Citation Nr: 18146937 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 14-29 072A DATE: November 2, 2018 ORDER New and material evidence has been received to reopen the claim for service connection for right hip condition and the claim is reopened. New and material evidence has been received to reopen the claim for service connection for lumbar spine condition and the claim is reopened. Entitlement to service connection for a lumbar spine condition, to include as due to service-connected status post-Magnusson stack repair right shoulder with subluxation is granted. REMANDED Entitlement to service connection for right leg condition, to include as secondary to service connected post-Magnusson stack repair right shoulder with subluxation is remanded. Entitlement to service connection for right ankle condition, to include as secondary to service-connected status post-Magnusson stack repair right shoulder with subluxation is remanded. Entitlement to service connection for a right groin condition, to include as due to service-connected status post-Magnusson stack repair right shoulder with subluxation is remanded. Entitlement to service connection for a right hip condition, to include as due to service-connected status post-Magnusson stack repair right shoulder with subluxation is remanded. Entitlement to a disability rating in excess of 30 percent for service-connected status post-Magnusson stack repair right shoulder with subluxation is remanded. Entitlement to a disability rating in excess of 30 percent for service-connected degenerative cervical spine arthritis is remanded. Entitlement to a disability rating in excess of 10 percent for service-connected right shoulder scar is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The claims for service connection for right hip condition and lumbar spine condition were previously denied in an April 2001 rating decision. The Veteran did not appeal the decision and it is therefore final. 2. Evidence added to the record since the April 2001 denial is not cumulative or redundant of the evidence of record at the time of such decision and raises a reasonable possibility of substantiating the Veteran’s claim for service connection for anxiety lumbar spine condition. 3. Resolving reasonable doubt in the Veteran’s favor, his lumbar spine degenerative joint disease is proximately due to his service-connected status post-Magnusson stack repair right shoulder with subluxation. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for right hip condition. 38 U.S.C. § 5108 (West 2015); 38 C.F.R. § 3.156 (a) (2017). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for lumbar spine condition. 38 U.S.C. § 5108 (West 2015); 38 C.F.R. § 3.156 (a) (2017). 3. The criteria for secondary service connection for lumbar spine condition are met. 38 U.S.C. §§ 1110, 5107(b) (West 2015); 38 C.F.R. §§ 3.102, 3.310(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1972 to December 1973. The Veteran was scheduled for a hearing before the Board on June 28, 2018. The Veteran was notified of the hearing and failed to appear. The Veteran, nor his representative, filed a timely motion for a new hearing date. New and Material Evidence The Veteran seeks to reopen claims of entitlement to service connection for low back and right hip disabilities. The claims were previously denied in an April 2001 rating decision because there was no nexus between any current back or hip disability and the Veteran’s service and no evidence that either disability was caused by the service-connected right shoulder disability. The question before the Board is whether new and material evidence has been submitted to reopen the claims. The Board finds that it has. The evidence before VA at the time of the prior final decision consisted of the Veteran’s service treatment records (STRs) and a January 2001 VA examination. Evidence added to the record since April 2001 includes extensive statements from the Veteran, post-service VA and private treatment records, and a July 2018 private medical opinion. The July 2018 opinion addresses the nexus between the service-connected right shoulder and the claimed back and right hip disabilities. The Board finds that this evidence is new, in that it was not previously considered. The Board finds that the same evidence is material to the Veteran’s claims because it relates to an unestablished fact necessary to substantiate the claims. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). The claims for service connection for a lumbar spine and right hip condition are reopened. De novo consideration of the claims is addressed in the remand below. Service Connection Entitlement to service connection for lumbar spine condition, to include as secondary to service connected post-Magnusson stack repair right shoulder with subluxation. The question for the Board is whether the Veteran has a current disability that is either related to service or proximately due to or the result of his service-connected right shoulder disability. The Board concludes that the Veteran has a current diagnosis of lumbar degenerative disc disease that is proximately due to or the result of the service-connected right shoulder disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The January 2010 VA treatment records show the Veteran has a current diagnosis of lumbar degenerative disc disease, and in July 2018 a private examiner opined that it is at least as likely as not proximately due to or the result of his service-connected post-Magnusson stack repair right shoulder with subluxation. The rationale provided by the private examiner, orthopedic surgeon Dr. VF, was that over time the altered mechanics of the gait the Veteran used to avoid right shoulder pain has contributed to the development of the Veteran’s lumbar spine condition. Dr. VF reviewed the Veteran’s entire medical history and interviewed the Veteran over the phone. Dr. VF also addressed the January 2001 VA examination and opinion, noting that the VA examiner acknowledged the possibility that the Veteran had shifted his body to compensate for his right shoulder pain, although the VA examiner opined that this shift did not result in the development of the Veteran’s lumbar spine condition. Given that these are the two medical opinions of record the Board finds that the evidence is at least in equipoise as to whether the Veteran’s lumbar spine condition, diagnosed as degenerative disc disease, is secondary to his service-connected post-Magnusson stack repair right shoulder with subluxation. REASONS FOR REMAND 1. Entitlement to service connection for right leg condition, to include as secondary to service-connected right shoulder disability is remanded. 2. Entitlement to service connection for right ankle condition, to include as secondary to service-connected right shoulder disability is remanded. 3. Entitlement to service connection for a right groin condition, to include as secondary to service-connected right shoulder disability is remanded. 4. Entitlement to service connection for a right hip condition, to include as due to service-connected right shoulder disability is remanded. The Board cannot make a fully-informed decision on the above issues without adequate medical opinions that clarify the nature of the disabilities and address both causation and aggravation. The evidence of record is mixed as to the nature of the Veteran’s claimed right leg ankle, groin and hip conditions. There appears to be conflicting evidence that characterizes the disabilities as radiculopathy caused by the Veteran’s lumbar spine degenerative disc disease, which is now considered service-connected. Not all of those opinions are based on a physical examination of the Veteran. 5. Entitlement to a disability rating in excess of 30 percent for service-connected right shoulder disability is remanded. 6. Entitlement to a disability rating in excess of 30 percent for service-connected degenerative cervical spine arthritis is remanded. 7. Entitlement to a disability rating in excess of 10 percent for service-connected right shoulder scar is remanded. In a January 2010 statement, the Veteran asserted that his previous examinations were inadequate to demonstrate the extent of the severity of his service-connected right shoulder, cervical spine and scar disabilities. The Veteran’s most recent VA examination for his service-connected disabilities was conducted in March 2009. Dr. VF, a private physician, provided an opinion on the current severity of some of those disabilities but that was not based on a contemporaneous physical examination. Therefore, remand for further examination is required. 8. Entitlement to TDIU is remanded. Finally, because a decision on the remanded issues could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. A remand of the claim for entitlement to TDIU is required. In the July 2018 opinion, Dr. VF opined that the Veteran’s service-connected orthopedic conditions prevented him from obtaining substantially gainful employment. The Veteran does not currently meet the schedular criteria for TDIU; however, given the grant of service connection for the back disability, the combined rating may change. See 38 C.F.R. § 4.16(a). If after that rating is assigned, the schedular criteria are still not met for any part of the appeal period, the TDIU claim should be forwarded to VA’s Director of Compensation and Pension for consideration of TDIU on an extraschedular basis. See 38 C.F.R. § 4.16(b); Bowling v. Principi, 15 Vet. App. 1 (2001). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any right leg, right ankle, right groin and right hip conditions. The examiner should specifically identify all diagnoses related to the right leg, ankle, groin and hip. For each diagnosed disability, the examiner should opine whether it is at least as likely as not (1) proximately due to or (2) aggravated by service-connected disability, specifically the Veteran’s service-connected right shoulder and lumbar spine disabilities. In rendering this opinion, the examiner is asked to specifically address whether any of the claimed conditions are manifestations of radiculopathy. The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right shoulder disability and related scars. 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. To the extent possible, the examiner should identify any symptoms and functional impairments due to service-connected status post-Magnusson stack repair right shoulder with subluxation alone and discuss the effect of the Veteran’s status post-Magnusson stack repair right shoulder with subluxation 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). 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected degenerative cervical spine arthritis. 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. To the extent possible, the examiner should identify any symptoms and functional impairments due to service-connected degenerative cervical spine arthritis alone and discuss the effect of the Veteran’s service-connected degenerative cervical spine 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). 4. Effectuate the Board’s grant of service connection for the back disability. 5. If, after the above development (and the assignment of the initial rating for the now service-connected back disability), the Veteran still does not meet the schedular criteria for TDIU, refer the Veteran’s claim for TDIU to VA’s Director of Compensation Service for extraschedular consideration. (Continued on the next page)   6. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P.S. McLeod