Citation Nr: 1343089	
Decision Date: 12/27/13    Archive Date: 01/07/14

DOCKET NO.  12-21 126	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of service connection for a low back disability.  

2.  Whether new and material evidence has been received to reopen a claim of service connection for a hip disability.  

3.  Whether new and material evidence has been received to reopen a claim of service connection for a pulmonary disorder, to include bronchitis and pneumonia.


REPRESENTATION

Appellant represented by:	Daniel Smith, Attorney


ATTORNEY FOR THE BOARD

Devon Rembert-Carroll, Associate Counsel
INTRODUCTION

The Veteran had active service from March 1997 to January 1999 and January 2003 to August 2003.  

The matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veteran Affairs (VA), Regional Office (RO), in Louisville, Kentucky, that reopened the previously denied claims of service connection for a low back disability, hip disability, and respiratory disorder, to include bronchitis and asthma, and denied the claims on the merits.  The Board is required to consider the question of whether new and material evidence has been received to reopen this claim without regard to the RO's determination.  See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). 

In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim.  A review of the documents in such file reveals VA treatment records dated February 2011 to July 2012.  The other documents of record are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal.

The issues of service connection for a right hip disability and a respiratory disorder, to include chronic bronchitis and asthma, on the merits, are addressed in the REMAND portion of the decision below and are REMANDED to the RO.


FINDINGS OF FACT

1.  In a February 2000 decision, the RO denied the Veteran's claims of entitlement to service connection for a low back disability, hip disability, and a pulmonary disorder, to include bronchitis and pneumonia.  The Veteran did not perfect an appeal of that determination, and no new and material evidence was received within one year of its issuance.

2.  Evidence submitted since the February 2000 RO rating decision relates to an unestablished fact necessary to substantiate the claims of service connection for a low back disability, hip disability, and pulmonary disorder, to include bronchitis and pneumonia, and raises a reasonable possibility of substantiating the claims. 

3.  Resolving all reasonable doubt in the Veteran's favor, a low back disability had its onset in-service.  


CONCLUSIONS OF LAW

1.  The unappealed February 2000 rating decision that denied service connection for a low back disability, hip disability, and pulmonary disorder, to include bronchitis and pneumonia is final.  38 U.S.C.A. § 5103, 5103A, 7105(c) (West 2002); 38 C.F.R. § 3.104(a), 20.302(a), 20.1103 (2013).

2.  Evidence received since the February 2000 rating decision that denied service connection for a low back disability is new and material, and the claim is reopened.  38 U.S.C.A. § 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2013).

3.  Evidence received since the February 2000 rating decision that denied service connection for a hip disability is new and material, and the claim is reopened.  38 U.S.C.A. § 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2013).

4.  Evidence received since the February 2000 rating decision that denied service connection for a pulmonary disorder, to include bronchitis and pneumonia, is new and material, and the claim is reopened.  38 U.S.C.A. § 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2013).

5.  The criteria for service connection for a low back disability have been met.  38 U.S.C.A. §§ 1110, 5103, 5103A (West 2002 & Supp 2013); 38 C.F.R. §§ 3.159, 3.303 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

In light of the Board's favorable decision to reopen the Veteran's claims and grant service connection for a low back disability, no discussion of VA's duty to notify and assist is necessary for these matters.  

Reopening Previously Denied Claims

The Veteran seeks to reopen previously denied claims of service connection for a low back disability, hip disability, and a pulmonary disorder, to include bronchitis and pneumonia.  

Under 38 U.S.C.A. § 5108, "[i]f 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."  See 38 U.S.C.A. § 7105.  

Under 38 C.F.R. § 3.156(a), evidence is considered "new" if it was not previously submitted to agency decisionmakers.  "Material" evidence is evidence which, 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.  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).  In Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the United States Court of Appeals for Veterans Claims (Court) held that when evaluating the materiality of newly submitted evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion.

In a February 2000 rating decision, the RO denied service connection for a low back disability, hip disability, and pulmonary disorder, to include bronchitis and pneumonia.  The RO considered the Veteran's service treatment records, post-service VA treatment records, a VA examination, and the Veteran's statements.  

With regard to the Veteran's low back disability claim, the RO concluded that the evidence did not show a current diagnosis of a low back disability.  The RO noted that the June 1999 VA examiner found there was insufficient clinical evidence to warrant any current diagnosis of any back disorder.

As to the Veteran's hip disability claim, the RO concluded that the evidence did not show a current diagnosis of a hip disability.  The RO noted that there was no evidence of a current hip disability or evidence of a relation to service.  

With regard to the claim for a pulmonary disorder, the RO concluded that there was no evidence of a chronic pulmonary disorder.  Therefore, the RO denied service connection for the Veteran's claims.  

The Veteran was notified of that decision and of his appellate rights by way of a letter sent to him on February 29, 2000.  He did not appeal that rating decision and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision.  See 38 C.F.R. § 3.156(b) (2013); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010).  Thus, the February 2000 rating decision became final based on the evidence then of record.  38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. § 20.1105 (2013). 

The evidence of record at the time of the February 2000 rating decision included the Veteran's service treatment records, a February 1999 VA Emergency Room record that showed the Veteran was treated for a cough and complained of hip pain, and a June 1999 VA examination.  

The Veteran submitted an application to reopen his claim in August 2010.  The evidence received since the February 2000 rating decision includes; VA treatment records dated February 2003 to November 2010 that show the Veteran was treated for back and hip pain, a March 2011 VA examination that shows diagnoses of chronic thoracolumbar strain without evidence of radiculopathy, mild to moderate degenerative changes of the right hip, and chronic bronchitis, a May 2011 VA examination, and VA treatment records dated February 2011 to July 2012 that show the Veteran was treated for low back and hip pain.  

The Board observes that the evidence received since the February 2000 rating decision is new, as it was not previously of record.  Of note, the March 2011 VA examination that diagnosed chronic thoracolumbar strain without evidence of radiculopathy, mild to moderate degenerative changes of the right hip, and chronic bronchitis.  As previously noted, the credibility of such evidence is presumed for the purpose of reopening the claim.  Since the lack of evidence of current disabilities was one of the bases for the denial of the claims in the prior rating decision, the new evidence is also material.  As new and material evidence to reopen the claims for service connection for a low back disability, hip disability, and pulmonary disorder, to include bronchitis and pneumonia has been received, the claims are, therefore, reopened.  The Veteran's appeal to this extent is allowed. 

Service Connection for a Low Back Disability

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013).

In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").

Service connection for certain chronic diseases, to include arthritis, may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013).  The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases).  In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2013).

The Board must assess the credibility and weight of all the evidence, including the 
medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.

The Veteran asserts that he has a low back disability that is etiologically related to his period of active service.  A review of this service treatment records reveals that he reported and was treated for low back pain on several occasions.  Specifically, in August 1998, the Veteran was diagnosed with degenerative disc disease at L5-S1.

The March 2011 VA examination report shows that the Veteran was diagnosed with chronic thoracolumbar strain without evidence of radiculopathy.  

A VA examination report dated in May 2011 shows that the examiner concluded 
that it was at least as likely as not that the Veteran's chronic thoracolumbar strain without evidence of radiculopathy was caused by or a result of his treatment in service for low back pain.  The examiner rationalized that the Veteran had findings of minimal degenerative disc at L5-S1 on MRI while in service.  The examiner explained that although the Veteran had gaps in documentation and treatment for low back pain he did have findings of moderate to severe disease at the previous in-service site of abnormality.  

The Board finds that the May 2011 VA opinion is credible and persuasive as it was based on a review of the record and supported by detailed rationale.  As the Veteran has a current diagnosis, an in-service injury, and a positive nexus opinion, the Board finds that service connection for a low back disability is warranted.  


ORDER

New and material evidence having been received, the claim of service connection for a low back disability, is reopened.

New and material evidence having been received, the claim of service connection for a hip disability, is reopened, and to this extent only the appeal is granted.

New and material evidence having been received, the claim of service connection for pulmonary disorder, is reopened, and to this extent only the appeal is granted.

Service connection for a low back disability is granted.


REMAND

For the reasons expressed below, the Board finds that the underlying claims of entitlement to service connection for a hip disability and a pulmonary disorder, on the merits, must be remanded for further development.

Right Hip

Service treatment records show that the Veteran reported pain, tingling, and weakness in his right leg.  On January 29, 1998, he described increased weakness and burning sensation in his right leg and on February 3, 1998, he reported hip weakness

The March 2011 VA examination report shows that the examiner found that the Veteran had a normal left hip and diagnosed mild to moderate degenerative changes in the right hip.  The May 2011 VA examination report shows that the examiner concluded that the Veteran's right hip pain was not caused by or a result of his in-service treatment for right hip pain.  The examiner rationalized that currently there was by X-ray or electromyography (EMG) findings no evidence of a chronic hip condition. 

The Board finds that the VA examiner's opinion and rationale were based on inaccurate facts, specifically that the Veteran did not have current findings of a chronic hip condition.  As stated, the Veteran was diagnosed with mild to moderate degenerative changes in the right hip by the March 2011 VA examiner.  The Board notes that a medical opinion based on an inaccurate factual premise is not probative.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993).  In light of the foregoing, the Board finds that the Veteran should be scheduled for an additional VA orthopedic examination by a physician that has not previously examined him, so as to assess the precise nature and etiology of the asserted hip disability.  When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion.  Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992).  Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim.  38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(c)(4) (2013).

Respiratory Disorder

The Veteran's April 1996 enlistment examination report is absent of any diagnosis 
of a respiratory disorder.  VA treatment records show that in February 2003, during his second period of service, he reported that he had asthma as a child.  At the March 2011 VA examination the Veteran denied a history of asthma prior to 1997.  

A Veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service.  Only such conditions as are recorded in examination reports are considered as noted.  38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b).  

When no pre-existing medical condition is noted upon entry into service, a Veteran is presumed to have been sound upon entry.  38 U.S.C.A. § 1111 (West 2002); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991).  The burden then falls on the Government to rebut the presumption of soundness by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service.  Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227.  

The May 2011 VA examination report shows that the examiner concluded that the Veteran's current bronchitis was not caused by or a result of his in service treatment for bronchitis.  The examiner rationalized that the Veteran's treatment for acute bronchitis and pneumonia was resolved as he returned to full duty.  The examiner explained that the Veteran currently had moderately severe bronchitis which was most likely due to the Veteran's half a day smoking habit of 13 years.  The examiner also explained that the Veteran did report childhood asthma on examination while in service and that these two conditions likely contributed to his frequent upper respiratory infections while in service.

The Board finds that the May 2011 examiner only provided an opinion regarding the Veteran's chronic bronchitis and did not provide an opinion regarding whether the Veteran's asthma was related to his service.  Additionally, the Board notes that examiner indicated that the Veteran's asthma pre-existed service, however, the examiner did not provide an opinion as to whether asthma was aggravated therein.  As such, the Board finds that the Veteran should be scheduled for a VA respiratory examination by a physician with expertise in pulmonary diseases, so as to assess the precise nature and etiology of the asserted respiratory disorder, to include asthma.  See Colvin, 1 Vet. App. at 171; Hatlestad, 3 Vet. App. at 213.  See also 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).

Accordingly, the case is REMANDED for the following action:

1. The RO shall ask the Veteran to provide the names, addresses, and dates of treatment of all medical care providers, both VA and private, who have treated him for his asthma and right hip disability.  The RO shall then secure any necessary authorizations.  If any requested outstanding records cannot be obtained, the Veteran should be notified of such.

2. The RO shall then afford the Veteran a VA orthopedic examination by a physician that has not previously examined him, in order to determine the precise nature and etiology of his asserted hip disability.  The entire claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner in conjunction with the examination.  All tests deemed necessary shall be conducted, including X-rays, and the results reported in detail. 

Following examination and diagnostic testing of the Veteran, the examiner should address the following:

(a)  Whether it is at least as likely as not that the Veteran has a current right or left hip disability; and, if so; 

(b)  Whether it is at least as likely as not that any such 
diagnosed hip disability is traceable to the Veteran's period of active service, to specifically include the in-service reports of right hip and leg weakness recorded on January 29, 1998, and February 3, 1998.  The examiner must also consider the March 2011 diagnosis of mild to moderate degenerative changes of the right hip.

In discussing these points, the examiner must acknowledge the competent statements of the Veteran and those providing lay statements as to the onset and continuity of symptoms since service.  If the examiner rejects the competent reports of symptomatology, he or she must provide a reason for doing so.

The examiner is advised that the absence of evidence of treatment for a hip disability in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion.

If the examiner is unable to provide any requested opinion without resorting to speculation, the examiner must provide an explanation for the basis of that determination-for example, whether the examiner lacks the expertise to render such an opinion, or whether some additional testing or information is needed, and possibly available, that would permit an opinion.  Any additional evidentiary development deemed necessary should be undertaken.  

The examiner must provide a complete rationale for each opinion given. It is requested that the examiner discuss the available medical evidence and reconcile any conflicting evidence.
3. The RO shall afford the Veteran a VA respiratory examination by a physician with expertise in pulmonary diseases that has not previously examined him for the purpose of ascertaining the nature and etiology of each asserted respiratory disorder, to include asthma.  The entire claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner in conjunction with the examination.  All tests deemed necessary shall be conducted, including X-rays, and the results reported in detail. 

Following examination and diagnostic testing of the Veteran, the examiner should address the following:

(a)  Does the evidence of record clearly and unmistakably establish that the Veteran had a respiratory disorder, to include asthma, that existed prior to his entry into active service.

(b)  If so, does the evidence of record clearly and unmistakably show that the pre-existing respiratory disorder, to include asthma, was not aggravated by service or that any increase in disability was due to the natural progression of the disease?

Please identify any such evidence with specificity.

(c)  If the answer to either (a) or (b) is no, is it at least as likely as not that any currently diagnosed respiratory disorder, to include asthma, had its onset in service?  In addressing this response, please indicate whether it is at least as likely as not that the Veteran presented the prodromal signs of any currently diagnosed respiratory disorder during service. 

In providing these opinions, the examiner must address the Veteran's April 1996 enlistment examination, and the Veteran's denial of asthma prior to 1997 at the March 2011 VA examination.  

In discussing these points, the examiner must acknowledge the competent statements of the Veteran and those providing lay statements as to the onset and continuity of symptoms since service.  If the examiner rejects the competent reports of symptomatology, he or she must provide a reason for doing so.

The examiner is advised that the absence of evidence of treatment for a respiratory disorder, to include asthma, in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion.

If the examiner is unable to provide any requested opinion without resorting to speculation, the examiner must provide an explanation for the basis of that determination-for example, whether the examiner lacks the expertise to render such an opinion, or whether some additional testing or information is needed, and possibly available, that would permit an opinion.  Any additional evidentiary development deemed necessary should be undertaken.  

The examiner must provide a complete rationale for each opinion given. It is requested that the examiner discuss the available medical evidence and reconcile any conflicting evidence.

4.  The RO will then review the Veteran's claims file and ensure that the foregoing development actions have been completed in full, and that no other development action, in addition to those directed above, is required.  If further action is required, it should be undertaken prior to further claims adjudication.

5. The RO will then readjudicate the Veteran's claims.  If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case.  An appropriate period of time should be allowed for response.

Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure.  The Veteran need take no action until he is so informed.  He has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  The purposes of this remand are to obtain additional information and comply with all due process considerations.  No inference should be drawn regarding the final disposition of this claim as a result of this action.

This claim must be afforded expeditious treatment.  Claims 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. 2013).



______________________________________________
DEMETRIOS G. ORFANOUDIS
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs