Citation Nr: 18147421 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 16-16 384 DATE: November 5, 2018 ORDER New and material evidence has not been presented, and the claim for entitlement to service connection for degenerative arthritis of the spine (now claimed as low back injury secondary to right ankle strain, previously considered under 5237) associated with right ankle strain, ossification (previously under 5273) is not reopened. New and material evidence has not been presented, and the claim for entitlement to service connection for degenerative joint disease of the left hip (claimed as left hip condition, secondary to right ankle strain) associated with right ankle strain, ossification (previously under 5273) is not reopened. REFERRED The issue of an increased disability rating for the Veteran’s service-connected right ankle strain, ossification, was raised during the May 2018 videoconference Board hearing and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDINGS OF FACT 1. In an unappealed June 2013 Board decision, the Board of Veterans’ Appeals (Board) denied the Veteran’s claims for entitlement to service connection for a low back disability and for a left hip disability, finding that there was no medical nexus between the disabilities and the claimed in-service event. 2. The evidence received since the June 2013 Board decision is not new and material since it does not relate to an unestablished fact necessary to substantiate the claims and does not raise a reasonable possibility of substantiating the claims of entitlement to service connection for the Veteran’s low back and left hip disabilities. CONCLUSIONS OF LAW 1. The June 2013 Board decision, denying entitlement to service connection for a low back disability and for a left hip disability, is final. 38 U.S.C. §§ 511(a), 7103, 7104(a); 38 C.F.R. § 20.1110. 2. The evidence presented since the June 2013 Board decision to reopen the claims for entitlement to service connection for degenerative arthritis of the spine (now claimed as low back injury secondary to right ankle strain, previously considered under 5237) associated with right ankle strain, ossification (previously under 5273) and for degenerative joint disease of the left hip (claimed as left hip condition, secondary to right ankle strain) associated with right ankle strain, ossification (previously under 5273) is not new and material, and the claims are not reopened. 38 U.S.C. §§ 501, 5103A(f), 5108, 7104(b); 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1959 to February 1962. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision. In a March 2018 letter, the withdrawal of the Veteran’s attorney was acknowledged, and the Veteran has proceeded pro se. In May 2018, the Veteran and his daughter testified at a videoconference Board hearing before the undersigned, and a transcript is of record. The Board is required to determine its jurisdiction by addressing in the first instance the issue of whether the Veteran presented new and material evidence to support reopening his previously adjudicated claims. Any decision the RO made with regard to new and material evidence is irrelevant in regard to the Board’s jurisdiction. See Barnett v. Brown, 83 F.3d 1380, 1383–84 (Fed. Cir. 1996); see also Jackson v. Principi, 265 F.3d 1366, 1369 (2001) (holding that the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous act of denying the claim was appealed to the Board). If the Board determines that new and material evidence was not presented, the adjudication of the underlying claim ends, and further analysis is neither required nor permitted. Claims to Reopen Generally, a claim which has been denied in an unappealed Board decision or an unappealed Regional Office decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 501, 5103A(f), 5108, 7104(b), 7105(c). The exception is when new and material evidence is presented or secured, see 38 U.S.C. § 5108; 38 C.F.R. § 3.156, which Congress intended to be a low threshold, Shade v. Shinseki, 24 Vet. App. 110, 121 (2010) (holding that the law should be interpreted as enabling reopening of a claim, rather than precluding it). Existing evidence not previously before agency decision makers is “new evidence.” 38 C.F.R. § 3.156(a). “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.” Id. The proffered evidence cannot be cumulative or redundant “of the record evidence 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.” Id. The phrase “raise a reasonable possibility of substantiating the claim” does not create a third element for new and material evidence; rather, it provides guidance in determining whether submitted evidence meets the new and material requirements. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether evidence is new and material, the evidence must be presumed credible. Shade v. Shinseki, 24 Vet. App. 110, 122 (2010); Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). New evidence may be sufficient to reopen a claim if it contributes to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Evidence that corroborates record evidence is not cumulative or redundant. Paller v. Principi, 3 Vet. App. 535, 538 (1992). VA’s duty to assist in providing a medical examination does not attach unless the claim is reopened. 38 C.F.R. § 3.159(c)(4)(iii); Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). If the Board finds that new and material evidence has been presented and reopens the claim, after ensuring that VA’s duty to assist has been fulfilled, the Board may proceed to evaluate the merits of the claim. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999). 1. Entitlement to service connection for degenerative arthritis of the spine (now claimed as low back injury secondary to right ankle strain, previously considered under 5237) associated with right ankle strain, ossification (previously under 5273) is not reopened. 2. Entitlement to service connection for degenerative joint disease of the left hip (claimed as left hip condition, secondary to right ankle strain) associated with right ankle strain, ossification (previously under 5273) is not reopened. In January 2005, the Veteran applied for compensation benefits for low back injury and residuals, which was interpreted to include his left hip disability. Throughout the adjudication of his claim, the Veteran consistently reported that while stationed in Korea in 1960 or 1961 he fell off a tracked vehicle, known as a Scorpion, falling on a rock and injuring his back with pain in his left leg. He reported his injury to his platoon sergeant, was seen by medics at the dispensary, and informed that no X-ray equipment was available. He was treated with heat and aspirin. In a March 2007 statement in support of claim, the Veteran stated that Dr. Rock, a VA surgeon, related his skeletal disabilities as the result of the Veteran’s early age of 18 when he first entered the military. VA medical records from his consultation with Dr. Rock in September 2006 show that it was noted the Veteran reported “limping since Korea (age 18),” that he fell from a tracked vehicle in 1960, and that he gradually developed more pain. In a June 2006 rating decision, the RO denied entitlement to service connection for a low back injury and left leg condition, finding that there was no evidence of an in-service event. The Veteran’s November 2006 application for benefits for entitlement to service connection for “lumbar skeletal” and for bilateral hips was treated as a notice of disagreement with the denial of service connection for lower back and left hip disabilities. The Veteran presented a November 2007 letter from L.S.C. who stated he knew the Veteran during grade school, they went into the service together, and they continued contact after returning home. It was stated that when the Veteran returned from service he limped and his back was not right, and the Veteran’s explanation was that he injured himself in Korea. The Veteran presented a November 2007 letter from F.Z. who stated that, although they grew up nearby, they met when deployed to Korea around 1960. He stated that when the Veteran was transferred to Camp Casey and they met up again after the Veteran having originally been stationed at Camp Kaiser, the Veteran walked with a limp and complained about his back and leg. It was stated that the Veteran explained that he fell off a Scorpion. The Veteran presented an undated letter from B.L. who stated that he and the Veteran went to grade school together, and they volunteered for service at the same time. It was stated that when they returned home, the Veteran had a limp in his walk, and the Veteran said he had fallen off a tank. During a November 2007 hearing before a decision review officer, the Veteran testified that starting in 1963 he started seeing various chiropractors and received acupuncture. In December 2007, the Veteran presented the medical records from the chiropractic practice he saw in April 2003. In April 2010, the Veteran was afforded a VA cold injury protocol examination. The examiner opined that it was less likely as not that the Veteran’s degenerative joint disease and degenerative disc disease of the lumbar spine was caused by or the result of a fall from a truck. It was stated that there was no documentation of an acute back injury at the time of the fall and no documentation of chronic back treatment until the evaluation in 2003. It was stated that the left leg weakness and pain was associated with the left side radiculopathy and not leg trauma in 1961 and that there was no medical documentation of such trauma. During his February 2011 Travel Board hearing, the Veteran testified that he believed he started receiving chiropractic care the year he got out of service. He stated that over the years he went to two or three different chiropractors and received acupuncture. He stated that he could not find the acupuncturist to obtain his records. He stated that he obtained records from one chiropractor. He testified that he never had any accidents, for which he received safety awards at work. In June 2012, the Veteran took his films to Dr. B.B. for an opinion on the age of his back and hip injuries. In the report it was stated that it was obvious that the degenerative changes took many years to develop; however, there was no way to state at what point in time the initial injury occurred. It was stated that the Veteran had obvious old injury to the L1-2 space and endplate reactive changes; however, it was impossible to determine the age of the onset. In a June 2013 decision, the Board denied entitlement to service connection for a low back disability and for a left hip disability. The Board found that Veteran’s lumbar spine and left hip conditions were first shown many years after discharge from service and were not related to any inservice event, including the undocumented fall from a Scorpion vehicle in Korea. The Veteran did not appeal, and the decision became final. In a September 2013 fully developed claim application for compensation, in pertinent part, the Veteran sought entitlement to service connection for low back and left hip as secondary to his service-connected right ankle. In March 2014, the Veteran was afforded a VA examination, and the examiner opined that his low back pain and left hip pain were less likely than not proximately due to or the result of the Veteran’s service-connected right ankle. The rationale was that the Veteran’s service treatment records were silent for any conditions and his discharge examination report in February 1962 was normal. It was noted that the first record of the back condition was in 2003 and of the hip condition in 2006. In an August 2014 addendum, the examiner stated that the only ankle sprain documented during service was the one in 1959 and that, on two separation examinations from service, there was no history of any orthopedic injuries. It was stated that right ankle benign ossification of interosseous membrane is not a disabling condition and that left hip trauma resulting in total degeneration of the joint, as seen here, required stress in excess of that generated by spraining the contralateral ankle. It was opined that more likely causes “would include avascular necrosis (possibly due to slipped capital epiphysis, alcohol consumption, hyperlipidemia, cigarette smoking, or Legg Calve Perthes disease), repetitive trauma, or congenital hip dysplasia.” It was noted that the normal alignment of the right ankle did not support repetitive abnormal stresses from abnormal gait causing the hip and spine degeneration to be seen; indeed, normal gait was reported in September 2003, by which time there was advanced back degeneration. It was opined that absent a single traumatic event, “the most likely cause of back degeneration is the protracted sitting and vibration associated with long-haul truck driving adversely synergistic with vaso-spastic effects of tobacco use.” In an August 2014 rating decision, the RO denied the claims on the merits. In a March 2016 statement of the case, the RO reopened the claims and denied on the merits after a de novo review of the evidence without deference to the previous determinations. The Veteran perfected this appeal. During his May 2018 video Board hearing, the Veteran recounted the details of his accident while in service. He stated that Dr. Rock told him that his current disabilities were related to his in-service accident, but the Veteran never asked Dr. Rock to prepare a written statement to that effect. The Veteran stated that he had not seen Dr. Rock in years. Now, the question for the Board is whether the evidence presented since the Board’s June 2013 decision constitutes new and material evidence such as to support reopening the Veteran’s claims for service connection for low back and left hip disabilities. After careful and thorough review of the evidence of record, the Board finds that it does not. (Continued on the next page)   Medical nexus is the unestablished fact to support the Veteran’s claims, and while the March and August 2014 VA medical opinions, the Veteran’s May 2018 testimony, and the updates of his VA treatment records are new evidence, the new evidence is not material because there is no indication of a medical opinion that the Veteran’s back and left hip disabilities are related to his in-service accident or as secondary to his service-connected right ankle. Indeed, the medical opinions of record are that the Veteran’s back and left hip disabilities are not related to his service on any theory. Hence, the Board finds that new and material evidence has not been presented to support reopening the claims because, while the evidence has not been before the agency decision maker previously, it does not relate positively to an unestablished fact necessary to substantiate the claims. Accordingly, the claims for entitlement for service connection for low back and left hip disabilities as secondary to service-connected right ankle are not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). L. CHU Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Leanne M. Innet, Associate Attorney