Citation Nr: 21063603 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 17-65 891 DATE: October 14, 2021 ORDER Entitlement to an effective date earlier than December 22, 2003, for the grant of service connection for coronary artery disease (CAD) is denied. Entitlement to an effective date earlier than December 26, 2003, for the grant of service connection for residual coronary artery bypass grafting (CABG) scar is denied. New and material evidence having been received; the claim of entitlement to service connection for bilateral shoulder disability is reopened. New and material evidence having been received; the claim of entitlement to service connection for bilateral hip disability is reopened. REMANDED Entitlement to service connection, to include on a secondary basis, for bilateral shoulder disability is remanded. Entitlement to service connection, to include on a secondary basis, for bilateral hip disability is remanded. Entitlement to service connection, to include on a secondary basis, for lumbar spine disability is remanded. Entitlement to service connection, to include on a secondary basis, for left lower extremity (LLE) radiculopathy is remanded. Entitlement to a rating in excess of 60 percent disabling for CAD is remanded. Entitlement to a compensable rating for residual CABG scar is remanded. Entitlement to a rating in excess of 10 percent disabling for cervical spine disability is remanded. Entitlement to a rating in excess of 10 percent disabling for left knee disability is remanded. Entitlement to a rating in excess of 10 percent disabling for right ankle disability is remanded. Entitlement to a rating in excess of 10 percent disabling for left ankle disability is remanded. Entitlement to a rating in excess of 10 percent disabling for osteoarthritis of both hands is remanded. FINDINGS OF FACT 1. The Veteran filed an original claim for entitlement to service connection for CAD in February 2004. He was admitted to a hospital for CAD on December 22, 2003, and underwent triple bypass coronary artery bypass grafting on December 26, 2003. 2. The claims for service connection for bilateral shoulder and bilateral hip disability were denied in an unappealed August 2015 rating decision. 3. Evidence submitted since the August 2015 rating decision includes information that was not previously considered by VA and that establishes a fact necessary to substantiate the claims for service connection for bilateral shoulder and bilateral hip disabilities, and therefore creates a reasonable possibility of substantiating those claims. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than December 22, 2003, for the award of service connection for CAD have not been met. 38 U.S.C. §§ 5101(a), 5107, 5110; 38 C.F.R. §§ 3.1(p), 3.104, 3.151, 3.156, 3.160, 3.400. 2. The criteria for an effective date earlier than December 26, 2003, for the award of service connection for residual CABG scar have not been met. 38 U.S.C. §§ 5101(a), 5107, 5110; 38 C.F.R. §§ 3.1(p), 3.104, 3.151, 3.156, 3.160, 3.400. 3. The August 2015 rating decision that denied entitlement to service connection for bilateral shoulder and bilateral hip is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302(a), 20.1103. 4. New and material evidence has been received since the August 2015 rating decision and the requirements to reopen the claims of entitlement to service connection for bilateral shoulder and bilateral hip disabilities have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1968 to September 1969. The Board recognizes that the Veteran is the recipient of the Purple Heart. This matter is before the Board of Veterans' Appeals (Board) on appeal from September 2011 (earlier effective date/increased rating CAD and scar), June 2015 (increased rating cervical spine, left knee, bilateral ankle), and July 2016 (service connection bilateral shoulder, bilateral hip; increased rating bilateral hand) rating decisions by a Department of Veterans Affairs Regional Office (RO). In May 2021, the Veteran testified at a Board hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. During the pendency of the appeal, a November 2017 rating decision granted an increased rating for left knee of 10 percent, effective May 1, 2014. As this rating is not the maximum allowable, that issue remains on appeal. The Board notes that a March 2018 rating decision denied service connection for lumbar spine disability and LLE sciatica. The Veteran filed a timely notice of disagreement (NOD) in April 2018. Following issuance of a February 2020 statement of the case (SOC), the Veteran perfected his appeal to the Board in a March 2020 VA Form 9, Substantive Appeal. At present, these issues have not been certified to the Board for appellate disposition. Earlier Effective Date 1.-2. CAD and Residual CABG Scar If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400(b)(2). Otherwise, the effective date of an award based on an original claim or a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400; Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). The evidence of record reflects that in February 2004, the Veteran filed a service connection claim for a cardiovascular condition. Included in that filing were private treatment records showing that he was admitted on December 22, 2003 for CAD and myocardial infraction, and that he underwent triple coronary artery bypass grafting on December 26, 2003. Importantly, during his May 2021 Board hearing, the Veteran testified that he initially filed a claim for coronary artery bypass in 2004, and he specifically denied ever having filed any claim prior to that time. As noted above, the effective date cannot precede the date the Veteran filed his service connection claim. He filed his service connection claim in February 2004, the effective date set is December 22, 2003, the day he was admitted for CAD. The effective date for the scar is December 26, 2003, the date he had his subsequent triple CABG surgery. Accordingly, as the effective dates set are prior to the date he filed the claims, there is no legal basis for an earlier effective date for either the service-connected CAD or the residual CABG scar. In reaching this decision the Board has considered the doctrine of reasonable doubt. However, the preponderance of the evidence is against the Veteran's claims and they are denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). New and Material 3.-4. Bilateral Shoulder and Bilateral Hip Disability The Veteran's claim for service connection for bilateral shoulder and bilateral hip were originally denied in an August 2015 rating decision. The Veteran was notified of the decision. However, as he did not file a notice of disagreement with the decision and new and material evidence was not received within one year of notice of that decision, the decision is final. The Veteran had sought service connection for his bilateral shoulder and hip on the basis that the conditions were secondary to his service-connected Reiter's syndrome. The Agency of Original Jurisdiction (AOJ) denied the claim on the basis that the evidence did not show that the conditions were associated with that condition. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of an appellant. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence is evidence not previously submitted to agency decision makers. Material evidence is 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 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 threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). Evidence added to the claims file since the August 2015 rating decision includes a February 2018 letter from Dr. Goldstein who noted he had treated the Veteran for reactive arthritis (Reiter's syndrome). Dr. Goldstein noted that the condition had led to chronic arthritis affecting the shoulders and hips. The Board finds this evidence raises a reasonable possibility of substantiating the claims of entitlement to service connection for bilateral shoulder and bilateral hip. Accordingly, the petition to reopen those claims is granted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see Shade, 24 Vet. App. 110. REASONS FOR REMAND 5.-6. Service Connection - Bilateral Shoulder and Bilateral Hip Disability The Veteran seeks entitlement to service connection for bilateral shoulder and bilateral hip conditions. Specifically, the Veteran asserts that the conditions are secondary to his service-connected Reiter's syndrome. See May 2014 Claim. With regard to both claims, VA examinations were obtained in March 2015. The examiner provided a positive nexus opinion concerning the bilateral hip, and a negative nexus opinion concerning the bilateral shoulder; however, no rationale was provided other than a statement that reiterated the nexus opinion. An addendum VA examination report was obtained in July 2015. The same examiner noted that the joint pains were "at least as likely as not (50% or greater probability)" caused by the service-connected Reiter's Syndrome. However, the examiner also stated that osteoarthritis also affected the joints and caused degeneration. With regard to the bilateral shoulder, the examiner stated that there were arthritic changes noted in the AC joints and that his symptoms were mostly due to osteoarthritis. As such, the examiner found it "less likely as not that the over-riding symptoms were due ... to Reiter's." With regard to the bilateral hips, the examiner stated that there were arthritic changes and again found that the symptoms were mostly due to osteoarthritis and not Reiter's. In a separate July 2015 VA addendum, a different examiner opined that the joint conditions, including the shoulder and hip conditions, were "at least as likely as not" due to the service-connected Reiter's Syndrome. In support of this opinion, the examiner noted that although the onset of the associated symptoms did not correlate well with classical Reiter's syndrome, which would typically start a few days to weeks after the causative factor, with a diagnosis of reactive arthritis, chronic pain could develop secondary to inflammation. Finally, the examiner who conducted the March 2015 VA examinations provided another addendum in August 2015. With regard to the bilateral shoulder and hip conditions, the examiner again opined that it was less likely than not that the conditions were secondary to Reiter's syndrome. With regard to the bilateral shoulder, the examiner merely noted that the rationale had previously been provided. With regard to the bilateral hip, the examiner again noted that the overriding symptoms were most likely related to osteoarthritis and not Reiter's syndrome. She further noted that delineating any symptoms related to Reiter's syndrome would require speculation, but did not state why that was so. The evidence of record also includes a February 2018 letter from the Veteran's treating physician, Dr. Goldstein, who treated him for reactive arthritis (Reiter's syndrome). The physician stated that his Reiter's syndrome had led to chronic arthritis affecting the cervical spine, TMJ, shoulders, hips and hands. As such, the evidence of record contains conflicting medical opinions. The Board additionally finds the medical opinions of record inadequate. In this regard, they either do not include any rationale, are speculative in nature, or are insufficient inasmuch as they do not address whether the service-connected Reiter's syndrome aggravates his diagnosed bilateral shoulder and hip conditions. Accordingly, a Remand is necessary to obtain VA examinations that adequately address the inquiries on appeal. The Board additionally notes that although Dr. Goldstein stated he had been treating the Veteran for his Reiter's syndrome, the claims file does not include any such treatment records. Accordingly, efforts should be made to obtain those treatment records. 7.-8. Service Connection - Lumbar Spine Disability and LLE Radiculopathy The Veteran seeks entitlement to service connection for lumbar spine and LLE radiculopathy conditions. He asserts that the conditions are secondary to his service-connected Reiter's syndrome. See January 2018 Claim. In support of his claim, he submitted a letter from Dr. Banas noting he had been under his care for lumbar spine disability "which is related to his Reiter's syndrome." See February 2018 Letter. The Veteran underwent VA lumbar spine and peripheral nerve examination in March 2018. The examiner noted diagnoses for degenerative arthritis of the spine with LLE sciatica. The examiner opined that the low back and sciatica conditions were "less likely than not (less than 50% probability) proximately due to or the result of" his service-connected Reiter's syndrome. In support of this opinion, the examiner noted no evidence of sacro-ileitis, erosive arthritis or spondylitis. As such, the examiner found that pain associated with those conditions were "most likely (much greater than 50% probability)" due to his lumbar osteoarthritis and DDD which was consistent with his age. The Board finds both the February 2018 letter from Dr. Banas and the March 2018 VA examination reports inadequate. The February 2018 letter merely provides a statement with no rationale. Additionally, the VA examination did not provide any opinion as to whether the service-connected Reiter's syndrome aggravated the lumbar spine and/or sciatica conditions. Accordingly, a Remand is necessary to obtain adequate VA examinations. Additionally, although Dr. Banas noted he had been treating the Veteran for his lumbar spine disability, treatment records from this provider have not been associated with the claims file. Accordingly, efforts should be made to obtain any outstanding private treatment records. 9. Increased Rating - CAD The Board notes that during the period on appeal, the only record providing any diagnostic testing results sufficient for rating purposes is a February 2010 VA examination report. In this regard, while a disability benefits questionnaire (DBQ) was submitted in June 2011, no symptoms or diagnostic testing results were included. As such, it has been over 10 years since his last VA examination. At that time, occasional chest pain was reported approximately every 2 weeks. The Veteran reported dyspnea on exertion and being chronically fatigued. He denied any dizziness or syncope. Evidence added to the record since that VA examination includes a February 2018 letter from his treating physician, Dr. Lafferty, noting that over the past several years, his symptoms included marked fatigue, shortness of breath and chest pain. Additionally, an August 2018 VA medical record shows the Veteran reported that he recently experienced dizziness. See VA Medical Records Received February 2020. Evidence of a change in the condition or allegation of worsening of the condition renders an examination inadequate for rating purposes. Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007); see also Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Therefore, a remand is warranted for a new VA examination. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board additionally notes that Dr. Lafferty noted that the Veteran had been a patient of his for many years. However, a review of the claims file shows that medical records from this provider have not been associated with the claims file. Accordingly, efforts should be made to obtain any outstanding private medical records. 10. Increased Rating - Residual CABG Scar The Board notes that the Veteran has not been provided with a VA examination to ascertain the nature and severity of his service-connected residual CABG scar. Moreover, while VA medical records note a well healed CABC scar, and while the Veteran has provided testimony with regard to his symptoms, there are no records noting the length, width or other characteristics of the scar. Accordingly, a Remand is necessary to obtain a VA examination. 11.-15. Increased Rating - Cervical Spine, Left Knee, Left Ankle, Right Ankle, Bilateral Hand During the May 2021 Board hearing, the Veteran testified that his service-connected musculoskeletal conditions had worsened since his last VA examinations and that he was slowly deteriorating. As noted above, evidence of a change in the condition or allegation of worsening of the condition renders an examination inadequate for rating purposes. Given the Veteran's assertion that his musculoskeletal conditions have worsened since he was last examined, a remand is warranted for new VA examinations. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The matters are REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran's VA treatment facilities, and all private treatment records from the Veteran not already associated with the file, including records from Dr. Lafferty, Dr. Goldstein and Dr. Banas. 2. After completion of step 1 above, schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of any diagnosed bilateral shoulder, bilateral hip, lumbar spine disability or LLE radiculopathy (or telehealth interview, review of the record, etc., if an in-person examination is not feasible). The examiner should provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran has a diagnosed bilateral shoulder, bilateral hip, lumbar spine disability or LLE radiculopathy that is etiologically related to his period of service? (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran has a diagnosed bilateral shoulder, bilateral hip, lumbar spine disability or LLE radiculopathy that was caused by his service-connected Reiter's syndrome? Please explain why or why not. (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran has a diagnosed bilateral shoulder, bilateral hip, lumbar spine disability or LLE radiculopathy that was aggravated by his service-connected Reiter's syndrome? Please explain why or why not. The examiner is asked to consider the February 2018 letter from Dr. Goldstein noting the Veteran's Reiter's syndrome had led to chronic arthritis affecting his shoulders and hips, as well as VA examination reports of record dated March 2015, July 2015 and August 2015 providing conflicting medical opinions. The examiner should review pertinent documents in the Veteran's claims file in connection with the examination. All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 3. After the development is completed in #1, schedule the Veteran for an examination by an appropriate examiner to determine the current nature and severity of his service-connected coronary artery disease (or telehealth interview, review of the record, etc., if an in-person examination is not feasible). 4. After the development is completed in #1, schedule the Veteran for an examination by an appropriate examiner to determine the current nature and severity of his service-connected residual CABG scar (or telehealth interview, review of the record, etc., if an in-person examination is not feasible). 5. After the development is completed in #1, schedule the Veteran for an examination by an appropriate examiner to determine the current nature and severity of his service-connected cervical spine, left knee, bilateral ankle and bilateral hand disabilities (or telehealth interview, review of the record, etc., if an in-person examination is not feasible). (Continued on the next page) 6. Thereafter, the RO should readjudicate the claims on appeal. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lamb, 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.