the low back disability was less likely than not incurred in or caused by the 1982 in-service accident. X-rays from 2008 were negative for an L1 compression fracture and mild spondylosis. The Veteran had fallen the year before, and it was noted that he left his job as a security guard a few months before after being assaulted. The additional evidence added to the record since the August 2013 statement of the case includes VA treatment records that show continued complaints of back pain. The Veteran had a VA examination in November 2014 at which he reported low back pain since the 1982 in-service motor vehicle accident. The pain was described as deep and dull. The examiner opined that the lumbar spine condition was less likely than not related to service, including the motor vehicle accident. It was noted that the 2008 x-rays were negative for an L1 compression fracture and mild spondylosis. As at the April 2012 examination, the Veteran was noted to have had a post-service fall and to have been assaulted at his job as a security guard. The Board finds the newly submitted documents to be new and material, within the meaning of 38 C.F.R. § 3.156(a), and the service connection claim is reopened. See Shade, 24 Vet. App. at 117. Specifically, the new evidence suggests that the Veteran may have a lumbar spine disability related to service. Such evidence is presumed credible for the purposes of determining whether the evidence is new and material. Therefore, the additional evidence is both new and material, and the claim for service connection claim for lumbar spine disability is reopened. The reopened claim is discussed below in the remand section. REASONS FOR REMAND VA treatment records to September 2016 have been associated with the claims file. The RO should attempt to obtain all relevant VA treatment records dated from September 2016 to the present, while the claim is in remand status. Bell v. Derwinski, 2 Vet. App. 611 (1992). 1. Entitlement to service connection for a lumbar spine disability is remanded. The Veteran is competent to report that he has had low back pain since the 1982 motor vehicle accident, and the Board finds him to be credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Furthermore, the post-service treatment records show a diagnosis of a lumbar strain prior to the fall and assault referred to by the VA examiner. The opinion from the November 2014 VA examination cannot be given probative value because it did not consider the complaints of pain since service and diagnosis of a lumbar strain. Once VA undertakes the effort to provide an examination, it must obtain a fully adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Therefore, the Veteran must be scheduled for a new examination before the claim can be decided on the merits. 2. Entitlement to service connection for left shoulder impingement syndrome is remanded. 3. Entitlement to service connection for right shoulder impingement syndrome is remanded. 4. Entitlement to service connection for a cervical spine disability is remanded. 5. Entitlement to service connection for right lower extremity periphery neuropathy is remanded. 6. Entitlement to service connection for left lower extremity peripheral neuropathy is remanded. 7. Entitlement to service connection for right lower extremity radiculopathy is remanded. 8. Entitlement to service connection for left lower extremity radiculopathy is remanded. The Veteran had a VA examination in November 2014. The examiner opined that the cervical, shoulder, and peripheral neuropathy conditions are less likely than not related to service because the STRs were silent for these conditions. This rationale is insufficient because it was based entirely on the lack of in-service complaints. The examiner did not consider whether there is a causal connection between the Veteran’s post-service diagnoses and in incident, injury, or event from service. Thus, a new medical opinion must be obtained before the claims can be decided on the merits. 9. Entitlement to service connection for GERD secondary to medications taken for service-connected disabilities is remanded. 10. Entitlement to service connection for erectile dysfunction secondary to medications for service-connected disabilities is remanded. A November 2012 VA examiner opined that the Veteran’s GERD and erectile dysfunction were less likely than not proximately due to or the result of the service-connected conditions, which were noted to be migraine headaches and scars. The Veteran reported not taking any medication for these conditions. Service connection is now also in effect for peripheral vestibular disorder (dizziness), although the record does not show that the Veteran takes medication for it. A medication list from August 2016 VA treatment records includes acetaminophen and tramadol three times a day for pain. The resolution of the claims for service connection for a lumbar spine disability, a cervical spine disability, shoulder disabilities, and lower extremity peripheral neuropathy and radiculopathy may impact whether the Veteran is entitled to service connection for GERD and erectile dysfunction secondary to medications for service-connected disabilities. As such, the claims are inextricably intertwined and must be considered together, and a decision by the Board on the Veteran’s claims of service connection for GERD and erectile dysfunction would, at this point, be premature. See Henderson v. West, 12 Vet. App. 11, 20 (1998). Additional development, included obtaining a new medical opinion, should be performed as necessary. 11. Entitlement to service connection for alcohol use disorder, to include as secondary to posttraumatic headaches, peripheral vestibular disorder, and scars, is remanded. The Veteran had a VA examination in November 2014 at which he was diagnosed with alcohol use disorder and alcohol induced depressive disorder. The examiner opined that the condition was less likely than not proximately due to or the result of the Veteran’s service. Treatment records identified poor family support, financial problems, and poor compliance as stressors, and the Veteran’s memory was intact. The examiner felt that the condition was due to the Veteran’s willful misconduct and was not related to the in-service motor vehicle accident. The examiner did not provide an opinion regard whether the Veteran’s alcohol use disorder was caused or aggravated by a service connected disability. In El-Amin v. Shinseki, 26 Vet. App. 136 (2013), a decision issued by the United States Court of Appeals for Veterans Claims (Court), the Court vacated a decision of the Board where a VA examiner did not specifically opine as to whether a disability was aggravated by a service-connected disability. Therefore, a new opinion must be obtained before the claim can be decided on the merits. In addition, the resolution of the claims for service connection for a lumbar spine disability, a cervical disability, shoulder disabilities, and lower extremity peripheral neuropathy and radiculopathy, may impact whether the Veteran is entitled to service connection for alcohol use secondary to service-connected disabilities. As such, the claims are inextricably intertwined and must be considered together, and a decision by the Board on the Veteran’s claims of service connection for alcohol use disorder would, at this point, be premature. See Henderson v. West, 12 Vet. App. 11, 20 (1998). The matters are REMANDED for the following action: 1. Obtain VA treatment records from September 2016 to the present. 2. Thereafter, obtain an addendum to the November 2014 examiner’s opinions regarding the etiology of the lumbar spine disability, cervical disability, bilateral shoulder impingement syndrome, and bilateral lower extremity peripheral neuropathy and radiculopathy. The Veteran’s claims folder should be provided to the reviewer prior to completion of the opinion. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s lumbar spine disability is related to service, to include the March 1982 motor vehicle accident, or was incurred within a year of service. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s cervical spine disorder is related to service, to include the March 1982 motor vehicle accident, or was incurred within a year of service. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s left and right shoulder impingement syndrome is related to service, to include the March 1982 motor vehicle accident, or was incurred within a year of service. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s left and right lower extremity peripheral neuropathy and/or radiculopathy is related to service, to include the March 1982 motor vehicle accident. The examiner must consider the Veteran’s credible reports of back pain since his active service, the December 2004 diagnosis of a lumbar muscle spasm, and the diagnosis of lumbar strain beginning in March 2005. The examiner may not consider the lack of continuity of treatment in rendering an opinion. The opinions may not be based solely on the lack of treatment during service. The examiner is advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. The examiner must discuss the medical rationale for all opinions expressed, whether favorable or unfavorable, if necessary citing to specific evidence in the file. If the examiner cannot provide his or her requested opinion without resorting to speculation, he or she should state why that is the case. 3. Obtain a medical opinion from an appropriate clinician to determine the nature and etiology of the Veteran’s alcohol use disorder. The examiner must opine whether: Alcohol use disorder was at least as likely as not (50 percent or greater probability) proximately due to posttraumatic headaches, peripheral vascular disease, or the service-connected scars of the legs, abdomen, and forehead. Alcohol use disorder has been aggravated beyond its natural progression by posttraumatic headaches, peripheral vascular disease, or the service-connected scars of the legs, abdomen, and forehead. Alcohol use was at least as likely as not (50 percent or greater probability) proximately due to the lumbar spine disability. Alcohol use has been aggravated beyond its natural progression by the lumbar spine disability. Alcohol use was at least as likely as not (50 percent or greater probability) proximately due to the cervical spine disability. Alcohol use has been aggravated beyond its natural progression by the cervical spine disability. Alcohol use was at least as likely as not (50 percent or greater probability) proximately due to the left and right shoulder impingement syndrome. Alcohol use has been aggravated beyond its natural progression by the left and right shoulder impingement syndrome. Alcohol use was at least as likely as not (50 percent or greater probability) proximately due to the left and right lower extremity peripheral neuropathy. Alcohol use has been aggravated beyond its natural progression by the left and right lower extremity peripheral neuropathy. Alcohol use was at least as likely as not (50 percent or greater probability) proximately due to GERD. Alcohol use has been aggravated beyond its natural progression by GERD. Alcohol use was at least as likely as not (50 percent or greater probability) proximately due to erectile dysfunction. Alcohol use has been aggravated beyond its natural progression by erectile dysfunction. The examiner is advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. The examiner must discuss the medical rationale for all opinions expressed, whether favorable or unfavorable, if necessary citing to specific evidence in the file. If the examiner cannot provide his or her requested opinion without resorting to speculation, he or she should state why that is the case. 4. Perform any additional development deemed necessary related to the claims of service connection for GERD and erectile dysfunction. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Scott Shoreman, Counsel