Citation Nr: 18148015 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-24 614A DATE: November 6, 2018 ORDER New and material evidence having been received, reopening of the claim of entitlement to service connection for a right leg disability (previously claimed as a right knee disability) is granted. New and material evidence having been received, reopening of the claim of entitlement to service connection for a left leg disability (previously claimed as a left knee disability is granted. REMANDED Entitlement to service connection for right leg disability, to include as secondary to a service-connected lumbar spine disability, is remanded. Entitlement to service connection for a left leg disability, to include as secondary to a service-connected lumbar spine disability, is remanded. Entitlement to service connection for a skin disability is remanded Entitlement to service connection for a neurogenic bladder disability, to include as secondary to a lumbar spine disability, is remanded. Entitlement to a rating in excess of 20 percent for a lumbar spine disability is remanded. Entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. An unappealed October 2007 rating decision denied entitlement to service-connection for mild degenerative changes of the right knee (also claimed as right leg condition) and entitlement to service connection for a left leg condition. 2. The evidence received since the October 2007 rating decision is new and raises a reasonable possibility of substantiating the claims for entitlement to service connection for right and left leg disabilities. CONCLUSIONS OF LAW 1. New and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a right leg disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 2. New and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a left leg disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from September 1978 to October 1983. This case comes before the Board of Veterans’ Appeals (Board) on appeal from May 2013 and August 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Additionally, during the pendency of the appeal, the Veteran reported that he is unemployed in part due to his service-connected lumbar spine disability. Entitlement to a TDIU rating was denied by the RO in a December 2014 rating decision. Although no Statement of the Case (SOC) has been furnished on the question, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2010), the issue of entitlement to a TDIU is considered to be part of the appeal in this matter. Therefore, the issue of entitlement to TDIU is also on appeal before the Board. Claims to Reopen Right Leg In a March 2005 rating decision, the Veteran was denied entitlement to service connection for degenerative changes of the right knee (also claimed as a right leg condition) on the basis that the Veteran’s right knee disability was not related to service. The Veteran did not appeal that decision. The Veteran’s right leg disability was subsequently adjudicated in an October 2007 rating decision. The Veteran did not appeal that decision. The evidence that has been received since the October 2007 rating decision includes various VA medical records, and relevant lay statements. The Board finds that the additional evidence is new and material. In this regard, it is neither cumulative nor redundant of the evidence previously of record, and raises a reasonable possibility of substantiating the claim. Therefore, the claim of entitlement to service connection for a right leg disability is reopened. Left Leg In an October 2007 rating decision, the Veteran was denied entitlement to service connection for a left leg condition on the basis that his left knee disability was not related to service. The Veteran did not appeal that decision. The evidence that has been received since the October 2007 rating decision includes various VA medical records, and relevant lay statements. The Board finds that the additional evidence is new and material. In this regard, it is neither cumulative nor redundant of the evidence previously of record, and raises a reasonable possibility of substantiating the claim. Therefore, the claim of entitlement to service connection for a left leg disability is reopened. REASONS FOR REMAND The Board finds that additional development is required before the remaining claims on appeal are decided. Service Connection – Right and Left Leg Disabilities At a February 2005 VA examination, the examiner diagnosed right knee degenerative joint disease. At an October 2007 VA examination, the examiner diagnosed left knee degenerative joint disease. October 2007 VA examiner opined that the Veteran’s bilateral leg disability was less likely than not caused by the Veteran’s lumbar spine disability. The Board finds the October 2007 VA opinion is inadequate to adjudicate the claims. In this regard, the examiner did not address whether the Veteran’s right leg disability and left knee disability were aggravated by his service-connected lumbar spine disability. Therefore, the Board finds that the Veteran should be afforded a new VA examination to determine the nature and etiology of his right leg and left leg disabilities. Service Connection – Skin Disability At an April 2013 VA examination, the examiner diagnosed scalp folliculitis. The examiner opined that it was less likely than not that the Veteran’s scalp folliculitis was related to an October 1982 in-service diagnosis of seborrheic dermatitis. In this regard, the examiner noted that a July 2010 VA dermatology note indicated that the Veteran complained of recurrent folliculitis for the prior 5 years. The Board finds the April 2013 VA opinion is inadequate to adjudicate the claims. In this regard, the examiner only addressed whether the Veteran’s skin disability was related to a specific incident in service, rather than throughout the entirety of his active service. Moreover, the examiner did not explain the relation of the Veteran’s July 2010 report of recurrent folliculitis of 5 years and its possibility that any currently present skin disability was not related to service. Therefore, the Board finds that the Veteran should be afforded a new VA examination to determine the nature and etiology of his skin disability. Service Connection – Bladder Disability At a July 2015 VA examination, the examiner diagnosed urinary incontinence and neurogenic bladder. The examiner opined that the Veteran’s bladder disability was less likely than not proximately due to or the result of the Veteran’s service-connected lumbar spine disability. In this regard, the examiner indicated that she based her conclusion on the Veteran’s history, findings, and test results. The Board finds the July 2015 VA opinion is inadequate to adjudicate the claims. In this regard, the examiner failed to address the Veteran’s statements regarding the onset and continuity of his symptoms. Moreover, the examiner failed to provide sufficient rationale. Therefore, the Board finds that the Veteran should be afforded a new VA examination to determine the nature and etiology of his bladder disability. Increased Rating – Lumbar Spine In August 2017, the Veteran was afforded a VA examination to access the severity of his service-connected lumbar spine disability. A review of that examination report shows that the findings reported are not in compliance with the requirements outlined in Correia v. McDonald, 28 Vet. App. 158 (2016) or Sharp v. Shulkin, 29 Vet. App. 26 (2017). Therefore, the Veteran should be afforded a new VA examination to determine the currently level of severity of all impairment resulting from his lumbar spine disability. Entitlement to a TDIU The Board also notes that the issue of entitlement to TDIU is inextricably intertwined with the other claims remanded herein. Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of any currently present right and left leg disabilities, to include degenerative joint disease. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present right and/or left leg disability had its onset in active service, or is otherwise etiologically related to such active service. The examiner must consider the Veteran’s lay statements regarding the onset and continuity of his symptoms. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present right and/or left leg disability was caused or chronically worsened by a service-connected lumbar spine disability, to include altered gait and/or body mechanics resulting from such. The rationale for all opinions expressed must be provided. 3. Schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of any currently present skin disability, to include scalp folliculitis. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present skin disability had its onset in active service, or is otherwise etiologically related to the Veteran’s active service. The examiner must consider the Veteran’s lay statements regarding the onset and continuity of his symptoms. The rationale for all opinions expressed must be provided. 4. Schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of any currently present bladder disability, to include urinary incontinence and neurogenic bladder. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present bladder disability is etiologically related to the Veteran’s active service. The examiner must consider the Veteran’s lay statements regarding the onset and continuity of his symptoms. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present bladder disability was caused or chronically worsened by a service-connected disability. The rationale for all opinions expressed must be provided. 5. Schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the current level of severity of all impairment resulting from his lumbar spine disability. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. 6. The examiner should provide all information required for rating purposes, to include all information required by Correia and Sharp. 7. Confirm that the VA examination reports and all medical opinions provided comport with this remand and undertake any other development determined to be warranted. 8. Then, readjudicate the remaining issues on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. O’Donnell, Associate Counsel