Citation Nr: 21027759 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 17-58 498 DATE: May 6, 2021 ORDER New and material evidence having been received, the petition to reopen the claim of service connection for a lumbar spine disability is granted. REMANDED Entitlement to a compensable rating for chronic tendinitis, right bicep tendon, is remanded. Entitlement to a compensable rating for chronic tendinitis, left bicep tendon, is remanded. Entitlement to a compensable rating for chronic tendinitis, right hamstring tendon, is remanded. Entitlement to an initial compensable rating for chronic tendinitis, right hamstring impairment, is remanded. Entitlement to an initial compensable rating for chronic tendinitis, right hamstring limitation of extension, is remanded. Entitlement to an initial compensable rating for chronic tendinitis, left hamstring limitation of flexion, is remanded. Entitlement to an initial compensable rating for chronic tendinitis, left hamstring impairment, is remanded. Entitlement to an initial compensable rating for chronic tendinitis, left hamstring tendon, is remanded. Entitlement to service connection for a lumbar spine disability is remanded. FINDINGS OF FACT 1. In a July 1995 rating decision, the Regional Office (RO) denied service connection for mechanical low back pain. The Veteran did not file a Notice of Disagreement (NOD) and no new and material evidence was received within one year. Thus, the July 1995 rating decision became final. 2. The evidence of record since the July 1995 rating decision is not duplicative or cumulative of evidence previously of record and raises the reasonable possibility of substantiating the Veteran's claim of service connection for a back disability. CONCLUSION OF LAW The criteria for reopening the claim of service connection for a lumbar spine disability have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service from October 1986 to June 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, granted service connection for chronic tendinitis right hamstring impairment, right hamstring limitation of extension, left hamstring limitation of flexion, and left hamstring impairment and continued the noncompensable ratings for chronic tendinitis left bicep tendon, right hamstring tendon, left hamstring tendon, and right bicep tendon. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in February 2021. A copy of the transcript has been reviewed and associated with the claims file. Whether new and material evidence has been received to reopen the claim of service connection for a lumbar spine disability. Applicable law provides that a final decision cannot be reopened unless new and material evidence is presented. 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. 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). 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. The credibility of the evidence is presumed in determining whether new and material evidence has been submitted. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. In the present case, the RO denied service connection for mechanical low back pain in a July 1995 rating decision because no chronic disability was shown by the evidence. The evidence of record at the time of the July 1995 rating decision consisted of the claim form, service treatment records (STRs), military personnel records, and Form DD 214. Since the July 1995 rating decision, additional treatment records and hearing testimony have been obtained and associated with the claims file. The Board finds that new and material evidence has been received to reopen the claim of service connection for the Veteran's back disorder. The evidence is new, as it was not part of the record at the time of the July 1995 rating decision. It is also material, given that it relates to unestablished facts necessary to substantiate the claims. Specifically, the additional medical records reveal a current diagnosis of L5-S1 disc herniation and radiculopathy. Moreover, the Veteran testified at the hearing in February 2021 and indicated that he injured his back twice in service and his pain continued post service. He also expressed belief that his service-connected hamstring disability may have caused the and/or aggravated his back pain. Accordingly, the evidence is new and material and the claim of service connection for a back disability is reopened. REASONS FOR REMAND 1. Entitlement to a compensable rating for chronic tendinitis, right bicep tendon, is remanded; 2. Entitlement to a compensable rating for chronic tendinitis, left bicep tendon, is remanded; 3. Entitlement to a compensable rating for chronic tendinitis, right hamstring tendon, is remanded; 4. Entitlement to an initial compensable rating for chronic tendinitis, right hamstring impairment, is remanded; 5. Entitlement to an initial compensable rating for chronic tendinitis, right hamstring limitation of extension, is remanded; 6. Entitlement to an initial compensable rating for chronic tendinitis, left hamstring limitation of flexion, is remanded; 7. Entitlement to an initial compensable rating for chronic tendinitis, left hamstring impairment, is remanded; 8. Entitlement to an initial compensable rating for chronic tendinitis, left hamstring tendon, is remanded. VA examinations were performed in January 2016 to assess the Veteran's service-connected bilateral tendinitis of the hamstrings and bilateral bicipital tendonitis. However, the Board finds that these VA examinations are insufficient to determine the present claims. In this regard, while range of motion testing was performed, the examiner failed to perform and record passive range of motion and weight-bearing and non-weight bearing testing as required by VA regulations. See 38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158 (2016). Furthermore, although the Veteran complained of flare-ups of hip, hamstring, shoulder, and arm pain, the examiner indicated that she was unable to provide an opinion regarding the range of motion during a flare without resorting to mere speculation. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the US Court of Appeals for Veterans Claims (CAVC) held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. Moreover, the Veteran's muscle group injuries as a result of his chronic tendinitis, including the right and left bicep tendons and right and left hamstring tendons, are rated under the criteria normally used for gunshot or shrapnel wounds. Specifically, Diagnostic Codes 5305 and 5311 applies to injuries of Muscle Groups V and XI, respectively, and are rated as slight, moderate, moderately severe, or severe according to criteria based on the type of injury, the history and complaint, and objective findings. 38 C.F.R. §§ 4.73, 4.56(d). For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement. 38 C.F.R. § 4.56(c). However, the January 2016 examiner did not provide an opinion as to whether the Veteran's chronic tendinitis symptoms of the right and left bicep tendons and right and left hamstring tendons are slight, moderate, moderately severe, or severe. Accordingly, the Board finds that new VA examinations are warranted in order to assess the severity of the Veteran's bilateral tendinitis of the hamstrings and bilateral bicipital tendonitis. 9. Entitlement to service connection for a lumbar spine disability is remanded. The Veteran has been diagnosed with an L5-S1 disc herniation with chronic low back pain and radiculopathy and asserts that it was incurred in service and/or secondary to his service-connected bilateral tendinitis of the hamstrings. The Veteran's service-treatment records indicate that he was diagnosed with mechanical low back pain in May 1993. During his June 1993 separation examination, the examiner noted that the Veteran suffered from back pain secondary to a motor vehicle accident. Given that the Veteran has a present disability that may be related to service and/or secondary to a service-connected disability, the Board finds that a VA examination is warranted on remand to determine the nature and etiology of his lumbar spine disability. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran's updated VA treatment records from October 2017 to the present. 2. After completion of #1, schedule the Veteran for a VA examination to determine the severity of his service-connected bilateral tendinitis of the hamstrings. The claims file, including a copy of this remand, should be reviewed by the examiner and such review should be noted in the examination report. Complete range of motion testing should be accomplished and the examiner should note the point at which there is pain on motion, if any. Specifically, active and passive range of motion testing as well as weight-bearing and non-weight-bearing testing must be conducted, and such results should be recorded. The examiner should indicate how far back (i.e., one year, two years, etc.) these results would apply. The examiner should also note any additional loss of function with repetition due to factors such as pain, weakness, fatigability, and pain on movement. The extent of additional limitation should be expressed in degrees. The examiner is advised that the Veteran has reported flare-ups of leg and hip pain throughout the rating period on appeal and the examiner must express an opinion on whether the flare-ups are associated with additional functional loss. If so, he or she should estimate the degree of lost motion during such flare-ups. The examiner is to attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees cannot be given. Should the examiner maintain that they cannot do so without resorting to speculation, they must explain why this is so. Note: Any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large and not the insufficient knowledge of the examiner. The examiner should discuss the limitation of extension and flexion of the thighs and the severity of the bilateral thigh impairment, including whether it manifests in limitation of rotation of, cannot toe-out more than 15 degrees; limitation of adduction of, cannot cross legs; and/or limitation of abduction of, motion lost beyond 10 degrees. With regard to the right and left hamstring tendons, the examiner should discuss the associated symptoms and whether they are slight, moderate, moderately severe, or severe. See 38 C.F.R. § 4.73, Diagnostic Code 5311. The examiner must provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. 3. After completion of #1, schedule the Veteran for a VA examination to determine the severity of his service-connected bilateral bicipital tendonitis. The claims file, including a copy of this remand, should be reviewed by the examiner and such review should be noted in the examination report. Complete range of motion testing should be accomplished and the examiner should note the point at which there is pain on motion, if any. Specifically, active and passive range of motion testing as well as weight-bearing and non-weight-bearing testing must be conducted, and such results should be recorded. The examiner should indicate how far back (i.e., one year, two years, etc.) these results would apply. The examiner should also note any additional loss of function with repetition due to factors such as pain, weakness, fatigability, and pain on movement. The extent of additional limitation should be expressed in degrees. The examiner is advised that the Veteran has reported flare-ups of shoulder and arm pain throughout the rating period on appeal and the examiner must express an opinion on whether the flare-ups are associated with additional functional loss. If so, he or she should estimate the degree of lost motion during such flare-ups. The examiner is to attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees cannot be given. Should the examiner maintain that they cannot do so without resorting to speculation, they must explain why this is so. Note: Any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large and not the insufficient knowledge of the examiner. With regard to the right and left bicep tendons, the examiner should discuss the associated symptoms and whether they are slight, moderate, moderately severe, or severe. See 38 C.F.R. § 4.73, Diagnostic Code 5305. The examiner must provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. 4. After completion of #1 and #2, schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's lumbar spine disability. The claims file, including a copy of this remand, must be reviewed and such review should be noted in the examination report. The examiner should identify all lumbar spine disabilities found on examination and/or identified throughout the pendency of this claim and respond to the following: A. Is it at least as likely as not (probability of at least 50 percent) that the Veteran's lumbar spine disability had its onset in and/or is otherwise etiologically related to his period of active service? Attention is called to the Veteran's post-service back injury as discussed in the February 2021 hearing. The examiner should understand that as long as some level of disability existed prior to the intercurrent incident, then a positive nexus to service should be made. Solely for the purposes of future rating, if a nexus to service is made, the examiner should then attempt to estimate the percentage of symptoms attributable solely to the in-service injuries. B. If not directly related, is it at least as likely as not (probability of at least 50 percent) that his lumbar spine disability was caused by his service-connected bilateral tendinitis of the hamstrings, including any associated change in ambulation? If not, is it at least as likely as not (probability of at least 50 percent) that his lumbar spine disability has been aggravated (any incremental increase in disability) as a result of his service-connected bilateral tendinitis of the hamstrings, including any associated change in ambulation? If aggravation is found, is there evidence created prior to the aggravation or between the aggravation and lumbar spine disability that shows a baseline of his lumbar spine disability prior to aggravation? If so, please identify. (Continued on the next page) The examiner must provide a comprehensive rationale for each opinion provided. The examiner should review and discuss the Veteran's February 2021 hearing testimony and service-treatment records. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. (Hurley) Merrick 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.