Citation Nr: 1815255 Decision Date: 03/09/18 Archive Date: 03/19/18 DOCKET NO. 12-10 086 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for left lower extremity neuropathy/radiculopathy. 3. Entitlement to service connection for right lower extremity neuropathy/radiculopathy. 4. Entitlement to service connection for left upper extremity neuropathy/radiculopathy. 5. Entitlement to service connection for right upper extremity neuropathy/radiculopathy. 6. Entitlement to service connection for hypertension. 7. Entitlement to service connection for a head condition, to include headaches. 8. Entitlement to service connection for a left knee disability. 9. Entitlement to service connection for a right knee disability. 10. Entitlement to service connection for a cervical spine disability. 11. Entitlement to service connection for a neuropsychiatric disability. 12. Entitlement to service connection for a left ankle disability. 13. Entitlement to service connection for a right ankle disability. 14. Entitlement to service connection for a left hip disability. 15. Entitlement to service connection for a right hip disability. 16. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD K. Wysokinski, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from April 1958 to January 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in in San Juan, the Commonwealth of Puerto Rico. The Board remanded this matter in September 2014 for additional development. The Veteran previously submitted a claim of entitlement to service connection for a low back disability which was denied in a May 2007 rating decision on the basis that there was no in-service event related to the Veteran's claim. The May 2007 rating decision became final because the Veteran did not submit a Notice of Disagreement or new evidence in connection with the claims within the appeal period. See 38 C.F.R. § 3.156(b). In connection with the Veteran's claim to reopen, he submitted statements from himself describing in-service back injuries. See March 2010 VA 21-4138 Statement In Support of Claim; see also September 2014 Correspondence. Thus, the Board finds that new and material evidence has been received sufficient to reopen his previously denied claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's low back disability, cervical spine disability, bilateral knee disabilities, bilateral hip disabilities, and hypertension had their onset in active service or are related to in-service injuries. 2. The Veteran does not presently have a neuropsychiatric disability, a head condition including headaches, bilateral ankle disabilities, and bilateral upper and lower extremity neuropathy/radiculopathy disabilities. CONCLUSION OF LAW 1. The criteria for service connection for a low back disability, a cervical spine disability, bilateral knee disabilities, bilateral hip disabilities, and hypertension have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). 2. The criteria for service connection for a neuropsychiatric disability, a head condition including headaches, bilateral ankle disabilities, and bilateral upper and lower extremity neuropathy/radiculopathy disabilities have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board grants entitlement to service connection for a low back disability, a cervical spine disability, bilateral knee disabilities, bilateral hip disabilities, and hypertension because the evidence is at least equipoise as to whether these disabilities are related to the Veteran's in-service injuries or began on active service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, 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. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for hypertension is warranted because the most probative evidence of record indicates that this disability had its onset in service. The Veteran's Service Treatment Records (STR) systolic blood pressure as high as 120 and diastolic blood pressure as high as 90. The Veteran reports that he has been treated for high blood pressure since 1958 when he was on active service. See August 2017 C&P DBQ Hypertension. While the VA examiner who performed the Veteran's August 2017 hypertension exam opined that hypertension was not the result of active military service, the Board credits the Veteran's own reports of in-service onset and recurrence, as corroborated by elevated BP readings from STRs. Because the evidence shows that the Veteran's hypertension had its onset in service, service connection is warranted. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994). As to the low back, cervical spine, and bilateral knee and hip disabilities, service connection is warranted as the evidence is at least equipoise with respect to whether these disabilities are the result of injuries sustained in the course of the Veteran's service, including multiple parachute jumps. The Veteran has reported on several occasions that he injured his back, neck, hips, and knees as part of his parachute jump duties in service. See generally March 2007 and March 2010 VA 21-4138 Statement In Support of Claim; see also September 2014 Correspondence. The Veteran's STRs show similar complaints of injuries in-service. See e.g. February, September, and December STR. An opinion from Dr. N.A.O indicates that the Veteran's back, hip, and knee disabilities are related to in-service injuries. August 2017 VA medical examinations confirm spine disabilities in the cervical and thoracolumbar regions, as well as bilateral hip and knee arthritis, however the examiner opined that these disabilities were not related to the Veteran's service. With the two conflicting medical opinions, the Board finds the evidence equipoise and will resolve reasonable doubt in favor of the Veteran. Thus, service connection for low back, cervical spine, bilateral knee and hip disabilities is warranted. Service connection is not warranted for a neuropsychiatric disability, a head condition including headaches disability, bilateral ankle disabilities, and bilateral upper and lower extremity neuropathy/radiculopathy as the evidence shows that the Veteran does not presently suffer from these disabilities. A series of August 2017 VA medical examinations did not result in diagnoses of any psychiatric, head condition, ankle, or neuropathy/radiculopathy disabilities. The opinion from Dr. N.A.O does not provide specific diagnoses for any of these disabilities. Instead, the doctor suggests that the Veteran be evaluated for them because they may be brought on by his other disabilities. Without a diagnosis for any period on appeal, the Board finds that entitlement to service connection is not warranted for a neuropsychiatric disability, a headache condition including headaches, bilateral ankle disabilities, and bilateral upper and lower extremity neuropathy/radiculopathy. ORDER Service connection for a low back disability is granted. Service connection for left lower extremity neuropathy/radiculopathy is denied. Service connection for right lower extremity neuropathy/radiculopathy is denied. Service connection for left upper extremity neuropathy/radiculopathy is denied. Service connection for right upper extremity neuropathy/radiculopathy is denied. Service connection for hypertension is granted. Service connection for a head condition, to include headaches is denied. Service connection for a left knee disability is granted. Service connection for a right knee disability is granted. Service connection for a cervical spine disability is granted. Service connection for a neuropsychiatric disability is denied. Service connection for a left ankle disability is denied. Service connection for a right ankle disability is denied. Service connection for a left hip disability is granted. Service connection for a right hip disability is granted. REMAND In light of the Board's grant of service connection, the issue of entitlement to TDIU must be remanded. The RO must assign the initial rating for the Veteran's low back disability, cervical spine disability, bilateral knee and hip disabilities. See 38 U.S.C.A. § 7104(a) (2014). The assignment of such a rating will affect entitlement to TDIU. Thus, this claim should be remanded as inextricably intertwined with the RO's adjudication of the initial rating to be assigned. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain all outstanding VA medical records. Any such records should be associated with the claims file. 2. Ask the Veteran to identify any private medical care providers who treated him for his service connected disabilities. Make reasonable efforts to secure the necessary releases and to associate any such identified records with the claims file. 3. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of the nature, extent and severity of his service connected disability symptoms and their impact on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. Adjudicate the TDIU issue. If the benefits sought on appeal remains denied, issue the Veteran and his representative a supplemental statement of the case (SSOC) and give a reasonable opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals 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. ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs