Citation Nr: 20019794 Decision Date: 03/17/20 Archive Date: 03/17/20 DOCKET NO. 15-45 435 DATE: March 17, 2020 ORDER Entitlement to an evaluation greater than 50 percent for chronic vascular headaches with dizziness, loss of equilibrium, head pain, and neck pain is denied. Whether new and material evidence has been received sufficient to reopen the claim of entitlement to service connection for Cushing's disease is granted. Entitlement to service connection for Cushing's disease is granted. Entitlement to service connection for a left foot disability (also claimed as gout) is granted. Entitlement to service connection for left elbow disability is granted. Entitlement to service connection for right knee disability is granted. REMANDED Entitlement to an evaluation greater than 10 percent for hypertension is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a right elbow disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for arthritis of the fingers (also claimed as gout) is remanded. Entitlement to a total disability rated based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. For the entire appeal period, the Veteran has been in receipt of the maximum schedular evaluation for his chronic vascular headaches with dizziness, loss of equilibrium, head pain, and neck pain. 2. The March 2009 rating decision denied the claim of entitlement to service connection for Cushing’s disease; the Veteran was notified of the decision and apprised of his right to appeal, but he did not appeal in a timely fashion or submit new and material evidence within one year of notice of decision. 3. The evidence received since the March 2009 rating decision is neither cumulative nor repetitive of facts that were previously considered. 4. The Veteran’s Cushing’s disease is related to his in-service pituitary adenoma. 5. The Veteran’s left foot disability is related to his in-service left Achilles tendonitis. 6. The Veteran’s left elbow disability is related to his in-service left wrist fracture. 7. The Veteran’s right knee disability is related to his in-service right knee injury. CONCLUSIONS OF LAW 1. The criteria for an evaluation greater than 50 percent for chronic vascular headaches with dizziness, loss of equilibrium, head pain, and neck pain have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8100. 2. The March 2009 rating decision that denied service connection for Cushing’s disease is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.201, 20.302, 20.1103. 3. The evidence received since the March 2009 rating decision is new and material for the purpose of reopening the claim of entitlement to service connection for Cushing’s disease. 38 U.S.C. § 5108; 38 C.F.R.§ 3.156(a). 4. The criteria for service connection for Cushing's disease have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for a left foot disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for a left elbow disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 7. The criteria for service connection for a right knee disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Marines Corps from February 1982 to July 1982 and active service in the United States Air Force from August 1984 to March 1988. These matters are on appeal from a July 2015 rating decision. 1. Entitlement to an evaluation greater than 50 percent for chronic vascular headaches with dizziness, loss of equilibrium, head pain, and neck pain. As an initial matter, the Board observes that during a December 2018 Board hearing, the Veteran’s attorney indicated that the Veteran wished to withdraw his claim for a higher evaluation for his headaches. However, it is unclear if the Veteran understood the consequences of the withdrawal. See DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011) (stating that a withdrawal must be “explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.”). In light of his uncertainty, the Board will proceed as though the Veteran was did not fully understand the consequences of the withdrawal. Thus the attempt to withdraw is not valid and the Board will proceed with a decision of the appeal on the merits. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. While the veteran’s entire history is reviewed when assigning a disability evaluation, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, the U.S. Court of Appeals for Veterans Claims (Court) has since held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. Under Diagnostic Code 8100, the maximum 50 percent disability rating is assigned for migraine headaches that are very frequently completely prostrating and prolonged with attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. For the entire appeal period, the Veteran’s chronic vascular headaches with dizziness, loss of equilibrium, head pain, and neck pain have been rated as 50 percent disabling pursuant to Diagnostic Code 8100. The 50 percent rating is the highest schedular rating under Diagnostic Code 8100. Therefore, a schedular rating in excess of 50 percent cannot be assigned as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430. Finally, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 2. Whether new and material evidence has been received sufficient to reopen the claim of entitlement to service connection for Cushing's disease. The Veteran seeks service connection for Cushing’s disease. The claim was previously considered and denied in a March 2009 rating decision. The Veteran did not appeal the decision and it became final. 38 C.F.R. § 20.1103. A review of the claims file reflects that the Veteran did not submit any additional evidence within one year of the rating decision. See 38 C.F.R. § 3.156(b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009). As such, the Veteran’s claim may be reopened only if new and material evidence has been secured or presented since the last final rating decision. 38 U.S.C. § 7105. As general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156, 20.1105. Under 38 C.F.R. § 3.156(a), new evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, the veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. Id. at 120 (noting the assistance of 38 C.F.R. § 3.159(c)(4) would be rendered meaningless if new and material evidence required a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). At the time of the prior decision, the record included the claim, the service records, and VA treatment records. In essence, at the time of the prior decision, there was no accepted evidence of a nexus between the Veteran’s Cushing disease and his active service. The evidence received since the March 2009 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. The Veteran submitted a positive private nexus opinion from Dr. J.E. This new evidence addresses the reason for the previous denial; that is, the absence of nexus between Cushing’s disease and the Veteran’s active service. The credibility of this evidence is presumed for purposes of reopening this claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened. 3. Entitlement to service connection for Cushing's disease. The Veteran seeks service connection for Cushing’s disease. The Board concludes that the Veteran has a current disability that began during active service. 38 U.S.C. §§ 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). In March 2019, the Veteran underwent a private examination conducted by Dr. J.E. Dr. J.E. reported that the Veteran began experiencing throbbing headaches and nausea during active service. The Veteran’s headaches increased in severity and a pituitary adenoma was found. At the time of his discharge from active service, the Veteran was experiencing severe headaches, difficulty thinking, concentrating, fatiguability, and dizziness. Dr. J.E. commented that the removal of the Veteran’s pituitary adenoma caused the Veteran’s Cushing disease and abnormal hormone balance. Dr. J.E. opined that it was more likely than not that the Veteran developed pituitary adenoma during active service. The onset of headaches, dizziness, and difficulty thinking is consistent with adenoma beginning to impinge on the pituitary and hypothalamic system, which causes abnormal hormone syndromes including Cushing’s syndrome. There are no other medical opinions of record. The Board finds that Dr. J.E.’s medical opinion provides sufficient rationale to conclude that it is more likely than not that the Veteran’s pituitary adenoma began during his active service and caused his currently diagnosed Cushing’s disease. Furthermore, Dr. J.E. reviewed the record. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current Cushing’s disease arose in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for Cushing disease is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 4. Entitlement to service connection for a left foot disability (also claimed as gout). 5. Entitlement to service connection for left elbow disability. 6. Entitlement to service connection for right knee disability. The Veteran seeks service connection for left foot disability, left elbow disability, and right knee disability. The Board concludes that the Veteran has current disabilities that are related to his in-service orthopedic injuries. 38 U.S.C. §§ 1131, 5107(b); Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(a). In March 2019, the Veteran underwent an private examination conducted by Dr. J.E. Dr. J.E. summarized the Veteran’s service treatment records. He reported that the Veteran fractured his left wrist after he fell on an obstacle course. The Veteran continued to have pain in his left wrist and left elbow after this fracture. During active service, he also hurt his right knee while carrying a large ammo box. The Veteran endorsed right knee pain and “grittiness” since active service. The service treatment records also included left plantar fasciitis, achilles tendon pain, and left ankle pain. Dr. J.E. commented that this altered the Veteran’s gait. Dr. J.E. opined that it is more likely than not that the Veteran had several musculoskeletal injuries during his active service. The Veteran’s left wrist fracture caused strain and medial and lateral epicondylitis in the left elbow. His in-service right knee injury damaged his cartilage caused chondromalacia, traumatic arthritis, and laxity of the medial collateral ligament. Dr. J.E. commented that the Veteran’s left foot Achilles tendon strain and tendonitis have continued since service. The altered gait from the Veteran’s right knee and left Achilles Tendon has caused impairment of the cuboid bones and metatarsal bones on the medial aspect of the left foot. There are no other medical opinions of record. The Board finds that Dr. J.E.’s medical opinion provides sufficient rationale to conclude that it is more likely than not that the Veteran’s right knee disability, left elbow disability, and left foot disability are related to his in-service right knee injury, left wrist fracture, and left Achilles tendonitis. The opinion was based on an examination of the Veteran, an interview, and a review of the record. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current right knee disability, left elbow disability, and left foot disability are related to his in-service right knee injury, left wrist fracture, and left Achilles tendonitis. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a right knee disability, left elbow disability, and left foot disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to an evaluation greater than 10 percent for hypertension is remanded. The Veteran was last afforded a VA hypertension examination in July 2015. In December 2018, the Veteran testified that his hypertension caused stabbing head pain while he walked and caused him to fall. He endorsed dizziness when bending. The Veteran testified that he has received ongoing treatment for his hypertension. A review of the record indicates that VA treatment records since November 2015 have not been associated with the record. A remand is required to obtain these outstanding VA treatment records and to provide the Veteran a contemporaneous VA examination. 2. Entitlement to service connection for a right shoulder disability is remanded. 3. Entitlement to service connection for a left shoulder disability is remanded. 4. Entitlement to service connection for a right elbow disability is remanded. 5. Entitlement to service connection for a left knee disability is remanded. 6. Entitlement to service connection for a left hip disability is remanded. 7. Entitlement to service connection for arthritis of the fingers (also claimed as gout). The Veteran has not been afforded a VA examination. The service treatment records reflect that he sustained a significant fall during service and injuries to his left ankle and right knee. Dr. J.E. indicated that the Veteran’s altered gait contributed to the Veteran’s other claimed disabilities. Dr. J.E.’s opinion is inadequate because it does not state whether it is at least as likely as not that the Veteran’s claimed disabilities were at least likely as not aggravated or caused by his now service-connected right knee, left elbow, and left foot disabilities. Furthermore, as noted above, treatment records since November 2015 have not been associated with the record. A remand is required to obtain these outstanding treatment records and to provide the Veteran a VA examination and medical opinion. 8. Entitlement to a TDIU due to service-connected disabilities is remanded. Finally, because a decision on the remanded issues could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claims is required. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records for the period from November 2015 to the present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected hypertension. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any right shoulder disability, left shoulder disability, right elbow disability, left knee disability, left hip disability, and arthritis of the fingers. The examiner must opine whether it is at least as likely as not that any right shoulder disability, left shoulder disability, right elbow disability, left knee disability, left hip disability, and arthritis of the fingers are related to an in-service injury, event, or disease, including the Veteran’s in-service fall and the physical toll of his training activities If the VA examiner diagnoses arthritis, he or she must opine whether it at least as likely as not that arthritis (1) began during active service, (2) manifested within one after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. The examiner must opine whether it is at least as likely as not that any current right shoulder disability, left shoulder disability, right elbow disability, left knee disability, left hip disability, and arthritis of the fingers are 1) proximately due to the service-connected right knee, left elbow, and left foot disabilities, or (2) aggravated by the service-connected right knee, left elbow, and left foot disabilities. The VA examiner must address the Veteran’s altered gait caused by the Veteran’s service-connected disabilities and Dr J.E.’s March 2019 opinion. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU. If the benefits sought are not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R.R. Watkins, 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.