Citation Nr: 18156305 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 16-49 553 DATE: December 7, 2018 ORDER The appeal to reopen the claim of entitlement to service connection for residuals of a left shoulder injury is denied. The appeal to reopen the claim of entitlement to service connection for degenerative disc disease of the cervical spine is denied. Entitlement to service connection for a bilateral hip disability is denied. REMANDED Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for arthritis in the hands is remanded. Entitlement to service connection for a disability manifested by sleep disturbances, other than sleep apnea, is remanded. Entitlement to a rating in excess of 20 percent for degenerative joint disease of the thoracolumbar spine is remanded. Entitlement to an initial compensable rating prior to April 8, 2018, and in excess of 10 percent from that date, for left knee strain is remanded. Entitlement to an initial compensable rating prior to April 8, 2018, and in excess of 10 percent from that date, for right knee strain is remanded. FINDINGS OF FACT 1. An unappealed September 1974 rating decision denied service connection for residuals of a left shoulder injury on the basis that the evidence did not show any such disability in service or that a current diagnosis of this disability was related to the Veteran’s service. 2. Evidence received subsequent to the September 1974 rating decision does not, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the Veteran’s claim of entitlement to service connection for residuals of a left shoulder injury. 3. An unappealed May 2010 rating decision denied service connection for degenerative disc disease of the cervical spine on the basis that the evidence did not show that a current diagnosis of this disability was related to the Veteran’s service. 4. Evidence received subsequent to the May 2010 rating decision does not, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the Veteran’s claim of entitlement to service connection for degenerative disc disease of the cervical spine. 5. The most probative evidence of record demonstrates that the Veteran’s bilateral hip disability did not have onset during service, is not otherwise related to service, and arthritis of the hips was not diagnosed within one year of service separation. CONCLUSIONS OF LAW 1. The September 1974 rating decision pertaining to residuals of a left shoulder injury is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Evidence received since the September 1974 rating decision pertaining to residuals of a left shoulder injury is not new and material, and the Veteran’s claim of entitlement to service connection for residuals of a left shoulder injury is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The May 2010 rating decision pertaining to degenerative disc disease of the cervical spine is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 4. Evidence received since the May 2010 rating decision pertaining to degenerative disc disease of the cervical spine is not new and material, and the Veteran’s claim of entitlement to service connection for degenerative disc disease of the cervical spine is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. A bilateral hip disability was not incurred in or aggravated by service, and arthritis of the hips may not be presumed to have been incurred in service. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from February 1964 to February 1967. He had additional subsequent service in the Army Reserve. Service Connection for Bilateral Hip Disability Service connection may be established for a disease or injury incurred in or aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To prevail on the issue of service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247 (1999). Certain chronic diseases, such as arthritis, are subject to presumptive service connection if they manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For the showing of a chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time of service. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). After considering all information including the lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The Veteran is seeking service connection for a bilateral hip disability. He maintains that his hip problems are related to airborne training and parachute jumps in service. See February 2013 claim. Service treatment records from the Veteran’s period of active service from 1964 to 1967 are silent for any complaints or findings of a hip disability. Of note, a January 1967 separation Report of Medical Examination shows that clinical evaluation of the lower extremities was normal. Post-service treatment records and examination reports show that the Veteran underwent a VA examination in January 1974. Although the Veteran reported numerous disabilities, he made no hip complaints at that time. Periodic Army Reserve examinations, including in April 1973, June 1981, and July 1985 are silent for complaints or findings of a hip disability. The earliest evidence of hip complaints is a November 2008 private physical therapy report. May and October 2018 VA X-ray studies note findings of mild to moderate degenerative changes in both hips. The Veteran was afforded a VA Hip and Thigh Examination in April 2014. The VA examiner noted the Veteran’s history of paratrooper service and opined that his bilateral hip disability was less likely than not related to his such service. The examiner essentially stated that the Veteran’s hip disability was most likely a normal progression of arthritis and advancing age, noting that the Veteran was a very active individual after his military service. Having reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the claim for service connection for bilateral hip disability, and the appeal must be denied. Although current bilateral hips disability has been diagnosed, the Board finds that this disability was not established during service. Additionally, no clinical evidence shows that arthritis was manifest within one year of service separation. See 38 C.F.R. §§ 3.307, 3.309(a). The evidence, as outlined above, also shows that he did not have a continuous hip problem since service. Regarding whether the Veteran’s hip disability is otherwise related to service, the Board finds that the most probative evidence of record supports a finding that this disability is not related to service. The service separation examination noted a normal clinical evaluation of the lower extremities. Finally, the VA examiner provided an opinion that the current hip disability is unrelated to active service. The examiner examined the Veteran, reviewed the claims file, and provided a supporting explanation. The Board accords this opinion significant probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining the probative value of an opinion is whether the examiner was informed of the relevant facts in rendering a medical opinion). There is no medical evidence to the contrary. Although the Veteran has reported that his bilateral hip disability related to active service, specifically airborne training therein, the Board finds him not competent to make such a nexus opinion (as opposed to his competency to report continuous symptoms, which is not shown here). A nexus between an internal disease such as arthritis and any incident during service is not capable of lay observation, and requires medical training, expertise, or credentials. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Even if the Veteran were competent to make such a nexus opinion, it is outweighed by the VA medical examiner’s opinion, which was based not only upon review of the claims file and medical expertise, but also on an examination of the Veteran. As the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). As such, the claim is denied. Claims to Reopen In general, decisions of the Regional Office (RO) and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means 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 last prior 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. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). A claim is not reconsidered, however, where VA could not have obtained the records when it initially decided the claim because the records did not exist at that time, or because the claimant failed to provide sufficient information to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or any other official source. 38 C.F.R. § 3.156(c)(2). To establish service connection, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called nexus requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Left Shoulder The Veteran initially filed a claim for service connection for residuals of a left shoulder injury in November 1973. In a September 1974 rating decision, the RO denied his claim, stating that the evidence did not show any such disability in service or that a current diagnosis of this disability was related to the Veteran’s service. The Veteran did not appeal this adverse determination, or submit new and material evidence within one year of that decision. The decision therefore became final based on the evidence then of record. 38 U.S.C. § 7105. At the time of the September 1974 rating decision the record included service personnel records, which show the Veteran’s service as a paratrooper, and service treatment records, which are negative for findings related to a left shoulder injury. The record also included a December 1973 statement from the Veteran wherein he reported that a physician in service stated that his shoulder problems would go away in time, and a January 1974 VA examination report, which showed complaints of left shoulder pain, pain and “popping” with normal X-ray studies. In February 2013, the Veteran submitted a new claim seeking service connection for residuals of a left shoulder injury. Evidence received subsequent to the September 1974 rating decision includes VA and private treatment records and examination reports dated from 1974 to 2018 which note the Veteran’s complaints of left shoulder pain and findings including impingement syndrome. None of these records, however, relate a current diagnosis of residuals of left shoulder injury to the Veteran’s service. Although the additional medical evidence submitted is new, it is not material as it does not show that the Veteran has been diagnosed with residuals of a left shoulder injury related to service. In sum, the newly received evidence does not, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the claim. Accordingly, the evidence received since the denial of the claim in September 1974 is not new and material, and reopening of the claim is not warranted. Cervical Spine The Veteran initially filed a claim for service connection for residuals of a neck disability in April 2009. In a May 2010 rating decision, the RO denied his claim, stating that the evidence did not show any such disability in service or that a current diagnosis of this disability was related to the Veteran’s service, to include his time as a paratrooper. The Veteran did not appeal this adverse determination, or submit new and material evidence within one year of that decision. The decision therefore became final based on the evidence then of record. 38 U.S.C. § 7105. At the time of the May 2010 rating decision the record included service personnel records, which show the Veteran’s service as a paratrooper, and service treatment records, which are negative for findings related to a cervical spine disability. The record also included: private treatment records dated in 2009 that showed chiropractic treatment for neck complaints, a June 2009 statement from the Veteran’s chiropractor that his arthritis of the neck was due to his airborne training and parachute jumps, and a November 2009 VA examination report, which showed the Veteran’s complaints of neck pain since service, history of paratrooper training, findings of degenerative disc disease confirmed by MRI studies, and the examiner’s opinion that current cervical spine disability was not related to the Veteran’s military (including paratrooper) service. In February 2013, the Veteran submitted a new claim seeking service connection for a cervical spine disability. Evidence received subsequent to the May 2010 rating decision includes VA and private treatment records and examination reports dated from 2010 to 2018 which note the Veteran’s complaints of neck pain and findings including arthritis. None of these records, however, relate a current diagnosis of cervical spine disability to the Veteran’s service. Although the additional medical evidence submitted is new, it is not material as it does not show that the Veteran has been diagnosed with a cervical spine disability related to service. In sum, the newly received evidence does not, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the claim. Accordingly, the evidence received since the denial of the claim in May 2010 is not new and material, and reopening of the claim is not warranted. REASONS FOR REMAND Service Connection for Right Shoulder, Hands and Sleep Disturbances The Veteran maintains that he has right shoulder and hand disabilities related service, including airborne training and parachute jumps therein. See February 2013 correspondence from the Veteran. He also claims that he has difficulty sleeping due to nocturia and back pain. See February 2013 and April 2015 correspondence from the Veteran. (The Board notes here that a claim of the specific sleep disorder or sleep apnea was separately adjudicated by the RO, see November 2017 rating decision, and is not for consideration by the Board at this time.) Although VA medical opinions were obtained for the Veteran’s right shoulder and hand claims in 2014, these reports are inadequate for adjudication purposes. Specifically, the right shoulder examination report failed to provide adequate reasons and bases for the opinion that right shoulder disability is less than 50 percent likely to be related to parachute jumps in service, only noting that such disability “is very mild.” The hand examination report states that no such disability is present, however, subsequent (September 2018) VA X-rays studies note findings of arthritis. The development of facts includes a thorough and contemporaneous medical examination, one that takes into account the records of prior medical treatment: “if [an examination] report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.” 38 C.F.R. § 4.2; Littke v. Derwinski, 1 Vet. App. 90, 92 (1990); Green v. Derwinski, 1 Vet. App. 121 (1991). Accordingly, additional medical opinions should be obtained on remand. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Regarding the sleep disorder claim, VA’s duty to assist includes providing a medical examination when is necessary to make a decision on a claim. Here, the RO did not provide the Veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Remand for an examination is needed. Ratings for Thoracolumbar Spine, Left Knee and Right Knee Disabilities Regarding the thoracolumbar spine and knee issues on appeal, the Veteran was most recently afforded VA examinations to determine the degree of severity of these disabilities in April 2018. The United States Court of Appeals for Veterans Claims (Court) has held that “to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of” 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). The referenced portion of 38 C.F.R. § 4.59 states that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” This was not done on the April 2018 VA examinations. As such, pursuant to Correia, the new VA examinations must, wherever possible, include range of motion testing on active and passive motion and in weight-bearing and nonweight-bearing conditions. The matters are REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding, pertinent treatment records, to include both VA and private records. 2. After the above records development is completed, obtain an addendum opinion as to the etiology of the Veteran’s right shoulder disability from a qualified VA examiner. The entire electronic claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. The VA examiner must provide an opinion as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that any current right shoulder disability had its onset in, or is otherwise related to, the Veteran’s military service. The examiner must acknowledge and consider the Veteran’s paratrooper experience during service. The examiner should state a complete rationale for any opinion provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. After the above records development is completed, obtain an addendum opinion as to the etiology of the Veteran’s bilateral hand arthritis from a qualified VA examiner. The entire electronic claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. The VA examiner must provide an opinion as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that hand arthritis had its onset in or within one year of, or is otherwise related to, the Veteran’s military service. The examiner must acknowledge the Veteran’s paratrooper experience. The examiner should state a complete rationale for any opinion provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. After the above records development is completed, afford the Veteran an appropriate VA examination to determine the existence and etiology of his claimed disability manifested by sleep disturbances (other than sleep apnea). The entire claims file must be made available to and be reviewed by the examiner. All necessary tests should be completed. An explanation for all opinions expressed must be provided. For each sleep disorder diagnosed (other than sleep apnea), the examiner must provide the following opinions. An explanation for all opinions expressed must be provided. a. Provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep disorder had onset in, or is otherwise caused by, active service. b. Provide an opinion whether it is at least as likely as not (50 percent or better probability) that a sleep disorder was caused OR aggravated (increased in severity beyond the natural progression) by the Veteran’s service-connected thoracolumbar spine disability or any other service-connected disability. The examiner must explain the rationale for any opinion given. If the examiner is unable to provide an opinion without resorting to speculation, he/she should so state and provide an explanation as to the reason(s) therefor. 4. After all available records are obtained for the record, afford the Veteran a VA examination to determine the current nature and severity of the service-connected thoracolumbar spine, right knee and left knee disabilities. All indicated evaluations, studies, and tests deemed to be necessary should be accomplished. All pertinent evidence of record should be made available to and reviewed by the examiner. All information required for rating purposes should be provided to the examiner. a. The thoracolumbar spine examination must be conducted in accordance with the current disability benefits questionnaire or examination worksheet applicable to the disability. Ranges of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for the thoracolumbar spine must be conducted. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner must also provide an opinion concerning the functional impairment of the Veteran’s service-connected lumbar spine disability. b. The right and left knee examination must be conducted in accordance with the current disability benefits questionnaire or examination worksheet applicable to the disabilities. Ranges of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for each knee must be conducted. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner must also provide an opinion concerning the functional impairment of the Veteran’s service-connected right knee disability and left knee disability. (Continued on the next page)   The rationale for all opinions offered must be provided. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.R.Fletcher, Counsel