Citation Nr: 18157149 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 17-00 625 DATE: December 11, 2018 ORDER New and material evidence to reopen the claim for entitlement to service connection for left lower extremity radiculopathy has been received and the claim is reopened; to this limited extent, the appeal is granted. New and material evidence to reopen the claim for entitlement to service connection for right lower extremity radiculopathy has been received and the claim is reopened; to this limited extent, the appeal is granted. REMANDED Entitlement to service connection for left lower extremity radiculopathy, to include as secondary to service-connected back disorder, is remanded. Entitlement to service connection for right lower extremity radiculopathy, to include as secondary to service-connected back disorder, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include depression and bipolar disorder, is remanded. Entitlement to an initial rating in excess of 40 percent for degenerative disc disease of the low back is remanded. FINDINGS OF FACT 1. A December 2006 rating decision denied entitlement to service connection for left lower extremity radiculopathy. Evidence received subsequent to December 2006 does, 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 left lower extremity radiculopathy. 2. A December 2006 rating decision denied entitlement to service connection for right lower extremity radiculopathy. Evidence received subsequent to December 2006 does, 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 right lower extremity radiculopathy. CONCLUSIONS OF LAW 1. Evidence received since the December 2006 rating decision is new and material, and the Veteran’s claim of entitlement to service connection for left lower extremity radiculopathy is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. Evidence received since the December 2006 rating decision is new and material, and the Veteran’s claim of entitlement to service connection for right lower extremity radiculopathy is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from February 1989 to January 1991. A hearing was not requested. The Board currently does not have jurisdiction over a claim of entitlement to a total disability rating based on individual unemployability (TDIU). This claim was listed in the Veteran’s November 2016 statement of the case but was not appealed in his December 2016 VA Form 9. Service Connection Pursuant to 38 U.S.C. § 7104 and 38 C.F.R. § 3.105, a final decision by the Board may not thereafter be reopened and allowed, in the absence of clear and unmistakable error (CUE), except as provided by 38 U.S.C. § 5108, which indicates that “[i]f new and material evidence is presented or secured with respect to a claim, which has been disallowed, the [VA] shall reopen the claim and review the former disposition of the claim.” Therefore, once a Board decision becomes final under § 7104, in the absence of CUE, and absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by VA. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.105. A claimant may reopen a finally-adjudicated claim by submitting new and material evidence. Material evidence means existing evidence that, by itself or when considered with the 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, triggering an alternative theory of entitlement, or triggering the Secretary’s duty to assist by providing a medical opinion. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for left lower extremity radiculopathy 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for right lower extremity radiculopathy In December 2006, the RO denied the Veteran’s a claim of entitlement to service connection for numbness of the right leg and numbness for bilateral feet and toes. Part of the reason for this denial was that there was no evidence of a current disorder. In July 2015, the Veteran submitted a statement indicating that he constantly experiences “numbness, sharp chronic pain, and burning sensation” in his “feet, toes, and lower legs.” This evidence was not of record at the time of the prior decision, relates to facts necessary to support the Veteran’s claims, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claims. The criteria for reopening the Veteran’s claims have been met. REASONS FOR REMAND 1. Entitlement to service connection for left lower extremity radiculopathy, to include as secondary to service-connected back disorder, is remanded. 2. Entitlement to service connection for right lower extremity radiculopathy, to include as secondary to service-connected back disorder, is remanded. An October 2015 VA back examination indicates that the Veteran does not have radiculopathy. This finding does not address the May 1990 medical board cover sheet (page 17 of 120) indicating a “Primary Diagnosis” of “low back pain with left leg discomfort presumably secondary to lower lumbar disc derangement and mild left sciatic radiculitis.” It also does not address VA medical records with similar findings, including the February 1995 VA examination, the November 2007 VA kinesiotherapy note (received 11/15/07), or the June 2008 VA medical record indicating low back pain “with radiculopathy.” An addendum medical opinion is required. 3. Entitlement to service connection for an acquired psychiatric disorder, to include depression and bipolar disorder, is remanded. A medical examination or medical opinion is necessary in a claim for service connection when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81–86 (2006). See also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). These elements are satisfied with regard to the claim of entitlement to service connection for an acquired psychiatric disorder, to include depression and bipolar disorder. Regarding the first element, an April 2008 VA medical record indicates “Dysthymic Disorder” and “Major Depressive Disorder.” Regarding the second element, in his December 2016 VA Form 9, the Veteran states that during service he “experienced several bouts of depression and anxiety” and was later diagnosed with bipolar disorder. Regarding the third and fourth elements, there is an indication that an acquired psychiatric disorder could be related to service, but there is insufficient evidence of record by which the Board can make a decision. As the four McLendon elements are satisfied, the Veteran is entitled to a VA examination and medical opinion. 4. Entitlement to an initial rating in excess of 40 percent for degenerative disc disease of the low back is remanded. A VA examination of the joints must, wherever possible, include range of motion testing for pain on active motion, passive motion, weight-bearing, nonweight-bearing, and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 169–70 (2016). The November 2015 VA examination does not contain such findings. A new examination is required. The Board notes that the Veteran is rated at 40 percent, which is the maximal rating based on limitation of motion under the general rating criteria for the spine. 38 C.F.R. § 4.71. However, the Veteran’s 40 percent rating was originally assessed under Diagnostic Code 5293 and the November 2015 VA back examination indicates a forward flexion of 60 degrees. For these reasons, the Board finds that a new VA examination is required. Additionally, on remand the RO should obtain all relevant VA treatment records dated from September 2016 to the present before the issues on appeal are decided on the merits. Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain all VA treatment records from September 2016 to the present. If no records are available, the claims folder must indicate this fact. Any additional records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2. After obtaining any additional records to the extent possible, provide an examination and obtain a medical opinion regarding the nature and etiology of any current or previously-diagnosed radiculopathy of the right and left lower extremities. The examiner should review the entire claims file, conduct all necessary tests and studies, and provide the requested opinions: (a.) Whether the Veteran has any current or previously-diagnosed radiculopathy of the right and left lower extremities; (b.) Whether it is at least as likely as not (a 50 percent or better probability) that any current or previously-diagnosed radiculopathy of the right and left lower extremities was incurred in the Veteran’s service; and (c.) Whether the Veteran has any current or previously-diagnosed radiculopathy of the right and left lower extremities that (i) is proximately due to the Veteran’s service-connected back disorder or (ii) was aggravated by the Veteran’s service-connected back disorder. In rendering these opinions, the examiner should address service treatment records describing radiculitis and nerve pain following the Veteran’s in-service back pain, including the May 1990 medical board report and cover sheet (page 17 of 120). The examiner should also address the February 1995 VA examination, the November 2007 VA kinesiotherapy note (received 11/15/07), and the June 2008 VA medical record indicating low back pain “with radiculopathy.” The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. 3. After obtaining any additional records to the extent possible, provide an examination and obtain a medical opinion regarding the nature and etiology of any acquired psychiatric disorder, including but not limited to depression and bipolar disorder. The examiner should review the entire claims file, conduct all necessary tests and studies, and provide the requested opinions. (a.) Identify all acquired psychiatric disorders currently present. (b.) Offer an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or more) that a current acquired psychiatric disorder, including depression and bipolar disorder, had its onset in service or was otherwise caused by an in-service disease or injury. (c.) Offer an opinion as to whether it is at least as likely as not that a current acquired psychiatric disorder had its onset within one year of the Veteran’s discharge from his period of active service. In rendering these opinions, the examiner should consider the April 2008 VA medical record indicating “Dysthymic Disorder” and “Major Depressive Disorder.” The examiner should also consider the Veteran’s December 2016 VA Form 9. The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. 4. After obtaining any additional records to the extent possible, provide an examination and obtain a medical opinion regarding the nature and severity of the Veteran’s service-connected back disorder. The claims folder should be made available to the examiner for review prior to the examination and the examiner should acknowledge such review in the examination report. Full range of motion testing must be performed where possible. The joint involved should be tested in both active and passive motion, in weight-bearing and nonweight-bearing. 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 the basis for this decision. The examiner should determine whether the Veteran’s back disorder is manifested by weakened movement, excess fatigability, incoordination, pain or flare-ups. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, pain or flare-ups. The examiner should also request the Veteran identify the extent of his functional loss during flare-ups and, if possible, offer range of motion estimates based on that information. If the examiner is unable to provide an opinion on the impact of any flare-ups on the Veteran’s range of motion, the examiner should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so, and must state whether there is additional evidence that would permit the necessary opinion to be made. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel