Citation Nr: 1760303
Decision Date: 12/27/17 Archive Date: 01/02/18

DOCKET NO. 14-18 118 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi

THE ISSUES

1. Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for a right groin injury.

2. Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for a bilateral hip condition, to include as secondary to a right groin injury.

3. Entitlement to a rating in excess of 20 percent, effective prior to December 19, 2011, and a rating in excess of 30 percent, effective from December 19, 2011, for avascular necrosis of the right shoulder with secondary degenerative joint disease.

4. Entitlement to a rating in excess of 20 percent for avascular necrosis of the left shoulder with secondary degenerative joint disease.

5. Entitlement to a rating in excess of 10 percent for mild median neuropathy at the right wrist, associated with status post cold injury right hand with residuals.

6. Entitlement to a rating in excess of 10 percent for mild median neuropathy at the left wrist, associated with status post cold injury left hand with residuals.

7. Entitlement to a total disability rating due to individual unemployability (TDIU).

REPRESENTATION

Appellant represented by: Gregory D. Keenum, Attorney

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

D.M. Casula, Counsel

INTRODUCTION

The Veteran had active military service from September 1971 until September 1975 and from February 1978 until January 1985. He also served in the Mississippi Army National Guard from February 1985 until February 1994.

This matter comes before the Board of Veterans Appeals (Board) from a November 2010 rating decision of the Jackson, Mississippi Regional Office (RO) of the Department of Veterans Affairs (VA) which granted service connection for avascular necrosis of the right shoulder and of the left shoulder and assigned 20 percent ratings for each, effective November 9, 2009; found that new and material evidence had not been submitted to reopen the claims for service connection for right groin injury (previously claimed as right groin pain) and for arthritis, bilateral hips, as secondary to the right groin injury; and denied entitlement to a TDIU rating. This matter further comes before the Board from a December 2012 rating decision in which the RO denied ratings in excess of 10 percent for mild median neuropathy at the right and left wrists.

In August 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record.

The issues of entitlement to higher ratings for the service-connected right and left shoulder disabilities and for the service-connected right and left wrist disabilities, and entitlement to a TDIU rating, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1. In an unappealed July 2009 rating decision, the RO found that new and material evidence had not been submitted to reopen the claim for service connection for right groin pain, based on findings that the competent medical evidence did not show diagnosis of or treatment for a chronic condition associated with right groin pain during service; it is the last final disallowance of the claim for service connection for right groin pain.

2. New evidence has been received since the RO’s July 2009 rating decision, which is not cumulative, but does not relate to an unestablished fact necessary to substantiate the claim for service connection for right groin pain.

3. By February 2009 decision, the Board denied service connection for arthritis in the hips, based on a finding that the competent medical evidence indicated that the Veteran’s bilateral hip condition inclusive of degenerative changes was not attributable to service, to include any trauma from kickboxing. The Veteran did not appeal the February 2009 Board decision and it became final; it is the last final disallowance of the claim for service connection for bilateral hip arthritis.

4. New evidence has been received since the Board’s February 2009 decision, which is not cumulative, and relates to an unestablished fact necessary to substantiate the claim for service connection for bilateral hip arthritis.

5. There is competent medical evidence of record demonstrating that the Veteran has a current bilateral hip condition related to service.

CONCLUSIONS OF LAW

1. New and material evidence has not been received since the final July 2009 RO rating decision, and the claim for service connection for right groin injury may not be reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017).

2. New and material evidence has been received since the final February 2009 Board decision, and the claim for service connection for bilateral hip arthritis is reopened. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156 (2017).

3. Resolving reasonable doubt in favor of the Veteran, his bilateral hip condition was incurred in active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty to Notify and Assist

VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C.A. §§ 5103, 5103A and 38 C.F.R. § 3.159. For the issues decided in the instant document, VA provided adequate notice in a letter sent to the Veteran in December 2009.

Additionally, in August 2017, the Veteran was provided an opportunity to set forth his contentions during a hearing before the undersigned Veterans Law Judge. 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the August 2017 hearing, the undersigned stated the issue on appeal, as well as what was needed to substantiate the claim. Nothing gave rise to the possibility that evidence had been overlooked with regard to the Veteran’s claim. The undersigned complied with 38 C.F.R. § 3.103(c)(2) and the Board may proceed to adjudicate the claim based on the current record.

With respect to claims to reopen, VA must provide notice of the definition of new and material evidence. Kent v. Nicholson, 20 Vet. App. 1 (2006). VA is no longer required to provide notice of the element or elements that were found insufficient or the information and evidence necessary to substantiate the insufficient element or elements. See 38 U.S.C. § 5103 (a)(1); VAOPGCPREC 6-2014; see also Akers v. Shinseki, 673 F.3d 1352, 1358 (Fed. Cir. 2012). In this case, the December 2009 VCAA letter provided notice of the definition and elements of a new and material evidence claim. Thus, the criteria of VAOPGCPREC 6-2014 are satisfied.

The Board finds VA has satisfied its duty to assist the Veteran in the development of the claim. VA has obtained all identified and available service and post-service treatment records for the Veteran. It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained, and neither he nor his attorney has identified any other pertinent evidence which would need to be obtained for a fair disposition of this appeal. Also, neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

In sum, the Board finds that appellate review may proceed without prejudice to the Veteran with respect to his claim. Bernard v. Brown, 4 Vet. App. 384, 394 (1993).
II. New and Material Evidence

To reopen a claim following a final decision, new and material evidence must be submitted. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decisionmakers. 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. 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).

In determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The evidence need not relate specifically to the reason why the claim was last denied; rather it need only relate to any unestablished fact necessary to substantiate the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Additionally, the phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Shade, 24 Vet. App. at 117. 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.

1. Right Groin Pain

In a September 2006 decision, the Board denied service connection for right groin pain, based on a finding that although muscle strain was diagnosed in service when the Veteran sought treatment for right groin pain, the medical evidence since service did not show that the muscle strain diagnosed in service had been present chronically and continuously, and the Veteran has no current complaints of right groin pain that could be associated with any chronic muscle strain. The Veteran did not appeal this decision and it became final.

By July 2009 rating decision, the RO found that new and material evidence had not been submitted to reopen the claim for service connection for right groin pain, based on findings that the competent evidence did not show a diagnosis of or treatment for a chronic condition associated with right groin pain during service. The Veteran was notified of this decision, but did not perfect an appeal, nor did he submit new and material evidence within the one-year appeal period. Thus, the July 2009 rating decision is final and is the last final disallowance of the claim. 38 U.S.C. § 7105(c); 38 C.F.R. § 3.156(b), 20.1103.

The evidence of record at the time of the July 2009 RO rating decision included service treatment records (STRs), a VA examination, VA and private treatment records, and the Veteran’s statements. These documents show that in service, the Veteran engaged in kickboxing. He also complained of right groin pain on several occasions, and a diagnosis of muscle strain was rendered, related to the complaint of pain. Post-service, he continued to complain of right groin pain, but no disability was noted nor was a diagnosis assigned.

Evidence submitted subsequent to the July 2009 RO rating decision includes VA treatment records, VA examination reports, the Veteran’s testimony, a lay statement from his kickboxing coach in service, and an opinion from a private chiropractor, Dr. H. These documents show that the Veteran continues to report right groin pain related to service, however, review of record subsequent to the July 2009 RO rating decision shows no competent evidence of a current right groin disability. Although the evidence is new, it does not provide any competent evidence related to whether he has a current disability of the right groin that may be related to service. Therefore, this evidence would not reasonably substantiate the claim, were the claim for service connection for right groin pain be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Shade v. Shinseki, supra. Notably, the Veteran was provided a VA examination in October 2010, which included the right groin, and no diagnosis was rendered. The Board thus concludes that new and material evidence to reopen the claim for service connection for a right groin disability has not been received and the claim may not be reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156.

2. Bilateral Hip Condition

By February 2009 decision, the Board denied service connection for arthritis in the hips, based on a finding that the competent medical evidence indicated that the Veteran’s bilateral hip condition inclusive of degenerative changes was not attributable to service, to include any trauma from kickboxing. The Veteran was notified of the Board’s decision, but did not appeal. Thus, the February 2009 Board decision is final and is the last final disallowance of the claim for service connection for bilateral hip arthritis. 38 U.S.C. § 7104; 38 C.F.R. § 3.156(b), 20.1103.

The evidence of record at the time of the February 2009 Board decision included STRs, a VA examination report, VA and private treatment records, and the Veteran’s statements. These documents show that in service, he had a history of in-service kickboxing activities, as well as several in-service complaints and medical treatment regarding his hips. Post-service, the Veteran continued to complain of hip pain, arthritis of the hips and avascular necrosis was diagnosed, and he underwent hip replacement surgeries in 2004 and 2006.

Evidence submitted subsequent to the February 2009 Board decision includes a VA examination report, VA treatment records, the Veteran’s testimony, and an opinion from a private chiropractor, Dr. H. In reviewing the record since February 2009, in light of Shade v. Shinseki, the Board finds that the opinion from Dr. H., is new when considered with the evidence previously of record, and relates to an unestablished fact that may provide a reasonable possibility of substantiating this claim. Thus, new and material evidence has been submitted since the February 2009 Board decision, and the claim for service connection for a bilateral hip condition is hereby reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156.

III. Service Connection for Bilateral Hip Condition

Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In order to prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999).

The Veteran contends that his current bilateral hip condition is related to the kickboxing activities he participated in during active service.

Turning to the facts of the case, review of the record shows that he has been diagnosed with and treated for arthritis of the hips and for avascular necrosis of the hips, for which he underwent right and left total hip arthroplasties in 2004 and 2006, respectively; thus, there is sufficient evidence of a current disability.

What is needed in this case is competent evidence linking a current bilateral hip condition to the Veteran’s active service. In that regard, the Board notes that there are competent medical opinions both for and against the claim. The competent medical evidence weighing against the Veteran’s claim includes the VA examination report from October 2010, in which the examiner indicated that to say whether or not the avascular necrosis of the hips was linked to groin injuries he sustained in service would be unlikely, noting that the Veteran reported no history of hip fractures or hip dislocations that would have led to the avascular necrosis. The VA examiner thought that this was idiopathic in nature and would have progressed whether or not the Veteran was in active military duty or not.

The competent evidence of record that supports the Veteran’s claim includes a VA treatment record dated in January 2004, and an August 2017 letter from a private chiropractor, Dr. H. In the January 2004 VA treatment record, the Chief of the Orthopaedics Division indicated that the Veteran had asked her to review x-rays taken in March 1986 at Herndon Chiropractic Clinic, and noted that some of the x-rays included AP views of the hips, and that while the x-rays were of suboptimal quality, they did show early osteoarthritis of the hips. In the August 2017 letter, Dr. H. indicated that the Veteran had been a patient of his at his clinic in March 1986, and while he did not have the Veteran’s medical records on file anymore, Dr. H. had reviewed medical records that were sent to his office, and opined that it was as likely as not that the Veteran’s current problems with his hips and groin areas could be linked to his history of martial arts activities that he was involved in while in the military. Dr. H. indicated that since martial arts could put more stress on body parts such as the shoulders and hips, this would explain the Veteran’s problems at the present time

Thus, considering the conflicting medical opinions, both of which are definitive and supported by rationale, the Board finds that the competent evidence is in relative equipoise. Resolving reasonable doubt in the Veteran’s favor, entitlement to service connection for a bilateral hip condition is therefore granted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

ORDER

New and material evidence has not been received to reopen the previously denied claim of entitlement to service connection for right groin pain, and the appeal is denied.

New and material evidence having been received, the claim for service connection for a bilateral hip disability is reopened.

Service connection for a bilateral hip disability is granted.

REMAND

The Veteran contends he should be entitled to higher ratings for his service-connected right and left shoulder disabilities, and right and left wrist disabilities. At the hearing in August 2017, the Veteran testified that his right and left shoulder symptoms and his right and left wrist symptoms had significantly worsened since the last VA examinations. The record reflects that the most recent VA examination regarding his shoulders was conducted in May 2012, and the most recent VA examination regarding his wrists was conducted in May 2010. When a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); Snuffer v. Gober, 10 Vet. App. 400 (1997). Accordingly, a remand is warranted in order to schedule the Veteran for VA examinations to assess the current severity of his shoulder and wrist disabilities.

With regard to entitlement to a TDIU rating, since a favorable decision with regard to the issues remanded above may have an impact on the TDIU rating claim, such issues are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180 (1991).

Accordingly, the case is REMANDED for the following actions:

1. Request that the Veteran identify the provider(s) of any additional treatment or evaluation he has received for right/left shoulder conditions and right/left wrist conditions, records of which are not already associated with the claims files, and to provide any releases necessary for VA to secure such records of treatment or evaluation. Obtain complete records of all such treatment or evaluation from all sources identified by the Veteran. Negative replies should also be requested.

2. After all available and additional records are associated with the claims file, schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected right and left shoulder disabilities. The claims folder must be reviewed by the examiner in conjunction with the examination. The examiner must describe the nature and severity of all symptoms of the service-connected right and left shoulder disabilities. In addition, the examiner must provide findings of pain and range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.

3. After all available and additional records are associated with the claims file, schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected right and left wrist disabilities. The claims folder must be reviewed by the examiner in conjunction with the examination. The examiner must describe the nature and severity of all symptoms of his service-connected right and left wrist disabilities. In addition, the examiner must provide findings of pain and range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.

4. After the above development has been completed, review the file and ensure that all development sought in this remand is completed. Undertake any additional development indicated by the results of the development requested above, and re-adjudicate the claims. If any benefit sought is not granted, the Veteran and his attorney should be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).

______________________________________________
A. ISHIZAWAR
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

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