Citation Nr: 18124015
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 15-19 175
DATE:	August 3, 2018
ORDER
The request to reopen the claim of service connection for gastroesophageal reflux disease (GERD) is granted.
The request to reopen the claim of service connection for an anxiety disorder with depression is granted.
Entitlement to service connection for right hip avascular necrosis, status post total hip replacement, is dismissed.
Entitlement to service connection for bilateral lower extremity radiculopathy is granted. 
Entitlement to service connection for adjustment disorder with depressed and anxious mood is granted. 
REMANDED
Entitlement to service connection for a cervical spine disability is remanded.
Entitlement to service connection for a right knee disability is remanded.
Entitlement to service connection for GERD is remanded.
Entitlement to service connection for bilateral lower extremity neuropathy is remanded.
Entitlement to a rating in excess of 20 percent disabling for myositis, lumbar paravertebral muscles, traumatic, chronic L5-S1 herniated nucleus pulposus (lumbar spine disability) is remanded.
FINDINGS OF FACT
1. Service connection for GERD was denied by the Board of Veterans’ Appeals (Board) in an October 2001 decision. The decision is final.
2. Evidence received since the October 2001 Board decision is relevant and probative as to the issue of service connection for GERD.
3. A September 1999 rating decision denied service connection for an anxiety disorder with depression. Although the Veteran appealed that decision, he later withdrew his appeal. Therefore, the decision is final.
4. Evidence received since the September 1999 rating decision is relevant and probative as to the issue of service connection for an anxiety disorder with depression.
5. During his June 2018 Board hearing, the Veteran explicitly and unambiguously withdrew his appeal of entitlement to service connection for right hip avascular necrosis, status post total hip replacement, with full understanding of the consequences of such action.
6. The Veteran has bilateral lower extremity radiculopathy that is caused by his service-connected lumbar spine disability.
7. The Veteran’s adjustment disorder with depressed and anxious mood was incurred during his active duty service and continued from that time.
CONCLUSIONS OF LAW
1. The October 2001 Board decision which denied service connection for GERD is final. 38 U.S.C. § 7104 (2012).
2. The evidence received since the October 2001 Board decision, which denied service connection for GERD, is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156 (2017).
3. The September 1999 rating decision which denied service connection for anxiety disorder with depression, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017).
4. The evidence received since the September 1999 rating decision, which denied service connection for an anxiety disorder with depression, is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017).
5. The criteria for withdrawal of a substantive appeal are met; the Board has no further jurisdiction to consider the appeal of entitlement to service connection for right hip avascular necrosis, status post total hip replacement. 38 U.S.C. §§ 7104, 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017).
6. The criteria for entitlement to service connection for bilateral lower extremity radiculopathy have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017).
7. The criteria for entitlement to service connection for adjustment disorder with depressed and anxious mood have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from November 1977 to November 1981 and from January 1991 to October 1991, with additional service in the Reserves. 
This matter comes before the Board on appeal from August 2014, March 2015, and April 2015 rating decisions by the Department of Veterans Affairs (VA). 
In June 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record.
After reviewing the evidence of record, and in light of Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Board has recharacterized the Veteran’s claim of service connection for generalized anxiety with depression to encompass any acquired psychological disorder. However, because the Veteran has a previously denied claim of entitlement to service connection for PTSD that has not been reopened, the matter specifically excludes PTSD.
New and Material Evidence
1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for GERD.
The issue of entitlement to service connection for GERD was denied in an September 1999 rating decision, which was appealed to the Board. The Board denied the issue in October 2001 on the basis that the Veteran’s GERD was not related to any in-service or post-service complaints. The October 2001 Board decision is final.
Since that time the Veteran was service connected for fibromyalgia, see August 2014 rating decision, and has stated that he believes his GERD may be caused by that disability. Specifically, he testified he did not have stomach problems until he began taking medication for his fibromyalgia. See June 2018 Board hearing. Normally, a new theory of causation is not sufficient to reopen a previously denied claim. 38 U.S.C. § 7104(b). However, if the evidence supporting the Veteran’s new theory of causation constitutes new and material evidence, then the claim must be reopened. Boggs v. Peake, 520 F.3d 1330, 1336-1337 (Fed. Cir. 2008). The evidence presented during the Veteran’s Board hearing is clearly “new,” because it postdates the October 2001 Board decision, and is also “material,” because it represents a nexus (causation) between the Veteran’s service-connected fibromyalgia and GERD; relates to a previously unestablished element of service connection; and raises a reasonable possibility of substantiating the underlying issue. It cures an evidentiary defect which existed at the time of the prior denial, the lack of a nexus. Consequently, the issue of service connection for GERD is reopened.
2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an anxiety disorder with depression.
The issue of entitlement to service connection for a generalized anxiety disorder with depression was denied in a September 1999 rating decision on the basis that new and material evidence demonstrating that the Veteran’s condition was incurred or aggravated by service was not submitted. The Veteran appealed that decision to the Board but withdrew his appeal. See October 2000 written statement. Therefore, the September 1999 rating decision became final.
Since the September 1999 rating decision, the Veteran testified at a Board hearing that he was in fear of his life while on active duty and that he believes this led to his anxiety and depression. See June 2018 Board hearing. This evidence is clearly “new,” because it postdates the September 1999 rating decision, and is also “material,” because it represents incurrence of the Veteran’s anxiety and depression during service; relates to a previously unestablished element of service connection; and raises a reasonable possibility of substantiating the underlying issue. It cures an evidentiary defect which existed at the time of the prior denial, the lack of incurrence. Consequently, the issue of service connection for an anxiety disorder with depression may be reopened.
Withdrawal
Entitlement to service connection for right hip avascular necrosis, status post total hip replacement.
During his June 2018 Board hearing, the Veteran explicitly and unambiguously withdrew his appeal of entitlement to service connection for right hip avascular necrosis, status post total hip replacement, with full understanding of the consequences of such action. The Board finds that there remain no allegations of errors of fact or law for appellate consideration with respect to this issue. Accordingly, as the Board has no further jurisdiction to review an appeal on this matter, it is dismissed.
Service Connection
1. Entitlement to service connection for bilateral lower extremity radiculopathy.
The Veteran is service-connected for myositis, lumbar paravertebral muscles, traumatic, chronic L5-S1 herniated nucleus pulposus. A private physician provided a detailed report outlining that the Veteran now has lumbar spine degenerative disc disease (DDD) with radiculopathy. The physician opined that the Veteran’s DDD is an aggravation of his pre-existing condition that he suffered while in the military and the aggravation was caused by his post-service work-related physical demands of casing mail and standing on his feet. The physician then stated that the Veteran’s radicular pain is caused by the nerve root pressure that occurs from the bulging discs resulting from the DDD process. See July 2013 private report. While two VA examiners opined that the Veteran did not have radiculopathy, their opinions are given no probative weight because there was no rationale provided. See March 2013 and February 2015 VA spine examinations. As a result, the evidence reflects that the Veteran has bilateral lower extremity radiculopathy that is a result of his service-connected lumbar spine disability, and service connection is warranted.
2. Entitlement to service connection for an acquired psychological disorder other than PTSD.
The Veteran has a current diagnosis of adjustment disorder with depressed and anxious mood. See March 2014 VA treatment records. He was hospitalized in Germany in October 1981 and was given a diagnosis of adjustment disorder with mixed disturbance of conduct and emotions, alcohol abuse by history in remission, and passive aggressive personality disorder. See December 1998 VA examination. His service treatment records (STRs) corroborate October 1981 treatment in Germany for a “deep depression.” See December 1982 Report of Medical History. Also, two VA examiners diagnosed generalized anxiety disorder, see July 1992 and December 1998 VA examinations, it is clear the Veteran’s psychological symptoms continued after his in-service diagnosis. Because the record reflects the Veteran’s adjustment disorder was originally diagnosed, and thus incurred, during his active duty service and continued from that time, service connection for adjustment disorder with depressed and anxious mood is warranted.
REASONS FOR REMAND
1. Entitlement to service connection for a cervical spine disability is remanded.
The Veteran attributed his neck problems to his service-connected lumbar spine disability, specifically its painful effects on his posture, and how he walks and sits. See June 2018 Board hearing. His treatment records reflect moderate cervical canal stenosis and degenerative changes in cervical spine. See February 2016 VA treatment records. Because there are outstanding medical questions remaining, remand for a VA examination is necessary. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).


2. Entitlement to service connection for a right knee disability is remanded.
The Veteran testified that he has had right knee pain since service. See June 2018 Board hearing. X-rays taken during a January 1999 VA examination reflect the Veteran’s knees were normal. As reported by a VA examiner, the Veteran stated he started having right knee pain since approximately 2012, which is inconsistent with his Board testimony. See May 2014 VA examination. A July 2013 private evaluator stated he believed the Veteran’s right knee internal derangement and torn medial meniscus were related to his post-service work, but did not discuss the question of whether it is related to his military service. See July 2013 private report. The May 2014 VA examiner opined that the Veteran’s right knee disability is less likely than not related to his service-connected lumbar spine disability, but the opinion is inadequate because it is a conclusory statement merely stating that the knee and spine are unrelated to each other. See May 2014 VA examination. Because there are inadequate opinions of record, remand for a new VA examination is necessary.
3. Entitlement to service connection for GERD is remanded.
While the Veteran asserted that the only theory of entitlement for GERD should be as secondary to his service-connected fibromyalgia and lumbar spine disability, see June 2018 Board hearing, review of the record reflects that development of a direct service connection theory of entitlement is also necessary. 
The Veteran has potentially conflicting testimony regarding when he began to have stomach problems; at the very least it is unclear when the Veteran’s stomach pain began. Compare October 2000 Regional Office (RO) hearing (testifying that he had stomach problems since service) to June 2018 Board hearing (testifying that he did not have stomach problems until he began taking medication for his fibromyalgia and lumbar spine disability). A March 2015 VA examiner opined that the Veteran’s GERD is less likely than not related to his service-connected disabilities, but provided a conclusory statement about medical literature and did not address aggravation. See March 2015 VA examination. See also Bailey v. O’Rourke, No. 16-2826 (Vet. App. July 10, 2018) (holding that a medical opinion stating only that there is nothing in the medical literature supporting an association between a disability and a Veteran’s military service is inadequate as a matter of law). The examiner then provided an addendum opinion that inappropriately relied on the absence of evidence during and after service. See April 2015 VA examination addendum. Because the opinions of record are inadequate, remand for a new VA examination is necessary.
4. Entitlement to service connection for bilateral lower extremity neuropathy.
The Veteran testified that he experienced deep, neurological nerve pain and numbness associated with neuropathy. See June 2018 Board hearing. The Veteran is now service-connected for bilateral lower extremity radiculopathy. Remand for a VA examination is necessary to determine whether the Veteran’s has neuropathy and, if so, whether its manifestations can be distinguished from his radicular symptoms. See McLendon, 20 Vet. App. at 81.
5. Entitlement to an increased rating in excess of 20 percent disabling for a lumbar spine disability is remanded.
The Veteran’s most recent VA examination for his lumbar spine disability occurred in February 2015. Since that time, he has indicated that his disability has worsened. See June 2018 Board hearing. Because it has been over three years since the last VA examination, remand for a contemporaneous examination is required to assess the current severity of his service-connected disability. See Green v. Derwinski, 1 Vet. App. 121 (1991); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).
The matters are REMANDED for the following action:
1. The AOJ should obtain copies of VA treatment records for the Veteran’s disabilities from August 2017 to the present.
2. After the above development has been completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any cervical spine disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following:
(a.) Please identify, by diagnosis, all cervical spine disabilities present during the appeal period (from September 2014).
(b.) For each disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either caused or aggravated by the Veteran’s service-connected lumbar spine disability? The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. The examiner must discuss the Veteran’s complaints that his walking pattern, sitting pattern, posture, and pain have contributed to his cervical spine disability.
3. After the development in the first two instructions is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any right knee disabilities. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following:
(a.) Please identify, by diagnosis, all right knee disabilities present during the appeal period (from October 2013).
(b.) For each disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either caused or aggravated by the Veteran’s service-connected lumbar spine disability? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. 
(c.) If any right knee disabilities are not caused or aggravated by the Veteran’s service-connected lumbar spine disability, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s active duty service? Please explain why. The examiner must discuss the Veteran’s complaints that he had knee pain since service. A statement relying on the absence of evidence in the active duty STRs will not be deemed sufficient.
4. After the development in the first two instructions is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of his GERD. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following:
(a.) The examiner should confirm when the Veteran started to have stomach pain.
(b.) Is it at least as likely as not (50% or greater probability) that the Veteran’s GERD was either caused or aggravated by his service-connected fibromyalgia or lumbar spine disability, specifically the medications taken for such disabilities? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. A conclusory statement regarding the relationship between medication and the Veteran’s GERD will be deemed inadequate.
(c.) If the Veteran’s GERD is not caused or aggravated by his service-connected fibromyalgia or lumbar spine disability, is it at least as likely as not (50% or greater probability) that it was either incurred in or otherwise related to his active duty service? Please explain why. The examiner must discuss the Veteran’s complaints that he had stomach pain since service.
5. After the development in the first two instructions is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any bilateral lower extremity neuropathy. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following:
(a.) Please identify whether the Veteran has bilateral lower extremity neuropathy. If it is not diagnosed, please explain why.
(b.) If bilateral lower extremity neuropathy is diagnosed, please state whether the Veteran’s neuropathy-related symptoms can be distinguished from his service-connected bilateral lower extremity radiculopathy symptoms.
(c.) If bilateral lower extremity neuropathy is diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s active duty service? Please explain why. If not, please explain the most likely cause of the Veteran’s neuropathy.
6. After the above development in the first two instructions is completed, the AOJ should arrange for an orthopedic examination of the Veteran to assess the current severity of his service-connected lumbar spine disability. The examiner must review the entire record in conjunction with the examination and note such review was conducted. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. All indicated tests or studies should be completed.
Range of motion measurements must be included for active and passive motion, and weight-bearing and non-weight-bearing circumstances. If pain is noted, the point in the range of motion at which pain starts should be clearly noted.
If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; a rationale based on the fact that the Veteran is not having a flare-up at the time of the examination will not be deemed adequate.


7. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures.
 
E. I. VELEZ
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. Sandler, Associate Counsel 

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