Citation Nr: 1802613 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 13-15 094 ) 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 the previously denied claim of entitlement to service connection for a lumbar spine disorder. 2. Entitlement to service connection for a lumbar spine disorder. 3. Entitlement to service connection for hypertension. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and K. R. ATTORNEY FOR THE BOARD Martha R. Luboch, Associate Counsel INTRODUCTION The Veteran service on active duty in the Army from August 1982 to August 1988, and in the Marine Corps from November 1989 to April 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in October 2017. The Veteran had an exceptional representative assisting him in this matter who elicited relevant testimony related to the issues on appeal. A transcript of the hearing is of record. The issue of entitlement to service connection for a lumbar spine disorder 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 an unappealed January 1994 rating decision, the RO initially denied service connection for a back disorder. 2. In an unappealed April 2006 rating decision, the RO declined to reopen the Veteran's claim for service connection for a back disorder. The evidence received since April 2006 is not cumulative or redundant and raises a reasonable possibility of substantiating the claim. 3. The Veteran's hypertension began in service and has continued since. CONCLUSIONS OF LAW 1. The April 2006 rating decision most recently denying service connection for a back disorder is final. 38 U.S.C. § 7104, 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. New and material evidence has been received to reopen the Veteran's claim for entitlement to service connection for a back disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 101(24), 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.1(d), 3.6(a), 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board notes that the Veteran, nor his representative, has alleged any deficiency in VA's duty to assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). New and Material Evidence Generally, a claim which has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). An 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 VA Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means evidence not previously submitted. Material evidence means existing evidence that by itself or when considered with previous evidence 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 final decision, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). In Shade v. Shinseki, 24 Vet. App 110 (2010), the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." The Court further 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. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). As a final matter before turning to the specific facts of the Veteran's case, the Board notes that it 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 that 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 claim was received prior to the expiration of the appeal period stemming from the January 1994 and April 2006 rating decisions. See 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). Thus, 38 C.F.R. § 3.156(b) is not applicable. By way of background, the Veteran's claim for service connection for a back disorder to include scoliosis was originally denied by a January 1994 rating decision. The decision denied service connection because "the evidence of record does not show any disability of the low back except for scoliosis, which is a congenital deformity which pre-existed service. The evidence of record does not show any aggravation of the scoliosis condition." The Veteran filed a notice of disagreement in October 1994 and in February 1995, a statement of the case was issued. He did not perfect an appeal within the required timeframe, therefore that decision is final. 38 C.F.R. § 3.109. Subsequently, the Veteran sought to reopen his back disorder claim in May 2005. In April 2006, the RO declined to reopen the Veteran's claim. The Veteran did not perfect an appeal within the required timeframe; therefore that decision is the most recent final denial. 38 C.F.R. § 3.109. Evidence added to the record since April 2006 includes various treatment records, lay statements, a VA examination, and a transcript from the Veteran's Board hearing. The VA treatment records associated with the Veteran's claims file show that he has degenerative changes of the spine. In addition, the Veteran has reported a new in-service injury which he believes worsened his back condition. Specifically, he reported a fall that occurred with a ruck sack on his back in service. This information is new as it was not previously submitted and it is material as it relates to an unestablished fact and would trigger VA's duty to assist. As a result, the Board finds that new and material evidence has been submitted to reopen the Veteran's previously denied claim of service connection for a back disorder. Service Connection - Hypertension Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 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). Direct service connection may not be granted without evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C. § 1112; 38 C.F.R. § 3.304. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, for Veterans who served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including hypertension, 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). Hypertension must be confirmed by readings taken two or more times on at least three different days. Hypertension is defined as diastolic blood pressure predominately at 90 mm or greater; or, systolic blood pressure predominately at 160mm or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. In each case where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of his service as shown by his service record, the official history of each organization in which he served, his treatment records, and all pertinent medical and lay evidence. See 38 U.S.C. § 1154(a). 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. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he was immediately diagnosed with hypertension after leaving service in April 1993. He stated that his hypertension began to manifest by headaches, which were treated in-service with ibuprofen. His legible service treatment records indicate that he had at least one elevated blood pressure reading, 154/90, in service. A large amount of his service treatment records are unreadable. Post-service VA treatment records from April 2005 indicate that the Veteran presented to the emergency room one year prior complaining of chest pain and headaches. In April 2005, he was noted to have a third elevated blood pressure reading in a row, indicating a diagnosis of hypertension, and was started on 25 mg of hydrochlorothiazide. Here, essentially, the Veteran has contended that he had hypertension in-service that was diagnosed immediately after service and has continued since. Given the unique circumstances of the Veteran's case, to include unavailability of treatment records from 1993, the fact that a large portion of the Veteran's service treatment records are unreadable, coupled with the later VA treatment records which show that the Veteran had presented to the emergency room with hypertension related symptoms, the Board finds the Veteran's reports competent. As a result, after resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran developed hypertension within one year of service and it has continued since. The Board finds that service connection for hypertension is warranted. ORDER New and material having been received, the claim for entitlement to service connection for a low back disorder is reopened. Entitlement to service connection for hypertension is granted. REMAND Although the additional delay is regrettable, the Board finds that a remand is necessary in this case. The Veteran was most recently afforded a VA examination in February 2013. The examiner noted a diagnosis of levoscoliosis as well as minimal degenerative changes at the facet joints at the lower part of the lumbar spine with moderate convexity at mid and lower lumbar spine to the left. The examiner opined that the Veteran's lumbar spine levoscoliosis that existed prior to service was less likely than not aggravated beyond its natural progression by a fall down a hill while on patrol in August 1990. The examiner stated that "estimates of the frequency of back pain in affected individuals in adults with scoliosis vary, but most studies report higher rates of back pain in affected individuals compared with control groups. The medical literature does not link trauma to the back as factor for progression of scoliosis. Studies showed the main prognostic factor identified is curve magnitude at presentation." Here, the Veteran's scoliosis has been previously characterized as congenital, but it has also been treated as an acquired preexisting condition. Furthermore, on VA examination in July 1993, the examiner indicated that a severe injury to the lumbar spine could possibly cause a progression of scoliosis. This contradicts the February 2013 VA examiner's statement that trauma is not a factor for progression of scoliosis. Thus, a remand is necessary to address whether the Veteran's levoscoliosis is a congenital disease or defect; whether it developed prior to service, but was not present since birth (acquired); and whether trauma can in fact impact the progression of scoliosis. In addition, the examiner stated "he has degenerative changes of spine which is most likely related to the age progression and genetic predisposition." The examiner did not provide any rationale as to why age progression and genetic predisposition was more likely the cause of the Veteran's degenerative changes, as opposed to various in-service falls and strenuous physical requirements. Therefore, an addendum opinion is necessary. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records to specifically include those from the Texas City VAMC. 2. Next, obtain a new VA medical opinion from a different VA examiner (if possible) to determine the nature and etiology of the Veteran's lower back disorders. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The need for in-person examination is left to the discretion of the examiner. With regard to the Veteran's levoscoliosis, the examiner is asked to provide an opinion on the following: (i) Is the Veteran's levoscoliosis congenital? If not, the examiner is asked to opine: (a) Whether it is clear and unmistakable that his levoscoliosis preexisted any period of active duty service? (b) If the answer is that it did preexist service, then is there clear and unmistakable (obvious or manifest) evidence that such preexisting disability DID NOT increase in severity beyond the natural progression of the disability during the Veteran's periods of service (i.e., the disorder was NOT aggravated by service)? (c) If the answer to any of questions (1)-(2) is "no," then is it at least as likely as not (50 percent or greater) that the Veteran's levoscoliosis is related to any injury or disease in active duty service? (ii) If the examiner finds that the Veteran's scoliosis IS congenital, the examiner is asked to opine: a) Is the congenital scoliosis a disease or a defect? (Note: A disease is capable of improvement or deterioration, and a defect is static.) b) If the scoliosis is a congenital disease: (i) Did scoliosis clearly and unmistakably (i.e., obviously and manifestly) exist prior to service? (ii) Did scoliosis clearly and unmistakably (i.e., obviously and manifestly) NOT permanently worsen beyond its normal progress during service? c) If scoliosis is a congenital defect: (i) Is it at least as likely as not (a 50 percent or greater probability) that there was a superimposed disease or injury during military service that resulted in additional disability? d) For each back diagnosis other than scoliosis (such as, degenerative changes of the lumbar spine), is it at least as likely as not (a 50 percent or greater probability) that the back disability was caused by or etiologically related to service, to include any injury, disease, or event therein. A clear rationale must be provided for any conclusion reached. The examiner is specifically asked to consider the in-service Medical Board Report which indicates "patient has undergone the usual conservative management of his back and neck pain with periods of light duty and trial of nonsteroidal anti-inflammatory medication as well as physical therapy instructions with back school. All of these modalities have not offered significant relief or the ability to return him to a full duty status. He is in an MOS that trains aggressively and it is anticipated that he will not return to this level of physical activity due to these two (mechanical low back pain; levoscoliosis of the lumbar spine) orthopedic conditions." If aggravation or a permanent worsening is not found, a medical explanation of why aggravation or a permanent worsening is not present when the Veteran was able to complete one period of active duty service (August 1982 to August 1988) without issue with his back, was then able to reenlist (and was found to have a normal lumbar spine on enlistment. See August 1989 Report of Medical Examination), and after reenlisting was discharged four years later due to medical reasons relating to his back, would be extremely helpful to the Board. The examiner is reminded that the term "clear and unmistakable" is an onerous standard. In other words, clear and unmistakable evidence leads to a conclusion that is undebatable. If there is any debate as to whether the Veteran's back condition preexisted service and whether or not service aggravated his condition, clear and unmistakable evidence is not present. 3. The AOJ should review the examination report to ensure that it is in compliance with this remand. If the report is deficient in any manner, the AOJ should implement corrective procedures. 4. After completing the above actions and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs, the claim should be readjudicated. 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 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. §§ 5109B, 7112 (2012). ______________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs