Citation Nr: 21000079 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 13-30 785 DATE: January 4, 2021 ORDER The request to reopen a claim for service connection for a head injury characterized as brain contusion and/or traumatic brain injury (TBI) is granted. Entitlement to a compensable rating for deviated septum prior to March 20, 2017 is denied. Entitlement to a rating in excess of 20 percent for residuals status post fracture right distal clavicle, degenerative joint disease of the right shoulder (right shoulder disability) is denied. REMANDED Entitlement to a rating in excess of 10 percent for residuals of a right pelvis injury with disalignment symphysis pubis (right hip). Entitlement to a rating in excess of 10 percent for residuals of a fracture of the left acetabulum and symphysis pubis (left hip). Entitlement to service connection for a head injury characterized as brain contusion and/or traumatic brain injury (TBI). Entitlement to a total disability rating based on individual unemployability (TDIU). FINDINGS OF FACT 1. An October 1981 rating decision denied service connection for a head injury characterized as brain contusion and/or traumatic brain injury (head injury); no appeal of this decision was initiated. 2. Additional evidence received since the October 1981 rating decision denying service connection for a head injury characterized as brain contusion and/or traumatic brain injury (TBI) is new, relates to unestablished facts necessary to support the claim, and raises a reasonable possibility of substantiating the claim. 3. The weight of the evidence is against a finding that the Veteran’s deviated septum manifested as 50 percent obstruction of the nasal passages on both sides or complete obstruction on one side at any point during the period on appeal. 4. The weight of the evidence is against a finding that the Veteran’s residuals status post fracture right distal clavicle, degenerative joint disease of the right shoulder (right shoulder disability) manifested as limitation of motion of the arm to 25 degrees from the side at any point during the period on appeal. CONCLUSIONS OF LAW 1. The October 1981 rating decision that denied a claim for service connection for a head injury characterized as brain contusion and/or traumatic brain injury (head injury) became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received to reopen the claim of service connection for a head injury characterized as brain contusion and/or traumatic brain injury (head injury). 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. 3. The criteria for entitlement to a compensable rating prior to March 20, 2017 for a deviated septum have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.7, 4.97. 4. The criteria for entitlement to a rating in excess of 20 percent for residuals status post fracture right distal clavicle, degenerative joint disease of the right shoulder (right shoulder disability) have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.7, 4.71a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A Certification of Military Service from the National personnel Records Center reflects that the Veteran had active service from February 1974 to December 1980. These matters were previously before the Board of Veterans’ Appeals (Board) in February 2019, at which time they were remanded for readjudication in light of newly received Department of Veterans Affairs (VA) medical treatment records. A remand by the Board confers on the Veteran, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). A July 2020 Supplemental Statement of the Case (SSOC) reflects readjudication of the Veteran’s claims in substantial compliance with the Board’s February 2019 remand directives. However, since the July 2020 SSOC, the following items have been associated with the claims file: an October 2020 VA examination pertinent to the Veteran’s right and left hip claims, and VA treatment records pertinent to the Veteran’s head injury claim. Where newly received evidence is pertinent to a claim on appeal, it must be considered in the first instance by the Agency of Original Jurisdiction (AOJ) unless the Veteran either waives this procedural right, or if the Board determines that the benefit or benefits to which the evidence relates may be fully allowed on appeal without such referral. 38 U.S.C. § 7104; 38 C.F.R. §§ 19.37 (b), 20.1304 (c) (2018). Evidence is not pertinent if it does not relate to or have a bearing on the appellate issue or issues. 38 C.F.R. § 20.1304 (c). The Board finds that the October 2020 VA examination and post-July 2020 VA treatment records have no bearing on the Veteran’s deviated septum and right shoulder disability claims. Further, with respect to the Veteran’s petition to reopen his previously denied TBI claim, the Board is obligated to determine de novo whether new and material evidence has been received with respect to a petition to reopen a previously denied claim. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Therefore, the Board will proceed to adjudicate the Veteran’s petition to reopen his previously denied head injury claim; and his deviated septum and right shoulder disability claims on the merits. However, the Veteran’s claim of service connection for TBI and his right and left hip increased rating claims must be remanded for consideration of newly received evidence in the first instance by the AOJ. The Veteran has not responded to October 2020 correspondence from the Board offering him the opportunity to waive AOJ consideration of the newly received evidence. Additionally, because evidence developed in the course of adjudicating the Veteran’s claim to service connection for a head injury and/or increased ratings for his right and left hip disabilities could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined and a remand is required. New & Material Evidence 1. New and material evidence has been received to reopen a claim for service connection for a head injury characterized as brain contusion and/or traumatic brain injury (head injury). In October 1981 VA denied the Veteran’s claim of service connection for a head injury, then characterized as a brain contusion, and later characterized as a TBI. No appeal of this decision was initiated, and it thus became final. 38 U.S.C. § 7105, 38 C.F.R. § 20.1103. In a May 2013 rating decision, a VA Regional Office (RO) denied a request to reopen this claim. The May 2013 rating decision and January 2012 correspondence from VA to the Veteran reflect that VA considers the Veteran’s request to reopen his head injury claim to have been filed as an October 2011 amendment to a May 2011 claim. Generally, when a claim is disallowed, it may not be reopened and allowed unless new and material evidence is submitted. 38 U.S.C. § 5108 (2011). The Board must determine de novo whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Board must preliminarily decide whether new and material evidence has been presented in a case, before addressing the merits of the claim. Butler v. Brown, 9 Vet. App. 167, 171 (1996). “New” evidence means existing evidence not previously submitted to agency decision-makers. “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 requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold, to be viewed as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). In adjudicating a claim for benefits, VA must consider all pertinent lay and medical evidence of record. 38 U.S.C. §§ 1154(a), § 5107; 38 C.F.R. § 3.303. The Veteran seeks service connection for a head injury, to include TBI. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Evidence received since the October 1981 rating decision includes VA treatment records and VA examinations reflecting complaints of, and/or treatment for, head pain dated June 1990, July 1990, December 1995, May 2013, June 2016, April 2017, August 2020, and September 2020. The Board finds that new and material evidence has been received since the October 1981 rating decision. This non-duplicative evidence speaks to the existence of a present disability and potentially serves to help establish continuity of symptomatology. Consequently, the Board finds new and material evidence has been received and that the claim for service connection for a head injury, to include TBI, must be reopened. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.10; see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 2. Entitlement to a compensable rating for deviated septum for the period from prior to March 20, 2017 is denied. A May 2013 VA rating decision reflects a denial of entitlement to a compensable rating for a deviated septum. The May 2013 rating decision and December 2011 correspondence from VA to the Veteran reflect that VA considers the Veteran’s request to reopen his head injury claim to have been filed as an October 2011 amendment to a May 9, 2011 claim. A July 2020 rating decision granted the Veteran a disability rating of 10 percent for his deviated septum, effective March 20, 2017. 10 percent is the highest rating available for a deviated septum. 38 C.F.R. § 4.97, Diagnostic Code 6502. Thus, from that date forward the appeal has been fully resolved. The question of entitlement to a compensable rating prior to March 20, 2017, remains for consideration and is the subject of this decision. A 10 percent rating, the only, and therefore highest, rating available for a deviated septum requires a showing of 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. 38 C.F.R. § 4.97, Diagnostic Code 6502. A February 2012 VA examination reflects no bilateral nasal obstruction of greater than 50 percent, or complete unilateral nasal obstruction due to traumatic septal deviation. The Veteran’s VA treatment records from May 9, 2010 to March 19, 2017 do not reflect any clinical documentation of bilateral nasal obstruction of greater than 50 percent, or complete unilateral nasal obstruction due to traumatic septal deviation or complaints by the Veteran concerning nasal obstruction or deviated septum. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Here, the Board finds that the weight of the evidence is against the application compensable rating for the Veteran’s deviated septum for the period prior to March 20, 2017; thus, there is no question to resolve and the lower rating is appropriate. Id. In light of the foregoing, a grant of a compensable rating for the Veteran’s deviated septum for the period from May 9, 2010 to March 19, 2017 is not warranted. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.7, 4.97. 3. Entitlement to a rating in excess of 20 percent for residuals status post fracture right distal clavicle, degenerative joint disease of the right shoulder is denied. An August 2010 rating decision denied the Veteran’s May 2010 claim for a rating in excess of 20 percent for residuals status post fracture right distal clavicle, degenerative joint disease of the right shoulder (right shoulder disability). The Veteran’s right shoulder disability is rated under Diagnostic Code 5201. Diagnostic Code 5201 provides for a 20 percent rating where the evidence reflects limitation of the motion (flexion or abduction) of the arm to shoulder level (90 degrees), with progressively higher ratings warranted where the evidence reflects limitation of motion of the arm to midway between the side and shoulder level (45 degrees); or to 25 degrees from the side. 38 C.F.R. § 4.71a, Plate I, Diagnostic Code 5201. The Veteran was afforded VA examinations in relation to his right shoulder disability in February 2012, August 2015, and March 2020. The February 2012 VA examiner documented right shoulder flexion ending at 110 degrees and abduction at 100 degrees. The August 2015 examiner documented flexion ending at 120 degrees and abduction at 100 degrees. The March 2020 examiner documented flexion ending at 160 degrees and abduction at 120 degrees, with no additional loss after 3 repetitions, no additional limitations of functional ability with repeated use over time, and no flare ups reported by the Veteran. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Here, the Board finds that the weight of the evidence is against the application of an evaluation in excess of 20 percent for the Veteran’s right shoulder disability; thus, there is no question to resolve and the lower rating is appropriate. Id. In light of the foregoing, a grant of a disability rating in in excess of 20 percent for residuals status post fracture right distal clavicle, degenerative joint disease of the right shoulder is not warranted. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.7, 4.71a. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for residuals of a right pelvis injury with disalignment symphysis pubis (right hip) and/or to a rating in excess of 10 percent for residuals of a fracture of the left acetabulum and symphysis pubis (left hip); entitlement to service connection for a head injury characterized as brain contusion and/or traumatic brain injury (head injury); and entitlement to TDIU are remanded. As discussed above, new evidence was received in October 2020 related to the Veteran’s right and left hip claims, and his head injury claim. An October 2020 VA examination of the Veteran’s right and left hips has not been considered by the AOJ in the first instance. Similarly, VA treatment records post-dating the most recent July 2020 SSOC, including a September 2020 VA treatment note reflecting the prescription of medication to treat headaches characterized as migraines, has also not been considered by the AOJ in the first instance. Because evidence developed in the course of adjudicating the Veteran’s claim to service connection for TBI and/or increased ratings for his right and left hip disabilities could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined and a remand of the Veteran’s TDIU claim is required. The matters are REMANDED for the following action: 1. Ensure most recent VA treatment records have been obtained and associated with the claims file. 2. Readjudicate the Veteran’s appeals. All evidence should be considered, to include all VA examinations and VA treatment records received since the July 2020 Supplemental Statement of the Case. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. C. Sametshaw 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.