Citation Nr: 18160728 Decision Date: 12/27/18 Archive Date: 12/27/18 DOCKET NO. 09-03 516A DATE: December 27, 2018 ORDER The appeal to reopen a claim for service connection for congestive heart failure is granted. REMANDED Entitlement to service connection for a right hip disorder, to include as due to exposure to ionizing radiation and to include as secondary to service-connected disabilities, is remanded. Entitlement to a temporary total disability rating under 38 C.F.R. § 4.30 based on the need for convalescence following right hip surgery in March 2008 is remanded. Entitlement to service connection for a left shoulder disorder, to include as due to exposure to ionizing radiation and to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for a right wrist disorder, to include as due to exposure to ionizing radiation and to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for a heart condition, to include as due to exposure to ionizing radiation, to include as secondary to service-connected disabilities, is remanded. Entitlement to special monthly compensation (SMC) based on the need for the aid and attendance of another person or on account of being housebound is remanded. FINDINGS OF FACT 1. An unappealed March 2005 rating decision denied service connection for congestive heart failure. 2. Evidence since the March 2005 rating decision that declined to reopen a claim of service connection for congestive heart failure is new and material in that it is not cumulative, was not previously considered by decision makers, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The October 2006 rating decision that denied service connection for congestive heart failure is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.1103 (2018). 2. New and material evidence has been received to reopen the issue of service connection for congestive heart failure. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from January 1975 to February 1975, and from July 1991 to July 1992. This appeal comes to the Board of Veterans’ Appeals (Board) from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In June 2012, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In September 2013, the Board remanded the issues for further development. In July 2017, the Veteran submitted a VA Form 9 which, in effect, withdrew certain issues from appellate review. Upon request for clarification from the Board in October 2018, the Veteran responded the next month that he wished to appeal all issues initially developed. 1. Whether new and material evidence has been received to reopen the claim for service connection for congestive heart failure, to include as due to exposure of ionizing radiation and to include as secondary to service-connected disabilities. A previously denied claim may be reopened by submission of new and material evidence. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). Evidence is new if it has not been previously submitted to agency decision makers. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a) (2018). Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or 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. Id. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is generally to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Moreover, in Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the United States Court of Appeals for Veterans Claims (Court) clarified that the phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. The Veteran is seeking service connection for congestive heart failure, to include as due to exposure of ionizing radiation and to include as secondary to service-connected disabilities. Service connection for congestive heart failure, to include as due to being exposed to radioactive power as a result of exposure to ionizing radiation, was originally denied in a March 2005 rating decision based essentially on a finding that the Veteran’s service treatment records did not show any treatment for congestive heart failure and that the evidence of record did not show that the Veteran’s congestive heart failure was related to exposure to radioactive power. The Veteran filed a notice of disagreement (NOD) in April 2005 and a statement of the case (SOC) was issued in November 2006. However, the Veteran did not then file a substantive appeal (VA Form 9) within 60 days of the November 2006 SOC, and no new and material evidence was received prior to expiration of the appeal period. Accordingly, the March 2005 rating decision became final. In the February 2007 rating decision, the RO continued the denial of service connection for congestive heart failure. The Veteran continued to assert; however, that he is entitled to service connection for congestive heart failure. Evidence received since the March 2005 rating decision that originally denied service connection for congestive heart failure includes an April 2005 statement wherein the Veteran claims that his heart condition is also due to his bilateral knee condition. See April 2005 Statement in Support of Claim. While a new theory of entitlement cannot be the basis to reopen a claim under 38 U.S.C. § 7104(b) (2012), if the evidence supporting a new theory of entitlement constitutes new and material evidence, then VA must reopen the claim. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). Here, the Veteran has provided new information which may support his claim for secondary service connection. Accordingly, the Veteran’s new theory of entitlement constitutes new and material evidence sufficient to reopen his claim. As such, the evidence is new and material and the claim is reopened. See 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2018). REASONS FOR REMAND 1. Entitlement to service connection for a right hip disorder, to include as due to exposure to ionizing radiation and to include as secondary to service-connected disabilities, is remanded. The Veteran is seeking service connection for a right hip disorder, to include as due to exposure to ionizing radiation and to include as secondary to service-connected disabilities. The Veteran asserts that his current hip condition stems from when he was running during physical training in the military and he slipped, fell, and landed on railroad tracks. He also asserts that lifting a heavy wheelchair made his back and hips go out. Further, he stated that after he had knee surgery, he started having right hip pain. Moreover, he asserts that his hip condition is due to radiation exposure during his time in the military. See August 2016 VA examination and June 2012 Hearing Testimony. In August 2016, the Veteran was afforded a VA examination and was diagnosed with right hip joint replacement and avascular necrosis. The VA examiner opined that the Veteran’s right hip disorder was less likely than not related to his military service. The VA examiner concluded that there was insufficient documentation in service to confirm a service-related injury. Also, the VA examiner opined that it was less likely than not that the Veteran’s hip disorder was proximately due to or aggravated (permanently worsened) by a service-connected disability. He opined that there was insufficient documentation to opine to such a nexus. The August 2016 VA examination is inadequate because the VA examiner does not address all of the Veteran’s contentions or consider the Veteran’s lay statements regarding his in-service injury to his right hip, and wrongfully relies on the absence of evidence to support his conclusion. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (holding that a VA examination was inadequate because the examiner failed to comment on the veteran’s report of an in-service injury and relied on the absence of evidence in the service treatment records to provide a negative opinion); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (finding that the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence of record, but that the lack of contemporaneous medical records does not, in and of itself, render lay evidence not credible). Also, the VA examiner should not have used the term “permanently” when referring to the aggravation prong of secondary service connection. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (in the context of secondary service connection, aggravation means “any increase in disability,” and is distinguished from the more specific definition of aggravation of a pre-existing disease during service as defined in 38 U.S.C. § 1153 (2012). Furthermore, the RO did not sufficiently develop the Veteran’s claim for radiation exposure. Therefore, on remand, an opinion should be obtained to address these matters. 2. Entitlement to a temporary total disability rating under 38 C.F.R. § 4.30 based on the need for convalescence following right hip surgery in March 2008 is remanded. The matter of entitlement to a temporary total disability rating under 38 C.F.R. § 4.30 based on the need for convalescence following right hip surgery is inextricably intertwined with the claim for entitlement to service connection for a right hip disorder that is being remanded. Accordingly, the Board will defer a decision on this matter. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 3. Entitlement to service connection for a left shoulder disorder, to include as due to exposure to ionizing radiation and to include as secondary to service-connected disabilities, is remanded. The Veteran is seeking service connection for a left shoulder disorder, to include as due to exposure to ionizing radiation and to include as secondary to service-connected disabilities. The Veteran contends that his current left shoulder injury stems from when he popped his left shoulder while loading his wheelchair. The Veteran asserts that he hurt his left shoulder when he was running during physical training in the military and he slipped, fell, and landed on the railroad tracks. Moreover, he asserts that his left shoulder condition is due to radiation exposure during his time in the military. See August 2016 VA examination and June 2012 Hearing Testimony. In August 2016, the Veteran was afforded a VA examination and was diagnosed with rotator cuff tendonitis, glenohumeral joint osteoarthritis, acromioclavicular joint osteoarthritis, glenohumeral joint instability, acromioclavicular joint separation of the left shoulder. The VA examiner opined that the Veteran’s left shoulder was less likely than not related to his military service. The VA examiner concluded that there was insufficient documentation in service to confirm a service-related injury. Also, the VA examiner opined that it was less likely than not that the Veteran’s left shoulder disorder was proximately due to or aggravated (permanently worsened) by a service-connected disability. He opined that there was insufficient documentation to opine to such a nexus. The August 2016 VA examination is inadequate because the VA examiner does not address all of the Veteran’s contentions or consider the Veteran’s lay statements regarding his in-service injury to his left shoulder, and wrongfully relies on the absence of evidence to support his conclusion. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (holding that a VA examination was inadequate because the examiner failed to comment on the Veteran’s report of an in-service injury and relied on the absence of evidence in the service treatment records to provide a negative opinion); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (finding that the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence of record, but that the lack of contemporaneous medical records does not, in and of itself, render lay evidence not credible). Also, the VA examiner should not have used the term “permanently” when referring to the aggravation prong of secondary service connection. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (in the context of secondary service connection, aggravation means “any increase in disability,” and is distinguished from the more specific definition of aggravation of a pre-existing disease during service as defined in 38 U.S.C. § 1153 (2012). Furthermore, the RO did not sufficiently develop the Veteran’s claim for radiation exposure. Therefore, on remand, an opinion should be obtained to address these matters. 4. Entitlement to service connection for a right wrist disorder, to include as due to exposure to ionizing radiation and to include as secondary to service-connected disabilities, is remanded. The Veteran is seeking service connection for a right wrist disorder, to include as due to exposure to ionizing radiation and to include as secondary to service-connected disabilities. The Veteran contends that his current right wrist injury stems from having to roll his mechanical wheelchair. The Veteran asserts that he hurt his right wrist when he was running during physical training in the military and he slipped, fell, and landed on railroad tracks. Moreover, he asserts that his right wrist condition is due to radiation exposure during his time in the military. He also contends that he hurt his right hand when he was firing an M-16 in service. See August 2016 VA examination and June 2012 Hearing Testimony. In August 2016, the Veteran was afforded a VA examination and was diagnosed with osteoarthritis of the right wrist. The VA examiner opined that the Veteran’s right wrist was less likely than not related to his military service. The VA examiner concluded that there was insufficient documentation in service to confirm a service-related injury. Also, the VA examiner opined that it was less likely than not that the Veteran’s right wrist disorder was proximately due to or aggravated (permanently worsened) by a service-connected disability. He opined that there was insufficient documentation to opine to such a nexus. The August 2016 VA examination is inadequate because the VA examiner does not address all of the Veteran’s contentions or consider the Veteran’s lay statements regarding his in-service injury to his right wrist, and wrongfully relies on the absence of evidence to support his conclusion. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (holding that a VA examination was inadequate because the examiner failed to comment on the Veteran’s report of an in-service injury and relied on the absence of evidence in the service treatment records to provide a negative opinion); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (finding that the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence of record, but that the lack of contemporaneous medical records does not, in and of itself, render lay evidence not credible). Also, the VA examiner should not have used the term “permanently” when referring to the aggravation prong of secondary service connection. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (in the context of secondary service connection, aggravation means “any increase in disability,” and is distinguished from the more specific definition of aggravation of a pre-existing disease during service as defined in 38 U.S.C. § 1153 (2012). Furthermore, the RO did not sufficiently develop the Veteran’s claim for radiation exposure. Therefore, on remand, an opinion should be obtained to address these matters. 5. Entitlement to service connection for a heart condition, to include as due to exposure to ionizing radiation and to include as secondary to service-connected disabilities, is remanded. The Veteran is seeking service connection for a heart condition, to include as due to ionizing radiation exposure and to include as secondary to his service-connected disabilities. The Veteran contends that he was exposed to radiation while sitting guard to MLO Dept. near a Connex box at Port Hueneme during his duty. The Veteran asserts that his condition is also related to when he was running during physical training in the military and he slipped and fell and landed on railroad tracks. Moreover, he asserts that his heart condition is due to radiation exposure during his time in the military. See December 2008 Buddy Statement and June 2012 Hearing Testimony. A remand is warranted to afford the VA examination to determine the nature and etiology of his current heart condition. 6. Entitlement to SMC based on the need for the aid and attendance of another person or on account of being housebound is remanded. Finally, the Board finds the claim of entitlement to special monthly compensation based on the need for the aid and attendance of another person or on account of being housebound is inextricably intertwined with the remanded claims. Accordingly, the Board will defer a decision on that matter. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain any outstanding treatment records and associate with the claims file. 2. Ask the appropriate custodians, to include Joint Services Records Research Center (JSRRC), to search the Veteran’s unit histories, service treatment records, military personnel records, and any other pertinent sources, to include contacting appropriate individuals with personal knowledge thereof, for evidence relating to the Veteran’s possible exposure to ionizing radiation while serving in the Navy at Port Hueneme from July 1991 to July 1992, to include whether the Veteran participated in “radiation-risk activity.” 3. To the extent that it is not demonstrated that the Veteran participated in a “radiation-risk activity,” but was exposed to ionizing radiation, after obtaining all pertinent records, forward the Veteran’s claims file to the VA Under Secretary for Health for preparation of a dose estimate. 4. Then, if the VA Under Secretary for Health, in preparing a dose estimate, determines that the Veteran was exposed to ionizing radiation, forward the Veteran’s claims file to the VA Under Secretary for Benefits for consideration in accordance with 38 C.F.R. § 3.311(c) (2018). 5. Following the completion of the above, schedule the Veteran for a VA examination to determine the nature and etiology of any right hip disorder. All necessary tests must be performed. The record, including a copy of this remand, must be made available to and reviewed by the examiner. The VA examiner should address the following: (a.) Whether any diagnosed right hip disorder is at least as likely as not (50 percent or greater probability) related to the Veteran’s military service. The Veteran contends that his current hip injury stems from: (1) when he was running during physical training and slipped, fell, and landed on railroad tracks; and (2) when he was exposed to ionizing radiation (only to the extent such exposure has been verified). The VA examiner should address all contentions. (b.) Whether the Veteran’s right hip disorder is at least as likely as not (50 percent or greater probability) caused by any of his service-connected disabilities, to include bilateral knee disorders, lumbar spine disorders, left hip disorder, bilateral lower extremity radiculopathy, left thigh disorders, right index trigger finger, bilateral leg shin splints, bilateral knee scars, and/or right index finger scar. The VA examiner should also consider whether the Veteran’s use of a wheelchair was needed for any of his service-connected disabilities, and if so, whether it is at least as likely as not (50 percent or greater probability) that lifting it caused his hips to “give out.” (c.) Whether the Veteran’s right hip disorder is at least as likely as not (50 percent or greater probability) aggravated by his service-connected disabilities, to include bilateral knee disorders, lumbar spine disorders, left hip disorder, bilateral lower extremity radiculopathy, left thigh disorders, right index trigger finger, bilateral leg shin splints, bilateral knee scars, and/or right index finger scar. The VA examiner should also consider whether the Veteran’s use of a wheelchair was needed for any of his service-connected disabilities, and if so, whether it is at least as likely as not (50 percent or greater probability) that lifting it aggravated his current hip condition. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. (d.) The Board notes that the absence of evidence alone is not sufficient to undermine the Veteran’s competent reports of in-service right hip injury. (e.) A rationale for all requested opinions should be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she should provide a complete explanation stating why this is so. In so doing, the examiner should 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 the medical community at large and not those of the particular examiner. 6. Schedule the Veteran for a VA examination to determine the nature and etiology of any left shoulder disorder. All necessary tests must be performed. The record, including a copy of this remand, must be made available to and reviewed by the examiner. The VA examiner should address the following: (a.) Whether any diagnosed left shoulder disorder is at least as likely as not (50 percent or greater probability) related to the Veteran’s military service. The Veteran contends that his left shoulder injury stems from: (1) when he was running during physical training and slipped, fell, and landed on railroad tracks; and (2) when he was exposed to ionizing radiation (only to the extent such exposure has been verified). The VA examiner should address all contentions. (b.) Whether the Veteran’s left hip disorder is at least as likely as not (50 percent or greater probability) caused by any of his service-connected disabilities, to include bilateral knee disorders, lumbar spine disorders, left hip disorder, bilateral lower extremity radiculopathy, left thigh disorders, right index trigger finger, bilateral leg shin splints, bilateral knee scars, and/or right index finger scar. The VA examiner should also consider whether the Veteran’s use of a wheelchair was needed for any of his service-connected disabilities, and if so, whether it is at least as likely as not (50 percent or greater probability) that lifting it caused his current left shoulder disability. (c.) Whether the Veteran’s left shoulder disorder is at least as likely as not (50 percent or greater probability) aggravated by his service-connected disabilities, to include bilateral knee disorders, lumbar spine disorders, left hip disorder, bilateral lower extremity radiculopathy, left thigh disorders, right index trigger finger, bilateral leg shin splints, bilateral knee scars, and/or right index finger scar. The VA examiner should also consider whether the Veteran’s use of a wheelchair was needed for any of his service-connected disabilities, and if so, whether it is at least as likely as not (50 percent or greater probability) that lifting it aggravated his current left shoulder disability. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. (d.) The Board notes that the absence of evidence alone is not sufficient to undermine the Veteran’s competent reports of injury to his left shoulder. (e.) A rationale for all requested opinions should be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she should provide a complete explanation stating why this is so. In so doing, the examiner should 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 the medical community at large and not those of the particular examiner. 7. Schedule the Veteran for a VA examination to determine the nature and etiology of any right wrist disorder. All necessary tests must be performed. The record, including a copy of this remand, must be made available to and reviewed by the examiner. The VA examiner should address the following: (a.) Whether any diagnosed right wrist disorder is at least as likely as not (50 percent or greater probability) related to the Veteran’s military service. The Veteran contends that his current right wrist injury stems from: (1) when he was running during physical training and slipped, fell, and landed on railroad tracks; (2) firing an M-16 in service; and (3) when he was exposed to ionizing radiation (only to the extent such exposure has been verified). The VA examiner should address all contentions. (b.) Whether the Veteran’s right wrist disorder is at least as likely as not (50 percent or greater probability) caused by any of his service-connected disabilities, to include bilateral knee disorders, lumbar spine disorders, left hip disorder, bilateral lower extremity radiculopathy, left thigh disorders, right index trigger finger, bilateral leg shin splints, bilateral knee scars, and/or right index finger scar. The VA examiner should also consider whether the Veteran’s use of a wheelchair was needed for any of his service-connected disabilities, and if so, whether it is at least as likely as not (50 percent or greater probability) that using a wheelchair caused his wrist condition. (c.) Whether the Veteran’s right wrist disorder is at least as likely as not (50 percent or greater probability) aggravated by his service-connected disabilities, to include bilateral knee disorders, lumbar spine disorders, left hip disorder, bilateral lower extremity radiculopathy, left thigh disorders, right index trigger finger, bilateral leg shin splints, bilateral knee scars, and/or right index finger scar. The VA examiner should also consider whether the Veteran’s use of a wheelchair was needed for any of his service-connected disabilities, and if so, whether it is at least as likely as not (50 percent or greater probability) that using a wheelchair aggravated his current right wrist condition. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. (d.) The Board notes that the absence of evidence alone is not sufficient to undermine the Veteran’s competent reports of in-service right wrist injury. (e.) A rationale for all requested opinions should be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she should provide a complete explanation stating why this is so. In so doing, the examiner should 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 the medical community at large and not those of the particular examiner. 8. Schedule the Veteran for a VA examination to determine the nature and etiology of any heart disorder. All necessary tests must be performed. The record, including a copy of this remand, must be made available to and reviewed by the examiner. The VA examiner should address the following: (a.) Whether any diagnosed heart disorder is at least as likely as not (50 percent or greater probability) related to the Veteran’s military service. The Veteran contends that his left shoulder injury stems from: (1) when he was running during physical training and slipped, fell, and landed on railroad tracks; and (2) when he was exposed to ionizing radiation (only to the extent such exposure has been verified). The VA examiner should address all contentions. (b.) Whether the Veteran’s heart disorder is at least as likely as not (50 percent or greater probability) caused by any of his service-connected disabilities, to include bilateral knee disorders, lumbar spine disorders, left hip disorder, bilateral lower extremity radiculopathy, left thigh disorders, right index trigger finger, bilateral leg shin splints, bilateral knee scars, and/or right index finger scar. (c.) Whether the Veteran’s heart disorder is at least as likely as not (50 percent or greater probability) aggravated by his service-connected disabilities, to include bilateral knee disorders, lumbar spine disorders, left hip disorder, bilateral lower extremity radiculopathy, left thigh disorders, right index trigger finger, bilateral leg shin splints, bilateral knee scars, and/or right index finger scar. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. (d.) The Board notes that the absence of evidence alone is not sufficient to undermine the Veteran’s competent reports of injury to his heart. (e.) A rationale for all requested opinions should be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she should provide a complete explanation stating why this is so. In so doing, the examiner should 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 the medical community at large and not those of the particular examiner. BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Crawford, Associate Counsel