Citation Nr: 21076255 Decision Date: 12/23/21 Archive Date: 12/22/21 DOCKET NO. 17-51 213 DATE: December 23, 2021 ORDER As new and material evidence has been received to reopen the claim of entitlement to service connection for hypertension, the appeal to this extent is allowed. As new and material evidence has been received to reopen the claim of entitlement to service connection for a cardiovascular disability, the appeal to this extent is allowed. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a cardiovascular disability is remanded. Entitlement to an increased rating higher than 20 percent for lumbosacral strain with degenerative disc changes L4-5 (hereinafter low back disability) is remanded. Entitlement to a rating higher than 10 percent from June 26, 2017 to July 30, 2018 and higher than 20 percent from July 31, 2018 for radiculopathy of the right lower extremity sciatic nerve (previously rated as sensory deficit, right tibial nerve) is remanded. Entitlement to a compensable rating for radiculopathy of the right lower extremity obturator nerve is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In the May 1993 rating decision the Regional Office (RO) denied service connection for hypertension (high blood pressure). 2. Evidence received since the May 1993 rating decision is new and material because the evidence had not previously been submitted, is not cumulative or redundant of the evidence of record at the time of the prior rating decision, and raises a reasonable possibility of substantiating the claim of service connection for hypertension. 3. In the December 2007 rating decision the RO denied service connection for myocardial infarction with bypass graft surgery. 4. Evidence received since the December 2007 rating decision is new and material because the evidence had not previously been submitted, is not cumulative or redundant of the evidence of record at the time of the prior rating decision, and raises a reasonable possibility of substantiating the claim of service connection for a cardiovascular disability. CONCLUSIONS OF LAW 1. The May 1993 rating decision that denied the Veteran's claim of entitlement to service connection for hypertension is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been submitted since the last denial in May 1993 and the claim of service connection for hypertension is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 3. The December 2007 rating decision that denied the Veteran's claim of entitlement to service connection for a cardiovascular disability is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 4. New and material evidence has been submitted since the last denial in December 2007 and the claim of service connection for a cardiovascular disability is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service to include service in the Navy from November 1978 to November 1981 and service in the Air Force from March 1982 to June 1992. The issues on appeal arise from rating decisions in June 2014 and August 2017. In the September 2018 rating decision the RO granted a 20 percent rating from July 31, 2018 for right lower extremity radiculopathy affecting the sciatic nerve. The issue of entitlement to TDIU has been raised as part of the increased rating claims on appeal and is currently before the Board pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Issues 1-2: Whether new and material evidence has been received to reopen the claims of entitlement to service connection for hypertension and cardiovascular disability. VA law provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 U.S.C. § 5108; 38 C.F.R. § 3.156(a). When making a determination as to whether received evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In a May 1993 rating decision the RO denied service connection for high blood pressure based on the determination that neither service treatment records nor current examination findings show high blood pressure. In a December 2007 rating decision, the RO denied service connection for myocardial infarction with bypass graft surgery based on the determination that service treatment records do not show any evidence of heart disease during active service, nor does the evidence show that heart disease manifested to a compensable degree within one year of discharge from service. The Veteran did not perfect an appeal of the above decisions and additional new and material evidence was not received within a year following the decisions. See 38 C.F.R. § 3.156(b). The decisions are final and binding based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. The evidence added to the record since the last final rating decisions includes the Veteran's June 2021 Board hearing testimony that he was first treated for high blood pressure during service in the 1980s. Lay evidence is competent when reporting a contemporaneous diagnosis. The Veteran in his June 2021 testimony also indicated that his service-connected back disability aggravated his heart disability as he was instructed to do cardio exercises for his heart disability but was unable due to his orthopedic disabilities to include his service-connected low back disability. The Veteran, as a lay person, is competent to relate what he was told by his doctor and observable symptoms. Jandreau v. Nicholson, 492 F3d. 1372, 1377 (2007); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Thus, the evidence received is neither cumulative nor redundant of the evidence previously of record and raises a reasonable possibility of substantiating the claims of service connection for hypertension on a direct basis and for a cardiovascular disability on a secondary basis. The credibility of the evidence is presumed for the purposes of reopening the claims of service connection for hypertension and a cardiovascular disability. REASONS FOR REMAND Issues 3-8: Entitlement to: service connection for hypertension; a cardiovascular disability; an increased rating higher than 20 percent for low back disability; a rating higher than 10 percent from June 26, 2017 to July 30, 2018 and higher than 20 percent from July 31, 2018 for radiculopathy of the right lower extremity sciatic nerve; a compensable rating for radiculopathy of right lower extremity obturator nerve; and TDIU. The evidence shows that the Veteran had diagnoses of hypertension and coronary artery disease. See, e.g., February 2006 and November 2006 treatment records. As discussed above, during the June 2021 Board hearing the Veteran testified that during service he was told that he had high blood pressure and his cardiovascular disability was aggravated by his service-connected low back disability as his back pain prevented him from doing cardio exercises. Service treatment records including in September 1991 show an elevated blood pressure reading of 132/100 and in March 1991 show an elevated blood pressure reading of 138/98. Thus, the Veteran should be afforded VA examinations to determine the nature and etiology of his hypertension and cardiovascular disability. On the June 2017 VA back examination the examiner stated that it cannot be determined whether pain, weakness, fatigability or incoordination significantly limit functional ability with flare-ups without mere speculation. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that a conclusion that the severity of additional functional impairment due to flare-ups cannot be made without resorting to speculation is inadequate if the examiner failed to obtain adequate information regarding flares-ups (e.g., frequency, duration, characteristics, severity) or functional loss by alternative means, including lay statements. As the June 2017 VA examiner failed to obtain adequate information regarding the Veteran's flare-ups, including from the Veteran's lay statements, the examination report did not comply with the requirements of Sharp. Further, the Veteran was last afforded a VA back examination in June 2017 and a VA neurological examination in July 2018. The Veteran's June 2021 Board hearing testimony shows that the Veteran's low back disability and radiculopathy of his right lower extremity affecting the sciatic nerve and obturator nerve have increased in severity since his last VA examinations as the Veteran testified that he can "bend forward a little bit" and he has shooting pain in his right lower extremity that in the last six months has been getting worse. Thus, on remand the Veteran should be afforded the appropriate VA examinations to determine the current level of severity of his service-connected low back disability and radiculopathy of the right lower extremity affecting the sciatic nerve and obturator nerve. The Board notes that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). The Veteran's back disability has been rated under Diagnostic Codes 5010-5243. Pertinent changes were made to Diagnostic Code 5242 noting that the code pertains to degenerative arthritis and degenerative disc disease other than intervertebral disc syndrome. As for Diagnostic Code 5243 for intervertebral disc syndrome, this diagnostic code now applies when there is disc herniation with compression and/or irritation adjacent to the nerve root, otherwise a rating is to be assigned for Diagnostic Code 5242 for all other disc diagnoses. See 85 FR 76453, 76463, Nov. 30, 2020. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). During the June 2021 Board hearing the Veteran stated that his service treatment records are incomplete as there were records missing particularly between 1990 and 1992. The Veteran also testified that he last received VA treatment for a flare-up in his back "on the 15th." The file shows that the Veteran's VA treatment records were last obtained in September 2018. On remand an attempt needs to be made to obtain all outstanding service treatment records and VA treatment records and associate them with the claims file. As for the issue of entitlement to TDIU, it is intertwined with the issues being remanded herein. See Harris v. Derwinski, 1 Vet. App. 180 (1991). By this remand the Board makes no determination, expressed or implied, as to the credibility of any statements on file. The matters are REMANDED for the following action: 1. Contact the Veteran and ask him whether there are any outstanding treatment records to include VA treatment records or private treatment records. Ask that he provide written authorization for VA to obtain any outstanding private treatment records. Afterwards obtain all outstanding treatment records, to include VA treatment records from September 2018 onward. All attempts associated therewith should be memorialized in the Veteran's claims file. 2. Contact all appropriate repositories of records to obtain any outstanding service treatment records during the Veteran's period of active service from November 1978 to November 1981 and from March 1982 to June 1992. All attempts associated therewith should be memorialized in the Veteran's claims file. 3. Afterwards, schedule the Veteran for a VA heart examination to determine the nature and etiology of his hypertension and cardiovascular disability. After reviewing the claims file and examining the Veteran the examiner is asked to render the opinions requested below. For all opinions rendered, the examiner must explain the rationale. If the examiner is unable to provide an opinion, he or she should explain why. a.) The examiner is asked to opine whether it is at least as likely as not (50 percent or better probability) that the Veteran's hypertension is related to service. In rendering the opinion the examiner is asked to consider service treatment records that in September 1991 show an elevated blood pressure reading of 132/100 and in March 1991 show an elevated blood pressure reading of 138/98. b.) For each diagnosed cardiovascular disability the examiner is asked to opine whether it is at least as likely as not (50 percent or better probability) that it is related to service or (a) caused or (b) aggravated by the Veteran's disabilities to include his service-connected low back disability. 4. Schedule the Veteran for an examination to determine the current level of severity of his service-connected low back disability. The claims file must be made available to the examiner for review in conjunction with conducting the examination of the Veteran. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the disability under the rating criteria effective prior and after February 7, 2021. a.) The examiner is asked to report range of motion findings that are painful on active use, passive use, in weight-bearing, and non-weight-bearing. To the extent possible the examiner also must estimate any additional functional loss caused by the Veteran's flare-ups. The examiner must attempt to elicit information regarding the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares to include the degree of functional loss during flare-ups from the Veteran himself. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, 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), or a deficiency in the record (additional facts are required). b.) The examiner is asked to determine whether the Veteran has intervertebral disc syndrome (IVDS) based on incapacitating episodes. The examiner should report the number of incapacitating episodes due to IVDS that the Veteran has experienced as well as their duration in the past twelve months. (NOTE: For VA rating purposes, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome requiring bed rest prescribed by a physician and treatment by a physician). The examiner should provide a rationale for the opinions rendered. If the examiner is unable to provide an opinion he or she should explain why. The Agency of Original Jurisdiction (AOJ) should ensure that the examiner on the VA back examination provides all information required for rating purposes, under both the former and revised rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). 5. Schedule the Veteran for an examination to determine the current level of severity of his service-connected radiculopathy of the right lower extremity affecting the sciatic nerve and obturator nerve. The claims file must be made available to the examiner for review in conjunction with conducting the examination of the Veteran. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the disabilities under the rating criteria. The examiner should identify the nerves affected and determine whether the findings represent mild, or moderate, or moderately severe, or severe incomplete paralysis, or complete paralysis of the sciatic nerve, and severe to complete paralysis of the obturator nerve. If there is overlapping symptomatology among multiple nerves, the examiner should to the extent possible identify the impaired nerve that is most analogous to the Veteran's symptoms. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Mac, 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.