Citation Nr: 1802157 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-12 054 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for a left groin strain. 2. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for a lumbar spine disability. 3. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for a cervical spine disability. 4. Entitlement to service connection for a right hand injury. 5. Entitlement to service connection for a lumbar spine disability. 6. Entitlement to service connection for a cervical spine disability 7. Entitlement to service connection for a left groin strain. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Erin J. Carroll, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from February 1976 to January 1982. This matter comes before the Board of Veterans Appeals (BVA or Board) on appeal from July 2011 and July 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran provided testimony at an October 2017 Travel Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issue of entitlement to service connection for a left groin disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a final decision issued in January 1983, the RO denied service connection for a left groin strain, a lumbar spine disability, and a cervical spine disability. 2. Evidence added to the record since the final January 1983 denial is new and material evidence as to the claim for service connection for a left groin strain. 3. Evidence added to the record since the final January 1983 denial is new and material evidence as to the claim for service connection for a lumbar spine disability. 4. Evidence added to the record since the final January 1983 denial is new and material evidence as to the claim for service connection for a cervical spine disability. 5. The Veteran does not have a current right hand disability. 6. The Veteran has a current lumbar spine disability that is related to his military service. 7. The Veteran has a current cervical spine disability that is related to his military service. CONCLUSIONS OF LAW 1. The January 1983 rating decision that denied service connection for a left groin strain, a lumbar spine disability, and a cervical spine disability is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. The claim for service connection for a left groin strain has been reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156, (2017). 3. The claim for service connection for a lumbar spine disability has been reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156, (2017). 4. The claim for service connection for a cervical spine disability has been reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156, (2017). 5. The criteria for entitlement to service connection for a right hand injury have not been met. 38 U.S.C. §§ 1101, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 6. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a lumbar spine disability have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 7. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a cervical spine disability have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. New and Material Evidence The Veteran contends that he has a left groin strain, a lumbar spine disability, and a cervical spine disability due to service. In a January 1983 rating decision, the RO originally denied this matter and found that service connection for a left groin strain, a lumbar spine disability, and a cervical spine disability was not warranted. The RO found that the evidence of record did not support a finding that the claimed disabilities were due to active duty based upon resolution of the back, neck and groin injuries. 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. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a). The Veteran did not file an application for review on appeal within one year of the decision. Therefore, such decision is final. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no evidence pertaining to the Veteran's claims for service connection were received prior to the expiration of the appeal period stemming from the January 1983 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). Thereafter, the RO received the Veteran's petition to reopen the claims in December 2010 and May 2012. 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. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 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 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 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 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 to the claim for service connection for a groin disability, since the January 1983 rating decision, the Veteran has provided a February 2014 statement from his wife, as well as his own hearing testimony, indicating that he has continued to experience groin pain, suggesting that he may have a groin-related disability. Furthermore, the Veteran testified that this pain has persisted since he pulled a muscle in his groin during service. The Board finds that this additional evidence indicates continuity of symptomatology and relates to the open medical question as to whether the Veteran has a current groin disability that is related to his military service. The evidence is new, material and serves to reopen the claim. To this extent only, the appeal related to a left groin strain is granted. Additionally, the newly submitted evidence pertaining to the lumber spine and cervical spine claims consists, in part, of the May 2011 VA examination report, private treatment records, statements from the Veteran's wife and friend, as well as his own October 2017 hearing testimony. The new evidence of record notes new diagnoses of mild degenerative changes of the lumber spine, as well as cervical spondylosis. The evidence also demonstrates that the Veteran's lumbar and cervical spine pain has persisted since service, which indicates continuity of symptomatology. The Board finds that this additional evidence relates to the open medical question as to whether the Veteran's current lumbar and cervical spine disabilities were incurred in or caused by his military service. The evidence is new, material and serves to reopen the claims. To this extent only, the appeals related to the lumbar and cervical spine disabilities are granted. III. Entitlement to Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). 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). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App 370, 374 (2002). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A. Right Hand Injury Service treatment records documented a right hand injury in February 1978, which occurred during a basketball game. No significant visual abnormalities were observed at that time. Another right hand injury was reported in March 1979, at which time the treatment provider noted full motion, with no edema or deformity. Prior to discharge, the Veteran's upper extremities were noted to be normal. Post-service treatment records do not document any complaints or treatment related to a right hand disability. In March 2011, the RO afforded the Veteran a VA examination for his hand. The examiner noted the previous basketball injury, as documented by the service treatment records. The Veteran reported experiencing intermittent right hand and wrist pain for the past two years while performing repetitive activities, such as typing. The examiner noted that there was no obvious deformity of the right hand, aside from a positive Finkelstein test and tenderness to palpation over the mid carpals. The Veteran had full range of motion, normal sensory abilities, and negative Tinel's and Phalen's tests. There was no objective evidence of swelling, heat, erythema, drainage, or crepitus. The examiner did note some discomfort and aggravation in response to resistance and flexion of the wrist, but not the right hand or fingers. The Veteran did not report any limitations regarding activities of daily living or employment. The examiner concluded that the Veteran did not have any current right hand injury residuals as a result of the contusion to his middle finger metacarpal during service. The Veteran had not sought treatment for his right hand since service and radiographic evidence did not reveal any abnormalities. At the October 2017 hearing, the Veteran testified that he injured his hand during service while playing basketball. He further stated that he continued to experienced residual symptoms from his hand to his wrist, specifically while typing at work. Although the Veteran may have experienced a hand injury during service, the evidence shows no current right hand disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (service connection requires a current disability). A current disability is one shown at some time during the period beginning proximate to the date of claim. Romanowsky v. Shinseki, 26 Vet. App. 303 (2013). In this case there is no evidence of a right hand disability since separation from service. Upon discharge, his separation examination revealed no abnormalities of the upper extremities, and there is no documentation of any complaints, treatment, or diagnoses related to the right hand after the initial report of the injuries. Furthermore, the March 2011 VA examiner found that the Veteran did not have a current right hand disability or any residuals from his in-service injuries. Radiographic testing conducted at that time showed no abnormality of the right hand bones or tissues. The Veteran has not reported any pertinent symptomatology or treatment during the current appeal. There is no evidence of any post-service treatment, there is no other evidence to show a current underlying disability, and there is no indication of any change since the March 2011 examination. Although the Veteran is competent to report observable complaints such as right hand pain while typing, he is not competent to provide a diagnosis to account for such complaints. Rather this question requires medical expertise due to the complex nature of the musculoskeletal system. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the preponderance of the evidence is against service connection for a right hand injury. Reasonable doubt does not arise, and the benefit-of-the-doubt doctrine does not apply; the Veteran's claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. B. Lumbar Spine Disability The May 2011 VA examination report noted a diagnosis of mild degenerative changes of the lower lumbar faceta, as well as mild thoracic spondylosis. Thus, the first element of direct service connection is met. The Veteran's service treatment records documented a football injury in October 1979, which resulted in reports of back pain and a diagnosis of a compression fracture. Additionally, the Veteran experienced a second back injury, diagnosed as a muscle strain, after a motor vehicle accident in November 1981. The Board finds the available documentation corroborates the Veteran's reports of an in-service back injury. Therefore, the second element of service connection is met. In February 2014 statements, the Veteran's wife and friend reported that he had continually experienced significant back pain. His wife further stated that he had sought various types of treatment for his back. At the October 2017 hearing, the Veteran testified that he had sought treatment for continuous back pain since separation from service in 1982. The May 2011 VA examiner opined that the Veteran's lumbar spine disability was less likely than not related to his active military service. The examiner reasoned that the disability was consistent with the Veteran's age and was not the result of any significant injury. The examiner further noted the in-service motor vehicle accident and football injury, but concluded that the symptoms reported on those occasions resolved with minimal treatment, instead attributing the current degenerative changes to the aging process. Resolving all doubt in favor of the Veteran, the Board finds that the evidence is at least in equipoise and that the evidence satisfactorily establishes that the claimed lumbar spine disability originated during his active service. In reaching this decision, the Board notes that the Veteran's lay statements have consistently and credibly indicated that he has experienced back pain since his injuries during service. This testimony is further corroborated by the Veteran's service treatment records, which document his in-service back injuries. Thus, he has credibly stated that the onset of his lumbar spine disability occurred during service and that his symptoms have continued ever since. Although the May 2011 VA examiner opined that the Veteran's lumbar spine disability was not caused or aggravated by his military service, the Board is also persuaded by the lay statements submitted by the Veteran's wife and friend, as well as his own testimony regarding in-service occurrence and continuity of symptomatology, as corroborated by his service treatment records. The favorable and unfavorable evidence is in equipoise and, as such, reasonable doubt is resolved in the Veteran's favor and the claim is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. C. Cervical Spine Disability The May 2011 VA examination report noted a diagnosis of cervical spondylosis. Thus, the first element of direct service connection is met. The Veteran's service treatment records documented a football injury in October 1979, which resulted in reports of neck pain and a diagnosis of a cervical strain. Additionally, the Veteran experienced a second neck injury after a motor vehicle accident in November 1981. The Board finds the available documentation corroborates the Veteran's reports of an in-service neck injury. Therefore, the second element of service connection is met. In a February 2014 statement, the Veteran's wife reported that he experienced continuous neck pain. Additionally, at the October 2017 hearing, the Veteran's wife testified that he experienced symptoms including numbness and locking of his neck. The May 2011 VA examiner opined that the Veteran's cervical spine disability was less likely than not related to his active military service. The examiner reasoned that the disability was consistent with the Veteran's age and was not the result of any significant injury. The examiner further noted the in-service motor vehicle accident and football injuries, but concluded that the symptoms reported on those occasions resolved with minimal treatment, instead attributing the current degenerative changes to the aging process. Resolving all doubt in favor of the Veteran, the Board finds that the evidence is at least in equipoise and that the evidence satisfactorily establishes that the claimed cervical spine disability originated during his active service. In reaching this decision, the Board notes that the Veteran's lay statements have consistently and credibly indicated that he has experienced neck pain since his injuries during service. This testimony is further corroborated by the Veteran's service treatment records, which document his in-service neck injuries. Thus, he has credibly stated that the onset of his cervical spine disability occurred during service and that his symptoms have continued ever since. Although the May 2011 VA examiner opined that the Veteran's cervical spine disability was not caused or aggravated by military service, the Board is also persuaded by the lay statements submitted by the Veteran's wife, as well as his own testimony regarding in-service occurrence and continuity of symptomatology, as corroborated by his service treatment records. The favorable and unfavorable evidence is in equipoise and, as such, reasonable doubt is resolved in the Veteran's favor and the claim is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER New and material evidence has been received, the claim to reopen the service connection claim for a left groin strain is granted. New and material evidence has been received, the claim to reopen the service connection claim for a lumbar spine disability is granted. New and material evidence has been received, the claim to reopen the service connection claim for a cervical spine disability is granted. Entitlement to service connection for a right hand injury is denied. Entitlement to service connection for a lumbar spine disability is granted. Entitlement to service connection for a cervical spine disability is granted. REMAND The Veteran contends that he developed a left groin injury as a result of his military service. Review of his service treatment records indicates that he strained a groin muscle during service in June 1981. Additionally, at the October 2017 hearing, the Veteran testified that he has experienced symptoms related to his groin that have continued since he injured it many years ago at the gym. He further stated that he had recently been diagnosed with prostate cancer and had undergone surgery. In February 2014, the Veteran's wife submitted a statement in which she reported that the Veteran experiences extensive groin pain. The Board notes that a VA examiner documented groin pain in December 1982, but determined that there was no disability. As the evidence of record indicates that the condition has persisted and potentially worsened, the Board finds that a new VA examination is warranted. In light of the Veteran's reports of continuous groin pain, his prostate cancer diagnosis and treatment, and his reported in-service injury, the Board is of the opinion that a new VA examination would be appropriate prior to a final adjudication of the Veteran's claim for service connection. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain any outstanding medical records related to treatment of the Veteran's left groin strain from the VA. 2. The AOJ should schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of his claim left groin strain. The electronic claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed in full. After reviewing the file, obtaining a complete history from the Veteran, and conducting a thorough physical examination, as well as any diagnostic studies deemed necessary, the examiner should address the following inquiries: Does the Veteran have any current disabilities related to the groin? If so, is it at least as likely as not that (i.e., a probability of 50 percent or greater) that any diagnosed groin conditions were either caused or aggravated by his military service? The examiner should include a complete rationale for any opinions provided. 3. After undertaking any other development deemed appropriate, the AOJ should readjudicate the issue of entitlement to service connection for a left groin strain. If the benefit sought is not granted, the AOJ should issue a supplemental statement of the case and provide the Veteran, and his representative, with an appropriate opportunity to respond. The case should then be returned to the Board for further appellate consideration. The Veteran 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 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 (2012). ______________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs