Citation Nr: 21024714 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 17-50 374 DATE: April 26, 2021 ORDER New and material evidence having been received, reopening the claim of entitlement to service connection for rhabdomyolysis is granted. REMANDED Whether new and material evidence has been received to reopen a claim for connection for right leg disability (also claimed as paralysis of right leg with muscle atrophy and muscle wasting and lower neuropathy) as secondary to service-connected disability is remanded. Entitlement to service connection for rhabdomyolysis is remanded. Entitlement to service connection for spinal canal stenosis, neck, is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for neuropathy, right upper extremity (RUE), is remanded. Entitlement to service connection for neuropathy, left upper extremity (LUE), is remanded. Entitlement to a rating greater than 70 percent for depressive disorder associated with chronic pain syndrome is remanded. Entitlement to a rating greater than 20 percent for piriformis syndrome left leg (radiculopathy) (previously evaluated with lumbosacral strain as sciatic nerve irritation) (also claimed as lower neuropathy) is remanded. Entitlement to a rating greater than 10 percent for gastroparesis/gastroesophageal reflux disease (GERD)/bowel pain due to battery explosion is remanded. Entitlement to a rating greater than 10 percent for lumbosacral strain (also claimed as sacroiliitis with hypertrophy, multilevel degenerative disk disease) is remanded. Entitlement to a rating greater than 10 percent for scar, left buttock is remanded. Entitlement to special monthly compensation (SMC) based on loss of use of the left lower extremity is remanded. Entitlement to SMC based on loss of use of right leg is remanded. Entitlement to SMC based on loss of use of right shoulder is remanded. FINDINGS OF FACT 1. In an unappealed rating decision in February 2013, the Agency of Original Jurisdiction (AOJ) denied service connection for rhabdomyolysis. 2. The evidence received since the February 2013 rating decision relates to an unestablished fact and raises a reasonable possibility of substantiating the claim for service connection for rhabdomyolysis. CONCLUSIONS OF LAW 1. A February 2013 rating decision that denied service connection for rhabdomyolysis is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received to reopen the claim for service connection for rhabdomyolysis. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1998 to March 2002. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Veteran testified before the undersigned at a Board virtual hearing. A transcript of the hearing is of record. Claim to Reopen Service Connection for Rhabdomyolysis In February 2013, the AOJ continued the denial of the Veteran’s claim for service connection for rhabdomyolysis. The Veteran did not timely appeal this determination and it is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The present appeal originates from the Veteran’s August 2016 application to reopen this claim. VA may reopen a claim for service connection which has been previously and finally disallowed when new and material evidence has been presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996). “New evidence” means existing evidence not previously submitted to VA. “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. Taken in combination, 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 C.F.R. § 3.156 (a). New evidence may be sufficient to reopen a claim if it can contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998); Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). The United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Even where the RO determines that new and material evidence has been received to reopen a claim as in this case, the Board is not bound by that determination and must nevertheless consider whether new and material evidence has been received. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). This goes to the Board’s jurisdiction to reach the underlying claims and adjudicate the claims on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). In the initial denial of the Veteran’s claim for service connection for rhabdomyolysis in June 2009, the AOJ noted that “it was stated” that the Veteran’s rhabdomyolysis was related to medication (Seroquel) for his major depression, and the Veteran was not service connected for depression. Subsequently, in April 2010, the AOJ granted service connection for major depression. However, in continuing the denial of service connection for rhabdomyolysis in February 2013, the AOJ denied the claim on the sole basis that the Veteran’s rhabdomyolysis was not secondary to his service-connected piriformis syndrome left leg. Thus, in light of the AOJ’s grant of service connection for depression in April 2010 and in consideration of medical evidence received prior to and after February 2013 showing a possible nexus between the Veteran’s rhabdomyolysis and Seroquel (quetiapine), the Board finds that new and material evidence has been submitted sufficient to reopen the claim for service connection for rhabdomyolysis. 38 C.F.R. § 3.156 (a). REASONS FOR REMAND Now that the Veteran’s claim for service connection for rhabdomyolysis has been reopened, additional evidence is warranted before a fully informed decision can be made in this matter. As noted, there is evidence linking the Veteran’s use of Seroquel for depression to the development of Rhabdomyolysis in March 2009. However, the link is not clear and in view of the Veteran’s long and complicated medical history, further medical clarification is needed. 38 U.S.C. § 5103A(d). Moreover, even assuming that there is such a link, additional medical clarification is required regarding the nature and extent of the Veteran’s rhabdomyolysis. Also, the Veteran testified in September 2020 that his right leg and right arm/shoulder disabilities are either caused or complicated by his rhabdomyolysis. As such, these latter claims are inextricably intertwined with the service connection claim for rhabdomyolysis and must be deferred pending resolution of this claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Additionally, the Veteran’s claims for service connection for RUE and LUE neuropathy are claimed on a direct basis as well as secondary to his rhabdomyolysis. See December 2016 statement. Accordingly, these claims must be deferred pending resolution of the service connection claim for rhabdomyolysis. Id. The Veteran testified in September 2020 that in addition to inhaling toxic fumes from a lithium battery explosion in service in September 2000, he injured his neck when the blast blew him backwards causing him to slam his head to the ground. In denying this claim, the AOJ noted in December 2016 that the Veteran’s service treatment records associated with the battery explosion do not show a neck injury. However, service treatment records do show that the Veteran was treated on multiple occasions in January 1999 for a neck strain related to a workout. Thus, in consideration of the Veteran’s inservice neck complaints, present neck disability and statements of neck symptoms since service, the Veteran should be afforded a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). This is so that an opinion can be obtained addressing the likelihood of a nexus between the Veteran’s inservice neck injury(ies) and his present cervical disability. Prior to scheduling the examination, the AOJ should ensure that all relevant treatment records are on file. In this regard, the Veteran testified that the battery explosion in service resulted in a neck fracture which was not discovered until 12 years later and that a plate had been inserted in his neck as a result. 38 U.S.C. § 5103A(b), (c). Regarding the pending claims for increased ratings noted above, the record shows that attempts were made to schedule the Veteran for VA examinations and that the Veteran declined to attend the scheduled examinations. However, the Veteran explained at the Board hearing in September 2020 that he was willing to attend the VA examinations and that he only asked that they be scheduled closer to his home. He said that the last VA examinations were scheduled 12 hours away. Accordingly, he should be rescheduled for the examinations closer to home. The Veteran seeks SMC for his left lower extremity, right foot, and right shoulder. SMC is available when, as the result of service-connected disability, a veteran suffers additional hardships above and beyond those contemplated by VA’s schedule for rating disabilities. See 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352; see also VA General Counsel Opinion, O.G.C. Prec. Op. 5-89 (Mar. 23, 1989) (explaining that SMC is a supplementary statutory benefit based on noneconomic factors such as personal inconvenience, social inadaptability, or the profound nature of a disability). As was discussed at the Board hearing, the Veteran’s pending claims for service connection for a right arm/shoulder disability and a right leg disability are inextricably intertwined with his claims for SMC for such disabilities and must be deferred pending resolution of the service connection claims. Harris v. Derwinski, 1 Vet. App. at 180. Regarding SMC for the Veteran’s left lower extremity, the provisions of 38 C.F.R. § 4.63(b), provide that complete paralysis of the external popliteal nerve (also known as the common peroneal) and consequent foot drop accompanied by characteristic organic changes will be taken as loss of use of the foot. Loss of use of the foot also exists where there is no remaining function of the foot other than that which would be equally well served by amputation at the site of election with prosthesis in place. 38 C.F.R. §§ 3.350, 4.63(a). The current record does not contain sufficient findings to determine whether the Veteran left lower extremity disability meets the criteria for SMC based on loss of use. Accordingly, the Veteran should be scheduled for a VA examination to fully resolve the matter. The matters are REMANDED for the following action: 1. Obtain any outstanding medical records, VA and private, regarding the issues on appeal. In specific regard to outstanding private records, ask the Veteran to complete a VA Form 21-4142 for the treatment that he received for his neck involving the insertion of a plate which he said is due to an inservice cervical fracture. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for VA examinations within a reasonable distance to his home for his service connection claims for rhabdomyolysis and for a neck disability. The examiner must review the claims file. The full extent, nature and any associated residuals of these disabilities should be explained in detail. If a diagnosis cannot be provided, but the Veteran’s conditions manifest in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Are the Veteran’s rhabdomyolysis and neck disability at least as likely as not (50% degree of probability or higher) related to service. Consideration should be given to the incident in service involving the Veteran’s exposure to a lithium battery explosion in September 2000, and his treatment in January 1999 for a neck strain. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability(ies), this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability(ies) is(are) known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? Provide a rationale to support the opinion(s). Alternatively, is the Veteran’s rhabdomyolysis at least as likely as not proximately related to or caused by medication (Seroquel) that he was prescribed for his service-connected major depression. If the rhabdomyolysis is not at least as likely as not proximately related to or caused by service-connected disability or medication therefore, is the disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected disability? 3. Schedule the Veteran for examinations within a reasonable distance to his home by appropriate clinicians to determine the current severity of his service-connected major depression, piriformis syndrome, left leg, gastrointestinal disability, lumbosacral strain, and left buttocks scar. The examiners should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria. Regarding the Veteran’s lumbosacral spine disability, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement 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). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement 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 a VA examination within a reasonable distance to his home to determine whether he has loss of use of the left foot. The examiner should review the claims folder, including this remand. The examiner should provide findings as to the extent of paralysis of the popliteal or peroneal nerve; including footdrop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of the nerve. The examiner should also opine whether the Veteran would be equally well served by amputation with prosthesis in place. The examiner should consider whether balance and propulsion could be accomplished equally well with an amputation stump with prosthesis. The examiner should provide reasons for the opinion. 5. The Veteran should be specifically notified of his responsibility to report for a scheduled examinations, as consequences for his failure to report for a VA examination without good cause may include, but not limited to, denial of the claims pursuant to 38 C.F.R. §3.655. If the Veteran does not report for the examinations, documentation must be obtained that shows that notice scheduling the examinations were sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 6. After completing the directives above and any additional development deemed appropriate, readjudicate the claims on appeal. If any benefits sought on appeal remain denied, issue a supplemental statement of the case. Then return the case to the Board, if otherwise in order. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shawkey, Anne M. 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.