Citation Nr: 1754554 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 15-38 521 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Whether new and material evidence has been submitted to reopen a claim of service connection for a right leg disorder. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD D. Jimerfield, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1975 to March 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) The Veteran had a Board hearing in July 2017. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). The decision below reopens the Veteran's right leg claim and such claim is REMANDED to the RO for further development. FINDINGS OF FACT 1. A June 1976 rating decision denied service connection for a right leg disorder; the Veteran did not appeal that decision and no new and material evidence was received within one year of the decision. 2. The evidence submitted since the June 1976 decision is not cumulative, relates to an unestablished fact, and raises a reasonable possibility of substantiating the Veteran's claim of service connection for a right leg disorder. CONCLUSIONS OF LAW 1. The June 1976 RO decision that denied service connection for a right leg disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. New and material evidence has been submitted and the criteria for reopening the Veteran's claim of service connection for a right leg disorder have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection for a right leg disorder was denied by a June 1976 rating decision. New and material evidence was not received within one year of notification of such decision and the Veteran did not appeal the decision, thus it became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. If a claim of entitlement to service connection has been previously denied, and the decision became final, then the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence is defined as 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 a 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold to reopen a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the newly submitted evidence is presumed credible. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). In the June 1976 rating decision, the RO denied the Veteran's claim of service connection for a right leg disorder (characterized as old slipped epiphysis with secondary degenerative arthritis) because it found that such disorder pre-existed his military service and that there was no evidence of in-service aggravation of the disorder. The evidence considered included the Veteran's service treatment records (STRs) and a March 1976 medical board evaluation. The Veteran subsequently made a request to reopen the right leg disorder claim in September 1981. Later that same month, VA informed the Veteran that he needed to submit new and material evidence to support reopening this claim and that, if he did not do so, no further action could be take in regard to this request. No further correspondence was received from the Veteran in regard to reopening such claim until the claim currently before the Board was filed. It appears from VA's treatment of this request that it was considered abandoned by the Veteran. See C.F.R. § 3.158. The present claim to reopen was filed in June 2013. During the July 2017 Board hearing, the Veteran reported that his right leg disorder was aggravated by running, exercising, and jumping during basic training. His wife stated that he now has trouble walking and sometimes needs to use a cane or walker. This new evidence, which is presumed credible solely for purposes of reopening the right leg claim, relates to unestablished facts and raises a reasonable possibility of substantiating the previously denied service connection claim. Thus, new and material evidence has been received, and the matter is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The reopened claim is further addressed in the remand section. ORDER New and material evidence having been presented, the claim of service connection for a right leg disorder is reopened, and the appeal is granted to this extent only. REMAND As noted above, the Veteran contends that, while his right leg disorder pre-existed his entrance into service, such disorder was aggravated during basic training. The Veteran's STRs include a September 1975 entrance examination. Such examination is marked normal for the Veteran's lower extremities. In addition, while the defects and diagnoses section includes a notation of existing pes planus and defective hearing, it does not note any pre-existing right leg disorder. Given this evidence, a disability was not "noted" an entrance; thus, it is not a service aggravation case unless the presumption of soundness is rebutted. See 38 U.S.C. § 1111. Thereafter, the Veteran's STRs show that the Veteran reported experiencing right knee pain in February 1976. At such time, the Veteran also reported experiencing a right knee strain four years earlier which persisted for some time but eventually went away and subsequent onset of right knee problems due to running and marching during basic training. A treatment provider found that an x-ray showed a deformed femoral head with degenerative changes and a likely previously slipped femoral epiphysis in the Veteran's right leg. Another physical examination of the Veteran conducted in February 1976 contains a notation that his right leg was one half inch shorter than his left leg. The following month, a medical board found that the Veteran had an old slipped epiphysis with secondary degenerative arthritis which existed prior to his entrance into service and that such condition was not aggravated by his service. The Veteran was thereafter discharged due to physical disability. He reported on his separation examination that he had injured his right leg at the age of 14 and that he did not experience symptoms after the injury had healed until he began experiencing pain during basic training. Subsequently, in September 2015, the RO obtained a VA opinion in regard to the Veteran's claim. The examiner reported that the Veteran's slipped epiphysis and secondary arthritis clearly and unmistakably existed prior to service. The examiner also found that such disorder was not aggravated beyond its normal progression by his service. He based this finding on a September 2015 VA treatment record which contains a notation that the Veteran was able to walk and stand independently and had no pain at such time. The Board finds that the low threshold requirement has been met for a VA examination, and that a remand is required to determine if the Veteran's right leg disorder was permanently aggravated beyond its normal progression by his service. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In this regard, while the Veteran has competently reported that he did not experience symptoms in regard to his right leg disorder for several years prior to his entrance and that he has since his experienced pain and functional impairment due to this disorder, he has not yet been afforded a VA examination in regard to this claim. In addition, given the indications during the Board hearing of relevant treatment records not presently found in the Veteran's file, he should be afforded an opportunity to identify any such outstanding records. The record contains some post-service VA treatment records from the Central Texas Healthcare System (HCS) from 2014 and 2015. On remand, the RO should associate all of the Veteran's VA treatment records from the Central Texas HCS, to include any since September 2015. Accordingly, this issue is REMANDED for the following actions: 1. Afford the Veteran an opportunity to submit or identify any outstanding relevant treatment records. 2. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include his complete treatment records from the Central Texas HCS. 3. After completing the records development indicated above, schedule the Veteran for a VA examination in regard to his right leg disorder. The examiner should review the evidence in the claims file and then provide an expert medical opinion on each of the following questions: (A) Identify all of the Veteran's current right leg disorders present since June 2013. (B) Regarding each diagnosed right leg disorder, is it undebatable from a medical standpoint that such disability pre-existed the Veteran's military service? (i) If yes, is it undebatable from a medical standpoint that such disorder was not aggravated during service beyond its natural progression? Aggravation is the increase in severity of a condition beyond the natural progress of the disease. (ii) If no, is it at least as likely as not that such disorder had its onset in, or is otherwise related to, his service? The examiner should consider the 1976 medical board report which found that he had an old slipped epiphysis with secondary degenerative arthritis in his right leg prior to entering service as well as the Veteran's statements in regard to the chronology of his right leg symptoms. A detailed rationale for all opinions should be provided. 4. Finally, after the development requested above, as well as any additional development deemed necessary, has been completed, readjudicate the claim on appeal on the merits. If the benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case and allow them a reasonable opportunity to respond. Then, return the case to the Board for further appellate consideration, if in order. The Veteran has the right to submit additional evidence and argument on the matter 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 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. §§ 5109B, 7112. ______________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeal Department of Veterans Affairs