Citation Nr: 21014816 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 11-14 147 DATE: March 15, 2021 ORDER The appeal of whether new and material evidence has been received in order to reopen a claim for service connection for a cervical spine disorder is granted. The appeal of whether new and material evidence has been received in order to reopen a claim for service connection for insomnia/sleep disturbance is granted. REMANDED Entitlement to special monthly compensation based on the need of aid and attendance of another person for the Veteran’s spouse is remanded. Entitlement to an evaluation in excess of 20 percent for right knee traumatic arthritis with history of chondromalacia and vastus medialis muscle atrophy is remanded. Entitlement to an initial compensable evaluation for right knee traumatic arthritis with history of chondromalacia, vastus medialis muscle atrophy, and limitation of extension is remanded. Entitlement to an effective date prior to May 20, 2015, for the assignment of a separate, noncompensable rating for right knee traumatic arthritis with history of chondromalacia, vastus medialis muscle atrophy, and limitation of extension is remanded. Entitlement to an evaluation in excess of 10 percent for right hip disorder is remanded. Entitlement to an initial compensable evaluation for right hip disorder with limitation of extension is remanded. Entitlement to an initial compensable evaluation for right hip disorder with thigh impairment is remanded. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities is remanded. Entitlement to service connection for right knee instability is remanded. Entitlement to service connection for gastritis, to include as secondary to medications taken for treatment of service-connected right knee and lumbar spine disabilities, is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to medications taken for treatment of service-connected right knee and lumbar spine disabilities, is remanded. Entitlement to service connection for a cervical spine disorder, to include as secondary to service-connected right knee disabilities, is remanded. Entitlement to service connection for a left knee disorder, to include as secondary to service-connected right knee disabilities, is remanded. Entitlement to service connection for insomnia/sleep disturbance, to include as secondary to service-connected right knee and lumbar spine disabilities, is remanded. FINDINGS OF FACT 1. In a September 2008 rating decision, the AOJ denied the Veteran’s claims of entitlement to service connection for a cervical spine disorder as well as insomnia. 2. Evidence associated with the electronic claims file since the September 2008 rating decision, when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim of service connection for a cervical spine disorder. 3. Evidence associated with the electronic claims file since the September 2008 rating decision, when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim of service connection for insomnia/sleep disturbance. CONCLUSIONS OF LAW 1. The September 2008 rating decision that denied the Veteran’s claims of service connection for a cervical spine disorder and insomnia is final. 38 U.S.C. § 7105(b) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2020). 2. The criteria for whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a cervical spine disorder have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). 3. The criteria for whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for insomnia/sleep disturbance have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1982 to August 1985. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions rendered in September 2008, January 2015, September 2018, October 2018, and January 2019. In August 2010, the Veteran appeared at a Decision Review Officer hearing, which was conducted at the Agency of Original Jurisdiction (AOJ). In April 2013 and November 2020, the Veteran testified at Travel Board and Board videoconference hearings, respectively, before the undersigned Veterans Law Judge. Transcripts of each hearing have been associated with the evidence of record. The Board remanded the increased rating claims for the right knee as well as entitlement to a TDIU for additional development in May 2014 and March 2017. 1. The appeal for whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a cervical spine disorder is granted. 2. The appeal for whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for insomnia/sleep disturbance is granted. Unappealed rating decisions by the AOJ are final with the exception that a claim may be reopened by submission of new and material evidence. 38 U.S.C. §§ 5108, 7105(c) (2012). When a veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is “new” and “material”. Smith v. West, 12 Vet. App. 312 (1999). VA regulation defines “new” as not previously submitted and “material” as related to an unestablished fact necessary to substantiate the claim. If the evidence is new and material, the next question is whether the evidence raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In this regard, the phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110 (2010). Reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. The claims of entitlement to service connection for a cervical spine disorder and insomnia were originally denied in a September 2008 rating decision. The AOJ found evidence did not show the Veteran’s cervical spine condition was related to his service-connected right knee disability. The claimed insomnia was considered to be a symptom of the Veteran’s service-connected psychiatric disability, adjustment disorder. The Veteran did not initiate a timely appeal for these matters. There is also no indication that additional evidence was received between September 2008 and September 2009, which would have necessitated a reconsideration of the issues on appeal. 38 C.F.R. § 3.156(b); Buie v. Shinseki, 24 Vet. App. 242 (2010). Thus, the September 2008 rating decision is final as to the evidence then of record and is not subject to revision on the same factual basis. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2020). In July 2018, the Veteran sought to reopen the claims of entitlement to service connection for a cervical spine disorder and insomnia/sleep disturbance. This appeal arises from the AOJ’s September 2018 rating decision that reopened and denied the claims of entitlement to service connection for a cervical spine disorder and insomnia/sleep disturbance. Regardless of the AOJ’s actions, the Board must still determine whether new and material evidence has been submitted. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed AOJ denial); see also Wakeford v. Brown, 8 Vet. App. 237 (1995) (finding that VA failed to comply with its own regulations by ignoring the issue of whether any new and material evidence had been submitted to reopen the veteran’s previously and finally denied claims). Evidence of record received since the last prior final September 2008 rating decision includes statements from the Veteran; private treatment records; VA treatment records dated through February 2020; August 2018 VA examination reports/medical opinions; and the November 2020 Board hearing transcript. Here, in August 2018 VA medical opinions, despite requests for an opinion concerning insomnia/sleep disturbance, the examiner concluded that the Veteran had a current mental health disorder, recurrent, moderate major depressive disorder with anxious distress. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) proximately due to or the result of Veteran’s service-connected condition. In the cited rationale, the examiner indicated that the mental disorder began subsequent to the service-connected right knee and lumbar spine disabilities (identified as the antecedent conditions) but was not related to those conditions, either as a means of coping with the conditions or as a psychological reaction to the conditions. Rather, the current psychiatric disorder was noted to be a separate entity entirely from the identified antecedent conditions and was unrelated to them. Therefore, the examiner concluded that there was no nexus between the antecedent service-connected conditions and the current mental health disorder. In an additional August 2018 VA medical opinion, the examiner opined that the claimed cervical spine condition was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected right knee conditions. In the cited rationale, the examiner indicated that the two conditions were not medically related, finding that the claimed cervical spine disorder was a separate entity entirely from the service-connected right knee disability, was unrelated to it, and that medical literature did not support any medical relationship. Evidence received since the September 2008 rating decision is “new” in that it was not of record at the time of the September 2008 rating decision. This evidence is “material”, as it constitutes evidence which, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claims, i.e., the existence of a causal relationship between the currently claimed disorders and the Veteran’s service-connected right knee and/or lumbar spine disabilities. Shade v. Shinseki, 24 Vet. App. 110 (2010); Justus v. Principi, 3 Vet. App. 510 (1992). Reopening is required when the newly submitted evidence, combined with VA assistance (here, obtaining adequate VA medical opinions) and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Under these circumstances, the Board concludes that the criteria for reopening the claims of entitlement to service connection for a cervical spine disorder as well as insomnia/sleep disturbance are met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). REASONS FOR REMAND 1. Entitlement to special monthly compensation based on the need of aid and attendance of another person for the Veteran’s spouse is remanded. As evidence of record contains inadequate findings as to whether the Veteran’s spouse is so helpless as to be in need of regular aid and attendance of another person, she should be provided an opportunity to report for a VA examination regarding the claim for special monthly compensation. 2. Entitlement to an evaluation in excess of 20 percent for right knee traumatic arthritis with history of chondromalacia and vastus medialis muscle atrophy is remanded. 3. Entitlement to an initial compensable evaluation for right knee traumatic arthritis with history of chondromalacia, vastus medialis muscle atrophy, and limitation of extension is remanded. 4. Entitlement to an effective date prior to May 20, 2015, for the assignment of a separate, noncompensable rating for right knee traumatic arthritis with history of chondromalacia, vastus medialis muscle atrophy, and limitation of extension is remanded. 5. Entitlement to an evaluation in excess of 10 percent for right hip disorder is remanded. 6. Entitlement to an initial compensable evaluation for right hip disorder with limitation of extension is remanded. 7. Entitlement to an initial compensable evaluation for right hip disorder with thigh impairment is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous March 2017 remand directives regarding the issue of entitlement to an evaluation in excess of 20 percent for right knee traumatic arthritis. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). While the record contains VA examination reports dated August 2018 and October 2019 regarding the Veteran’s right knee and right hip disabilities, those VA examination reports did not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). While each examiner noted objective evidence of pain on passive motion, the examination reports did not contain any passive range of motion measurements. 8. Entitlement to a TDIU is remanded. 9. Entitlement to service connection for right knee instability is remanded. As development for and decisions on the remanded issues could significantly impact a decision on the issues of entitlement to a TDIU and entitlement to service connection for right knee instability, the issues are inextricably intertwined. A remand of the claims for entitlement to a TDIU and entitlement to service connection for right knee instability is required. Based on the cumulative evidence of record, the Board finds that a VA examination addressing the effects of the Veteran’s service-connected disabilities, alone or in aggregate, on his ability to obtain and maintain substantially gainful employment consistent with his education and occupational experience during the period from September 2006 to the present is necessary to effectively adjudicate the TDIU claim on appeal. 10. Entitlement to service connection for gastritis, to include as secondary to medications taken for treatment of service-connected right knee and lumbar spine disabilities, is remanded. 11. Entitlement to service connection for GERD, to include as secondary to medications taken for treatment of service-connected right knee and lumbar spine disabilities, is remanded. 12. Entitlement to service connection for a cervical spine disorder, to include as secondary to service-connected right knee disabilities, is remanded. 13. Entitlement to service connection for a left knee disorder, to include as secondary to service-connected right knee disabilities, is remanded. 14. Entitlement to service connection for insomnia/sleep disturbance, to include as secondary to service-connected right knee and lumbar spine disabilities, is remanded. Due to the inadequacy of the August 2018 VA examination reports/medical opinions (i.e., failure of the VA examiners to provide a complete rationale regarding whether the claimed disorders were caused or aggravated by service-connected right knee and lumbar spine disabilities as well as medications taken for treatment of those disabilities), the Board will not proceed with final adjudication of these claims until a competent VA medical opinion is provided in order to clarify the etiology of the Veteran’s claimed gastritis, GERD, left knee, cervical spine, and sleep disorders on appeal. Finally, evidence of record reflects that the Veteran received VA medical treatment for his claimed disorders as well as his service-connected disabilities from Jackson VAMC. As evidence of record only includes treatment records dated up to February 2020 from that facility, all pertinent VA treatment records should be obtained and properly associated with the record. 38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following actions: 1. Obtain updated treatment records from Jackson VAMC for the time period from February 2020 to the present and associate them with the record. 2. Schedule the Veteran’s spouse for a VA special monthly compensation aid and attendance examination to address whether any of the following are present: (1) is blind or so nearly blind as to have corrected visual acuity of 5/200 or less in both eyes, or concentric contraction of the visual field to 5 degrees or less; or (2) is a patient in a nursing home because of mental or physical incapacity; or (3) inability to dress or undress herself or to keep herself ordinarily clean and presentable; or (4) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this does not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacking at the back, etc.); or (5) inability to attend to the wants of nature; or (6) inability to feed herself through loss of coordination of the upper extremities or through extreme weakness; or (7) incapacity, physical or mental, which requires care or assistance on a regular basis to protect the Veteran’s spouse from hazards or dangers incident to her daily environment. In doing so, the examiner should acknowledge and discuss the findings in the private treatment records as well as the October 2018 and December 2020 copies of a SMC DBQ form drafted by a private physician. 3. Schedule the Veteran for an examination of the current severity of his right knee and right hip disabilities. The examiner must test the Veteran’s right knee and right hip ranges of motion (providing range of motion measurements in degrees) on active motion, passive motion, weight-bearing, and nonweight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to right knee as well as right hip disabilities alone and discuss the effect of the Veteran’s right knee as well as right hip disabilities on any occupational functioning and activities of daily living. 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Any new VA knee examination should include findings which address recent regulatory changes in the rating criteria under the Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). 4. Obtain VA medical opinions to clarify the nature and etiology of the Veteran’s claimed gastritis, GERD, left knee, cervical spine, and sleep disorders. If an opinion cannot be provided without an examination, one should be provided. The electronic claims file must be made available to the examiner, and the examiner must specify in the medical opinion that the file has been reviewed. Based on a review of the evidence of record and with consideration of the Veteran’s statements, the examiner must provide an opinion as to whether any previously or currently diagnosed gastritis, GERD, left knee, and cervical spine disorders were caused or aggravated (worsened) by the Veteran’s service-connected right knee and/or lumbar spine disabilities (to include medications used to treat those disabilities). In doing so, the examiner should acknowledge and discuss the findings in the July 2006 and October 2008 private provider statements, the May 2007 VA physician statement, and the March 2008 and August 2018 VA examination reports/medical opinions. The examiner must also provide an opinion as to whether any previously or currently diagnosed sleep disorder was caused or aggravated (worsened) by the Veteran’s service-connected right knee and lumbar spine disabilities. If the Veteran is not shown to have a current sleep disorder, the examiner should discuss whether the claimed insomnia/sleep disturbance is a symptom or manifestation associated with the Veteran’s service-connected adjustment disorder. In doing so, the examiner should acknowledge and discuss the findings in the August 2008 and August 2018 VA examination reports/medical opinions. Rationale for all requested opinions shall be provided. If any examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, each examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). The Veteran is hereby advised that failure to report for any scheduled VA examination without good cause shown may have adverse effects on his claims. 38 C.F.R. § 3.655 (2020). 5. Thereafter, obtain a VA medical examination from an appropriate examiner to determine the full description of the effects of disability upon the Veteran’s ordinary activity, to include functional effects of his service-connected disabilities, alone or acting in concert, that might tend to impair his ability to secure and follow substantially gainful employment, consistent with his education and occupational expertise for the time period from September 2006 to the present. The electronic claims file must be made available to the examiner, and the examiner must specify in the report that the electronic claims file has been reviewed. The examiner must compile a full work and educational history. This opinion must be provided without consideration of the Veteran’s nonservice-connected disabilities or age. To the extent possible, the VA examiner must address the full effects of the functional and industrial impairment due to each of the Veteran’s service-connected disabilities during the time period from September 2006 to the present. The examiner must furnish a full description of the effects of the service-connected disabilities upon the Veteran’s ordinary activities, which include employment. 38 C.F.R. § 4.10 (2020). In doing so, the examiner should fully describe what types of employment activities would be limited because of the service-connected disabilities and what types of employment activities would not be limited (if any). This description may include an opinion on such questions as whether the Veteran’s service-connected disabilities precluded standing for extended periods, lifting more than a certain weight, sitting for eight hours a day, performing other specific tasks, etc. The examiner should provide an extensive discussion of the Veteran’s physical and mental abilities as well as the effects of any psychological and functional limitations related to his service-connected disabilities in the context of his daily activities, specifically employment, during the time period from September 2006 to the present. 6. After completing the above actions and any other necessary development, the claims on appeal must be re-adjudicated, taking into consideration all relevant evidence associated with the record since the January 2019 SSOC, November 2019 SOC, January 2020 SOC, and June 2020 SSOC. If any benefit on appeal remains denied, a SSOC must be provided to the Veteran and his attorney. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. D. Deane, 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.