Citation Nr: 22019764 Decision Date: 04/03/22 Archive Date: 04/03/22 DOCKET NO. 16-43 965 DATE: April 3, 2022 ORDER New and material evidence having been received, the petition to reopen the claim of service connection for a right hip disability is granted. REMANDED Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a left big toe disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to a rating in excess of 10 percent for cervical degenerative disc disease (DDD) is remanded. Entitlement to an initial compensable rating, and a rating in excess of 30 percent for the period from October 29, 2018, for irritable bowel syndrome (IBS) is remanded. FINDINGS OF FACT 1. In an August 2013 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for a right hip disability. The Veteran did not file a notice of disagreement (NOD) and no new and material evidence was received within the appeal period. 2. The evidence received since the August 2013 rating decision is not duplicative or cumulative of evidence previously of record and it raises a reasonable possibility of substantiating the Veteran's claim of service connection for a right hip disability. CONCLUSION OF LAW The criteria for reopening the claim of service connection for a right hip disability have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from October 1996 to February 1997, from August 1997 to April 1998, and from December 2003 to February 2005, with additional Reserve service. These matters come before the Board of Veterans' Appeals (Board) on appeal from two rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO) in August 2014. In a November 2018 rating decision, the RO increased the Veteran's disability rating for irritable bowel syndrome (IBS) to 30 percent, effective October 29, 2018. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board hearing in September 2021. A copy of the hearing transcript has been reviewed and associated with the claims file. Whether new and material evidence has been presented to reopen the claim of service connection for a right hip disability A claimant may reopen a finally adjudicated legacy claim by submitting new and material evidence. 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 VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. By way of history, the RO denied service connection for osteoarthritis of the right hip in an August 2013 rating decision. The Veteran did not file a Notice of Disagreement (NOD) with the August 2013 rating decision. She did file a supplemental claim of service connection for a right hip disability in November 2013; however, she did not submit new and material evidence with her supplemental claim. Therefore, her November 2013 claim is considered a new claim, and the Board must find that the Veteran has presented new and material evidence to reopen the claim of service connection for a right hip disability. See 38 C.F.R. §§ 3.156(b), 20.201. The evidence of record at the time of the August 2013 rating decision includes the Veteran's claim for compensation, service treatment records, and VA treatment records. Since the August 2013 rating decision, additional evidence has been associated with the claims file, including VA treatment records, correspondence from the Veteran and her representative, and the September 2021 hearing transcript. This evidence is new, as it was not a part of the claims file at the time of the August 2013 rating decision. It is material, as it relates to an unestablished fact necessary to substantiate her claim of service connection for a right hip disability. Specifically, the Veteran testified at her hearing regarding an in-service motor vehicle accident, to which she attributes her current right hip disability. Therefore, the criteria for reopening the claim of service connection for a right hip disability have been met. 38 C.F.R. § 3.156. REASONS FOR REMAND 1. Entitlement to service connection for a left shoulder disability is remanded. As a preliminary matter, the Board notes that the Veteran had Reserve service, and her dates of active duty for training (ACDUTRA), inactive duty training (IDT), and/or active duty for special work (ADSW) have not been verified. Therefore, a remand is necessary to obtain records to confirm these Reserve service dates. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA is obligated to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. McLendon, 20 Vet. App. at 83. The Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. Id. The Veteran has claimed entitlement to service connection for a left shoulder disability. A VA medical record dated in April 2013 notes that the Veteran complained of left shoulder pain, and an October 2013 treatment record lists shoulder arthralgia as an active problem. During her September 2021 Board hearing, the Veteran testified that she injured her shoulder in a car accident occurring during active duty. She testified that she was put on a physical profile and was treated by a chiropractor. She also suggested that her left shoulder pain may be secondary to her service-connected cervical spine DDD, as she stated that her neck pain radiates through her left shoulder. The Veteran's service treatment records indicate that she was put on a physical profile after a motor vehicle accident in February 2007. The Veteran has presented evidence that she has a current disability affecting the left shoulder that may be related to her active duty service. Therefore, the threshold for VA's duty to provide a medical examination have been met, and this matter must be remanded for such examination. 38 U.S.C. § 5103A (d); McLendon, 20 Vet. App. at 83. 2. Entitlement to service connection for a left ankle disability is remanded. The Veteran asserts that she is entitled to service connection for a left ankle disability. The Veteran underwent a VA examination in August 2014. The examiner indicated that she suffered a left ankle sprain in 2009, which resolved without residuals. The examiner stated that there was insufficient evidence to confirm a diagnosis of a left ankle disability; therefore, she provided no etiology opinion for the Veteran's claimed left ankle disability. A VA medical record dated in February 2020 indicates that the Veteran complained of ankle pain. During the September 2021 hearing, the Veteran testified that she twisted her left ankle while stepping off of a curb while on active duty in 2009. She stated that she was put on light duty, treated for pain, and given additional time off because she could not stand on her left foot. A September 2010 Army memorandum confirms that the Veteran twisted her ankle. Subsequent to the August 2014 VA examination, the United Stated Court of Appeals for the Federal Circuit (Federal Circuit) held that pain alone, even in the absence of a diagnosis or underlying pathology, can establish a current disability under 38 U.S.C. § 1110 if it results in functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In accordance with the Federal Circuit's holding in Saunders, the Veteran should be afforded a new VA examination to determine whether her left ankle pain results in an impairment of earning capacity and, if so, whether such pain is related to her active duty service. 3. Entitlement to service connection for a left big toe disability is remanded. The Veteran has claimed entitlement to service connection for a left big toe disability. Her VA medical records reveal that she complained about the "crookiness" of her big toe in November 2014. A February 2018 VA treatment record indicates that she complained of a left foot bunion, hammer toe, and recurring toenail fungus on the big toe. Additionally, an October 2013 VA treatment note indicates that the Veteran reported a history of dropping a cutting board on her right big toe, causing a sore and painful toenail. At the September 2021 hearing, the Veteran testified that a cutting board fell onto her left great toe while loading equipment during her service in Iraq. She testified that she believes that her toe broke and that she repeatedly reinjured the toe. She also attributed her current toe problems to wearing boots during service and to her bunion. The Veteran has presented evidence that she has a current disability affecting the left big toe that may be related to her active duty service. Therefore, the threshold for VA's duty to provide a medical examination have been met, and this matter must be remanded for such examination. 38 U.S.C. § 5103A (d); McLendon, 20 Vet. App. at 83. 4. Entitlement to service connection for a right hip disability is remanded. The Veteran has claimed entitlement to service connection for a right hip disability. Her VA treatment records report a medical history of hip pain and osteoarthritis. During the September 2021 hearing, the Veteran testified that she injured her right hip in the same car accident that injured her left shoulder. As indicated above, a physical profile from February 2007 indicates that the Veteran was involved in a motor vehicle accident and subsequently placed on limited duty. The Veteran has presented evidence that she has a current disability affecting the right hip that may be related to her active duty service. Therefore, the threshold for VA's duty to provide a medical examination have been met, and this matter must be remanded for such examination. 38 U.S.C. § 5103A (d); McLendon, 20 Vet. App. at 83. 5. Entitlement to a rating in excess of 10 percent for cervical degenerative disc disease (DDD) is remanded. 6. Entitlement to an initial compensable rating, and a rating in excess of 30 percent for the period from October 29, 2018, for irritable bowel syndrome (IBS) is remanded. When the evidence of record does not reflect the current state of the claimant's disability, a VA examination must be conducted. When a claimant asserts that the severity of a disability has increased since the most recent VA examination, an additional examination is appropriate. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); VAOPGCPREC 11-95 (Apr. 7, 1995); 38 C.F.R. § 3.327(a). With regard to the Veteran's claims for increased disability evaluations for her service-connected cervical spine DDD and IBS, she presented evidence at the September 2021 hearing that the severity of both of these disabilities has increased since the most recent VA examinations in October 2018. Accordingly, as the evidence suggests that a worsening of IBS and cervical spine DDD has occurred, the Veteran should be afforded new VA examinations for these disabilities. The matters are REMANDED for the following action: 1. Take all necessary steps to verify the Veteran's period(s) of active duty for training (ACDUTRA), inactive duty training (IDT), and/or active duty for special work (ADSW). Reserve retirement point sheets are not adequate for this purpose; rather, the specific dates of the Veteran's ACDUTRA, IDT, and/or active duty for special work service are required. If this information or documentation is unavailable, this fact should be documented, and a formal finding of unavailability should be made. Notice should be given to the Veteran and her representative, and they should be given an opportunity to respond. 2. After completing #1, schedule the Veteran for a VA examination to determine the nature and etiology of her claimed left shoulder disability. The entire claims folder, including a copy of this remand, must be made available for review by the examiner, and such review should be noted in the examination report. For any diagnosed disability, or if the Veteran's left shoulder pain causes a functional impairment in earning capacity, the examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that such disability or pain was incurred during, or is otherwise related to, any period(s) of active duty service, to include ACDUTRA, IDT, and/or ADSW. The examiner must provide a comprehensive rationale for each proffered opinion. The examiner is advised that the Veteran is competent to report her 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 completing #1, schedule the Veteran for a VA examination to determine the nature and etiology of her claimed left ankle disability. The entire claims folder, including a copy of this remand, must be made available for review by the examiner, and such review should be noted in the examination report. For any diagnosed disability, or if the Veteran's left ankle pain causes a functional impairment in earning capacity, the examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that such disability or pain was incurred during, or is otherwise related to, any period(s) of active duty service, to include ACDUTRA, IDT, and/or ADSW. The examiner must provide a comprehensive rationale for each proffered opinion. The examiner is advised that the Veteran is competent to report her 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 completing #1, schedule the Veteran for a VA examination to determine the nature and etiology of her claimed left big toe disability. The entire claims folder, including a copy of this remand, must be made available for review by the examiner, and such review should be noted in the examination report. For any diagnosed disability, or if the Veteran's left big toe pain causes a functional impairment in earning capacity, the examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that such disability or pain was incurred during, or is otherwise related to, any period(s) of active duty service, to include ACDUTRA, IDT, and/or ADSW. The examiner must provide a comprehensive rationale for each proffered opinion. The examiner is advised that the Veteran is competent to report her 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. 5. After completing #1, schedule the Veteran for a VA examination to determine the nature and etiology of her claimed right hip disability. The entire claims folder, including a copy of this remand, must be made available for review by the examiner, and such review should be noted in the examination report. For any diagnosed disability, or if the Veteran's right hip pain causes a functional impairment in earning capacity, the examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that such disability or pain was incurred during, or is otherwise related to, any period(s) of active duty service, to include ACDUTRA, IDT, and/or ADSW. The examiner must provide a comprehensive rationale for each proffered opinion. The examiner is advised that the Veteran is competent to report her 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. 6. After completing #1, schedule the Veteran for a VA examination to determine the current severity of her service-connected cervical spine disability. The entire claims folder, including a copy of this remand, must be made available for review by the examiner, and such review should be noted in the examination report. 7. After completing #1, schedule the Veteran for a VA examination to determine the current severity of her service-connected irritable bowel syndrome. The entire claims folder, including a copy of this remand, must be made available for review by the examiner, and such review should be noted in the examination report. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Pratt 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.