Citation Nr: 1806370 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-12 705 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a left hip disorder and, if so, whether service connection, to include as secondary to degenerative spondylolisthesis of L5 on S1, is warranted. 2. Entitlement to service connection for right ear hearing loss. 3. Entitlement to an initial compensable rating for left ear hearing loss. 4. Entitlement to a rating in excess of 20 percent for degenerative disc disease (DDD) of the cervical spine. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Clark, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1983 to September 1992, to include service in Southwest Asia during the Persian Gulf War. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in June 2009 by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board also notes that, at the time of his February 2017 Board hearing, the Veteran was represented by The American Legion; however, he subsequently appointed the Disabled American Veterans as his representative. The Board recognizes the change in representation. The reopened claim of entitlement to service connection for a left hip disorder and the remaining claims on appeal are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a final decision issued in May 2002, the RO denied service connection for a left hip disorder. 2. Evidence added to the record since the final May 2002 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a left hip disorder. CONCLUSIONS OF LAW 1. The May 2002 rating decision that denied service connection a left hip disorder is final. 38 U.S.C.A. § 7105(c) (West 2002) [(2012)]; 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2002) [(2017)]. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a left hip disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As the Board's decision to reopen the Veteran's claim of entitlement to service connection for a left hip disorder is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. However, consideration of the merits of the issue is deferred pending additional development consistent with the VCAA. Rating actions are final and binding based on the evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). From the date of notification of an AOJ decision, the claimant has one year to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a). In this regard, if the claimant files a timely notice of disagreement with the decision and the AOJ issues a statement of the case, a substantive appeal must be filed within 60 days from the date that the AOJ mails the statement of the case to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 C.F.R. § 20.302(b). If new and material evidence is received during an applicable appellate period following an AOJ decision (1 year for a rating decision and 60 days for a statement of the case) or prior to an appellate (Board) decision (if an appeal was timely filed), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Thus, under 38 C.F.R. § 3.156(b), "VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim." Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). "[N]ew and material evidence" under 38 C.F.R. § 3.156(b) has the same meaning as "new and material evidence" as defined in 38 C.F.R. § 3.156(a). See Young v. Shinseki, 22 Vet. App. 461, 468 (2011). VA is required to determine whether subsequently submitted materials constitute new and material evidence relating to an earlier claim, regardless of how VA characterizes that later submission of evidence. Beraud v. McDonald, 766 F.3d 1402, 1405 (Fed.Cir. 2014). If VA does not make the necessary determination, the underlying claim remains pending. Id. 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 and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). 38 C.F.R. § 3.156(c). The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156(c)(1)(i). Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. 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(a). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In this case, the AOJ originally denied service connection for a left hip disorder in an April 2002 rating decision. At such time, the AOJ considered the Veteran's service treatment records (STRs) and a December 2001 VA examination were considered. The AOJ observed that the Veteran's STRs reflected complaints of left hip pain, variously diagnosed as sciatic nerve irritation and sciatic inflammation; however, as the December 2001 VA examination failed to reflect a diagnosis of a left hip disorder, the AOJ denied service connection for such disorder. In May 2002, the Veteran was advised of the decision and his appellate rights. However, he did not enter a notice of disagreement with such decision. Further, no additional evidence referable to his left hip disorder was received within one year of the issuance of such decision. Finally, while the Veteran's service personnel records were received subsequent to the May 2002 rating decision, such are irrelevant to his claims for service connection for a left hip disorder. Therefore, the May 2002 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2002) [(2012)]; 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2002) [(2017)]. In November 2008, VA received the Veteran's request to reopen his claim for service connection for a left hip disorder. In connection with such application, post-service treatment records were received. Specifically, a June 2010 private treatment record indicated that the Veteran had a diagnosis of left lumbar radiculopathy. As such claim was previously denied on the basis that there was no evidence of a current diagnosis referable to the Veteran's left hip and the June 2010 treatment private treatment record reveals a current disability, the Board finds that it is new and material. See 38 C.F.R. § 3.156(a). Furthermore, since the issuance of the May 2002 rating decision, service connection for degenerative spondylolisthesis of L5 on S1 was granted. Consequently, the Board finds that the evidence added to the record since the final May 2002 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a left hip disorder. Therefore, based on the foregoing reasons, the Board finds that new and material evidence has been received and, accordingly, the Veteran's claim of entitlement to service connection for a left hip disorder is reopened. ORDER New and material evidence having been received, the claim for service connection for a left hip disorder is reopened; the appeal is granted to this extent only. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's reopened and remaining claims so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. With regard to the Veteran's left hip disorder, he contends that he has a left hip disorder that is directly related to his military service or alternatively, is secondary to his service-connected back disability. In this regard, the Veteran's STRs reveal that, in February 1984, he complained of left hip pain that had been occurring for two weeks with pain mostly at rest. Additionally, in October 1984 and March 1985, the Veteran was also treated for left hip pain, and assessments of sciatic inflammation and sciatic nerve irritation were noted. Post-service treatment records reveal that, in December 2008, the Veteran had rare left extremity sciatic pain. Additionally, the aforementioned June 2010 private treatment record noted that the Veteran was having left sided hip pain radiating into his left leg and ankle. Such record also noted that he had pain in his low back and upper buttock present on and off since 1986. An assessment and diagnosis of left lumbar radiculopathy was noted. Thus, the Board finds that the Veteran should be afforded a new VA examination to determine if the Veteran has a current left hip disorder, to include radiculopathy, that is related to his military service or secondary to his service-connected back disability. Additionally, the Board notes that the Veteran had documented service in Southwest Asia during the Persian Gulf War. Thus, service connection may also be established under 38 C.F.R. § 3.317, which provides that service connection may be warranted for a Persian Gulf War Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval, or air service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2021; and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317. For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service connection. 38 U.S.C. § 1117. Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuro-psychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). As such, if the Veteran's left hip pain cannot be attributed to a known clinical diagnosis, the examiner should address the provisions whether such represents an undiagnosed illness or other qualifying chronic disability related to his service in Southwest Asia. With regard to the Veteran's claim for service connection for right ear hearing loss, the evidence of record fails to demonstrate that he has a current disability of right ear hearing loss for VA purposes. See 38 C.F.R. § 3.385. However, as the Veteran is also seeking an initial compensable rating for his service-connected left ear hearing loss and, at the February 2017 Board hearing, he testified that his bilateral hearing loss had worsened since his last VA examination in February 2013, the Board finds that a remand is warranted in order to provide the Veteran another VA examination to assess the current nature and severity of his bilateral hearing loss, to include determining whether he has a right ear hearing loss disability as defined by VA regulations. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Additionally, at the February 2017 Board hearing, the Veteran testified that his service-connected cervical spine disability had worsened since his last VA examination in December 2008. Thus, the Board finds that a remand is warranted in order to provide the Veteran another VA examination to assess the current nature and severity of his cervical spine disability. Id. Furthermore, the Court made a precedential finding that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158 (2016). In this regard, it does not appear that Correia-compliant testing was conducted, or that the VA examiner explained why such testing could not be conducted or was not necessary. Therefore, the new VA examination should address such inquiries and include a retrospective medical opinion as to the findings included in the prior examination conducted in December 2008. Lastly, at the February 2017 Board hearing, the Veteran stated that he had applied for social security benefits. In this regard, the Board notes that VA has a duty to obtain Social Security Administration (SSA) records when it has actual notice that the Veteran has applied for SSA benefits. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Accordingly, on remand, the Veteran's complete SSA records, including all administrative decision(s) on his application for SSA disability benefits and all underlying medical records should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's complete SSA records, including all administrative decision(s) on his application for SSA disability benefits and all underlying medical records, which are in SSA's possession. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A (b)(2) and 38 C.F.R. § 3.159 (e). 2. The Veteran should be afforded an appropriate VA examination in order to determine the current nature and etiology of his claimed left hip disorder. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted, to include, if indicated, updated X-rays. (A) The examiner should note and detail all reported symptoms of the Veteran's left hip. (B) The examiner should specifically state whether the Veteran's left hip complaints, to include neurologic and/or joint pain of the left hip, is attributed to a known clinical diagnosis, to include radiculopathy. (C) If any symptoms of a left hip disorder have not been determined to be associated with a known clinical diagnosis, the examiner should indicate whether the Veteran has objective indications of a chronic disability resulting from an undiagnosed illness, as established by history, physical examination, and laboratory tests, that has either (1) existed for 6 months or more, or (2) exhibited intermittent episodes of improvement and worsening over a 6-month period. (D) The examiner should offer an opinion as to whether it is at least as likely as not that the Veteran's left hip disorder and/or symptoms represent a "medically unexplained chronic multisymptom illness." Such is defined as a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. (E) For each diagnosed left hip disorder, the examiner should render an opinion as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that such disorder had its onset in, or is otherwise related to the Veteran's military service. In rendering the opinion, please consider and discuss the February 1984, October 1984, and March 1985 STRs documenting treatment for left hip pain. (F) For each diagnosed left hip disorder, the examiner should also render an opinion as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that such disorder is caused by or aggravated by the Veteran's service-connected degenerative spondylolisthesis of L5 on S1. If aggravation is found, the examiner should quantify the degree of additional disability resulting from the aggravation. A rationale for any opinion offered should be provided. 3. The Veteran should be afforded a VA audiological examination in order to determine the current nature and severity of his bilateral hearing loss, to include determining whether he has a right ear hearing loss disability as defined by VA regulations. Specifically, the examiner should identify auditory thresholds, in decibels, at frequencies of 500, 1000, 2000, 3000, and 4000 Hertz. A Maryland CNC Test should also be administered to determine speech recognition scores. Any additional evaluations, studies, and tests deemed necessary by the examiner should be conducted. The examiner is requested to describe the functional effects caused by the Veteran's current left ear hearing loss, as well as any right ear hearing loss found to be present. 4. The Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his service-connected cervical spine disability. All indicated tests and studies should be undertaken. The record, including a complete copy of this remand, must be made available for review in connection with the examination. (A) The examiner should identify the current nature and severity of all manifestations of the Veteran's cervical spine disability. (B) The examiner should record the range of motion of the cervical spine observed on clinical evaluation in terms of degrees. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, and whether such pain on movement, as well as weakness, excess fatigability, or incoordination, results in any loss of range of motion. The examiner should record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 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. (C) The examiner is also requested to review the VA examinations containing range of motion findings pertinent to the Veteran's cervical spine disability conducted in December 2008. In this regard, the examiner is requested to offer an opinion as to the range of motion findings for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to do so, he or she should explain why. (D) It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use. In this regard, the examiner should indicate whether, and to what extent, the Veteran's range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. (E) If the Veteran endorses experiencing flare-ups of his cervical spine, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. (F) The examiner is further requested to indicate whether the Veteran's cervical spine results in any objective neurologic impairment, to include radiculopathy of either upper extremity, and, if so, the nature and severity of such neurologic impairment. (G) The examiner should also discuss the functional impairment resulting from the Veteran's cervical spine disability, including the impact on his daily activities and employability. A rationale for all opinions offered should be provided. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case. An appropriate period of time should be allowed for a response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs