Citation Nr: 21014632 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 12-12 537 DATE: March 15, 2021 ORDER New and material evidence having been received, the service connection claim for arteriovenous malformation (AVM) is reopened. Entitlement to service connection for diabetes mellitus type II is denied. Entitlement to service connection for dental abscesses (also claimed as loose teeth) is denied. Entitlement to an initial evaluation in excess of 20 percent for lumbar spondylosis is denied. REMANDED Entitlement to service connection for AVM is remanded. Entitlement to service connection for epilepsy is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. An unappealed May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) denied the Veteran’s entitlement to service connection for AVM based on the determination that the evidence did not show an in-service injury and a link or nexus between the current disability and service. 2. The evidence received since the May 2009 rating decision, to include a February 2016 VA medical opinion regarding the Veteran’s traumatic brain injury (TBI) and AVM, when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the Veteran’s service connection claim for AVM. 3. The preponderance of the evidence is against finding that the Veteran’s diabetes mellitus type II and dental abscesses conditions began during active service, or are otherwise related to in-service injuries or diseases. 4. The evidence of record does not show the Veteran’s lumbar spine disability resulting in forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. The May 2009 rating decision, which denied the Veteran’s claim of entitlement to service connection for AVM is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.156 (2019). 2. The evidence received since the May 2009 rating decision is new and material, and the claim of entitlement to service connection for AVM is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. The criteria for service connection for diabetes mellitus type II have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2019). 4. The criteria for service connection for dental abscesses (also claimed as loose teeth) have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2019). 5. The criteria for an initial evaluation in excess of 20 percent for lumbar spondylosis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2001 to March 2002 and February 2003 and June 2004 with service in the Southwest Asia Theater of Operations from April 2003 to May 2004. This case is before the Board of Veterans’ Appeals (Board) on appeal from April 2018 and July 2018 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Board remanded the matters for providing a Statement of the Case to the Veteran and his representative. Now the matters are returned to the Board. Reopening service connection claim for AVM Reopening a claim for service connection which has been previously and finally disallowed, requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108 (2012); Evans v. Brown, 9 Vet. App. 273, 285 (1996); Graves v. Brown, 8 Vet. App. 522, 524 (1996). “New evidence” means existing evidence not previously submitted to VA, and “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. 38 C.F.R. § 3.156(a) (2019). 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. Id. In a May 2009 rating decision, the RO previously denied the Veteran’s service connection claim for AVM. The Veteran did not appeal this decision timely, and it became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.156 (2019). The Board finds that VA received new and material evidence since the prior final May 2009 rating decision denying the Veteran’s entitlement to service connection for AVM. The new and material evidence includes a February 2016 VA medical opinion regarding the Veteran’s TBI and AVM. The evidence is new as it was not considered at the time of the prior final denial of the Veteran’s claim, and the new evidence is material as it reasonably substantiates the in-service injury and nexus elements, which were not established at the time of the prior denial. See May 2009 Rating Decision. Consequently, the Veteran’s claim for service connection for AVM is reopened, and the Board must consider its merits. See 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). Service Connection The Veteran is seeking service connections for diabetes mellitus type II and dental abscesses. He contends that both conditions are related to his exposure to environmental hazards in the Persian Gulf War. A veteran is entitled to VA disability compensation if there is disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. § 1110 (2012). To establish an entitlement to service connection for a disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection also may be warranted for a Persian Gulf War veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than not later than December 31, 2021. 38 C.F.R. § 3.317(a)(1)(i) (2019). “Objective indications of chronic disability” include both signs in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3) (2019). Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity is measured from the earliest date on which the pertinent evidence establishes the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4) (2019). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multisymptom illness that is defined by a cluster of signs and symptoms, such as chronic fatigue syndrome, fibromyalgia and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. If signs or symptoms have been medically attributed to a diagnosed (rather than undiagnosed) illness, the Persian Gulf War presumption of service connection does not apply. VAOPGCPREC 8-98. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (2012). For VA to deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App., at 54. The evidence shows the Veteran’s current diagnosis of diabetes mellitus type II and upper partial removable prostheses for some teeth being pulled out. See e.g., May 2019 Diabetic Teleretinal Imaging Consult Note; February 2009 Dentistry Long Term Care Note. However, diabetes mellitus type II and dental abscesses are not qualifying chronic disabilities for purposes of 38 C.F.R. § 3.317. Further, the evidence of record does not show any in-service complaints, diagnoses, or treatments related to diabetes mellitus type II or a teeth condition. The Board notes that VA medical opinions regarding the nexus between the Veteran’s current conditions of diabetes mellitus type II and dental abscesses and his active duty service have not been obtained. However, the Board finds that obtaining the VA medical opinions is not necessary to make decisions on these claims, since no competent evidence of any in-service injury or incurrence of diabetes mellitus type II or a dental condition is on record to trigger the need for additional medical opinions. See 38 U.S.C. § 5103A (2012). Based on above, the Board finds that the preponderance of the evidence is against finding that the Veteran’s diabetes mellitus type II and dental abscesses conditions began during active service, or are otherwise related to in-service injuries or diseases. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt doctrine does not apply. Consequently, the Board finds that the Veteran’s entitlement to service connections for diabetes mellitus type II and dental abscesses is not warranted. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2019). Increased ratings The Veteran is seeking a higher initial rating for his service-connected lumbar spine disability, which is currently evaluated at 20 percent disabling, effective February 1, 2018. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule). See generally 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. See 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2019). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27 (2019). The intent of Rating Schedule is to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2019). VA has a duty to acknowledge and to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). Where there is a question as to which of two ratings to apply, VA will assign the higher rating if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7 (2019). Otherwise, it will assign the lower rating. Id. Pursuant to Diagnostic Code 5242, the Veteran’s lumbar spine disability is evaluated under either the General Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, whichever method results in the higher rating. 38 C.F.R. § 4.71a (2019). Here, the evidence of record does not show that the Veteran has IVDS; therefore, his spine disability will be rated under the General Formula. Under the General Formula, in pertinent part, a 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; a 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a, General Formula (2019). On March 2018 VA examination for thoracolumbar conditions, the examiner noted the Veteran’s diagnoses of lumbosacral strain and degenerative arthritis of the spine. The examiner noted that the Veteran was in considerable discomfort during the examination. The Veteran did not report flare-ups of the thoracolumbar spine, but reported that the pain can limit his movements, standing, and walking. The range of motion of his thoracolumbar spine was measured at: forward flexion to 65 degrees, extension to 0 degrees, both right and left lateral flexions to 10 degrees, and both right and left lateral rotations to 10 degrees. Pain was noted on all range of motion testing, but the examiner stated it does not result in functional loss. The Veteran was able to perform repetitive-use testing with at least 3 repetitions and there was no additional loss of function or range of motion afterwards. There was objective evidence of diffuse lumbosacral paravertebral muscular tenderness and spasm. The examiner noted the Veteran’s muscle spasm and guarding results in abnormal gait or abnormal spinal contour. The Veteran did not have muscle atrophy, radicular pain or any other signs or symptoms due to radiculopathy, ankylosis of the spine, or IVDS. The examiner provided that the Veteran’s back condition impacts his ability to work as he has difficulty with prolonged standing, walking, carrying, lifting, and pain. As stated above, the next higher evaluation of 40 percent is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. However, the evidence of record does not show that the Veteran’s lumbar spine disability results in functional impairment to such extent. Consequently, the Board finds that the Veteran’s entitlement to an initial evaluation in excess of 20 percent for lumbar spondylosis is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2019). REASONS FOR REMAND 1. Service connection for AVM As discussed above, the Veteran service connection claim for AVM is now reopened. However, the Board finds that more development is necessary prior to final adjudication. The Veteran contends that his AVM is caused or aggravated by injuries from an IED explosion in service. The evidence of record clearly shows the Veteran’s diagnosis and treatments for AVM. The claimed IED explosion in service is conceded as the Veteran was granted service-connected for a mild TBI from the same incident. See July 2018 Rating Decision; see also June 15, 2003 Statement of Medical Examination and Duty Status (the Veteran was involved in an IED explosion when on convoy in Iraq; did not immediately seek medical care, but started having unusual headaches shortly after; he has now been diagnosed with AVM). On a February 2016 VA examination for TBI residuals, a VA examiner opined that it is more likely than not that his suspected mild TBI in 2003 did not cause or aggravate his AVM and subsequent cognitive deficits. However, the examiner also stated that his frequent headaches would have implicated the mild TBI as a possible exacerbation to his congenital AVM. In this regard, the Board notes that the Veteran is also currently service-connected for headaches due to undiagnosed illness. Although the Veteran underwent a VA examination for TBI residuals, he has not been afforded an examination to determine the nature and etiology of his AVM condition. In light of the above, the Board finds that the Veteran should be afforded a VA examination for AVM in order to make a fully informed decision on the matter. 2. Service connection for epilepsy The Veteran contends that his epilepsy condition is secondary to his AVM. In that regard, because a decision on the remanded issue of service connection for AVM could significantly impact a decision on the issue of service connection for epilepsy, the issues are inextricably intertwined. Thus, a remand of the service connection claim for epilepsy is also required. 3. TDIU Finally, the Veteran is seeking entitlement to TDIU. In support of the Veteran’s TDIU claim, the Veteran representative indicated in a May 2018 correspondence that the Veteran was granted Social Security Administration (SSA) disability benefits. However, the submitted copy of notice of decision from SSA dated February 26, 2016 is illegible. As such, the Board finds that a legible copy of the SSA decision and any other outstanding SSA records related to his TDIU claim must be obtained in order to make a fully informed decision. See Baker v. West, 11 Vet. App. 163, 169 (1998); Woods v. Gober, 14 Vet. App. 214, 222 (2000). Accordingly, the matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should contact the Veteran and his representative to request their assistance in obtaining a legible copy of SSA Notice of Decision dated February 26, 2016, and any outstanding SSA records related to the Veteran’s TDIU claim. See May 18, 2018 Correspondence. Any records requests and/or responses must be associated with the Veteran’s electronic claims file. 2. The AOJ must schedule the Veteran for an examination by an appropriate medical examiner to determine the nature and etiology of the Veteran’s AVM condition. The examiner must review the Veteran’s claims file and a copy of this REMAND order in conjunction with the examination. (a.) The examiner should identify with specificity all of the Veteran’s brain conditions which were previously diagnosed, or which have been manifested at any time since February 2018. (b.) The examiner should indicate which, if any, of these brain conditions constitute a congenital disease, a congenital defect, or an acquired disease or injury. The term “disease” is broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. On the other hand, the term “defect” would be definable as structural or inherent abnormalities or conditions that are more or less stationary in nature. (c.) If the examiner determines that any of the Veteran’s brain conditions is a congenital defect, opine whether the Veteran now has additional disability due to an in-service disease or injury superimposed upon such defect. (d.) If the examiner determines that the Veteran had a preexisting brain disability, including any congenital disease, opine whether it is clear and unmistakable (i.e., undebatable) that the Veteran’s preexisting disability underwent permanent worsening beyond normal progressions during the Veteran’s active duty service or due to his service-connected headaches disability. (e.) The examiner is asked to consider the February 2016 VA TBI residuals examination report and the February 2016 examiner’s medical opinion before rendering any opinions. (f.) The examiner is advised that the Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, the examiner must provide an explanation for such rejection. (g.) The examiner must provide a complete written rationale for any opinion offered. If the examiner cannot provide an opinion, 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 based on 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. After completing the above actions and any other necessary development, the issues on appeal, including the inextricably intertwined issue of the Veteran’s service connection claim for epilepsy and his entitlement to TDIU, must be readjudicated. If the claims remain denied, a Supplemental Statement of the Case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. E. Kim, Associate 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.