Citation Nr: 18151837 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 15-38 218 DATE: November 20, 2018 ORDER The Board having determined that new and material evidence was received, reopening the claim of entitlement to service connection for a left hip condition is granted. The Board having determined that new and material evidence was received, reopening the claim of entitlement to service connection for a right hip condition is granted. Entitlement to service connection for neuropathy, left arm is denied. Entitlement to service connection for neuropathy, left hand is denied. Entitlement to service connection for neuropathy, right arm is denied. Entitlement to service connection for neuropathy, right hand is denied. REMANDED Entitlement to service connection for a left hip condition is remanded. Entitlement to service connection for a right hip condition is remanded. Entitlement to a rating in excess of 20 percent for chronic lumbar spine strain is remanded. Entitlement to a rating in excess of 10 percent for radiculopathy, right lower extremity is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In November 2012, the Regional Office (RO) denied the Veteran’s claims for service connection for left and right hip conditions based upon a lack of evidence of hip disorders separate and apart from the already compensated lower extremity radiculopathy. 2. The evidence received since November 2012 includes evidence that is not cumulative or redundant of the evidence previously of record and relates to unestablished facts necessary to substantiate the right and left hip condition claims. 3. The preponderance of the evidence is against finding that neuropathy, left arm, began during active service, or is otherwise related to an in-service injury, event, or disease. 4. The preponderance of the evidence is against finding that neuropathy, left hand, began during active service, or is otherwise related to an in-service injury, event, or disease. 5. The preponderance of the evidence is against finding that neuropathy, right arm, began during active service, or is otherwise related to an in-service injury, event, or disease. 6. The preponderance of the evidence is against finding that neuropathy, right hand, began during active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. New and material evidence has been presented to reopen the claim of entitlement to service connection for a left hip condition. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. New and material evidence has been presented to reopen the claim of entitlement to service connection for a right hip condition. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for neuropathy, left arm, are not met. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303(a) (2017). 4. The criteria for service connection for neuropathy, left hand, are not met. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303(a) (2017). 5. The criteria for service connection for neuropathy, right arm, are not met. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303(a) (2017). 6. The criteria for service connection for neuropathy, right hand, are not met. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence Generally, a claim that has been denied in a final RO or Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c) (2012). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The U. S. Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Meyer v. Brown, 9 Vet. App. 425, 429 (1996). In November 2012, the RO denied the Veterans claims for service connection for left and right hip conditions. The basis of the denial was the lack of a diagnosed hip injury/condition. The RO noted that the pain in the Veteran’s hip was part of the spinal nerve impingement already service connected and characterized as radiculopathy. Several other claims were also decided at that time. The Veteran filed a notice of disagreement, but did not include the right and left hip condition claims in that disagreement. The evidence of record at the time included the Veteran’s service treatment records, and post-service private and VA clinical records, as well as the Veteran’s statements. The records received since the November 2012 decision include, in pertinent part, ongoing VA clinical records. These records include an August 2016 notation of limited hip flexion and October 2016 record of care following a fall. At the time of the October 2016 treatment, the Veteran reported pain in both hips and the clinician noted that chronic low back pain causes him to fall and noted that he fell onto his hip. November 2016 records show he was sent to physical therapy for his hips, but was ultimately discharged due to an inability to participate because of pain limitations and the tendency to fall. These records suggest the potential presence of an orthopedic condition related to the hips and associated with the service-connected lumbar spine disability, which may be separate from the neurological condition of radiculopathy. This evidence pertains to the basis of the prior denial and presents the possibility of substantiating the claim with additional development. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The records added to the claims file since November 2012 are not cumulative or redundant of the evidence previously of record. Rather, they suggest a potential presence of a hip condition separate from the already service-connected radiculopathy, with a suggestion of a potential relationship between the hip condition and the service-connected back disability, at least enough to warrant a VA examination and opinion. Moreover, these records are material in that it was the lack of evidence of such a current left or right hip condition that was the basis of the prior denial. Accordingly, reopening of the claims for service connection for left and right hip conditions is warranted. Service Connection The Veteran asserts that service connection is warranted for neuropathy of the left arm, left hand, right arm and right hand. On his May 2017 claim form, he listed each of these separately, but gave no narrative statement to indicate the basis for feeling service connection is warranted. No explanation of the basis for the claim was provided with the October 2017 notice of disagreement or the January 2018 VA Form 9. The Veteran’s representative merely stated argument would be provided once he reviewed a copy of the July 2017 peripheral nerves examination. This examination report was sent to the representative, but the Board observes that this examination did not pertain to the upper extremity claims. Thus, the Board finds no reason to delay adjudication of these claims. At no time throughout the pendency of the claims has either the Veteran, or his representative provided any suggestion as to the basis of the claims for service connection for neuropathy of the left arm and hand and right arm and hand. The question for the Board is whether the Veteran has current disabilities related to these extremities that began during service or are at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has complained of numbness in his upper extremities during the pendency of these claims, the preponderance of the evidence is against finding that any upper extremity disorder of either arm or either hand began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a), (d); also see Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). The Veteran has not claimed his upper extremity symptoms to have initially begun during his active service and the Board’s review of his service treatment records does not reveal that any such symptoms were reported in service. The Veteran separated from active service in August 1987 and there are no reports of symptoms, either within the Veteran’s statements or within his post-service clinical records, for many years after his active service. Records of treatment for other disabilities include a listing of past medical history, but without an indication of neuropathy of the upper extremities. For example, a July 2012 private report related to treatment for the low back lists a past medical history including asthma, COPD, sleep apnea, back pain, hypertension, reflux, depression and obesity. There was no mention of any medical history related to either arm or hand. Moreover, the records related to the Veteran’s lumbar spine disorder do not suggest any associated disorder to the upper extremities. There is simply no evidence to suggest a causal connection between any upper extremity disorder and either the Veteran’s active service or any service-connected disabilities. The Board has considered whether a VA examination is required with regard to the left arm and hand and right arm and hand claims on appeal under VA’s duty-to-assist provisions. 38 U.S.C. § 5103A (d) (2012); 38 C.F.R. § 3.159 (c)(4) (2017); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The duty to obtain a medical examination is not triggered in this case, because the evidence of record does not show an in-service incurrence of any upper extremity disorder. Thus, there is no need to further investigate the nature of any current disability associated with the Veteran’s report of symptoms, as there is no basis in the record to associate any such symptoms or disorder with the Veteran’s service or with any service-connected disability. While the Veteran claims he has neuropathy of the left hand and arm, and right hand and arm, and he may believe the upper extremity neuropathy is related to his active service, the Board reiterates that the preponderance of the evidence weighs against findings that any such causal connection exists. Moreover, the Veteran is not competent to diagnose a disorder like neuropathy, or to make findings as to its cause, as medical professionals are needed for such findings. The Board has duly considered the benefit-of-the-doubt doctrine; however, the preponderance of the evidence is against the Veteran’s claims, so that doctrine is not applicable. Accordingly, the claims for service connection for neuropathy left hand, left arm, right hand and right arm must be denied. REASONS FOR REMAND Examination – Left and Right Hip The Veteran claims service connection is warranted for left and right hip conditions, which he contends are related to his service-connected lumbar spine disabilities, to include the frequent falls associated with that disability. He has not been afforded an examination to determine the nature of any hip disability present and the potential causes. The clinical records include ongoing reports of symptoms in the hips and also show many indications of the Veteran’s frequent falls, including at least one report of treatment for bilateral hip pain after falling in October 2016. The October 2016 record indicates the Veteran’s tendency to fall due to his back disability and shows the fall to have occurred onto his right hip with bilateral hip pain that followed. The Board cannot make a fully-informed decision on the issues of entitlement to service connection for right and left hip conditions, because no VA examiner has opined whether the Veteran has current disabilities of the hips and, if so, whether they are causally connected to service or the service-connected lumbar spine. A remand is, therefore, necessary. Examination – Lumbar Spine and Right Lower Extremity Radiculopathy The Veteran was recently afforded a VA examination related to his lumbar spine and right lower extremity radiculopathy. The July 2018 VA examiner noted the Veteran’s range of motion, but suggested that the Veteran’s subjective complaints appeared out of proportion to the exam findings and also suggested the Veteran to have displayed poor effort. The examiner went on to report the Veteran had no pain, no flare ups, no muscle spasm and essentially no functional loss. The examiner also indicated there was no history or current radiculopathy or other neurologic abnormalities. These findings are largely inconsistent with the voluminous VA treatment records throughout the pendency of this claim. The clinical records show repetitive treatment for pain. There is a June 2012 note suggesting a recent onset of right foot drop, July 2012 treatment after a fall with noted back pain and right sided sciatica, a May 2016 prescription for a back brace, an October 2016 note that chronic back pain causes frequent falls, and a December 2016 private note showing indication of chronic back pain and abnormal gait. This December 2016 note also documents a report by the Veteran that the back pain radiates to the lower extremities, right greater than left, causing intermittent balance and fall problems. This short summary of clinical findings is consistent with the Veteran’s report of symptoms at the time of the July 2018 examination, which the examiner seems to have essentially dismissed. Further, following the examination, the Veteran submitted a statement in September 2018, indicating his opinion that the examiner treated him unfairly and misreported his symptoms. The Veteran’s representative subsequently requested that the Veteran be reexamined. Given the findings in the ongoing clinical records throughout the pendency of this claim, a new examination is indicated. TDIU – Inextricably Intertwined Finally, because a decision on the lumbar spine and radiculopathy issues could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claim for a TDIU is, therefore, also required. 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 and left hip disability, other than the already service connected lower extremity radiculopathy. The examiner is asked to opine whether any right or left hip disability diagnosed is at least as likely as not related to an in-service injury, or disease, and/or whether it is at least as likely as not (1) proximately due to the service-connected lumbar spine disability, or (2) aggravated beyond its natural progression by service-connected lumbar spine disability. The examiner’s opinion should include a discussion of whether the Veteran’s altered gait and many falls documented in the record and associated with the service connected lumbar spine disabilities have caused or aggravated (increased in severity beyond its natural progression) any right or left hip disability. The report should include reasons for any opinion expressed. If the medical professional completing the report is unable to provide an opinion without resort to speculation, he or she should state whether the inability is due to the limits of the person’s knowledge, the limits of medical knowledge in general, or there is additional evidence that would permit the needed opinion to be provided. 2. Schedule the Veteran for an examination of the current severity of his lumbar spine and right lower extremity radiculopathy. The examiner should assess the current symptoms, including range of motion and all associated neurological findings, and discuss the symptoms shown in the clinical records throughout the pendency of this claim as well as any functional impairment caused by the lumbar spine and right lower extremity. The examiner should test and report the findings of the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner should 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 discuss the effect of the Veteran’s service connected disabilities 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 should 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). The report should include reasons for any opinion expressed, to include an explanation if the examiner deems any disorder previously noted is no longer present. If the medical professional completing the report is unable to provide an opinion without resort to speculation, he or she should state whether the inability is due to the limits of the person’s knowledge, the limits of medical knowledge in general, or there is additional evidence that would permit the needed opinion to be provided. 3. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If any claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Adamson, Counsel