Citation Nr: 21071526 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 18-52 260 DATE: November 30, 2021 ORDER Entitlement to a disability rating in excess of 30 percent for vertigo is denied. New and material evidence sufficient to reopen the claim for service connection for a lumbar spine disability has been received and to this extent only, the appeal is granted. Entitlement to service connection for persistent depression with anxiety is granted. REMANDED Entitlement to a disability rating in excess of 10 percent for degenerative changes in the left knee is remanded. Entitlement to a disability rating in excess of 10 percent for degenerative changes in the right knee is remanded. Entitlement to a compensable rating for migraine headaches is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for peripheral neuropathy of the right lower extremity is remanded. Entitlement to service connection for peripheral neuropathy of the left lower extremity is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for memory loss, to include due to medication used to treat service-connected hypertension, is remanded. FINDINGS OF FACT 1. Throughout the pendency of this claim, the Veteran's service-connected vertigo has been manifested by dizziness and occasional staggering. 2. The Veteran is in receipt of a 30 percent initial evaluation for vertigo, which is the maximum schedular rating for that disability. 3. An April 2002 rating decision denied service connection for low back pain; the Veteran did not timely perfect an appeal. 4. Since the April 2002 rating decision, additional evidence has been received that is new and which raises a reasonable possibility of substantiating the claim for service connection for a lumbar spine disability. 5. Resolving reasonable doubt in the Veteran's favor, his persistent depression with anxiety is at least as likely as not related to service. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 30 percent for vertigo are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.87, Diagnostic Codes 6299- 6204. 2. The April 2002 rating decision, in which the Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA) denied service connection for low back pain, is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 3. Evidence received since the April 2002 rating decision to reopen the claim of entitlement to service connection for a lumbar spine disability is new and material and the claim is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156 (a). 4. The criteria for service connection for persistent depression with anxiety are met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304(f). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from November 1978 to September 1986 and from September 1988 to November 1998. In June 2019, the Veteran opted into the Appeals Modernization Act (AMA) review system for the issues of entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU), and entitlement to a disability rating in excess of 10 percent for cervical spondylosis. An August 2019 Department of Veterans Affairs (VA) correspondence notified the Veteran that the Board would not be able to act on his appeal until a hearing was held. Board hearings were held on the issues addressed in this legacy decision, and on the two AMA issues referenced herein. As the Board is not permitted to merge the two appeals under the two different appeal review systems, the issues of entitlement to a TDIU and entitlement to a disability rating in excess of 10 percent for cervical spondylosis will be the subject of a separate Board decision. Also, in June 2020, the VA Regional Office granted entitlement to service connection for bilateral upper extremity radiculopathy, effective September 10, 2018, the date the Veteran was diagnosed with bilateral upper extremity cervical radiculopathy. This represents a full grant of the benefit sought on appeal, and as such, this issue is not before the Board. 1. Entitlement to an initial rating in excess of 30 percent for vertigo The Veteran, and his representative, seeks an initial rating in excess of 30 percent for his service-connected vertigo, which is currently rated under 38 C.F.R. § 4.87, Diagnostic Codes 6299-6204. The Veteran's disability is not specifically listed in the rating schedule; therefore, it is rated analogous to a disability in which not only the functions affected, but anatomical localization and symptoms, are closely related. In this case, peripheral vestibular disorders. Hyphenated codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Diagnostic Code 6204 provides a maximum 30 percent rating is warranted for peripheral vestibular disorders when such disorders manifest in dizziness and occasional staggering. This is the maximum schedular rating assignable for peripheral vestibular disorders. 38 C.F.R. § 4.87, Diagnostic Code 6204. Although the Veteran argues that he is entitled to an initial rating in excess of 30 percent for vertigo, Diagnostic Code 6204 precludes an evaluation in excess of a 30 percent schedular rating for vertigo. Additionally, the medical evidence does not indicate that a higher rating under an alternative Diagnostic Code is warranted. For instance, the medical evidence, which includes VA examinations in June 2012 and September 2018 does not show that there is Meniere's syndrome (Diagnostic Code 6205). The evidence does not reflect, and the Veteran does not contend that his vertigo results in an exceptional or unusual disability picture. His June 2012 VA examination noted periods of dizziness with stumbling and falling to the side. During his September 2018 VA examination, the Veteran stated that his vertigo was manifested by episodes of dizziness and a spinning sensation brought on by positional changes and staggering when walking. Upon examination, the Veteran's gait was normal. The examiner noted that staggering occurred more than once weekly with a duration less than one hour. During his December 2020 Board hearing, the Veteran testified that his vertigo was manifested by daily episodes of dizziness with a spinning/sea sickness sensation. During his episodes, the Veteran has difficulty walking. Accordingly, the Board finds that a rating in excess of 30 percent is not warranted for the Veteran's vertigo for the entire period on appeal. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As there is no legal basis upon which to award an evaluation in excess of 30 percent or separate schedular evaluations, the Veteran's appeal must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). New and Material Evidence Prior unappealed decisions are final. However, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). VA law requires that in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). Where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239-40 (1995). New evidence is that which was not previously submitted to agency decisionmakers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA's duty to provide a VA examination is triggered. There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening. Shade, 24 Vet. App. at 117-20. 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a lumbar spine disability The Veteran's claim for service connection for low back pain was denied by the AOJ in an April 2002 rating decision. The Veteran did not timely appeal the rating decision. Subsequently, in September 2012, the Veteran again claimed that his back pain was related to his active service and in a July 2013 rating decision, the AOJ once again denied service connection for a lumbar disability. The Veteran timely appealed the rating decision in March 2014. The April 2002 rating decision, in which the AOJ denied service connection for low back pain is final. 38 U.S.C. § 7105. The basis for the denial was that there was no evidence that the Veteran's low back pain was related to his service-connected cervical spine disability, nor was there evidence of this disability during military service. Since the last prior final decision, lay evidence and medical evidence have been added to the record. In January 2021, a private physician opined that the Veteran's lumbosacral degenerative disc disease (DDD) was causally related to his military service. During his December 2020 Board hearing, the Veteran stated that his low back pain began during active service and had continued since. He noted that his lower back pain limited his movement and on occasion caused him to be bedridden. The reason for the prior final denial was that there was no evidence establishing a nexus between an in-service injury and current disability, or evidence of an in-service injury. This recent evidence indicates that the Veteran has had lower back pain since active service which interfered with his ability to work. Also, his lumbar spine DDD has been associated with his active service by a physician. The evidence raises a reasonable possibility of substantiating the claim. The Board finds that new and material evidence has been received since the April 2002 rating decision. Therefore, the claim of entitlement to service connection for a lumbar spine disability is reopened. 3. Service connection for an acquired psychiatric disorder The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder, to include depression and anxiety, due to his active military service. At the outset, the Board notes that the Veteran has been diagnosed with several psychiatric disorders. Although the Veteran sought a claim for service connection for a personality disorder, the medical records do not show that he had been diagnosed with personality disorder. Furthermore, personality disorders are not diseases or injuries for VA compensation purposes - i.e., they are not a condition that may be service connected. 38 C.F.R. §§ 3.303 (c), 4.9, 4.127. The service treatment records (STRs) show that the Veteran was treated for depression with suicidal and homicidal thoughts in August 1980. In August 1989, the Veteran was diagnosed with depressive reaction. The Board concludes that there is sufficient evidence to relate this current diagnosis of depression to active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). During his December 2020 Board hearing, the Veteran testified that his depression began during active service. He reported being hospitalized twice during service to treat his psychiatric symptoms of uncontrolled crying and general depression. In January 2021, the Veteran underwent a private psychological evaluation. His claims file was reviewed. The Veteran was diagnosed with persistent depressive disorder, generalized anxiety disorder, and panic disorder. During the interview, the Veteran described the onset of psychiatric symptomatology in service as first being depression and then thoughts of guilt and death. The physician opined that the Veteran's persistent depressive disorder, generalized anxiety disorder, and panic disorder were as likely as not to have originated during military service. The physician explained that the Veteran's lengthy history of depression symptoms began during active service, as noted in his military treatment records, and have continued since. Notably, since active service the Veteran had exhibited low energy, tearfulness, pessimism, and difficulties with eating and sleeping. The Board finds that the Veteran's report of symptoms of depression since active duty service to be competent and probative as it is supported by the evidence of record. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). As detailed by the January 2021 physician, the Veteran has maintained the assertion that he first experienced psychiatric symptoms during service and lay and medical evidence supports this. Lastly, the Board finds the January 2021 physician's finding that the Veteran's depression clearly began during service and has progressed since is supported by the Veteran's STRs, lay evidence, and medical evidence. In reviewing the medical evidence of record, reasonable doubt is resolved in the Veteran's favor to find that the Veteran's depression with anxiety clearly began during his active service and that a nexus exists between the Veteran's acquired psychiatric disorder and his military service. REASONS FOR REMAND 4. Entitlement to a disability rating in excess of 10 percent for degenerative changes in the left knee is remanded. 5. Entitlement to a disability rating in excess of 10 percent for degenerative changes in the right knee is remanded. 6. Entitlement to a compensable rating for migraine headaches is remanded. During his December 2020 Board hearing, the Veteran asserted that his bilateral knee disabilities and migraines increased in severity since the Veteran was last examined by VA in June 2012. He specifically asserted that his bilateral knees are more painful which causes limited range of motion. Also, his knees have been buckling. The Veteran's headaches have increased in severity as he has become more sensitive to lights and has neck stiffness. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his knee and migraine disabilities. 7. Entitlement to service connection for a lumbar spine disability is remanded. The Veteran contends that low back pain began during active service and has continued since. Alternatively, the Veteran asserts that his low back disability is secondary to his service-connected cervical spondylosis. STRs note multiple complaints of low back pain, low back muscle strains, and scoliosis. In September 2018, the Veteran underwent a VA examination for back conditions. He was diagnosed with degenerative arthritis of the spine and lumbar spondylosis. The Veteran reported lower back pain during active service that gradually worsened since. The VA examiner opined that the Veteran's service-connected cervical spine disability did not proximately cause, or aggravate, his lumbar spine disability as medical literature does not support a medical relationship. Arthritis in one area of the spine does not cause arthritis in another area of the spine. The Board notes that lay testimony is competent as to matters capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Board also notes pain that results in functional impairment may be considered a disability for VA purposes. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). As noted above, in January 2021, a private physician found that the was medical evidence that supported a causal nexus between military service, a cervical spine condition, and lumbosacral DDD. This opinion does not rise to the level of saying that a link is at least as likely as not, which is the necessary standard. In addition, the January 2021 opinion did not provide a rationale for its conclusion. The physician noted that military service, a cervical spine condition, and lumbosacral DDD were associated but did not explain how; instead, the physician included a recitation of previous medical documents but did not explain how the conditions are intertwined. Therefore, the opinion is of limited probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("[M]ost of the probative value of a medical opinion comes from its reasoning."). Therefore, in light of the foregoing, the Board finds that the Veteran should be afforded another VA examination. 8. Entitlement to service connection for peripheral neuropathy of the right lower extremity is remanded. 9. Entitlement to service connection for peripheral neuropathy of the left lower extremity is remanded. The Veteran contends that his bilateral lower extremity peripheral neuropathy is proximately due to, or aggravated beyond the natural progression, by his lower back disability. During his December 2020 Board hearing, the Veteran stated that both of his legs felt swollen and were unable to bend although they were not actually swollen. He believes his bilateral lower extremity abnormalities are secondary to his lower back condition. During a May 2013 VA back conditions examination, the Veteran stated that he had lower back pain that radiated into the buttocks. The Veteran was diagnosed with mild bilateral lower extremity radiculopathy manifested by moderate intermittent pain. In January 2021, a private physician found that the was medical evidence that supported a causal nexus between military service, a cervical spine condition, and lumbosacral DDD with radiculopathy. No adequate rationale was provided. The Board cannot make a fully-informed decision on the issue of bilateral lower extremity peripheral neuropathy because no VA examiner has opined whether it is secondary to, or aggravated by his lower back disability. 10. Entitlement to service connection for a left shoulder disability is remanded. The Veteran contends that left shoulder pain began during active service and has continued since. Alternatively, the Veteran asserts that his left shoulder pain is secondary to medications taken for his service-connected conditions. See September 2012 statement. STRs noted multiple complaints of left shoulder pain from 1989 to 1992. In May 2013, the Veteran underwent a VA examination for shoulder conditions. He was diagnosed with osteoarthritis of the left shoulder. The Veteran denied daily left shoulder pain, but noted that movement over his head caused sharp left shoulder pain. Left shoulder pain began during active service and had continued since. The VA examiner opined that the Veteran's left shoulder condition was less likely than not incurred in or caused by the claimed in-service event, injury, or illness. The examiner explained that the Veteran was treated for myofascial pain and a left shoulder strain during active service in conjunction with neck pain. The Veteran's diagnosis of osteoarthritis is a new and separate condition. During his December 2020 Board hearing, the Veteran stated that his left shoulder pain began during active service and has worsened since. He noted that his left shoulder pain was separate from his service-connected left upper extremity radiculopathy. The Board notes that lay testimony is competent as to matters capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Board also notes pain that results in functional impairment may be considered a disability for VA purposes. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In January 2021, a private physician noted the Veteran's history of left shoulder pain and opined that the Veteran's left shoulder degenerative changes have a causal nexus to military service. No rationale was provided. Therefore, in light of the foregoing, the Board finds that the Veteran should be afforded another VA examination. 11. Entitlement to service connection for memory loss is remanded. The Veteran contends that his memory loss is secondary to the medication used to treat his service-connected hypertension. During his December 2020 Board hearing, the Veteran testified that he believed that his memory loss was secondary to a medication (Zocor) used to treat his hypertension as he noticed memory function decrease since he used Zocor. The Veteran stated that he continued to have memory loss since he stopped taking Zocor. In January 2021, a private physician opined that the Veteran's memory loss has a causal nexus to toxicant exposure during active service; however, a rationale was not provided. Therefore, in light of the foregoing, the Board finds that the Veteran should be afforded a VA examination. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the current severity of his service-connected left knee disability, right knee disability, and migraines. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. If it is not possible to provide a specific measurement, or an opinion regarding symptoms or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of the Veteran's lumbar spine disability. The examiner must: (a.) Identify all current diagnosed lumbar spine disabilities. (b.) Is it at least as likely as not that such disability had its onset in service, arthritis was manifest within one year of service, or was noted in service with continuous lumbar spine symptoms since then and through present. (c.) Is such disability at least as likely as not proximately due to the Veteran's service-connected cervical spondylosis, or (3) aggravated by his service-connected cervical spondylosis. Please address the January 2021 nexus opinion. The examiner should note that an in-service diagnosis is not required. The examiner should consider any lay evidence of reports of a lumbar spine pain since service, including numerous lay statements. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. If it is not possible to provide an opinion regarding symptoms without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. If the Veteran's lumbar spine disability is determined to be service-related or associated with a service-connected disability, then schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to ascertain the nature and etiology of the Veteran's bilateral lower extremity radiculopathy. All necessary tests should be conducted. The AOJ should ensure that the examiner has access to the Veteran's claims file, including a copy of this remand. Following a review of the Veteran's record, the examiner should address the following: (a.) The examination report should clarify whether the Veteran has bilateral lower extremity radiculopathy associated with his lumbar spine disability. (b.) The examiner must address the Veteran's contentions of a swelling sensation and intermittent pain that radiates down his bilateral legs. The examiner should provide a detailed rationale for all opinions expressed and conclusions reached. If it is not possible to provide an opinion without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of the Veteran's left shoulder disability. The examiner must: (a.) Identify all current diagnosed left shoulder disabilities. (b.) Is it at least as likely as not that such disability had its onset in service, arthritis was manifest within one year of service, or was noted in service with continuous left shoulder symptoms since then and through present. Please address the January 2021 nexus opinion. (c.) Is it at least as likely as not that the Veteran's left shoulder was aggravated by the medication taken for the Veteran's service-connected conditions? (d.) Is it at least as likely as not that the Veteran's left shoulder is proximately due to or the result of the use of medication to treat the Veteran's service-connected conditions. The examiner should note that an in-service diagnosis is not required. The examiner should consider any lay evidence of reports of a left shoulder pain since service, including numerous lay statements. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. If it is not possible to provide an opinion regarding symptoms without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 5. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of the Veteran's memory loss. The examiner must: (a.) Identify all current disabilities related to the Veteran's memory loss. (b.) Is it at least as likely as not that such disability had its onset in service, including being related to any toxicant exposure? Please address the January 2021 nexus opinion. (c.) Is it at least as likely as not that the Veteran's memory loss was aggravated by the medication taken for the Veteran's service-connected hypertension? (d.) Is it at least as likely as not that the Veteran's memory loss is proximately due to or the result of the use of medication to treat the Veteran's service-connected hypertension. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. If it is not possible to provide an opinion without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Costello, 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.