Citation Nr: 18155470 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 18-04 836 DATE: December 4, 2018 ORDER The request to reopen the claim of entitlement to service connection for hernia is granted. The request to reopen the claim of entitlement to service connection for a low back disability is granted. The request to reopen the claim of entitlement to service connection for a right ankle disability is granted. The request to reopen the claim of entitlement to service connection for a left ankle disability is granted. The request to reopen the claim of entitlement to service connection for a right knee disability is granted. The request to reopen the claim of entitlement to service connection for a left knee disability is granted. Entitlement to service connection for a right ankle disability is denied. Entitlement to service connection for a right knee disability is denied. REMANDED The reopened issue of entitlement to service connection for hernia is remanded. The reopened issue of entitlement to service connection for a low back disability is remanded. The reopened issue of entitlement to service connection for a left ankle disability is remanded. The reopened issue of entitlement to service connection for a left knee disability is remanded. The issue of entitlement to service connection for a cervical spine disability is remanded. The issue of entitlement to service connection for a left shoulder disability is remanded. The issue of entitlement to service connection for a right shoulder disability is remanded. FINDINGS OF FACT 1. A December 2006 rating decision denied claims of entitlement to service connection for hernia, back condition, bilateral knee conditions, and residuals of right ankle fracture. The Veteran did not timely appeal the denial. 2. Evidence received since the December 2006 rating decision relates to an unestablished fact necessary to substantiate the claims of entitlement to service connection for hernia, back condition, bilateral knee conditions, and residuals of right ankle fracture and raises a reasonable possibility of substantiating the claim. 3. An August 2015 rating decision denied a claim of entitlement to service connection for left ankle disability. The Veteran did not timely appeal the denial. 4. Evidence received since the August 2015 rating decision relates to an unestablished fact necessary to substantiate the claims of entitlement to service connection for a left ankle disability and raises a reasonable possibility of substantiating the claim. 5. The Veteran’s osteoarthritis of the right ankle was not manifested during service, within a year of separation from service, and is not shown to be related to active service. 6. The Veteran’s osteoarthritis of the right knee was not manifested during service, within a year of separation from service, and is not shown to be related to active service CONCLUSIONS OF LAW 1. The December 2006 rating decision denying entitlement to service connection for hernia, back condition, bilateral knee condition, and residuals of right ankle fracture is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103. 2. The August 2015 rating decision denying entitlement to service connection for left ankle disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103. 3. Evidence received since the December 2006 and August 2015 rating decisions is new and material and the claims for entitlement to service connection for hernia, low back disability, bilateral knee disability, and bilateral ankle disability are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The criteria for service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. 5. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1974 to July 1976 and from February 1982 to February 2002. New and Material Evidence Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105. 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, VA will reopen the claim and review it on the merits. The implementing regulation also provides that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156 (b). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In December 2006, the RO denied entitlement to service connection for hernia, back condition, bilateral knee condition, and residuals of right ankle fracture. The RO found that there was no evidence for a current diagnosis of hernia, back, bilateral knee, and right ankle disabilities. As for left ankle disability, the RO denied entitlement to service connection for a left ankle disability in August 2015. The Veteran did not appeal any of these decisions. Therefore, the denial became final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. Evidence received since this time includes a September 2015 diagnosis of inguinal hernia, osteoarthritis of bilateral knees and bilateral ankles noted in a July 2016 medical treatment record, and a 1995 service treatment record documenting musculoskeletal low back pain with radiculopathy-like symptoms, which was not considered in the December 2006 RO rating decision. As the new evidence relates to the basis of the prior denial and raises a reasonable possibility of substantiating the claims, the evidence is new and material and reopening of the claims for entitlement to service connection for hernia, low back disability, bilateral knee disabilities, and bilateral ankle disabilities is therefore warranted. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish entitlement to service-connected compensation benefits, a veteran must show: “(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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). For veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). Alternatively, when a chronic disease is not present during service, service connection may be established under 38 C.F.R. § 3.303 (b) by evidence of continuity of symptomatology. Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); 38 C.F.R. § 3.303 (b). Finally, when a disease is first diagnosed after service, service connection can still be granted for that condition if the evidence shows it was incurred in service. 38 C.F.R. § 3.303 (d). To prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). 1. Right ankle disability Although no post-service record of specific treatment for his right ankle is available, it is noted in the medical evidence of record in a medical history section that the Veteran has osteoarthritis of the right ankle. See, e.g., July 2016 treatment record at Naval Hospital in Camp Lejeune, medical history section. However, the Veteran has no other known disabilities for his right ankle, as found in a May 2017 VA examination. Therefore, the issue before the Board is whether the Veteran’s osteoarthritis of the right ankle is related to his service. The Board finds that it is not under any applicable theories of entitlement to service connection. The evidence of record indicates that the Veteran had a right ankle sprain in April 1976 with slight edema and another right ankle sprain in January 1985 with torn ligament and some edema on the right lateral side of the ankle, resulting limited range of motion; no fracture was noted. It appears, however, that the Veteran had a cast over his right ankle. The February 2002 retirement examination noted no abnormality in his ankle, though the Veteran generally noted “broken bone(s), cracked or fractured” without mentioning specific location for such broken bones. At the same examination, the Veteran reported no abnormality for his feet or legs in the medical history section. A May 2003 post-service medical record reports a result of an x-ray imaging of his right ankle taken as a follow-up for his complaint of bruising and abrasion of this right knee resulted from falling off from his motorcycle. This post-service x-ray showed a normal right knee with normal bony anatomy, preserved joint spaces, and no effusion. When he filed his claim for his right knee, he noted that the date of treatment for his fractured right ankle was January 1985. Review of the evidence, therefore, indicates that the Veteran was not diagnosed with osteoarthritis of the right ankle during his service and that his osteoarthritis of the right ankle did not manifest within one year of separation from service. Moreover, the medical evidence indicates that the Veteran’s in-service right ankle sprains, noted on two occasions in his service treatment records, had healed by the time he left his active duty without any residuals, as suggested by the normal x-ray in May 2003. As such, the Board finds that his current right ankle disability, though manifested by pain and claimed instability, is less likely than not related to his ankle injuries in service. Thus, the record is absent evidence of a diagnosis of osteoarthritis of the right ankle during service, evidence of such disease within a year of discharge from service, credible evidence of continuity of symptomatology, and a nexus between a current right ankle disorder and the Veteran’s active duty service. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C. § 5107 (b) is not for application. 2. Right knee disability Although no post-service record of treatment for his right knee is available, it is noted in the medical evidence of record in a medical history section that the Veteran has osteoarthritis of the right knee. See, e.g., July 2016 treatment record at Naval Hospital in Camp Lejeune, medical history section. However, the Veteran has no other known disabilities for his right knee, as found in a May 2017 VA examination. Therefore, the issue before the Board is whether the Veteran’s osteoarthritis of the right knee is related to his service. The Board finds that it is not under any applicable theories of entitlement to service connection since the evidence reveals no in-service injury or event related to or involving his right knee. Moreover, the Board notes that the medical evidence of record is devoid of any notations of post-service treatment of his right knee. Thus, the record is absent evidence of a diagnosis of osteoarthritis of the right knee during service, evidence of such disease within a year of discharge from service, credible evidence of continuity of symptomatology, and a nexus between a current right knee disorder and the Veteran’s active duty service. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C. § 5107 (b) is not for application. REASONS FOR REMAND 1. Hernia The Veteran reports that at his February 2002 retirement examination, the examiner told him that he had hernia, but that the examiner did not note it in the examination. See, e.g., July 2017 notice of disagreement. The Veteran denied rupture or hernia and did not note pain in the groin or abdomen area during the retirement examination. The RO denied his claim for hernia in December 2006 for lack of evidence for current diagnosis. However, as noted in the New and Material Evidence section above, a September 2015 treatment record indicates the Veteran indeed has a current diagnosis of inguinal hernia. The Board finds that further development of records is warranted for this claim. The evidence of record indicates that the Veteran was diagnosed with and treated for hernia before he originally filed his claim in May 2006. However, except for the September 2015 treatment record, the Veteran’s claims file does not contain any medical records concerning his hernia, even though a diagnosis of hernia seems to require medical expertise and testing. Upon remand, the Agency of Original Jurisdiction (AOJ) must ask the Veteran to provide a statement concerning the history of this disease from onset to the present and then obtain pertinent medical treatment records with, if needed, release authorization. 2. Left knee and left ankle The service treatment records note multiple occasions for his left knee strains and injuries and treatment thereof between 1985 and 1987. An incidence of L ankle sprain in April 1976 is also noted in his service treatment record. As mentioned in the New and Material Evidence section above, the Veteran has a current diagnosis of osteoarthritis of the left knee and the left ankle. The Board notes that an April 2017 VA examination is inadequate for rating purposes since the examiner found no current diagnoses for the left knee or left ankle, despite the evidence that he might have osteoarthritis. Upon remand, the AOJ must obtain pertinent medical treatment records for the Veteran’s knee and ankle disabilities, including osteoarthritis, and then obtain an addendum medical opinion concerning whether the current disabilities of the left knee and the left ankle are related to his active service. 3. Low back disability The Veteran’s service treatment record contains an undated entry from 1997 indicating the Veteran’s complaint of low back pain that was lasting for one month. He reported that he had back pain in the past, which would come and go, but the current pain he was experiencing was different and persisting. In particular, he stated the back pain runs from below scapula and down into lumbar area on both sides with radiating numbness and tingling in the lower extremities. He was assessed to have musculoskeletal low back pain during the 1997 in-service treatment. In light of this, the Board finds that further development of this claim is warranted. Upon remand, the AOJ must ask the Veteran a statement concerning the history and treatment of his back condition and obtain pertinent medical treatment records with, if needed, release authorization. Then, the AOJ must schedule the Veteran a VA examination to ascertain a current diagnosis of his low back disability and the etiology. An addendum opinion on whether his current low back disability, if any, is related to his active service must also be obtained. 4. Cervical spine disability 5. Left shoulder disability 6. Right shoulder disability The Veteran reports that the onset of his neck disability is in 1985 when he injured his neck while stationed in Okinawa. See, e.g., April 2017 VA examination. The Veteran has provided sufficient, specific information concerning the location and timing of his neck injury in service, but no medical records from his service in Okinawa are associated with his claims file. Upon remand, the AOJ must attempt to obtain his service treatment record concerning his neck injury. If such records are obtained, the AOJ must obtain an addendum medical opinion concerning whether his neck disability is related to his service. Lastly, the Veteran’s claim for service connection for bilateral shoulder disability is inextricably intertwined with the issues of entitlement to service connection for cervical spine disability, which is remanded for further development. Therefore, a final decision on the issue of entitlement to service connection for bilateral shoulder disability cannot be rendered at this time. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The matters are REMANDED for the following actions: 1. Ask the Veteran to provide a statement describing the history of his hernia and low back disability and if and where he did or have been receiving treatment from. 2. Obtain pertinent post-service medical records for the Veteran’s hernia, left knee, left ankle, and low back disability. An attempt to obtain records from Japan as noted above, should be specifically documented. In the paragraphs below, several addendums and examinations are requested. It may be that a single examiner may be qualified to enter or conduct 1 or more of the examinations or addendums. That the matters have been set out in separate paragraphs should not be taken to mean that each has to be separately conducted if a qualified examiner can enter the needed addendums or conduct appropriate examinations. 3. After record development is complete, obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s left ankle disability, if any, is at least as likely as not related to his service, to include in-service left ankle sprains and whether his left knee disability, if any, is at least as likely as not related to his service, to include in-service left knee sprains and other injuries. The examiner is advised that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should explain why. A complete and fully explanatory rationale must be provided for any and all opinions expressed. If the examiner finds that the requested opinion cannot be rendered without resorting to speculation, he or she should so state, and should indicate whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given the state of medical science and the known facts) or by a deficiency in the record (i.e., additional facts are required), or that the examiner does not have the necessary knowledge or training. 4. After record development is complete, schedule the Veteran a VA examination by an appropriate clinician to ascertain the nature and etiology of any low back disability. Appropriate testing must be conducted to determine a current diagnosis of any low back disability. If no disorder is found that should be specifically set out. If found: The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the 1997 in-service low back pain; whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. The examiner is advised that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should explain why. A complete and fully explanatory rationale must be provided for any and all opinions expressed. If the examiner finds that the requested opinion cannot be rendered without resorting to speculation, he or she should so state, and should indicate whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given the state of medical science and the known facts) or by a deficiency in the record (i.e., additional facts are required), or that the examiner does not have the necessary knowledge or training. 5. If the AOJ is able to obtain service treatment records for the claimed 1985 neck injury in Okinawa, obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s cervical spine disability, if any, is at least as likely as not related to his service, to include the in-service neck injury. The examiner is advised that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should explain why. A complete and fully explanatory rationale must be provided for any and all opinions expressed. If the examiner finds that the requested opinion cannot be rendered without resorting to speculation, he or she should so state, and should indicate whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given the state of medical science and the known facts) or by a deficiency in the record (i.e., additional facts are required), or that the examiner does not have the necessary knowledge or training. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Y. Taylor, Associate Counsel