Citation Nr: 18152665 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 16-44 366 DATE: November 23, 2018 ORDER Service connection for a left shoulder disability, to include degenerative joint disease (DJD) and osteoarthritis, is granted. Service connection for a lumbar disability, to include DJD, degenerative disc disease (DDD), anterolisthesis, and facet arthropathy, is granted. Service connection for right lower extremity sciatica pain secondary to a service-connected lumbar disability is granted. Service connection for left lower extremity sciatica pain secondary to a service-connected lumbar disability is granted. REMANDED Entitlement to an initial compensable disability rating for a bilateral hearing loss disability is remanded. Entitlement to an initial compensable disability rating for pseudofolliculitis barbae (PFB) is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his diagnosed left shoulder disability was incurred during active service. 2. Resolving reasonable doubt in the Veteran’s favor, his diagnosed lumbar disability was incurred during active service. 3. Resolving reasonable doubt in the Veteran’s favor, his right lower extremity sciatica pain is secondary to his service-connected lumbar disability. 4. Resolving reasonable doubt in the Veteran’s favor, his left lower extremity sciatica pain is secondary to his service-connected lumbar disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left shoulder disability have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for entitlement to service connection for a lumbar disability have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. The criteria for entitlement to service connection for right lower extremity sciatica pain have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 4. The criteria for entitlement to service connection for left lower extremity sciatica pain have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1972 to November 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2012, December 2013, and February 2014 rating decisions by the Department of Veterans Affairs (VA). Although the Regional Office (RO) reopened the issues of service connection for left shoulder and lumbar DJD in a December 2013 rating decision, the question of whether new and material evidence has been received to reopen such claims must be addressed in the first instance by the Board because the issue goes to the Board’s jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In this regard, the Board considers the Veteran’s January 2013 correspondence to be a notice of disagreement (NOD) to the August 2012 rating decision denying service connection for left shoulder and lumbar DJD. See January 2013 correspondence. As such, the Board finds that the August 2012 rating decision is not final and is the rating decision on appeal for the left shoulder and lumbar disabilities. After the Veteran filed his substantive appeal (VA Form 9), service connection for right shoulder DJD and cervical DJD was granted in a June 2018 rating decision. Because that decision represents a full grant of the benefit sought, these issues are not before the Board. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Evidence in the record suggests that the Veteran has been diagnosed with multiple left shoulder and back conditions; therefore, the Board will broadly construe the issues as a claim for service connection for a left shoulder disability and lumbar disability however diagnosed. Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). The Board acknowledges that the Veteran submitted a Rapid Appeals Modernization Program (RAMP) opt-in election form that was received by VA on May 18, 2018. However, the appeal for the Veteran’s claim has already been activated at the Board and is therefore no longer eligible for the RAMP program at this time. Accordingly, the Board will undertake appellate review of the case. Service Connection Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) a service-connected disability; and (3) that the current disability was either caused or aggravated by the service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Service connection for left shoulder and lumbar disabilities are granted. The Veteran contends his left shoulder and lumbar disabilities are related to his active service. Specifically, he asserts that he injured his left shoulder and back during an in-service “go cart ride” accident while attending a company cookout in July 1974. See September 2018 Statement of Accredited Representative. First, both VA and private treatment records establish the Veteran has current diagnoses of left shoulder and lumbar disabilities (March 2012, May 2012, February 2014, September 2016, January 2018, May 2018, October 2018). The Board also notes that the in-service “go cart” accident has been conceded. Indeed, service connection for right shoulder and cervical disabilities have been granted based on the same in-service “go cart” accident. Therefore, the remaining question is whether the currently diagnosed left shoulder and lumbar disabilities are related to service. In this regard, the Board notes there are conflicting opinions of record. Indeed, the March 2012 VA examiner opined the Veteran’s left shoulder and lumbar DJD is “at least as likely as not related to the service because the heavy physical activity in the service causes recurrent minute trauma to the tissues and over [a] period of time with continued physical activity along with changes with age result in various degenerative changes in the human body.” The opinion is supported by a full rationale which is supported by the evidence of record. Therefore, the Board places great probative weight on this opinion. On the other hand, the July 2012 VA examiner provided a negative opinion stating that the Veteran’s left shoulder and lumbar DJD “was less likely than not” related to active service because the “there is only ONE available pertinent inservice [sic] medical records referencing neck condition. (Reference 7-3-74 Ft. Hood progress note “Go cart accident yesterday...Pain (R) shoulder, neck.”) which is dated in 1974, which represents about a 38 year [sic]time gap from QTC diagnosis in 2012. (Reference: QTC exam DEGEERATIVE [sic] JOINT DISEASE OF CERVICAL AND THORACOLUMBAR SPINE) which does not establish a longitudal trend of subjective complaints and objective findings: therefore, a causal relationship cannot be established.” This opinion is also supported by a full rationale which is supported by the evidence of record. Therefore, the Board places great probative weight on this opinion. In view of the totality of the evidence, the Board finds that the evidence is at least in equipoise in favor and against the claim and the Board will resolve reasonable doubt in the Veteran’s favor. Therefore, service connection is warranted. Secondary service connection for bilateral lower extremity sciatica pain is granted. Because the Veteran is now service connected for a lumbar disability, the Board must consider the Veteran’s contention that his bilateral lower extremity sciatica pain is secondary to his service-connected lumbar disability. See September 2018 Statement of Accredited Representative. The Veteran has been diagnosed with bilateral lower extremity sciatica pain since February 2014 See February and July 2014 VA examiner reports. As described above, he is service-connected for a lumbar disability, to include lumbar DJD. The Board notes that the February 2014 VA examiner stated the Veteran has “current functional limitations due to sciatica secondary to degenerative joint disease of the lumbar spine” and opined that “sciatica is a condition that can result due to degenerative joint disease of the lumbar spine which may occur with wear and tear over time and can be accelerated by history of trauma and obesity.” Accordingly, the Board finds that the Veteran’s lower extremity sciatica pain is caused by his service-connected lumbar disability, and thus, service connection on a secondary basis is warranted. REASONS FOR REMAND The Board finds that further development is necessary to comply with VA’s duty to assist the Veteran to obtain evidence needed to substantiate his claim. Entitlement to an initial compensable disability rating for a bilateral hearing loss disability is remanded. The Veteran seeks an initial compensable disability rating for his bilateral hearing loss disability. Upon review of the record the Board notes that the March 2017 VA examination is inadequate because it did not provide speech discrimination scores. The examiner noted “the use of the word recognition score is not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent word recognition scores, etc., that make combined use of puretone average and word recognition scores inappropriate” and “speech discrimination testing could not be completed due to unreliable results.” However, in this particular case speech discrimination scores are needed to properly rate the Veteran’s hearing loss disability as he reports it is “extremely difficult understanding what’s been said in a group conversation” and he is “constantly asking others to repeat what they said.” See December 2016 statement; March 2017 VA examination report. Moreover, the Board notes that a remand for a new examination would not be futile as the Veteran has prior reliable speech discrimination tests results and there is no indication of record that the Veteran has language difficulties or cognitive problems. Therefore, remand for a new examination is warranted. Entitlement to an initial compensable disability rating for PFB is remanded. The Veteran’s most recent VA examination for his PFB occurred in March 2017. Since that time, he has indicated, through his representative, that his PFB has worsened. See July 2018 Correspondence. Because it has been almost two years since the last VA examination, a contemporaneous examination is required to assess the current severity of his service-connected disability. See Green v. Derwinski, 1 Vet. App. 121 (1991); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran’s disabilities from November 2018 to the present. 2. After the development in (1) above is completed, the AOJ should arrange for a VA audiological evaluation (with audiometric studies) to determine the current severity of the Veteran’s left ear hearing loss disability. In addition to reporting audiometry results, the examiner should elicit from the Veteran information as to the effect his hearing loss has on his daily living, and comment on the expected impact the degree of hearing loss found would have on occupational and social functioning (i.e., provide an opinion as to whether the Veteran’s reports of functional impairment are consistent with his level of hearing loss shown). 3. After the development in (1) above is completed, the AOJ should arrange for an examination of the Veteran to assess the current severity of his service-connected PFB. The examiner must review the entire record in conjunction with the examination and note such review was conducted. The examiner should provide a full description of the disability and report all signs and symptoms associated with the Veteran’s disability. 4. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Roe, Associate Counsel