Citation Nr: 1340608 Decision Date: 12/09/13 Archive Date: 12/20/13 DOCKET NO. 11-24 594 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a lumbar spine disability and, if so, whether service connection is warranted. 2. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a right knee disability and, if so, whether service connection is warranted. 3. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a left knee disability and, if so, whether service connection is warranted. 4. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a right shoulder disability and, if so, whether service connection is warranted. 5. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a right hip disability and, if so, whether service connection is warranted. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from November 1983 to October 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) above. In August 2011, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing. A transcript of the hearing is associated with the claims file. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. In a final rating decision dated in May 2002, the RO denied service connection for lumbar radiculopathy with right L5 distribution, a right knee condition, a left knee condition, a right shoulder condition, and a right hip condition. 2. Evidence added the record since the final May 2002 rating decision is not cumulative or redundant of the evidence of record at the time of the last final decision and raises a reasonable possibility of substantiating the Veteran's service connection claims. 3. The most competent, credible, and probative evidence of record establishes that the Veteran's current lumbar spine, right knee, left knee, right shoulder, and right hip disabilities are directly related to his military service. CONCLUSIONS OF LAW 1. The May 2002 rating decision that denied service connection for lumbar radiculopathy with right L5 distribution, a right knee condition, a left knee condition, a right shoulder condition, and a right hip condition is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2002) [(2012)]. 2. New and material evidence sufficient to reopen the Veteran's claims of service connection for a lumbar spine disability, a right knee disability, a left knee disability, a right shoulder disability, and a right hip disability has been received. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. The Veteran's current lumbar spine, right knee, left knee, right shoulder, and right hip disabilities were incurred as a result of his active military service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duties to notify and assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Specific to requests to reopen, the claimant must be notified of both the reopening criteria and the criteria for establishing the underlying claim for service connection. See Kent v. Nicholson, 20 Vet. App. 1 (2006). As the Board's decision herein to reopen and grant the Veteran's claims of entitlement to service connection for a lumbar spine, bilateral knee, right shoulder, and right hip disabilities is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. Reopened Claims - New and Material evidence Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C.A. § 5108 , which provides that if new and material evidence is presented or secured with respect to a claim which 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 the VA, and material evidence is defined as 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). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). By way of background, entitlement to service connection for lumbar radiculopathy with right L5 distribution, a right knee condition, a left knee condition, a right shoulder condition, and a right hip condition was denied in a May 2002 rating decision. At that time, the evidentiary record contained the Veteran's Application for Compensation or Pension, dated October 2000, wherein he reported injuring his back, right shoulder, right hip, and left leg in 1985 and 1986. The record also contained his service treatment records (STRs), which showed the Veteran incurred a laceration to his right knee and leg in September 1985 but did not, otherwise, contain any evidence of complaints or diagnosis of a chronic lumbar spine, right or left knee, right shoulder, or right hip disability. The record also contained a post-service lumbar spine MRI, dated June 2000, which showed L4/5 disc extrusion and findings determined to likely be neuritis. Based on this evidence, the RO denied the Veteran's claims on the basis that the claimed disabilities were not shown to be incurred in or caused by his military service, noting that there were no indication that the disabilities were treated during or after service. The Veteran was notified of the RO's decision and his appellate rights in May 2002, but no further communication regarding his service connection claims was received until September 2008 when the Veteran submitted a claim to reopen the previously denied claims via VA Form 21-526. The Veteran did not submit any communication regarding his previously denied service connection claims during the one year appeal period following the May 2002 rating decision. Therefore, the May 2002 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2005) [(2012)]. In reaching such determination, the Board has considered the provisions of 38 C.F.R. § 3.156(b), which holds that new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. In the instant case, such regulation is inapplicable as no evidence pertaining to the Veteran's claims of service connection for a lumbar spine, right knee, left knee, right shoulder, and right hip disability was received prior to the expiration of the appeal period stemming from the May 2002 rating decision. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a). Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the 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). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). As noted, the current appeal arises from a claim to reopen submitted by the Veteran in September 2008. In support of his claim, the Veteran has asserted that his current lumbar spine, right and left knee, right shoulder, and right hip disabilities are a result of the parachute jumps he performed during service. At the August 2011 hearing, the Veteran testified that he performed 50 parachute jumps during service, including in Honduras/Central America and stateside, as well as the circumstances of those jumps, including the effect the jumps had on his body. In this regard, the Veteran explained that his natural instinct was to fall to his right side after the jumps and that he landed on his balls of his feet, kiss, hip, and shoulder. He testified as to one specific jumping incident in Honduras/Central America where he hit the ground hard due to high winds and injured his back and shoulder. The evidence received since the May 2002 rating decision includes the Veteran's August 2011 hearing testimony, as well as post-service treatment records which show treatment for lumbar spine, bilateral knee, right shoulder, and right hip complaints. In this regard, a January 2009 VA joint examination report shows the Veteran was diagnosed with lumbar spine degenerative disc disease (DDD), left knee chondromalacia, right knee chronic strain, chronic right rotator cuff strain, and degenerative joint disease (DJD) of the right hip. In support of his claim, the Veteran also submitted an October 2008 statement from Dr. K.N., which purports to relate the Veteran's current disabilities to his military service. Dr. K.N. noted the Veteran's current complaints of bilateral knee pain and instability, low back pain with DDD and limited mobility of the lumbar spine, and pain in the right shoulder and right hip. Dr. K.N. stated that the Veteran's problems are consistent with injuries that could be incurred during parachute jumps and, as a result, opined that it is medically reasonable to assume there is a causal relationship between the Veteran's jump-related injuries and his current conditions. The Board finds that the evidence received since the May 2002 rating decision is new, as it was not of record at the time of such denial. Moreover, such evidence is material to each service connection claim on appeal. Indeed, at the time of the last final rating decision, there was no evidence showing the Veteran's claimed disabilities were incurred in or caused by his military service. Since the May 2002 rating decision, the Veteran has submitted evidence showing he has current diagnoses involving his lumbar spine, bilateral knee, right shoulder, and right hip disabilities, as well as lay evidence which establishes an event and injury that occurred during service. The Veteran has also submitted a medical opinion which raises a reasonable possibility that the Veteran's current lumbar spine, bilateral knee, right shoulder, and right hip disabilities are related to his military service. Therefore, based on the foregoing reasons, the Board finds that new and material evidence has been received and, accordingly, the claims of entitlement to service connection for a lumbar spine disability, a right knee disability, a left knee disability, a right shoulder disability, and a right hip disability are reopened. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Depending on the evidence and contentions of record in a particular case, lay evidence can be competent and sufficient to establish a diagnosis and medical etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. With respect to continuity of symptomatology, the Court of Appeals for Veterans Claims (Court) recently held that, under 38 C.F.R. § 3.303(b), the theory of continuity of symptomatology is an alternative route to establish service connection for specific chronic diseases and can only be used in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board will evaluate the claims herein with this holding in mind. In this context, service connection for certain chronic disorders, including arthritis, will be rebuttably presumed to have been incurred in or aggravated by service if manifested to a compensable degree within a specified period of time following active service, e.g., one year for arthritis. 38 U.S.C.A. § 1110, 1137; 38 C.F.R. §§ 3.307, 3.309. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran is seeking service connection for disabilities involving his lumbar spine, right knee, left knee, right shoulder, and right hip. As noted, the evidentiary record reveals that the Veteran has been diagnosed with lumbar spine DDD, left knee chondromalacia, right knee chronic strain, chronic right rotator cuff strain, and right hip DJD of the right hip, as reflected in the January 2009 VA examination report. Accordingly, the first element of service connection is established. Throughout this appeal, the Veteran has consistently attributed his current disabilities to the numerous parachute jumps he performed during service. In this regard, he has stated that, while his military occupational specialty was a cargo airplane mechanic, he also received the Parachute Badge and Honduras Parachute Badge and performed about 50 jumps during service. As noted, the Veteran provided details regarding the different types of jumps performed, such as low-level jumps which had significant impact on his body. He testified that they used modern equipment during stateside jumps, which had more controllable chutes, while less controllable chutes were used while training with the Honduran Army. He testified that his natural instinct was to fall to his right side when landing and that he generally landed on the balls of his feet, then his knees, hip, and shoulder. He specifically testified as to one jumping incident in Honduras where the winds were high and he hit the ground hard. The Veteran testified that he injured his back and shoulder at that time and his shoulder was reset by a medic, after which he was treated at the field hospital at Palmerola Airbase in Honduras. The Veteran testified that he is still having problems with his back and shoulder and that his knees and hips bother him now. Parenthetically, the Board notes that the Veteran also testified about an incident where his left leg was pinned between a helicopter and truck during service; however, the Veteran does not relate his current left knee disability to this incident. Instead, the Veteran has consistently related his current lumbar spine, bilateral knee, right shoulder, and right hip disabilities to his multiple parachute jumps, including the one jump in Honduras where he injured his back and right shoulder. The service treatment records (STRs) show that, at the Veteran's May 1983 enlistment examination, he did not have any problems with his back, feet, knees, ankles, or feet. The STRs show that, in September 1985 and September 1986, the Veteran incurred a laceration to his right leg, but the evidence shows that the laceration healed with no further complaints or treatment. Notably, there are no complaints, treatment, or findings related to a low back/lumbar spine, right or left knee, right shoulder, or right hip condition during service, including as a result of parachute jumps. The STRs do not contain a report of physical examination conducted at discharge from service; however, a November 1987 physical data and aptitude test shows that the Veteran was physically qualified for separation. While the STRs do not contain any complaints, treatment, or findings related to a low back/lumbar spine, right or left knee, right shoulder, or right hip condition during service, the Veteran is competent to report the events that occurred in service. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In this regard, the Board finds the Veteran's hearing testimony credible and there is also other evidence of record that tends to corroborate the Veteran's report that he performed multiple parachute jumps during service and injured his back and right shoulder during a jump in Honduras. Indeed, the service personnel records show that the Veteran was, indeed, awarded the Parachute Badge and Honduras Parachute Badge during service. In addition, the Veteran's wife, T.S., submitted a statement wherein she stated that she began dating the Veteran in 1984 and she recalls him injuring his back and shoulder in a parachute accident while deployed to Central America. See also March 2010 buddy statement from G.E. Given this evidence and the information provided by the Veteran regarding his military duties, the Board finds that the Veteran's report of performing multiple jumps during service is consistent with the circumstances and conditions of his service, and is, therefore, sufficient proof that he performed those multiple jumps during service. See 38 U.S.C.A. § 1154(a). Moreover, while there is no contemporaneous medical evidence of a lumbar spine, bilateral knee, right shoulder, or right hip disability during service, the Veteran's report of injuring his back and right shoulder during one particular parachute jump is consistent with the circumstances and conditions of his service, and, therefore at a minimum, raises a reasonable doubt as to whether the Veteran incurred a back or right shoulder injury during service, which is resolved in favor of the Veteran. As such, there is competent evidence that the Veteran injured his back and right shoulder as a result of a parachute jump during service. In this regard, as noted, the Veteran has submitted an October 2008 statement from Dr. K.N., which notes the Veteran's current complaints of bilateral knee pain and instability, low back pain with DDD and limited mobility of the lumbar spine, and pain in the right shoulder and right hip. Dr. K.N. stated that the Veteran's problems are consistent with injuries that could be incurred during parachute jumps and he specifically noted the Veteran's reported hard landing in Central America in 1985, during which he injured his back, right shoulder, and hip. Dr. K.N. noted that there were no known compression fractures incurred as a result of the injuries but he stated it appears the Veteran sustained lasting pain from multiple soft tissue injuries. Dr. K.N. ultimately opined that it is medically reasonable to assume there is a causal relationship between the Veteran's jump-related injuries and his current conditions. Similarly, the physician who conducted the January 2009 VA examination opined that the Veteran's current low back, right hip, right shoulder, and bilateral knee conditions are most likely caused by or a result of his in-service parachute jumps. In making this determination, the VA examiner noted that military parachute jumping places extraordinary decelloration stresses on the knees, hips, spine, and shoulders and that repetitive trauma is competent to produce degenerative changes in the spine, knees, hips, and chronic shoulder strain the Veteran has. The VA examiner also noted that there are no other occupational or recreational history of trauma to account for the Veteran's physical findings and symptoms other than his military duties. The medical opinions provided by Dr. K.N. and the January 2009 VA examiner are considered competent medical evidence, which is also credible and probative as to the ultimate issue in this case - whether the Veteran's current disabilities are related to his military service. Indeed, Dr. K.N. and the January 2009 VA examiner noted the Veteran's medical history, which is consistent with the evidence of record, and there is also no indication or allegation that either physician was not fully aware of all relevant facts in this case or misstated any relevant fact. In fact, Dr. K.N. and the VA examiner provided opinions which were based upon the evidence of record and supported by a complete rationale. In evaluating this claim, the Board finds particularly probative that the preponderance of the other evidence of record supports the conclusions provided by Dr. K.N. and the January 2009 VA examiner. Indeed, as noted, there is competent showing the Veteran performed multiple parachute jumps during service and that he injured his back and right shoulder as a result of a parachute jump during service. There is also no evidence showing the Veteran incurred an intercurrent injury to his lumbar spine, bilateral knees, right shoulder, or right hip after service. In this regard, the Board finds probative that the Veteran has consistently attributed his current disabilities to his military service, including when seeking medical treatment for such disabilities. See July 2007 private treatment record; October 2008 statement from Dr. K.N., and January 2009 VA examination report. This evidence supports a finding that the Veteran's current back disability is related to his military service. In evaluating this claim, the Board also finds probative that there is no opposing or contradicting medical evidence or opinion of record which the Board finds is more competent, credible, or probative as to the issue of whether the current disabilities are related to the Veteran's military service. Therefore, based on the foregoing, the Board finds the preponderance of the evidence supports the grant of service connection for a lumbar spine disability, a right knee disability, a left knee disability, a right shoulder disability, and a right hip disability. Indeed, as noted, the preponderance of the competent, credible, and probative evidence of record establishes that the Veteran's current lumbar spine, bilateral knee, right shoulder, and right hip disabilities are likely related to his military service. As a result, the Veteran's claims are granted. In making this determination, all reasonable doubt has been resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Entitlement to service connection for a lumbar spine disability is granted. Entitlement to service connection for a right and left knee disability is granted. Entitlement to service connection for a right shoulder disability is granted. Entitlement to service connection for a right hip disability is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs