Citation Nr: 1751783 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 09-27 474 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for a low back disability. 2. Entitlement to service connection for a low back disability (diagnosed as lumbar spine degenerative joint disease). 3. Entitlement to service connection for collarbone fracture residual disability (diagnosed as left rotator cuff tendonitis). REPRESENTATION Veteran represented by: Jeany Mark, Esq. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The appellant is a Veteran who served on active duty for training (ACDUTRA) from January 1973 to May 1973 and had subsequent periods of ACDUTRA and inactive duty training (INACDUTRA) through 1995. National Guard personnel records document that as of May 20, 1995, the Veteran was assigned to the U.S. Army Reserve Control Group (Retired). These matters are before the Board of Veterans' Appeals (Board) on appeal from December 2008 and April 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2011, a Travel Board hearing was held before the undersigned Veterans Law Judge, and a transcript of the hearing is associated with the record. In September 2011, the Board (in pertinent part) denied service connection for collarbone fracture residual disability. The Veteran appealed the September 2011 Board decision to the United States Court of Appeals for Veterans Claims (Court). In September 2012, the Court issued an Order that (in pertinent part) vacated the September 2011 Board decision with regard to that issue, and remanded that matter for readjudication consistent with instructions outlined in a September 2012 Joint Motion for Remand by the parties. In May 2013, the Board remanded that matter for additional development. [The Veteran had also initiated appeals of denials of service connection for a left knee disability and for hypertension. Regarding service connection for a left knee disability, after the Board remanded this matter in May 2013, a December 2016 rating decision granted service connection for left knee osteoarthritis. Regarding service connection for hypertension, the Board remanded this matter in June 2015, and the development requested on remand has not yet been completed. Consequently, these matters are not before the Board.] FINDINGS OF FACT 1. A December 2009 rating decision denied service connection for a low back disability, on the basis that there was no evidence that the Veteran's current low back disability was incurred in the line of duty during his ACDUTRA service or was otherwise caused by such service. The Veteran did not appeal this decision or submit new and material evidence within the year following notification of that decision. 2. Evidence received since the December 2009 rating decision suggests that the Veteran's current low back disability was incurred in the line of duty during his ACDUTRA service; relates to an unestablished fact necessary to substantiate the claim; and raises a reasonable possibility of substantiating such claim. 3. The evidence of record reasonably shows that the Veteran's current low back disability (diagnosed as lumbar spine degenerative joint disease) began in the line of duty during his ACDUTRA service and has persisted since that time. 4. The evidence of record reasonably shows that the Veteran's current collarbone fracture residual disability (diagnosed as left rotator cuff tendonitis) began in the line of duty during his ACDUTRA service and has persisted since that time. CONCLUSIONS OF LAW 1. The December 2009 rating decision denying service connection for a low back disability is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. New and material evidence has been received, and the claim of service connection for a low back disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The criteria for service connection for a low back disability (diagnosed as lumbar spine degenerative joint disease) have been met. 38 U.S.C. §§ 101(22) and (24), 1101, 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.303, 3.307, 3.309 (2017). 4. The criteria for service connection for collarbone fracture residual disability (diagnosed as left rotator cuff tendonitis) have been met. 38 U.S.C. §§ 101(22) and (24), 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Any error in VA's duties to provide notice or assistance in this case is harmless, given the fully favorable determination for all claims on appeal. Legal Criteria and Analysis The Board notes that it has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims being decided. Reopening: New and Material Evidence A claim which is the subject of a prior final rating decision may be reopened if new and material evidence is received. 38 U.S.C. §§ 5108, 7105. New and material evidence is defined by regulation. See 38 C.F.R. § 3.156. New evidence means evidence not previously submitted to agency decision-makers. Material evidence is 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 establishing the claim. 38 C.F.R. § 3.156(a). The phrase 'raises a reasonable possibility of establishing the claim' must be viewed as enabling rather than precluding reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Initially, a September 2009 rating decision denied service connection for a low back disability, on the basis that there was no evidence that the Veteran's current low back disability was incurred in the line of duty during his ACDUTRA service or was otherwise caused by such service. Within a year of the September 2009 rating decision, the Veteran submitted new and material evidence in support of his claim for service connection for a low back disability, and a December 2009 rating decision readjudicated the claim. See 38 C.F.R. § 3.156(b). The December 2009 rating decision again denied service connection for a low back disability on the basis that there was no evidence that his current low back disability was incurred in the line of duty during his ACDUTRA service or was otherwise caused by such service. He was furnished notice of that determination and of his appellate rights, and the December 2009 rating decision became final when he did not appeal that decision or submit new and material evidence within one year following notice. See 38 U.S.C. § 7105; 38 C.F.R. § 3.156. Evidence received since the December 2009 rating decision includes a March 2017 statement from a private physician, who opined that it was more likely than not that the Veteran's current low back degenerative joint disease began during his service (with rationale noting evidence that he had been treated by a private physician for low back problems since his National Guard service in 1975, and also that during his ACDUTRA service he had to carry heavy packs over multiple days). Such evidence suggests that the Veteran's current low back disability was incurred in the line of duty during his ACDUTRA service. For purposes of reopening, this evidence is deemed credible. It relates to an unestablished fact necessary to substantiate the claim of service connection for a low back disability, and raises a reasonable possibility of substantiating such claim (particularly in light of the low threshold standard for reopening endorsed by the Court in Shade, 24 Vet. App. at 117). Accordingly, the Board finds that the additional evidence received is both new and material, and the claim of service connection for a low back disability is reopened. 38 U.S.C. § 5108. Service Connection In General Active service includes any period of ACDUTRA during which the individual was disabled from a disease or an injury incurred in the line of duty, or a period of INACDUTRA during which the Veteran was disabled from an injury incurred in the line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). Further, ACDUTRA includes full-time duty in the Armed Forces performed by the Reserves for training purposes. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). INACDUTRA includes duty prescribed for the Reserves. 38 U.S.C. § 101(23)(A). The Reserves include the National Guard of the United States. 38 U.S.C. § 101(26), (27). Duty, other than full-time duty, performed by a member of the National Guard of any State, is considered to be INACDUTRA. 38 C.F.R. § 3.6(d)(4). Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Diseases diagnosed after discharge may be service connected if all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Establishing service connection requires evidence of: (1) a current disability; (2) a disease; injury, or event in service; and (3) a causal link (nexus) between the claimed disability and the disease, injury, or event in service and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Some chronic diseases (to include arthritis) may be presumed to have been incurred in service if they become manifest to a degree of 10 percent or more within a specified period of time post-service (one year for the aforementioned disease). 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. When certain chronic diseases are at issue, such as the above-noted disease or any other disease enumerated at 38 C.F.R. § 3.309(a), see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), a claimant may establish entitlement to service connection based on a demonstration of continuity of symptoms. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. For example, lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing observable symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Low Back Disability The medical evidence of record documents that the Veteran has been diagnosed with lumbar spine degenerative joint disease during the period of the current claim (including in an April 2015 private treatment record, which notes current treatment for back pain and arthritis). The Veteran contends that he injured his low back in the line of duty during his ACDUTRA service while carry heavy packs of food and weapons for multiple days during such service. His service personnel records confirm that he served as an Infantryman during his ACDUTRA periods. His service treatment records also document that, on a March 1989 Report of Medical History, he indicated that he had a history of recurrent back pain. The Board finds that the evidence of record reasonably shows that the Veteran's current low back disability (diagnosed as lumbar spine degenerative joint disease) began in the line of duty during his ACDUTRA service and has persisted since that time. In a September 2009 statement, the Veteran's private physician noted the Veteran's current diagnosis of low back degenerative joint disease and described having treated the Veteran for low back problems ever since he was in the National Guard in 1975. At his February 2011 hearing, the Veteran testified that he carried heavy packs of food and weapons for multiple days during his ACDUTRA service as an Infantryman, and that he did not engage in that kind of activity at any time other than during his ACDUTRA periods. In a March 2017 statement, another private physician noted a review of the pertinent evidence of record, and then opined that it was more likely than not that the Veteran's current low back degenerative joint disease began during his service; for rationale, the private physician cited to the evidence of record documenting that he had been treated by a private physician for low back problems since his National Guard service in 1975, and also that during his ACDUTRA service he had to carry heavy packs over multiple days. After resolving reasonable doubt in the Veteran's favor, the Board finds that a balance of the evidence supports the claim for service connection for a low back disability (diagnosed as lumbar spine degenerative joint disease). Accordingly, the Board finds that service connection for a low back disability (diagnosed as lumbar spine degenerative joint disease) is warranted, and the claim is granted. [The Board also finds that the instant decision applies to - and resolves - all pending claims of service connection for a low back disability, however diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009).] Collarbone Fracture Residual Disability The medical evidence of record documents that the Veteran has been diagnosed with left rotator cuff tendonitis, status post collarbone fracture, during the period of the current claim (including at any April 2017 VA shoulder and arm examination). [While the record contains conflicting evidence with regard to whether the Veteran has a current diagnosis of arthritis in his left shoulder, the Board finds that a confirmed diagnosis of left shoulder arthritis is not necessary in this case. The Veteran's current diagnosis of left rotator cuff tendonitis adequately satisfies the current disability element for the claim of service connection at issue in this case.] The Veteran contends that he fractured his collarbone during his ACDUTRA service in 1975 while repelling down a wall at Fort Sill, Oklahoma. His service treatment records document that, on an August 1977 Report of Medical History, it was noted that he had a shoulder dislocation two years ago (with no sequelae). On a March 1989 Report of Medical History, he indicated that he had a history of painful or "trick" shoulder. The Board finds that the evidence of record reasonably shows that the Veteran's current collarbone fracture residual disability (diagnosed as left rotator cuff tendonitis) began in the line of duty during his ACDUTRA service and has persisted since that time. A February 2011 private treatment record notes the Veteran's current reports of left shoulder pain and his history of fracturing his collarbone in 1975 during his ACDUTRA service; notes that the current private provider had also treated the Veteran for this collarbone fracture back when he was in the National Guard; and notes a current assessment of recurrent pain in the left shoulder due to old collarbone fracture while in the National Guard in about 1975. In April 2013, another private physician noted a review of the pertinent evidence of record, and then opined that it was more than likely that the Veteran suffered a collarbone fracture while in service (based on the evidence of record documenting that he had been treated by a private physician for this injury in 1975), and that the same private physician "has been taking care of him since service to that [e]ffect." At a May 2015 VA shoulder and arm examination, it was noted that the Veteran had injured his left collarbone in service and was now having persistent pain in the left acromioclavicular (AC) joint. At an April 2017 VA shoulder and arm examination, it was noted that the Veteran had a current diagnosis of left rotator cuff tendonitis, status post collarbone fracture (while repelling down a wall during his service), and that the "condition has worsened" with current daily pain and limited range of motion in his left shoulder. In an accompanying April 2017 medical opinion, the April 2017 VA examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness; however, the rationale for this opinion was based upon the examiner's interpretation that "Xray findings detect no evidence of an old fracture of the clavicle" and the examiner's resultant conclusion that there were "no objective findings to support a disability caused by a collarbone injury." In light of all of the evidence of record (as outlined above) documenting that the Veteran did fracture his collarbone during his ACDUTRA service, the Board finds that the April 2017 VA examiner's opinion is based on an inaccurate factual premise and is therefore entitled to no probative weight. See Reonal v. Brown, 5 Vet.App. 458, 460-61 (1993) ("An opinion based upon an inaccurate factual premise has no probative value."); see also Dalton v. Nicholson, 21 Vet.App. 23, 39-40 (2007) (deeming a medical opinion inadequate because the examiner failed to render an opinion consistent with the Board's credibility findings). After resolving reasonable doubt in the Veteran's favor, the Board finds that a balance of the evidence supports the claim for service connection for collarbone fracture residual disability (diagnosed as left rotator cuff tendonitis). Accordingly, the Board finds that service connection for collarbone fracture residual disability (diagnosed as left rotator cuff tendonitis) is warranted, and the claim is granted. [The Board also finds that the instant decision applies to - and resolves - all pending claims of service connection for collarbone fracture residual disability, however diagnosed. See Clemons, 23 Vet. App. at 1, 5-6.] ORDER New and material evidence having been received, the appeal to reopen a claim of service connection for a low back disability is granted. Service connection for a low back disability (diagnosed as lumbar spine degenerative joint disease) is granted. Service connection for collarbone fracture residual disability (diagnosed as left rotator cuff tendonitis) is granted. ____________________________________________ M. SORISIO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs