Citation Nr: 18150367 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 13-35 723 DATE: ORDER New and material evidence has not been submitted to reopen a claim of entitlement to service connection for a low back condition. November 15, 2018 REMANDED Entitlement to a rating in excess of 10 percent for right femur fracture residuals manifested by limitation of flexion is remanded. Entitlement to a compensable initial evaluation for right femur fracture residuals manifested by limitation of extension is remanded. Entitlement to a compensable initial evaluation for right femur fracture residuals manifested by impairment of the thigh is remanded. Entitlement to a rating in excess of 10 percent for a left ankle condition is remanded. Entitlement to service connection for insomnia, to include as secondary to service-connected disabilities, is remanded. FINDING OF FACT Evidence received since a final and binding April 2002 rating decision does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a low back condition and does not raise a reasonable possibility of substantiating this claim. CONCLUSION OF LAW New and material evidence sufficient to reopen the Veteran’s claim of entitlement to service connection for a low back condition has not been submitted, and the claim may not be reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1994 to October 2001. He testified at a videoconference hearing before the undersigned Veterans Law Judge in November 2014; a copy of the transcript of that hearing is of record. The Board has considered whether a claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) has been raised by the Veteran during the pendency of this appeal. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that VA must address the issue of entitlement to a TDIU in increased-rating claims when the issue of unemployability either is raised expressly or by the record. During the November 2014 hearing the Veteran testified that he was working full-time as a patrol and response officer. Furthermore, the July 2012 VA examiner who evaluated his service-connected disabilities did not determine that those conditions precluded him from securing and maintaining substantially gainful employment. Although the Veteran has asserted that his service-connected disabilities have caused him to miss work in the past, he has never contended that together his service-connected disabilities prevent him from working entirely. Accordingly, a claim of entitlement to TDIU has not been raised by the record. The Board also notes that neither the Veteran nor his representative have raised any additional issues, and no additional issues have been raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Petition to Reopen the Claim of Entitlement to Service Connection for a Low Back Condition The Regional Office (RO) denied the Veteran’s claim of entitlement to service connection for a low back condition in an April 2002 rating decision. In support thereof, the RO referred to a July 2001 VA examination wherein the examiner found no evidence that the Veteran had a low back condition. The Veteran did not file a notice of disagreement, nor was new and material evidence received within one year of the rating decision. Thus, the April 2002 rating decision became final by operation of law, except that the claims may be reopened if new and material evidence is received. 38 U.S.C. § 7105(c); 38 C.F.R. § 3.156. “New evidence” is defined as existing evidence not previously submitted to agency decision makers; “material evidence” is defined as 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 most recent 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). For the singular purpose of determining whether new and material evidence has been submitted that is sufficient to reopen a claim, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). This presumption does not extend to the weight of the evidence, however. Id. The presumption of credibility is rebuttable when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). The United States Court of Appeals for Veterans Claims (the Court) has endorsed a low threshold standard for reopening a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). As the Court stated in Shade, when making a determination whether the submitted evidence meets the definition of new and material evidence, the Board should consider whether the evidence could, if the claim was reopened, reasonably result in substantiation of the claim, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Since the April 2002 rating decision, no new evidence has been added to the claims file which indicates that the Veteran has a diagnosable low back condition that may be attributable to service. The Veteran had an opportunity to present lay testimony regarding his symptoms of a low back condition during the November 2014 hearing, and did not do so. The Board notes that VA’s duty to obtain a VA examination applies only if new and material evidence is presented or secured. 38 U.S.C. § 3.159(c)(4)(iii). In summation, the Board finds that there is insufficient evidence to suggest that the Veteran has a diagnosable low back condition, and therefore the request to reopen the claim is denied. REASONS FOR REMAND 1. Entitlement to a compensable initial evaluation for right femur fracture residuals, manifested by limitation of extension and impairment of thigh, as well as a rating in excess of 10 percent for limitation of flexion of the right femur, are each remanded. The Veteran was last afforded an examination to evaluate the severity of his right femur fracture residual conditions in July 2012. He reported experiencing pain throughout his right leg that was so severe at times it prevented him from sleeping at night. Range of motion testing revealed no limitation of flexion or extension, with the only functional loss being pain on movement. It was the examiner’s impression that the right femur residual conditions would result in no occupational impact; however, the examiner did acknowledge the Veteran’s reporting that the pain in his right leg would often wake him up at night. During the November 2014 hearing the Veteran stated that the July 2012 examiner did not utilize a goniometer to perform the range of motion testing as required by regulation. Instead, he asserted that the examiner merely observed him as he moved his right leg back and forth. The Veteran also asserted that the examination occurred in the morning and that his pain and functional impairment would have been evaluated as being much worse had the examination occurred later in the day after he used his right leg for an extended period of time. The Veteran’s detailing that the July 2012 examiner failed to use a goniometer to test the range of motion of his right leg calls into question the probative value of the examination. The Veteran has provided credible testimony regarding the severity of his right femur fracture residual conditions, and as such a new VA examination are warranted in order to properly record the extent of the impairment of his right leg. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 2. Entitlement to a rating in excess of 10 percent for a left ankle condition is remanded. The Veteran was last provided a VA examination to evaluate the severity of his left ankle condition in July 2012. During the November 2014 hearing, he testified that he experienced left ankle instability which required that he wear boots in order to avoid his left ankle giving way and causing him to fall. This testimony suggests that the left ankle condition has worsened in severity since it was last evaluated in July 2012. A new VA examination is thus warranted on remand. Hart v. Mansfield, 21 Vet. App. 505, 508 (2007). 3. Entitlement to service connection for insomnia is remanded. The Veteran contends that he experiences insomnia due to the symptoms of his service-connected disabilities preventing him from staying asleep at night. He has provided credible testimony regarding his inability to sleep and having to wake up to alleviate his pain symptomatology, but has never been afforded a VA examination to evaluate whether he a diagnosable insomnia disorder and the likely etiology of any such disorder. Accordingly, he is entitled to a be scheduled for a VA examination in order to determine whether he has a diagnosable insomnia disorder and, if so, whether that disorder is attributable to a service-connected disability or a combination of said disabilities. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). These remaining matters are REMANDED for the following action: 1. Schedule the Veteran for a VA medical examination to address the nature and etiology of any diagnosable insomnia disorder. The electronic claims file and any other information deemed pertinent must be provided to and reviewed by the examiner, and the examiner must carry out any and all special studies or tests necessary for proper evaluation. The examiner must first determine whether an insomnia disorder diagnosis is appropriate. If a diagnosis is set forth to account for the Veteran’s reported difficulties staying asleep at night, then the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any diagnosed insomnia disorder is related to service. The examiner is also requested to provide an opinion as to whether it is at least as likely as not that any diagnosed insomnia disorder was caused or aggravated by one or more service-connected disabilities (listed in an August 2012 rating decision) or a combination therefrom. The examiner should note that the term “aggravated by” refers to a chronic or permanent worsening of the underlying condition, as contrasted to mere temporary or intermittent flare-ups of symptoms that resolve and return to the baseline level of disability. If the opinion is that a service-connected disability or combination of service-connected disabilities aggravated a diagnosed insomnia condition, the examiner should specify, so far as possible, the degree of disability resulting from such aggravation. The examiner must provide any and all opinions as to etiology in the form of a probability, and must provide a complete rationale for any opinion expressed. 2. Schedule the Veteran for a VA orthopedic examination to evaluate the nature and severity of the right femur fracture residual conditions and left ankle condition. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the claims folder and the remand have been reviewed. All indicated tests should be performed and all findings should be reported in detail. The examiner should describe the nature and severity of all manifestations of the Veteran’s right femur fracture residual conditions and left ankle condition. Specifically, the examiner must test and record the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing for each joint in question. The examiner should also test the range of motion for the opposite joint for each condition for comparison purposes. If the examiner is unable to conduct the required testing, he or she should clearly explain why that is so. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner is reminded that he or she should specify the degree of additional functional loss/motion due to pain, to include during flare-ups, or state why it was not feasible to provide such information, as required for an adequate examination. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. The Board notes the anatomical distinctions between the claimed conditions on appeal and recognizes that separate examinations may be necessary in this case. However, the Board leaves this to the discretion to the RO and/or the examining medical facility. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christopher M. Collins, Associate Counsel