Citation Nr: 18154226
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 16-55 127
DATE:	November 29, 2018
ORDER
Whether new and material evidence has been received in order to reopen a claim for entitlement to service connection for a left hip condition is granted.
REMANDED
Entitlement to service connection for a left hip condition, to include as secondary to degenerative joint disease of the right hip, is remanded.
Entitlement to service connection for a cervical spine condition (claimed as a neck condition), to include as secondary to degenerative arthritis of the lumbar spine, is remanded.
Entitlement to an evaluation in excess of 10 percent for degenerative arthritis of the lumbar spine is remanded.
Entitlement to an initial compensable rating for hypertension is remanded.
Entitlement to a rating in excess of 20 percent for right hip degenerative joint disease (DJD) is remanded.
Entitlement to a temporary total evaluation because of treatment for a service-connected or other condition subject to compensation is remanded.
Entitlement to special monthly compensation (SMC) based on housebound status is remanded.
FINDINGS OF FACT
1. The Regional Office (RO) denied service connection for a left hip condition in March 2011 and notified the Veteran of its decision; subsequently, the Veteran did not file a notice of disagreement (NOD) or submit new evidence within one year of notification of the RO rating decision.
2. Since the final March 2011 decision denying service connection for a left hip condition, evidence relating to an unestablished fact necessary to substantiate the claim, which is neither cumulative nor redundant of the evidence of record at the time of the last prior denial of the claim, has been received.
CONCLUSIONS OF LAW
1. The March 2011 RO decision denying service connection for a left hip condition is final.  38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103.
2. The criteria to reopen the claim for service connection for a left hip condition, based on new and material evidence, have been met.  38 U.S.C. § 5108; 38 C.F.R. § 3.156.
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veteran served on active duty from August 1984 to August 2004.
Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a left hip condition
Service connection for a left hip condition was denied in March 2011 because the evidence did not show any diagnosed left hip condition.  The Veteran did not file a NOD or submit new evidence within a year; therefore, the decision is final.  38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 
The relevant evidence received since the denial consists of a July 2017 VA examination, revealing osteoarthritis of the left hip.  The new medical evidence may substantiate the Veteran’s claim.  Thus, this newly received evidence, when considering evidence previous of record, relates to unestablished facts necessary to reopen the previously denied claim of service connection.  Therefore, the Board concludes that this claim may be reopened due to new and material evidence.  38 C.F.R. § 3.156(a).  The reopened claim will be addressed in the REMAND section of this decision.
REASONS FOR REMAND
1. Entitlement to service connection for a left hip condition, to include as secondary to DJD of the right hip; and entitlement to service connection for a cervical spine condition, to include as secondary to degenerative arthritis of the lumbar spine are remanded.
In the August 2015 NOD, the Veteran asserted the Veteran’s left hip condition was secondary to the right hip condition and that his cervical spine condition was secondary to his lumbar spine condition.  The Veteran was afforded VA examinations in July 2017.  The examiner provided negative nexus opinions, finding arthritis of one joint cannot spread or cause arthritis of the opposing joint and arthritis of the lumbar spine cannot spread or cause arthritis of the cervical spine.  The examiner listed possible etiological factors without applying the factors to the Veteran’s specific medical history.  The examiner also did not address whether the Veteran’s right hip condition aggravated the left hip condition, or whether the Veteran’s lumbar spine condition aggravated the cervical spine condition.  Upon remand, the examiner must address both causation and aggravation.
2. Entitlement to an evaluation in excess of 10 percent for degenerative arthritis, lumbar spine is remanded.
The Veteran was last afforded a VA examination in June 2015 regarding his lumbar spine disability.  In February 2018, the Veteran’s representative asserted that the Veteran’s disability had worsened and the previous examination was no longer adequate.  A Veteran is entitled to a new VA examination where there is evidence that the disability has worsened since the last examination.  See Snuffer v. Gober, 10 Vet. App. 4000 (1997); Caffey v. Brown, 6 Vet. App. 377 (1994).  Therefore, he is entitled to a new examination to evaluate whether the lumbar spine disability has increased in severity to warrant an increased rating.
3. Entitlement to an initial compensable rating for hypertension is remanded.
The Veteran was last afforded a VA examination in September 2011 regarding his hypertension.  In November 2016, the Veteran’s representative asserted his disability had worsened and the previous examinations were no longer adequate.  See Snuffer, supra.  Therefore, he is entitled to a new examination to evaluate whether the hypertension disability has increased to warrant an increased rating.
The Veteran also contends that his hypertension has manifested in hypertensive heart disease.  See January 2015 NOD; January 2015 Web/HTML document.  An opinion is necessary to determine if the Veteran has hypertensive heart disease, and if so, whether the hypertensive heart disease was caused or aggravated by the Veteran’s hypertension.
4. Entitlement to a rating in excess of 20 percent for right hip degenerative joint disease is remanded; entitlement to a temporary total evaluation because of treatment for a service-connected or other condition subject to compensation is remanded; and entitlement to SMC based on housebound status are remanded.
In December 2015, the agency of original jurisdiction (AOJ) denied entitlement to SMC based on housebound and entitlement to a temporary total evaluation due to the Veteran’s right hip condition, continuing the Veteran’s 20 percent rating for DJD of the right hip.  In October 2016, the Veteran submitted a timely NOD, but a SOC has not yet been issued.  While the RO responded to this letter, over two years have since lapsed without issuance of a Statement of the Case (SOC).  A remand is required for the AOJ to issue a SOC.  38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).
The matters are REMANDED for the following action:
1. Make efforts to obtain all outstanding medical records in accordance with the duties set forth in 38 C.F.R. § 3.159(c).
2. After all outstanding records have been associated with the claims file, forward the Veteran’s file to a qualified VA medical professional in order assess the current severity of the Veteran’s lumbar spine and hypertension conditions; and to obtain addendum opinions as to the current nature and etiology of the Veteran’s left hip and cervical spine conditions.  (Multiple opinions from different treatment providers, and possible new VA examinations, may be conducted if deemed necessary.)  The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner(s).
The examiner(s) is asked to address the following:
(a.) For each diagnosed left hip condition, provide an opinion as to whether the right hip condition at least as likely as not (a 50 percent or greater probability) had its onset during or is otherwise related to any event or injury during the Veteran’s active duty, or at least as likely as not was caused or aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected right hip condition;
(b.) For each diagnosed cervical spine condition, provide an opinion as to whether the cervical spine condition at least as likely as not had its onset during or is otherwise related to any event or injury during the Veteran’s active duty, or at least as likely as not was caused or aggravated by the service-connected lumbar spine condition;
(c.) Provide an orthopedic examination for his lumbar spine condition with an appropriate examiner who has reviewed the claims file in conjunction with the examination.  The most current Disability Benefits Questionnaire must be employed, and all relevant findings indicated in that questionnaire must be addressed.
Examinations must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing; and
(d.) Provide a hypertension examination with an appropriate examiner who has reviewed the claims file in conjunction with the examination.  The most current Disability Benefits Questionnaire must be employed, and all relevant findings indicated in that questionnaire must be addressed. 
IF, the Veteran has hypertensive heart disease, provide an opinion whether the Veteran’s hypertensive heart disease at least as likely as not was caused or aggravated by the service-connected hypertension.
All opinions must be supported by a detailed rationale.
3. Issue a Statement of the Case (SOC) to the Veteran and his representative which addresses the claims for an increased rating for right hip condition, entitlement to SMC for housebound, and entitlement to a temporary total evaluation.  This SOC must include a full description of the Veteran’s rights and responsibilities in perfecting an appeal.

 
A. C. MACKENZIE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	B. N. Quarles, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.