Citation Nr: 19146167 Decision Date: 06/13/19 Archive Date: 06/13/19 DOCKET NO. 18-23 048 DATE: June 13, 2019 ORDER New and material evidence having been received, the claim for entitlement to service connection for a respiratory disorder is reopened; to this extent only, the claim is granted. REMANDED Entitlement to service connection for a cervical spine disorder, to include as secondary to a service-connected right shoulder disorder is remanded. Entitlement to service connection for a right hip disorder, to include as secondary to a service-connected low back disorder is remanded. Entitlement to service connection for a left knee disorder, to include as secondary to a service-connected low back disorder is remanded. Entitlement to service connection for a left ankle disorder, to include as secondary to a service-connected low back disorder is remanded. Entitlement to service connection for a right ankle disorder, to include as secondary to a service-connected low back disorder is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a respiratory disorder is remanded. FINDINGS OF FACT 1. An October 2011 rating decision denied entitlement to service connection for asthma. Notice of that rating decision was provided to the Veteran that same month, and the Veteran did not perfect an appeal of the October 2011 rating decision or submit new and material evidence within one year of the notification of that decision. 2. Evidence received since the October 2011 rating decision is new and relates to an unestablished fact necessary to substantiate the claim for entitlement to service connection for a respiratory disorder. CONCLUSIONS OF LAW 1. The October 2011 rating decision is final with respect to the Veteran’s claim to establish service connection for asthma. 38 U.S.C. § 7105(c), 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. Evidence received since the October 2011 rating decision is new and material, and the claim for entitlement to service connection for a respiratory disorder is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from February 1997 to August 2011. As an initial matter, the Board finds that new and material evidence has been received to reopen the claim of entitlement to service connection for a respiratory disorder. Entitlement to service connection for asthma was denied in an October 2011 rating decision based upon the finding that the evidence did not establish a diagnosis of a respiratory disorder. Since the October 2011 rating decision, new and material evidence has been received providing a diagnosis of chronic obstructive pulmonary disease (COPD) which is sufficient to reopen the claim. See, e.g., May 2017 VA examination. REASONS FOR REMAND 1. Entitlement to service connection for a cervical spine disorder, to include as secondary to a service-connected right shoulder disorder; entitlement to service connection for a right hip disorder, to include as secondary to a service-connected low back disorder; entitlement to service connection for a left knee disorder, to include as secondary to a service-connected low back disorder; entitlement to service connection for a left ankle disorder, to include as secondary to a service-connected low back disorder; and entitlement to service connection for a right ankle disorder, to include as secondary to a service-connected low back disorder are remanded. The Veteran contends that his degenerative arthritis of the cervical spine, right hip, left knee, left ankle, and right ankle are either symptoms of an undiagnosed illness associated with his service in the Persian Gulf War or diagnosed disorders which were caused or aggravated by service-connected disabilities. Specifically, the Veteran alleges that his cervical spine disorder was caused or aggravated by his service-connected right shoulder disorder, as he must wear a sling immobilizing his right shoulder which is slung over the left portion of the neck and causes weakness and fatigue in his cervical spine. He attributes his left knee, right hip, and right and left ankle disorders to his service-connected low back disorder, stating that he must walk with a cane which has affected his gait and placed undue pressure and weight on his left knee, right hip, and right and left ankles. The Veteran has also reported that he has “been under the care of a chiropractor” since July 2017 who may link his cervical spine disorder, left knee disorder, right hip disorder, and right and left ankle disorders to his service-connected disabilities. The Veteran was initially provided with VA examinations assessing the existence and etiology of his disorders in May 2017. The May 2017 VA examiner diagnosed degenerative arthritis of the cervical spine, degenerative arthritis of the right hip, degenerative arthritis of the left knee, and degenerative arthritis of the right and left ankles. The examiner opined that degenerative joint disease is a disease with a clear and specific etiology and diagnosis with no recognized relation with a Southwest Asia exposure event. The May 2017 VA examiner did not provide an opinion as to whether any of the diagnosed disorders were etiologically related to a service-connected disorder. The Veteran underwent additional VA examinations in August 2018. The August 2018 VA examiner concluded that the Veteran did not have a diagnosis of a cervical spine disorder, right hip disorder, left knee disorder, right ankle disorder, or left ankle disorder. The examiner also found that there was “no direct correlation” between the claimed right hip condition and lumbar strain; between the left knee condition and lumbar strain; between the “ankle pain” and lumbar strain; and between the cervical spine disorder and right shoulder disorder. Initially, the Board observes that the Veteran has identified private chiropractic records which have not been obtained by the RO. As noted above, the Veteran stated that he has been under the care of a chiropractor since July 2017 who may link his claimed disorders to his service-connected disabilities. Accordingly, the RO should contact the Veteran and ask that he identify the name and address of his chiropractor and obtain all identified private treatment records. Additionally, the August 2018 VA examiner did not provide sufficient rationale for the conclusion that the Veteran’s claimed disorders are not etiologically related to his service-connected right shoulder and low back disorders. The only rationale stated by the examiner is that there is no correlation between the claimed disorders and the service-connected disorders. However, the examiner did not address the Veteran’s lay statements that the sling provided for his service-connected right shoulder disorder causes symptoms in his cervical spine or that his service-connected low back disorder has altered his gait and places undue pressure and weight on his claimed joints. Further, the August 2018 VA examiner concluded that there was no diagnosis for any of the claimed joint disabilities, but failed to consider the May 2017 X-ray evidence documenting degenerative arthritis in these joints. Last, the August 2018 VA examiner did not provide an opinion addressing the possibility that the Veteran’s cervical spine, left knee, right hip, or right or left ankle disorders were aggravated by his service-connected right shoulder or low back disorders. Accordingly, a new VA examination should be obtained. 2. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends that he has bilateral hearing loss, which was caused by in-service acoustic trauma. Service connection for bilateral hearing loss was denied by the RO in an April 2017 rating decision because the medical evidence of record, including a March 2017 VA examination, did not document auditory thresholds sufficient to establish a hearing loss disability for VA purposes. 38 C.F.R. §3.385. However, in an April 2018 substantive appeal, the Veteran reported that his hearing loss has worsened in severity since the March 2017 VA examination. Accordingly, the Veteran should undergo a new VA examination to determine if he currently has a hearing loss disability for VA purposes, and if so, whether such hearing loss is etiologically related to service. 3. Entitlement to service connection for a respiratory disorder is remanded. The Veteran contends that he has a respiratory disorder which is etiologically related to active duty service. The Veteran’s service treatment records document various complaints of shortness of breath and suggestions of possible asthma with prescription treatment, although they do not contain a conclusive diagnosis. The Veteran was provided with a VA examination in May 2017. The May 2017 VA examiner diagnosed chronic obstructive pulmonary disease (COPD) and opined that it was less likely than not that the Veteran’s COPD is related to a specific exposure event during his service in Southwest Asia because COPD is a disease with a clear and specific etiology and diagnosis, and has no recognized relation with a Southwest Asia exposure event. However, the VA examiner did not provide an opinion as to whether the Veteran’s COPD is etiologically related to the documented in-service respiratory symptoms, and whether such symptoms were an early manifestation of his later diagnosed COPD. Accordingly, a new VA examination is required. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he identify the chiropractic provider with whom he receives treatment for his alleged cervical spine, left knee, right hip, right ankle, and left ankle disorders. After obtaining any required authorizations for the identified source(s), obtain the Veteran’s treatment records. All actions to obtain these records should be documented in the claims file. The RO must make two attempts to obtain private treatment records, or make a finding that further requests would be futile. If no records are obtained, the RO must (1) notify the Veteran of the records that were sought, (2) inform him of the efforts to obtain them, and (3) inform him that the claim will be rated based on the evidence of record but that the claim may be readjudicated if the records are later submitted. See Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012). 2. Provide the Veteran with a VA examination by an appropriate examiner to determine the etiology of his claimed orthopedic disorders. The Veteran’s claims file, all electronic records, and a copy of this remand must be reviewed by the examiner, and the examiner must state that this evidence was reviewed in the examination report. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be accomplished. Based upon a complete review of the evidence of record, to include the Veteran’s lay statements, the VA examiner must provide the following opinions: (a.) Is it at least as likely as not (i.e., a 50 percent probability or more) that the Veteran’s left knee disorder, right hip disorder, left ankle disorder, and/or right ankle disorder are proximately due to, the result of, or aggravated by the Veteran’s service-connected low back disorder? (b.) Is it at least as likely as not that the Veteran’s cervical spine disorder is proximately due to, the result of, or aggravated by the Veteran’s service-connected right shoulder disorder? Aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. A complete rationale for all opinions must be provided. The examiner is advised that the Veteran is competent to report observable symptomatology. 3. Provide the Veteran with a new VA audiological examination to determine the existence and etiology of his bilateral hearing loss. The Veteran’s claims file must be made available to and reviewed by the examiner. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies, including an audiogram, must be accomplished. If audiometric testing reveals the existence of a hearing loss disability for VA purposes, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or more) that any diagnosed right and/or left ear hearing loss is etiologically related to the Veteran’s active duty service. The examiner is advised that the Veteran is competent to report in-service and post-service observable symptomatology. In rendering the requested opinion and rationale, the examiner must note that the fact that the service treatment records do not document hearing loss is not fatal to the Veteran’s claim and cannot be the only basis by which to reject a possible nexus to service. The opinion must be supported by complete rationale. 4. Provide the Veteran with an appropriate VA examination to determine the etiology of his COPD. After a thorough review of all evidence in the claims file, to include the Veteran’s service treatment records, the post-service treatment records, and the Veteran’s lay statements, the examiner should state whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s COPD was incurred in or is otherwise related to his active duty service. The examiner should specifically opine as to the likelihood that the respiratory symptoms documented in the service treatment records were early manifestations of his later diagnosed COPD. A complete rationale must be provided for all opinions proffered. In rendering the requested opinion and rationale, the examiner must reconcile his/her opinion with the Veteran’s lay statements of record regarding in-service and post-service symptomatology. The examiner is advised that the Veteran is competent to report observable symptomatology. (Continued on the next page)   5. When the above development has been completed, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, provide an additional Supplemental Statement of the Case to the Veteran, and afford the Veteran an adequate opportunity to respond, prior to returning the issue to the Board for appellate review. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Katz, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.