Citation Nr: 1802974 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 10-07 465 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a prostate disability, to include benign prostatic hypertrophy (BPH) and chronic prostatitis, including as secondary to service-connected lumbosacral strain. 2. Whether new and material evidence has been presented to reopen the claim of entitlement to service connection for arthritis of the lumbar spine with spina bifida occulta and, if so, whether the claim may be granted. 3. Whether new and material evidence has been presented to reopen the claim of entitlement to service connection for arthritis of the right hip and, if so, whether the claim may be granted. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARINGS ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD N. Rippel, Counsel INTRODUCTION The Veteran served on active duty from December 1953 to December 1955. This matter came to the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, that declined petitions to reopen the claims of service connection for arthritis of the lumbar spine and right hip. A November 2010 statement of the case (SOC) reflects that the claims were reopened and denied on the merits. Four supplemental SOCs continued the denial of these claims on the merits. In August 2017, the Board issued a decision remanding this matter to the RO for the scheduling of a Board hearing in accordance with the Veteran's request. In December 2017, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing. A prior hearing was held in November 2010 before RO personnel. 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). As to the claims for arthritis of the lumbar spine and right hip, regardless of the RO's actions, the Board is required to consider whether new and material evidence has been received warranting the reopening of the previously denied claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the Veteran's previously and finally denied claims). The issues of service connection for prostate disability and arthritis of the lumbar spine with spina bifida occulta and right hip arthritis addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an unappealed February 1958 rating decision, the RO denied service connection for arthritis of the lumbar spine based on a finding that the arthritis was minimal and first manifested during a January 1958 examination, over a year following service separation. 2. The evidence received since February 1958 as to the issue of service connection for arthritis of the lumbar spine is relevant and probative. 3. In an unappealed August 1979 rating decision, the RO denied service connection for arthritis of the right hip based on a finding that the Veteran initially complained of a sore right hip in 1958 related to unloading hay in November 1957, there was no evidence of injury to the right hip in service and the current examination showed only minor degenerative changes. 4. The evidence received since the August 1979 rating decision as to the issue of service connection for arthritis of the right hip is relevant and probative. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of service connection for arthritis of the lumbar spine. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. New and material evidence has been received to reopen the claim of service connection for arthritis of the right hip. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Law In general, rating decisions and Board decisions that are not timely appealed are final. See 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. § 20.1103 (2017). If new and material evidence is presented or secured with respect to a claim that has been finally disallowed, the claim shall be reopened and reviewed. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Under 38 C.F.R. § 3.156, a claimant may reopen a finally adjudicated claim by submitting new and material evidence. "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 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 United States Court of Appeals for Veterans Claims has interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold. Shade v. Shinseki, 24 Vet. App 110 (2010). 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." See id. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the AOJ by the Board without consideration in that decision in accordance with the provisions of 38 C.F.R. § 20.1304 (b)(1)), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156 (b). If VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim as an original claim for benefits. 38 C.F.R. § 3.156 (c). If it is determined that new and material evidence has been submitted, the claim must be reopened. The evidence is presumed credible for the purposes of reopening a claim, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510 (1992). A finding by the Board of new and material evidence is required in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also VAOPGCPREC 05-92. Analysis In a February 1958 rating decision, the RO granted service connection for lumbosacral strain but denied service connection for arthritis of the lumbar spine based on a finding that the arthritis was minimal and first manifested during a January 1958 examination, over a year following service separation. The Veteran was notified of the denial of this claim, but he did not file an appeal or submit new and material evidence within one year. This decision became final. Similarly, in an August 1979 rating decision, the RO denied service connection for arthritis of the right hip based on a finding that the Veteran initially complained of a sore right hip in 1958 related to unloading hay in November 1957, there was no evidence of injury to the right hip in service and the current examination showed only minor degenerative changes. The Veteran was notified of the denial of this claim, but he did not file an appeal or submit new and material evidence within one year. This decision became final. Evidence submitted since the aforementioned rating decision includes additional medical records, a VA examination report, and the Veteran's detailed statements and testimony about how he believes his arthritis of the right hip and back are related directly to the injury he sustained to his back in service, or to his service-connected lumbar strain. (The in-service back injury from lifting a jeep is documented.) An October 2008 statement from treating chiropractor G.D.G., D.C., reflects his opinion that the Veteran's hip and back conditions are a direct result of the injury in service. Under the circumstances, the Board finds that this newly-added evidence indeed is new and material in that it was not previously considered, is not cumulative and speaks directly to elements which were not of record. This evidence cures an evidentiary defect. See Kent v. Nicholson, 20 Vet. App. 1, 10 (2006) (finding that "the question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied"). Moreover, the newly-added opinion is relevant to this claim. The low threshold noted in Shade has been met. Accordingly, the Board finds that the applications for service connection for arthritis of the lumbar spine and right hip are reopened. ORDER New and material evidence has been received to reopen a claim of service connection for arthritis of the lumbar spine, to that extent only, the claim is granted. New and material evidence has been received to reopen a claim of service connection for arthritis of the right hip, to that extent only, the claim is granted. REMAND The Veteran contends that he is entitled to service connection for arthritis of the lumbar spine and right hip as these are related to the initial documented jeep accident in which he injured his back in service. Although service treatment records document a fall on the street in March 1955, the Veteran provided detailed testimony in December 2017 as well as an 11-page written statement in November 2017 explaining that his back and right hip pain has essentially been ongoing and worsening since the initial jeep lifting accident in service. See, e.g., hearing transcript pp 16-17. He has also indicated that he believes his prostate disorder has developed in the same way, due to the initial accident. He testified that it was explained to him by a doctor that the condition developed in much the same way as an old cowboy bruising his prostate due to long periods of time in the saddle. See, e.g., hearing transcript pp 3-4. The Veteran is competent to report pain and symptoms, as these are lay-observable symptoms. While there is a March 2009 VA examination which includes opinions with regard to the etiology of the Veteran's documented lumbar spine and right hip arthritis, as well as his prostate disorder, the Board finds the opinions inadequate in consideration of the current evidence and theories advanced in this case. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Specifically, the examiner opined that the prostate disability, BPH, chronic prostatitis and status post transurethral resection of the prostate (TURP) were not caused or worsened by the use of Ibuprofen which ceased 10 years earlier. As to right hip arthritis, the examiner opined it was not secondary to lumbar strain or degenerative joint disease (DJD). As to the lumbar spine, the diagnosis was simply lumbosacral strain, underlying degenerative disc disease and DJD. These opinions do not fully address the arguments as to etiology presented by the record, and are not supported by adequate rationale, particularly in view of the more recent current theories advanced by the Veteran in his testimony and in his 11-page written statement. The Board considers the testimony about the details of the accident highly relevant because the service treatment and personnel records do not include much information as to how the accident happened. Therefore, examination is warranted prior to Board review on the merits. 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. Schedule the Veteran for VA examination by an appropriate examiner to provide medical opinions addressing the nature and etiology of any lumbar spine and or right hip arthritis, and or prostate disability, present during the pendency of the claim. All diagnostic testing deemed necessary should be scheduled. Upon review of the Veteran's claims file, and after performing any necessary testing, the examiner should provide responses to each of the following questions: a.) Is it at least as likely as not (50 percent or greater probability) that any lumbar spine and or right hip arthritis, and or prostate disability, present during the pendency of the claim, had its onset in, or is otherwise related to his period of active service? b.) Notwithstanding the above, it is at least as likely as not that any lumbar spine and or right hip arthritis, or prostate disability was caused or aggravated beyond its natural progression by his service-connected lumbar strain or medication for the same? If aggravation is found, the examiner should also identify the baseline level of severity of the nonservice-connected disability to the extent possible. Clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The examiner's attention is invited to the Veteran's testimony and 11-page statement recently presented in support of his claims. The Veteran is considered credible to the extent that his statements are not directly contradicted by any established fact. 3. After the completion of any action deemed appropriate in addition to that requested above, the Veteran's claims should be readjudicated. If any benefit sought remains denied, the Veteran should be provided a SSOC and given the opportunity to respond. The appellant 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs