Citation Nr: 18154156
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 14-31 537
DATE:	November 29, 2018
ORDER
New and material evidence having been submitted, the claim of entitlement to service connection for a cervical spine disability is reopened.
REMANDED
Entitlement to service connection for a cervical spine disability is remanded.
Entitlement to service connection for a thoracic spine disability is remanded.
Entitlement to a disability rating in excess of 20 percent for a lumbar spine disability is remanded.
Entitlement to a disability rating in excess of 30 percent for a left shoulder disability is remanded.
Entitlement to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity is remanded.
Entitlement to an initial rating in excess of 10 percent for radiculopathy of the right lower extremity is remanded.
Entitlement to a total disability rating based on individual unemployability (TDIU) due to service connected disabilities is remanded.
FINDINGS OF FACT
1. The RO denied the Veteran’s claim of entitlement to service connection for a cervical spine disability in an October 2008 rating decision.  The Veteran was notified of the decision, but she did not file an appeal or submit new and material evidence within the appeal period. 
2. Evidence obtained since the October 2008 rating decision is new and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a cervical spine disability. 
CONCLUSIONS OF LAW
1. The October 2008 rating decision which denied entitlement to service connection for a cervical spine disability is final.  38 U.S.C. § 7105(c) (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017).  
2. New and material evidence has been received to reopen the claim of entitlement to service connection for a cervical spine disability.  38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156(a) (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from April 1974 to August 1979, February 1991 to March 1991, and from April 2003 to August 2003.  In May 2017, the Veteran testified before the undersigned Veterans Law Judge.  A copy of the transcript is associated with the Veteran’s claims file.  


New and Material Evidence
1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a cervical spine disability
The Veteran’s claim of service connection for a cervical spine disability was denied in an October 2008 rating decision.  The Veteran did not file any statement indicating disagreement with the prior decision and no new and material evidence was physically or constructively received within one year of the determination.  Accordingly, the October 2008 rating decision is now final.  See 38 U.S.C. § 7105(c) (West 2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2017).  
Generally, a claim that has been finally denied by an unappealed rating decision may not thereafter be reopened and allowed.  38 U.S.C. § 7104(c).  The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.  New evidence is defined as existing evidence not previously submitted to agency decision makers.  Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a). 
The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.”  In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to why the claim was last denied.  Rather, VA should ask whether the newly submitted evidence, combined with VA assistance and considering alternative theories of entitlement, can reasonably substantiate the claim.  Shade v. Shinseki, 24 Vet. App. 110 (2010).  For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is generally presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992). 
At the time of the prior October 2008 determination, the evidence included the Veteran’s service treatment records (STRs), VA treatment records, private treatment records, and statements in support of the claim submitted by the Veteran.   
The post-service treatment records noted a diagnosis of degenerative joint disease of the cervical spine and treatment for pain associated with this disability, as well as pain with the service-connected left shoulder disability.  However, the RO determined that the Veteran’s records failed to show that her cervical spine disability was due to or aggravated by the left shoulder disability, as she claims.   
In relevant part, since the October 2008 denial, a note from the Veteran’s private physician, Dr. Young, attributes the cervical spine disability to her service connected left shoulder disability.  As such, the Board finds that the evidence submitted since the October 2008 prior denial relates to a previously unestablished fact necessary to substantiate the Veteran’s claim.  
Reopening of the claim for service connection for a cervical spine disability accordingly warranted, and the Veteran’s appeal is granted to that extent.
REASONS FOR REMAND
1. Entitlement to service connection for a cervical spine disability, to include as secondary to the service-connected left shoulder disability.
The Veteran is seeking service connection for a cervical spine disability on the basis that she believes it is due to or aggravated by the recurrent surgeries she has undergone for her service-connected left shoulder disability.
Here, there are conflicting medical opinions of record.  A September 2011 private medical opinion attributes the diagnosed degenerative disc and degenerative joint disease of the cervical spine to the left shoulder disability.  On the other hand, an April 2012 VA examination and September 2013 addendum opinion found it was less likely than not the cervical spine disability is due to or aggravated by the left shoulder disability.  
However, during the pendency of this appeal, the Veteran again underwent surgery on her left shoulder in July 2016.  As such, the Board finds that a new opinion must be obtained to determine whether the cervical spine disability is due to or aggravated by the left shoulder disability, to include the additional surgery required for service-connected left shoulder disability.  
2.  Entitlement to service connection for a thoracic spine disability.
An examination is needed to address whether there is a separate disability of the thoracic spine that is distinct from the already service-connected lumbar spine disability or the separately claimed cervical spine disability.
3.  Entitlement to a disability rating in excess of 30 percent for a lumbar spine disability is remanded.
The Veteran is seeking entitlement to a rating in excess of 20 percent for a lumbar spine disability.  
The United States Court of Appeals for Veterans Claims (Court) issued a decision in Correia v. McDonald, 28 Vet. App. 158 (2016), which held that an adequate VA examination of the joints must include testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.  See 38 C.F.R. § 4.59 (2017). 
During the pendency of the appeals period, which begins on February 3, 2011, one year prior to her claim for an increased rating received on February 3, 2012, the Veteran has been afforded examinations in April 2012 and March 2015 for the lumbar spine.  These examination reports did not include all the required testing pursuant to § 4.59 and Correia.  While the examinations provided ranges of motion, they did not indicate whether pain was present during both active and passive range of motion, or whether pain on weight-bearing and nonweight-bearing was observed.  As such, a new VA examination for the lumbar spine is needed.
The Court also recently issued a decision in Sharp v. Shulkin, 29 Vet. App. 26 (2017) which is applicable to this case.  In Sharp v. Shulkin, the Court held that, pursuant to VA regulations and the VA Clinician’s Guide, when conducting evaluations for musculoskeletal disabilities, VA examiners are obligated to inquire whether there are periods of flare-ups and, if the answer is yes, to state their “severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, ‘per [the] veteran,’ to what extent, if any, they affect functional impairment.”  Sharp, at 32.  The Court further explained that, in the event an examination is not conducted during a flare-up, the “critical question” in assessing the adequacy of the examination was “whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during flares.”  Id. at 34 (quoting Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011)).
Additionally, in the April 2012 examination, the VA examiner stated the Veteran suffered from daily flare-ups associated with the lumbar spine.  However, the March 2015 examination denied the existence of flare-ups.  As such, an examination is necessary to rectify the conflicting reports.  
Further, although the April 2012 report contains some information regarding the functional impairment resulting from the flare-up, according to the Veteran, the examiner did not address the duration of such flare-ups, as well as providing an estimation regarding range of motion during flares.  In light of Sharp, a new examination is also necessary. 
4.  Entitlement to a disability rating in excess of 30 percent for a left shoulder disability is remanded.
The Veteran is seeking a rating in excess of 30 percent for a left shoulder disability.  
The United States Court of Appeals for Veterans Claims (Court) issued a decision in Correia v. McDonald, 28 Vet. App. 158 (2016), which held that an adequate VA examination of the joints must include testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.  See 38 C.F.R. § 4.59 (2017). 
During the pendency of the appeals period, which begins on December 2, 2014, one year prior to her claim for an increased rating received on December 2, 2015, the Veteran has been afforded examinations in March 2015 and June 2017.  These examination reports did not include all the required testing pursuant to § 4.59 and Correia.  While the examinations provided ranges of motion, they did not indicate whether pain was present during both active and passive range of motion, or whether pain on weight-bearing and nonweight-bearing was observed.  As such, a new VA examination for the left shoulder is needed.
The Court also recently issued a decision in Sharp v. Shulkin, 29 Vet. App. 26 (2017) which is applicable to this case.  In Sharp v. Shulkin, the Court held that, pursuant to VA regulations and the VA Clinician’s Guide, when conducting evaluations for musculoskeletal disabilities, VA examiners are obligated to inquire whether there are periods of flare-ups and, if the answer is yes, to state their “severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, ‘per [the] veteran,’ to what extent, if any, they affect functional impairment.”  Sharp, at 32.  The Court further explained that, in the event an examination is not conducted during a flare-up, the “critical question” in assessing the adequacy of the examination was “whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during flares.”  Id. at 34 (quoting Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011)).
In the most recent VA examination dated in June 2017, it was noted the Veteran suffered from flare-ups.  Although the report contains some information regarding the frequency and duration of such flare-ups, as well as certain types of functional impairment resulting therefrom, no estimation was provided regarding range of motion during flares.  In light of Sharp, a new examination is also necessary. 
5.  Entitlement to initial ratings in excess of 10 percent each for radiculopathy of the right and left lower extremities is remanded.
Due to the remand required for the Veteran’s lumbar spine disability, the issues of left and right lower extremity radiculopathy will also be evaluated.  As such, these issues are inextricably intertwined and must be considered together.  Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).
6.  Entitlement to a TDIU
Likewise, as the issues being remanded on appeal could affect the claim for TDIU, the issues are inextricably intertwined and must be considered together.  Id. 
The matters are REMANDED for the following action:
1. Obtain all VA treatment records for the Veteran dated from June 2017 to the present.  All actions to obtain the requested records should be documented fully in the claims file.
2. Schedule the Veteran for a VA examination regarding the claim for service connection for a cervical spine disability.  The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the cervical spine disability is caused or aggravated by the service-connected left shoulder disability, to include the multiple surgeries on the left shoulder.  Aggravation is defined as a worsening beyond the natural progression of the disability.
A complete rationale must be provided for any opinion offered.
3.  Schedule the Veteran for a VA examination regarding the claim for service connection for a thoracic spine disability.  The examiner is asked to address whether the Veteran has a thoracic spine disability that is separate and apart from his already service-connected lumbar spine disability and the claimed cervical spine disability.  If the examiner determines that a separate thoracic spine disability is present, then the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or more), that the thoracic spine disability began in service, was caused by service, or is otherwise related to service.
A complete rationale must be provided for any opinion offered.
4.  Schedule the Veteran for a VA examination to ascertain the severity and manifestations of her service-connected lumbar spine and left shoulder disabilities.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.
The examiner(s) is/ are instructed to review all pertinent records associated with the claims file.
The examiner should report all signs and symptoms necessary for evaluating the Veteran’s service-connected lumbar spine and left shoulder disabilities under the rating criteria. 
(a.) Lumbar Spine:
1.	The examiner should provide the ranges of motion in degrees of the lumbar spine.  In so doing, the examiner should test the Veteran’s 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 so in the report.  The examiner should also review the April 2012 and March 2015 VA examinations for the lumbar spine and report the same, if possible.  If unable to provide these retrospective range of motions, he or she should state why and provide a reasoned explanation for the determination.
2.	The examiner shall inquire as to periods of flare- up, and note the frequency and duration of any such flare-ups.  
Any additional impairment on use or in connection with flare-ups should be described in terms of the degree of additional range of motion loss.  The examiner should specifically describe the severity, frequency, and duration of flare-ups; name the precipitating and alleviating factors; and estimate, per the Veteran, to what extent, if any, such flare-ups affect functional impairment.  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.  The examiner should also review the prior examinations noted above and provide a retrospective opinion as to the Veteran’s flare-ups based on the Court’s decision in Sharp.  If unable to provide this retrospective opinion, the examiner should state why and provide a reasoned explanation for the determination.
3.	The presence of objective evidence of pain, excess fatigability, incoordination and weakness should also be noted, as should any additional disability (including additional limitation of motion) due to these factors.
4.	Also comment on any additional neurological manifestations of the lumbar spine, to specifically include the current severity of the radiculopathy of the right and left lower extremities, and bowel and bladder impairment. 
(b.) Left Shoulder:
1.	The examiner should provide the ranges of motion in degrees of the left shoulder.  In so doing, the examiner should test the Veteran’s 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 so in the report.  The examiner should also review the March 2015 and June 2017 VA examinations for the left shoulder and report the same, if possible.  If unable to provide these retrospective range of motions, he or she should state why and provide a reasoned explanation for the determination.
2.	The examiner shall inquire as to periods of flare- up, and note the frequency and duration of any such flare-ups.  
3.	Any additional impairment on use or in connection with flare-ups should be described in terms of the degree of additional range of motion loss.  The examiner should specifically describe the severity, frequency, and duration of flare-ups; name the precipitating and alleviating factors; and estimate, per the Veteran, to what extent, if any, such flare-ups cause functional impairment.  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.  The examiner should also review the prior examinations noted above and provide a retrospective opinion as to the Veteran’s flare-ups based on the decision in Sharp.  If unable to provide this retrospective opinion, the examiner should state why and provide a reasoned explanation for the determination.
4.	The presence of objective evidence of pain, excess fatigability, incoordination and weakness should also be noted, as should any additional disability (including additional limitation of motion) due to these factors.
A clear rationale for all opinions requested must be provided.  Because it is important “that each disability be viewed in relation to its history [,]” (38 C.F.R. § 4.1), copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available to the examiner for review.

 
ROBERT C. SCHARNBERGER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	T. Berry, Counsel 

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