Citation Nr: 1311541 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 10-47 533 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for the residuals of a right leg hamstring injury. REPRESENTATION Veteran represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran served on active duty with the United States Army from May 1994 to January 2000, with prior service as a Cadet at the United States Military Academy at West Point from July 1990 to May 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2010 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Newark, New Jersey. The decision set out below grants the application to reopen the claim for service connection for the residuals of a right leg hamstring injury. The underlying issue for service connection for the residuals of a right leg hamstring injury is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a February 2005 rating action, the RO denied the Veteran's initial claim for service connection for a right leg hamstring disorder; the Veteran was provided notice of the decision and his appellate rights, but did not file a notice of disagreement. 2. In January 2010, the Veteran filed an application to reopen his claim. 3. Additional evidence received since the February 2005 rating action is new to the record and relates to an unestablished fact necessary to substantiate the merits of the claim, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The February 2005 rating action, in which the RO denied the Veteran's initial claim for service connection for a right leg hamstring disorder, is final. 38 U.S.C.A. § 7105 (West 2002). 2. The evidence received since the February 2005 rating action is new and material, and the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has considered the Veteran's claim to reopen based on new and material evidence with respect to the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5100 et. seq. (West 2002). Given the favorable outcome as noted above, no conceivable prejudice to the Veteran could result from this adjudication. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board notes that the term "active duty" means service as a cadet at the United States Military, Air Force, or Coast Guard Academy, or as a midshipman at the United States Naval Academy. 38 U.S.C.A. § 101(21)(D). Additionally, the term "active military, naval, or air service" includes active duty. 38 U.S.C.A. § 101(24)(A). See also 38 C.F.R. § 3.6(a), (b)(4). In order to prevail on the issue of service connection, a three-element test must be satisfied. Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a relevant disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))). Lay evidence nonetheless can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay persons can also provide an eye-witness account of an individual's visible symptoms. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). The Veteran's original claim of entitlement to service connection for a right leg hamstring disorder was denied by the RO in a February 2005 rating action. At that time, the RO noted that according to the Veteran's service treatment records, he had a history of a right hamstring injury in 1992. In 1999, the Veteran also indicated that he had experienced a hamstring pull in 1998, but that was not shown. In the September 2004 VA examination report, it was indicated that the Veteran had a current hamstring pull which was resolving. However, the RO stated that there was no evidence of record showing a relationship between the resolving hamstring pull and the Veteran's military service. The Veteran was provided notice of the decision and of his appellate rights. He did not file a notice of disagreement. Therefore, the February 2005 rating decision became final based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103 (2012). Nevertheless, a claim will be reopened in the event that new and material evidence is presented. 38 U.S.C.A. § 5108. Because the February 2005 rating action was the last final disallowance, the Board must review all of the evidence submitted since that action to determine whether the Veteran's claim for service connection should be reopened and re-adjudicated on a de novo basis. Evans v. Brown, 9 Vet. App. 273 (1996). If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Board shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108 (West 2002). For claims filed on or after August 29, 2001, such as this claim, 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). For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence of record at the time of the February 2005 rating action consisted of the Veteran's service treatment records and a September 2004 VA examination report. The Veteran's service treatment records show that in October 1999, the Veteran underwent an expiration of term of service (ETS) examination. With respect to the Veteran's past/current medical history, the Veteran indicated that in 1992, while he was at West Point, he received treatment for a hamstring pull. The examiner noted that in 1992, the Veteran experienced a right hamstring pull with no sequelae. The Veteran's lower extremities were clinically evaluated as "normal." The records also include a Report of Medical Assessment, dated in September 1999. In the report, in response to the question of whether the Veteran had suffered from any injury or illness while on active duty for which he did not seek medical care, the Veteran responded "yes." He stated that he experienced a hamstring pull in August 1998. In September 2004, the Veteran underwent a VA examination. At that time, he stated that he had a hamstring pull on the right side while playing soccer between 1996 and 1997, and was treated at Fort Carson, Colorado. According to the Veteran, he underwent physical therapy. Upon physical examination, the Veteran performed squatting and there was no increased in pain in the hamstring muscle. The diagnosis was hamstring strain which was resolving. Evidence received subsequent to the February 2005 rating action consists primarily of a private medical statement from I.D.S., M.D., dated in November 2009. In the statement, Dr. S. indicated that he had recently examined the Veteran. The Veteran's most pressing problem was a chronic problem with his right proximal hamstring. The Veteran attended West Point and injured his right hamstring while participating in gymnastics. He was running towards the vault when he ruptured the right proximal hamstring. The Veteran had received extensive treatment in that area but continued to have a chronic problem with the right hamstring. Any type of force put on the hamstring, such as when kneeling or stooping, created pain. The Veteran had pain when he got up from a sitting or crouched position. According to Dr. S., physical examination revealed some residual tightness and tenderness over the area. The Board has reviewed the evidence since the February 2005 rating action and has determined that the private medical statement from Dr. S. is new and material. In the statement, Dr. S. referred to the Veteran's in-service right hamstring injury; specifically, he noted that the Veteran had ruptured the right proximal hamstring while he was at West Point. In addition, Dr. S. reported that the Veteran currently had residuals of the in-service right hamstring injury. According to Dr. S., the Veteran had residual tightness and tenderness over the area. This private medical statement supports the Veteran's contention that he currently has residuals from his in-service right hamstring injury. A supportive nexus opinion was not previously of record; such evidence raises a possibility of substantiating the service connection claim for a right leg hamstring disorder. Therefore, in light of the above, the Board finds that new and material evidence has been obtained and that the claim for service connection for a right leg hamstring disorder is reopened. 38 C.F.R. § 3.156. The Board's decision is strictly limited to the reopening of the claim and does not address the merits of the underlying service connection claim. ORDER New and material evidence has been received to reopen a claim of service connection for the residuals of a right leg hamstring injury; the appeal is granted to this extent only. REMAND In view of the Board's decision above, the Veteran's claim for service connection for the residuals of a right leg hamstring injury must be adjudicated on a de novo basis without regard to the finality of the February 20005 rating decision. In this case, the Veteran contends that during service, he injured his right hamstring. He notes that after the injury, he experienced chronic pain in his right hamstring. The Veteran maintains that he currently has a right hamstring disability that is related to his period of service, specifically to his in-service right hamstring injury. At the outset, the Board recognizes that in the March 2010 rating action, the RO stated that the Veteran's period of time as a Cadet at West Point did not qualify as "active duty." However, under 38 U.S.C.A. § 101(21)(D) (West 2002), service as a Cadet at the United States Military Academy is "active duty." Thus, the Veteran's period of service as a Cadet at the United States Military Academy at West Point from July 1990 to May 1994 qualifies as "active duty." Upon a review of the evidence of record, the Board notes that the Veteran has given a history of three separate hamstring injuries. In the 1999 ETS report, the Veteran noted that in 1992, while he was at West Point, he experienced a hamstring pull. In addition, in the September 1999 Report of Medical Assessment, the Veteran indicated that he experienced a hamstring pull in August 1998. Moreover, in the September 2004 VA examination, the Veteran stated that he had a hamstring pull on the right side while playing soccer at Fort Carson between 1996 and 1997. The Veteran's service treatment records are negative for any actual treatment rerecords documenting that the Veteran injured his right hamstring at any point during service. However, the Veteran is competent under the law to describe what he experienced while in military service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Veteran is also competent to report what comes to him through his senses, which would include experiencing pain in his right hamstring during and after service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Ultimately, given that the Veteran's primary contention during the course of this appeal is that he injured his right hamstring in 1992 while he was at West Point, and in consideration of the fact that he noted such injury on his October 1999 ETS exam, the Board will accept as true that the Veteran injured his right hamstring in 1992 while he was a Cadet at West Point and subsequently developed chronic pain in his right hamstring. Nevertheless, a symptom, such as pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Given that the Board accepts as true that the Veteran did injure his right hamstring during service and subsequently developed chronic pain in his right hamstring, the Board is of the opinion that a new VA examination, as specified in greater detail below, should be performed in order to determine the nature and etiology of any currently diagnosed right hamstring disability. In the Veteran's March 2010 notice of disagreement (NOD), he stated that he wanted an informal hearing with the Decision Review Officer (DRO). There is no evidence of record showing that such a hearing was subsequently conducted. Thus, upon remand, the Veteran should be contacted in order to determine if he still desires a hearing with the DRO. Accordingly, the case is REMANDED for the following action: 1. The RO should contact the Veteran and ask him if he still desires a personal hearing at the RO. Any appropriate action should be taken. 2. The RO must make arrangements with the appropriate VA medical facility for the Veteran to be afforded a VA orthopedic examination to ascertain the nature and etiology of any right hamstring disability. The claims folder must be made available to the examiner for review in conjunction with the examination. The examiner must review all of the evidence of record, to specifically include the November 2009 private medical statement from Dr. S. All necessary special studies or tests are to be accomplished, to include x-rays if deemed necessary by the examiner. After a review of examination findings and the entire evidence of record, the examiner should render an opinion on the following: Does the Veteran have a current right hamstring disability? If so, is it at least as likely as not (50 percent or greater probability) that any currently diagnosed right hamstring disability is related to the Veteran's period of military service, to include his in-service right hamstring injury in 1992 while he was a Cadet at West Point? [Although the Veteran's service treatment records are negative for any actual treatment records showing that the Veteran injured his right hamstring, the examiner should accept as true that the Veteran injured his right hamstring in 1992 as a Cadet at West Point and subsequently developed chronic pain in his right hamstring.] The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. If no right hamstring disability is diagnosed or no link to military service is found, such findings and conclusions should be affirmatively stated and a complete rationale for any opinion expressed should be included in the examination report. 3. After completion of the above and any other development deemed necessary, the RO should review and re-adjudicate the issue on appeal. If such action does not grant the benefit claimed, the RO should provide the Veteran and his representative a supplemental statement of the case and an appropriate period of time should be allowed for response. Thereafter, the case should be returned to this Board for appellate review. 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 Supp. 2012). ______________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs