Citation Nr: 18160381
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 16-61 919
DATE:	December 27, 2018
ORDER
The application to reopen the claim of entitlement to service connection for depression is granted.
The application to reopen the claim of entitlement to service connection for a right hip disorder is granted.
The application to reopen the claim of entitlement to service connection for a left hip disorder is granted.
REMANDED
Entitlement to service connection for an acquired psychiatric disorder, diagnosed as major depressive disorder, to include as secondary to service-connected disabilities, is remanded. 
Entitlement to service connection for a right hip disorder is remanded. 
Entitlement to service connection for a left hip disorder is remanded. 
Entitlement to a rating in excess of 10 percent for the service-connected lumbar spine disability is remanded.
Entitlement to a rating in excess of 10 percent for the service-connected left ankle disability is remanded.
FINDINGS OF FACT
1. In unappealed December 2009 rating decision, the RO denied service connection for depression because there was no evidence of a current disability.
2. Evidence received since the last final December 2009 rating decision is new and material and raises a reasonable possibility of substantiating the claim of entitlement to service connection for depression.
3. In unappealed December 2009 and January 2013 rating decisions, the RO denied service connection for a right hip disorder because there was no evidence of a current disability.
4. Evidence received since the last final January 2013 rating decision is new and material and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a right hip disorder.
5. In unappealed April 2003 and January 2013 rating decisions, the RO denied service connection for a left hip disorder because there was no evidence of a current disability.
6. Evidence received since the last final January 2013 rating decision is new and material and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a left hip disorder.
 
CONCLUSIONS OF LAW
1. The April 2003 rating decision (left hip), December 2009 rating decision (right hip and depression), and the January 2013 rating decision (both hips), which denied service connection are final.  38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017).
2. New and material evidence has been received since the last denial of service connection for depression and the claim is reopened.  38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (a) (2017).
3. New and material evidence has been received since the last denial of service connection for a right hip disorder and the claim is reopened.  38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (a) (2017). 
4. New and material evidence has been received since the last denial of service connection for a left hip disorder and the claim is reopened.  38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (a) (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from September 1982 to September 1985.  
This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO).
As it pertains to the Veteran’s claims for an increased rating in excess of 10 percent for the left ankle disability and service connection for major depressive disorder, the Board notes that these issues were denied in the August 2014 rating decision.  The Veteran submitted a timely notice of disagreement as to both issues and a Statement of the Case (SOC) was issues in October 2016.  The Veteran did not submit a VA Form 9 Substantive Appeal as it pertained to the left ankle and major depressive disorder claims.  However, in October 2018, the RO issued a Supplemental SOC, on which it included these issues.  Therefore, the issues are considered to be on appeal.  See Percy v. Shinseki, 23 Vet. App. 37, 44 (2009).
Further, within one year of the August 2013 rating decision denying service connection for depressive disorder, the Veteran submitted additional information regarding his claim and indicated that his depression was due, at least in part, to symptoms associated with his service-connected disabilities.  See Veteran’s statement dated in February 2014.  As this evidence is new and material evidence received within one year of the August 2013 rating decision, the August 2013 rating decision did not become final, and the current appeal stems from this rating decision.
New and Material Evidence—Laws and Analysis
The Veteran was initially denied service connection for a left hip disorder in an April 2003 rating decision because the Veteran was not found to have a left hip disability.  The Veteran was notified of the rating decision, but did not appeal the decision.  As such, the April 2003 rating decision became final.  38 U.S.C. § 7105; 38 C.F.R. § 20.1103.
Additionally, the Veteran was denied service connection for a right hip disorder and depression in a December 2009 rating decision because he was not found to have current diagnoses pertaining to these disabilities.  The Veteran filed a Notice of Disagreement in April 2010, and a Statement of the Case was issued in December 2010; however, the Veteran did not file a substantive appeal.  As such, the December 2009 rating decision became final.  38 U.S.C. § 7105; 38 C.F.R.               § 20.1103.
In a January 2013 rating decision, the RO denied reopening the claims for a left or right hip disorder as new and material evidence had not been received to reopen the claims.  The Veteran was again notified of the rating decision, but did not appeal the decision.  As such, the January 2013 rating decision became final.                     38 U.S.C. § 7105; 38 C.F.R. § 20.1103.
A claim will be reopened in the event that new and material evidence is presented. 38 U.S.C. § 5108.  The Board must review all of the evidence submitted since the last final rating decision to determine whether the Veteran’s claims for service connection should be reopened and re-adjudicated on a de novo basis.  Evans v. Brown, 9 Vet. App. 273 (1996).  
With regard to petitions to reopen previously and finally disallowed claims, the Board must conduct a two-part analysis.  First, the Board must determine whether the evidence presented or secured since the prior final disallowance of the claim is “new and material.”  Second, if the Board determines that the evidence is “new and material,” it must reopen the claim and evaluate the merits of the claim in view of all the evidence, both new and old.  Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 
Section 3.156(a) provides as follows: A claimant may reopen a finally adjudicated claim by submitting new and material evidence.  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.  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) (2017). 
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). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.”  Justus v. Principi, 3 Vet. App. 510, 513 (1992).
As it pertains to the Veteran’s claim to reopen service connection for depression, the Board finds that additional evidence received since the December 2009 rating decision is new and material.  VA treatment records dated after the December 2009 rating decision include an October 2018 VA mental health consult note where the Veteran reported symptoms of depression.  During the evaluation, the Veteran stated that his long history of back and joint pain caused him continual, daily pain and shared his difficulty in falling asleep.  The Veteran was also afforded a VA psychiatric exmaitnion in July 2013, at which time he was diagnosed with adjustment disorder with chronic depressed mood.  
The Board finds that this evidence, showing complaints of depression and a psychiatric diagnosis, is “new” evidence, as it was not previously submitted to agency decision makers.  This evidence is also “material,” as it addresses the reason for the prior denial (i. e., lack of diagnosis).  As this new evidence relates to unestablished fact that is necessary to substantiate the claim for service connection for depression, the Board finds that new and material evidence has been received.  The claim for service connection for depression is reopened.  
Regarding the Veteran’s claims to reopen service connection for his right and left hip disorders, the Board finds that additional evidence received since the January 2013 rating decision is new and material.  The Board notes that the new evidence includes a December 2016 private treatment record showing a diagnosis of left hip bursitis.  A November 2016 private treatment note also shows that the Veteran experienced chronic right hip pain.  The Board notes that since the January 2013 rating decision, in Saunders v. Wilkie, 17-1466 (Fed. Cir. April 3, 2018), the Federal Circuit held that pain, a symptom, may constitute a disability if it produces functional limitation or impairment without identification of the underlying cause of pain.
In sum, the Board finds that these private treatment records showing bursitis in the left hip and chronic pain in the right hip are “new” evidence, as they were not previously submitted to agency decision makers.  This evidence is also “material,” as it addresses the reason for the prior denial (i. e., lack of diagnosis).  As this new evidence relates to unestablished fact that is necessary to substantiate the claims, the Board finds that new and material evidence has been received.  The claims for service connection for a left and right hip disorder are reopened.  

REASONS FOR REMAND
Psychiatric Disorder
The Veteran maintains that he has depression due to chronic pain associated with his service-connected lumbar spine and left ankle disabilities.  See Veteran’s February 2014 statement.  
VA treatment records include an October 2018 VA mental health consult note where the Veteran reported symptoms of depression.  During the evaluation, the Veteran stated that his long history of back and joint pain caused him continual, daily pain and shared his difficulty in falling asleep.
The Veteran was last afforded a VA psychiatric exmaitnion in July 2013, at which time he was diagnosed with adjustment disorder with chronic depressed mood.  The examiner did not address whether the Veteran’s psychiatric disorder was either caused or aggravated by his service-connected disabilities.  As such, a remand is required. 
Left and Right Hip Disorder
In his December 2016 substantive appeal, the Veteran indicated that his bilateral hip condition was directly related to service, to include “various jumps and landings from the airplanes as a paratrooper.”  
The Veteran’s DD Form 214 shows that the Veteran served as a Man-Portable Air-Defense System crewman.  He received various ribbons and badges; however, none of his decorations reveal service or training as a paratrooper.  Nonetheless, the Board notes that the Veteran’s service personnel record has not been obtained.  On remand, these records should be associated with the claims file.  
Further, given that the Veteran has now been diagnosed with left hip bursitis, and in consideration of Saunders, the Board finds that the Veteran should be afforded a VA examination.  Moreover, there is evidence in the claims file that the Veteran has also complained of bilateral hip pain in association with his service-connected lumbar spine and bilateral lower extremity radiculopathy disabilities; as such, the medical opinion should also address the theory of secondary service connection. 
Lumbar Spine
The Veteran was last afforded a VA spine examination in July 2014, over four years ago.  At that time, the examiner indicated that the Veteran did not experience flare-ups that impacted his spinal function.  The examiner also indicated that the Veteran did not have radiculopathy of the lower extremities associated with his lumbar spine disability.
The Board finds that a new VA examination is required to assess the current severity of the Veteran’s lumbar spine disability.  Although the July 2014 VA examiner indicated that the Veteran did not have flare-ups associated with lumbar spine or radiculaothy, these determinations are contradictory to the previous August 2012 examination report (where the Veteran was found to have both flare-ups of pain with muscle spasm and bilateral lower extremity radiculaothy).  Further, private treatment records from the Riverside Doctor’s Hospital, dated in November 2015, confirm a diagnosis of sciatica.  At that time, the Veteran also reported that his symptoms were worsening.  In his December 2016 substantive appeal (VA Form 9), the Veteran further indicated that he experienced several limitations due to his lumbar spine disability, including an inability to sit or drive for more than 30 minutes, no heavy lifting, and an inability to walk for extended periods of time.  
The Board finds that this evidence suggests some potentially worsening symptoms of the Veteran’s lumbar spine disabilities since the most recent 2014 VA examination.  Accordingly, the Veteran should be afforded new VA spine examination to ascertain the current severity of his spine and radiculopathy disabilities.
Left Ankle
The Veteran was last afforded a VA ankle examination in July 2014, over four years ago.  During the evaluation, the examiner indicated that the Veteran did not experience flare-ups of the left ankle.  Moreover, contributing factors to the Veteran’s functional impairment included less movement than normal, but no swelling or pain on movement. 
More recent private treatment records from CIOX Health, dated in December 2016, show that the Veteran complained of swollen ankles, which the Board finds could reasonably impact range of motion and other functions of the left ankle.    
This evidence suggests some potentially worsening symptoms of the Veteran’s left ankle disability since the most recent 2014 VA examination.  Accordingly, the Veteran should be afforded new VA ankle examination to ascertain the current severity of his disability.
The matters are REMANDED for the following actions:
1.  Obtain the Veteran’s service personnel records to assist in determining whether the Veteran performed duties or training as a paratrooper.  
2.  Obtain any outstanding VA treatment records since October 2018 and associate them with the electronic claims file.
3.  Then, schedule the Veteran for a VA hip examination.  The electronic claims file must be made available to the individual designated to provide the opinion.  The examiner is then asked to address the following:
(a.) List all diagnoses pertaining to the Veteran’s hips.  **Pain, a symptom, may constitute a disability if it produces functional limitation or impairment without identification of the underlying cause of pain.
(b.) For each diagnosis, state whether it is at least as likely as not (50% or greater probability) that the Veteran’s disorder was incurred in service or are otherwise related to service. 
(c.) For each diagnosis, state whether it is at least as likely as not that the Veteran’s hip disorder(s) is either caused or aggravated by his service-connected disabilities, including the lumbar spine and/or bilateral lower extremity radiculopathy.
(d.) All opinions are to be accompanied by a rationale consistent with the evidence of record.
4.  Schedule the Veteran for a VA psychiatric examination.  The electronic claims file must be made available to the individual designated to provide the opinion. The examiner is then asked to address the following:
(a.) List all current psychiatric diagnoses pertaining to the Veteran.
(b.) For each diagnosis, state whether the Veteran’s psychiatric disorder(s) is either caused or aggravated by his service-connected disabilities, including the lumbar spine, bilateral lower extremity radiculopathy, and left ankle disabilities. 
(c.) A complete rationale should be provided for the opinions given.
5. Schedule the Veteran for a VA examination to determine the current severity and scope of his service-connected lumbar spine disability. The VA examiner should review the file, and the examination report should reflect consideration of the Veteran’s documented medical history and assertions.
(a.) The examiner should conduct range of motion testing of the spine, specifically noting whether (upon repetitive motion) there is objective evidence of pain, weakened movement, excess fatigability, or incoordination on movement, including during flare-ups.  If pain on motion is observed, the examiner should indicate the point at which pain begins.  If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. 
(b.) The examiner is also asked to specifically test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016).  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.
(c.) Identify any neurological pathology related to the Veteran’s service-connected radiculopathy, and fully describe the extent and severity of those symptoms, including a statement of which nerves are involved.
6.  Schedule the Veteran for a VA examination to determine the current severity and scope of his service-connected left ankle disability.  The VA examiner should review the file, and the examination report should reflect consideration of the Veteran’s documented medical history and assertions.
(a.) The examiner should conduct range of motion testing of the left ankle, specifically noting whether (upon repetitive motion) there is objective evidence of pain, weakened movement, excess fatigability, or incoordination on movement, including during flare-ups.  If pain on motion is observed, the examiner should indicate the point at which pain begins.  If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. 
(b.) The examiner is also asked to specifically test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016).  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.
(Continued on the next page)
 
7. Then, readjudicate the issues on appeal.
 
S. B. MAYS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R. Casadei, Counsel 

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