Citation Nr: 18153703 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 16-36 130 DATE: November 29, 2018 ORDER The claim of entitlement to service connection for a back disorder is reopened. Entitlement to service connection for a back disorder is granted. Entitlement to service connection for a left hip disorder as secondary to the back disorder by way of causation is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), an anxiety disorder other than PTSD, and a depressive disorder, to include as secondary to service-connected back disorder, left hip disorder, and right knee disorder, is remanded. Entitlement to a disability rating in excess of 20 percent for status post bone graft of the right proximal tibia for removal of a tumor is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. An April 2002 rating decision denied entitlement to service connection for a back disorder on the basis that there was no medical nexus evidence relating the back disorder to active service or the service-connected right knee disorder. The Veteran was notified of that decision, but did not perfect an appeal of that decision. 2. A July 2014 VA treatment record showing that the Veteran favors his left leg for weight distribution that results in low back pain, when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for a back disorder. 3. The evidence is in equipoise as to whether the lumbar spine disorder is related to the in-service tumor on the right proximal tibia. 4. The weight of evidence shows that the Veteran has a left hip disorder manifested by functional impairment due to pain. 5. The evidence is in equipoise as to whether that left hip disorder was caused by the now-service-connected back disorder. CONCLUSIONS OF LAW 1. The April 2002 rating decision, which denied the Veteran’s claims of entitlement to service connection for a back disorder, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103 (2017). 2. The evidence received since the April 2002 rating decision is new and material, and the claim of entitlement to service connection for a back disorder is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156. 3. Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for a back disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 4. Resolving all reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for a left hip disorder as secondary to the back disorder have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1988 to July 1991. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In a June 2016 statement of the case, the RO reopened and denied the claim of entitlement to service connection for a back disorder on the merits. The Board must initially determine whether the Veteran has presented new and material evidence sufficient to reopen the previously denied claim. See Barnett v. Brown, 8 Vet. App. 1 (1995), aff’d, 83 F.3d 1380 (Fed. Cir. 1996). The Board has a responsibility to consider whether it was proper for a claim to be reopened; and there is no harm to a veteran’s ability to present the case when the Board addresses the issue of whether a claim should be reopened rather than addressing the reopened claim on the merits. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As noted in the findings of fact and conclusions of law, the Board is reopening the claim. A December 2015 VA examiner opined that the left hip disorder is related to degenerative disc disease of the lumbar spine. In Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000), the United States Court of Appeals for the Federal Circuit (the Federal Circuit) held that VA’s duty to assist attaches to the investigation of all possible causes of a current disability, including those unknown to a claimant. Therefore, the Board will consider whether the left hip disorder is secondary to the back disorder. As for the psychiatric disorder, a March 2008 VA treatment record reveals a diagnostic impression of rule out mood disorder secondary to general medical condition/pain. As noted in the findings of fact and conclusions of law, the Board is granting service connection for a left hip disorder as secondary to the back disorder. Thus, the Board will consider whether the psychiatric disorder is secondary to the back, hip, and right knee disorders. An October 2011 disability decision of the Social Security Administration shows that one of the severe impairments was degenerative joint disease of the right knee. Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), the claim for TDIU is a component of the claim for higher ratings for the service-connected disability on appeal. Thus, the Board has taken jurisdiction of this issue. Service Connection 1. Entitlement to service connection for a back disorder As stated above in the findings of fact and conclusions of law, the Board is reopening the claim of entitlement to service connection for a lumbar spine disorder. Based on the decision below, the Veteran is not prejudiced by the Board’s consideration of the claim of entitlement to service connection for a lumbar spine disorder on the merits. Bernard v. Brown, 4 Vet. App. 384 (1993). Governing law and regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Notwithstanding the above, service connection may be granted for disability shown after service, when all the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(a). To establish service connection for a claimed disorder, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Analysis The January 2016 VA examination report reveals diagnoses of degenerative arthritis, degenerative disc disease, spinal fusion, and spinal stenosis. A December 2015 VA examination report reflects a diagnosis of dextroscoliosis. Therefore, a current disability is shown. The Veteran’s service treatment records show that X-rays taken in January 1990 of the right knee, tibia, and fibula showed a lytic defect involving the lateral tibial condyle with a pathological fracture through the lateral cortex of the tibia. The lytic lesion on the right proximal tibia was diagnosed as a giant cell tumor, and that tumor was removed during a hospitalization from January to March 1990. In November 1990 and March 1991, the Veteran walked with a limp, which was described as slight in March 1991. He was treated for back pain in March 1991. Thus, an in-service disease is shown. There is conflicting medical evidence on whether the back disorder is related to the in-service tumor on the right proximal tibia. In a November 2000 statement, Dr. C, a private chiropractor, noted that he started treating the Veteran following injuries from a motor vehicle accident in July 2000. That chiropractor stated that a magnetic resonating imaging (MRI) scan revealed an extruded disc on the left side at L4-L5 with severe compression of the left L5 nerve root. Dr. C. indicated that these findings correlated to the Veteran’s complaints arising from his motor vehicle accident. The chiropractor noted that the MRI scan also revealed multiple levels of degenerative disc narrowing in the mid and lower lumbar discs. Dr. C. reported that the Veteran denied any prior trauma that would appeared to have caused his low back pain. The chiropractor noted that the Veteran reported his history of the tibial tumor and walking with an altered gait for one to two years after the surgery during which time he had generalized low back pain. Dr. C. opined that as a result of the Veteran’s surgical history and recovery, he was predisposed to early onset of degenerative disc disease of the lumbar spine that would not have otherwise developed in a normal healthy 30-year-old male, especially without any other prior history of significant trauma. In a February 2001 statement, a private chiropractor, Dr. M., noted that the Veteran had had back problems intermittently for years, which have culminated in a severe episode in August 2000. The chiropractor reported that the Veteran had a history of an in-service right proximal tibia reconstruction due to a fracture. Dr. M. noted that the Veteran had an abnormal gait due to the reconstruction surgery and that this abnormal gait is the prime cause of his ongoing, deteriorating lower back syndrome, including the herniated lumbar disc. The chiropractor stated that it is well known that an abnormal gait over an extended period of time can cause significant lower back problems. In an April 2001 statement, Dr. C. noted that the Veteran had had back problems intermittently for years but that the incident in July 2000 was severe. The chiropractor noted that his history was significant for an in-service right tibial plateau fracture, for which he underwent reconstructive surgery. Dr. C. indicated that the Veteran had an abnormal gait from the surgery and that this abnormal gait was the cause of his ongoing degenerative lower back dysfunction, including the herniated lumbar disc. The chiropractor opined that the abnormal gait was the primary cause of his lower back disorder. In a January 2016 medical nexus opinion, the January 2016 VA examiner opined that the injuries suffered in the July 2000 motor vehicle accident are more likely responsible for the Veteran’s degenerative disc disease of the lumbar spine. In a March 2016 medical nexus opinion, the January 2016 VA examiner opined that it was less likely than not (less than 50 percent probability) that the lumbar spine disorder was incurred in or caused by the claimed in-service injury, event, or illness. The examiner opined that the back strain noted in the service treatment records was less likely than not responsible for the Veteran’s degenerative disc disease of the lumbar spine. In April 2016, a RO employee sent an email to the January 2016 VA examiner regarding their conversation “moments ago … to confirm the rationale for your opinion that the complaints regarding the spine in service were not at least as likely as not the initial manifestation of the currently diagnosed back condition.” The RO employee noted that the rationale is “[b]ecause of the time lapse between the in-service complaints and the current disability as well as the evidence of a serious intercurrent injury.” The examiner responded by simply stating, “Agree.” The Board notes that the February 2001 opinion of Dr. M and the April 2001 opinion of Dr. C. contain almost identical language. That said, all three opinions from the private chiropractors address the post-surgical abnormal gait, which is noted in the service treatment records. Moreover, these opinions are supported by VA treatment records dated in June 2008 and April 2009 showing that the Veteran reported a history of altered gait and low back pain following a post-service surgery in 1994 for the service-connected right knee disorder. Thus, there is evidence of back pain prior to the July 2000 motor vehicle accident. The Board places great weight on the August 2000 MRI scan showing multiple degenerative disc narrowing of the lumbar discs less than two months after the motor vehicle accident, which Dr. C. indicated was an incidental finding and not a finding resulting from the accident. In contrast, the VA examiner’s opinion is supported by a November 2010 VA treatment record showing a history of low back pain since 2002 that was worse after a motor vehicle accident in 2004. Given the conflicting medical evidence, especially on the duration of low back pain, the Board finds that the evidence in equipoise as to whether the lumbar spine disorder is related to the in-service tumor on the right proximal tibia. Accordingly, service connection for a back disorder is warranted. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. Entitlement to service connection for a left hip disorder, to include as secondary to the back disorder Governing law and regulations A disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary disorder, the secondary disorder shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability that is aggravated by a service connected disability. In such an instance, a veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Any increase in severity of a nonservice-connected disease that is proximately due to the service-connected disease, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 448 (1995). To establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997). To be present as a current disability, the claimed condition must be present at the time of the claim for benefits, as opposed to sometime in the distant past. Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998). The Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the United States Court of Appeals for the Federal Circuit held that where pain alone results in functional impairment, even if there is no identified underlying diagnosis, pain alone can constitute a disability. Analysis The Board is granting service connection for a back disorder. Thus, there is a service-connected disability. As for whether there is a current left hip disability, the December 2015 VA examiner diagnosed an exostosis of the left anterior superior iliac spine compatible with the bone graft donor site. Service connection is in effect for status post bone graft of the right proximal tibia for a removal of a tumor and for a scar at the graft site on the left iliac crest. The examiner described the exostosis as a mild deformity. In a December 2015 medical nexus opinion, the December 2015 VA examiner noted that the exostosis should not give the type of symptoms described by the Veteran. In other words, though the VA examiner related the exostosis to an in-service bone graft, that examiner nonetheless did not indicate that the exostosis was a current disability. In the December 2015 VA medical nexus opinion, the examiner indicated that the left hip disorder was claimed as pain. The December 2015 VA examination report shows that the range of motion in the left hip was abnormal with limited motion in flexion, extension, abduction, and internal rotation. There was pain with internal rotation and flexion. The examiner noted that pain found on examination causes functional loss. The examiner further stated that the left hip disorder impacted his ability to sit, stand, walk, and change positions. In the December 2015 VA medical nexus opinion, the examiner opined that the left hip disorder is more likely related to the back disorder. Thus, there is a question of whether any left hip disorder manifested by functional impairment due to pain is a separate disorder from the back disorder. The January 2016 VA spine examination report reveals that the Veteran did not have any radicular pain or other signs or symptoms due to radiculopathy. The examiner noted that there were not any other neurologic abnormalities or findings related to a back disorder. Thus, the weight of evidence shows that the Veteran has a left hip disorder that is separate from the back disorder. Pursuant to Saunders, the weight of evidence shows that the Veteran has a left hip disorder manifested by functional impairment due to pain. Thus, a current disability is shown. Given that the VA examiner related the left hip disorder to the der, the medical evidence shows a nexus between the left hip and back disorders. In the absence of medical evidence explicitly showing that the left hip disorder was aggravated by the back disorder, the evidence is in equipoise as to whether that left hip disorder was caused by the now-service-connected back disorder. Therefore, service connection by means of causation is in order. 38 U.S.C. §§ 1110, 1131, 5107. REASONS FOR REMAND A February 2012 VA treatment record notes a September 28, 2010, VA treatment record noting a history of military sexual assault. That September 28, 2010, VA treatment record is not of record and should be obtained. Similarly, the RO should obtain any additional records from the Northport VA Medical Center from November 2015 to the present. Though the RO sent the Veteran a notice letter regarding PTSD in March 2016, that letter did not address PTSD due to personal assault. The Veteran has not provided notice of the information and evidence needed to substantiate and complete a claim of entitlement to service connection for PTSD due to personal assault, to include notice of what part of that evidence is to be provided by him, and notice of what part VA will attempt to obtain. Such notice must be provided. 38 U.S.C. §§ 5103, 5103A (2012). A November 2009 VA treatment record reflects that the Veteran reported that having a bone tumor in service, which was initially thought to be cancer, is his PTSD stressor. A VA examination is necessary to determine whether the Veteran has a psychiatric disorder related to service or the service-connected orthopedic disabilities. The Veteran’s VA examination for the right knee was in 2014 and did not include joint testing for pain in passive motion, weight-bearing and nonweight-bearing. Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016). Therefore, a new VA examination is necessary. The Veteran has not provided notice of the information and evidence needed to substantiate and complete a claim of entitlement to TDIU, to include notice of what part of that evidence is to be provided by him, and notice of what part VA will attempt to obtain. Such notice must be provided. 38 U.S.C. §§ 5103, 5103A (2012). The matters are REMANDED for the following action: 1. The AOJ should provide the Veteran notice of the information and evidence needed to substantiate and complete a claim of TDIU and a claim for service connection for PTSD based on personal assault, to include notice of what part of that evidence is to be provided by him, and notice of what part VA will attempt to obtain. The AOJ must provide the Veteran a formal application for his claim of entitlement to a total disability rating based on individual unemployability 2. Ask the Veteran to identify all treatment for his psychiatric disorder, back disorder, left hip disorder, scars, and any other disabilities pertaining to his claim for TDIU, and obtain any identified records. Obtain the Veteran’s VA treatment records from the Northport VA Medical Center for the period from November 2015 to the present. Obtain the September 28, 2010, treatment record from the Northport VA Medical Center regarding treatment for a psychiatric disorder. 3. After the development in 1 and 2 is completed, the RO should undertake any additional stressor development based on the evidence of record. 4. After the development in 1 through 3 is completed, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder, to include PTSD. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor, to include any fear of having cancer while being treated for the tibial tumor. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include any fear of having cancer while being treated for the tibial tumor. The examiner should opine on whether it is at least as likely as not (50 percent or greater) that any current psychiatric disorder was caused or aggravated (i.e., permanently worsen beyond the normal progression of the disability) by his service-connected back disability, left hip disability, or right knee disability. If the Veteran is diagnosed with a personality disorder and an acquired psychiatric disorder, the examiner must opine whether it is as at least as likely as not the acquired psychiatric disorder was superimposed on a personality disorder during active service and resulted in additional disability. 5. After the development in 2 is completed, schedule the Veteran for an examination of the current severity of the right knee disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing in the right and left knees. The examiner must also 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 the right knee disability alone and discuss the effect of the Veteran’s right knee disability on any occupational functioning and activities of daily living. 6. After the development in 1 and 2 is completed, the RO should undertake any additional development on the TDIU claim as necessary based on the additional evidence of record. 7. Thereafter, readjudicate the claim on appeal. If any benefit sought in connection with the claim remains denied, the Veteran should be provided with an appropriate Supplemental Statement of the Case (SSOC), with a copy to his counsel, and given the opportunity to respond. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Cherry, Counsel