Citation Nr: 18158603 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 16-40 646A DATE: December 18, 2018 ORDER New and material evidence having been received, the claim for entitlement to service connection for a back disability is reopened. New and material evidence having been received, the claim for entitlement to service connection for a left knee disability is reopened. New and material evidence having been received, the claim for entitlement to service connection for a right knee disability is reopened. New and material evidence having been received, the claim for entitlement to service connection for a left ankle disability is reopened. New and material evidence having been received, the claim for entitlement to service connection for a right ankle disability is reopened. REMANDED Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a right ankle disability is remanded. FINDINGS OF FACT 1. In a September 1996 rating decision, the AOJ denied service connection for a back disability; the Veteran did not appeal the decision. 2. The evidence received since the September 1996 rating decision is not cumulative or redundant of evidence previously of record, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a back disability, and raises a reasonable possibility of so substantiating the claim. 3. In a September 1996 rating decision, the AOJ denied service connection for a left knee disability; the Veteran did not appeal the decision. 4. The evidence received since the September 1996 rating decision is not cumulative or redundant of evidence previously of record, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a left knee disability, and raises a reasonable possibility of so substantiating the claim. 5. In a September 1996 rating decision, the AOJ denied service connection for a right knee disability; the Veteran did not appeal the decision. 6. The evidence received since the September 1996 rating decision is not cumulative or redundant of evidence previously of record, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a right knee disability, and raises a reasonable possibility of so substantiating the claim. 7. In a September 1996 rating decision, the AOJ denied service connection for a left ankle disability; the Veteran did not appeal the decision. 8. The evidence received since the September 1996 rating decision is not cumulative or redundant of evidence previously of record, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a left ankle disability, and raises a reasonable possibility of so substantiating the claim. 9. In a September 1996 rating decision, the AOJ denied service connection for a right ankle disability; the Veteran did not appeal the decision. 10. The evidence received since the September 1996 rating decision is not cumulative or redundant of evidence previously of record, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a right ankle disability, and raises a reasonable possibility of so substantiating the claim. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for a back disability. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156 (2017). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a left knee disability. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156 (2017). 3. New and material evidence has been received to reopen the claim of entitlement to service connection for a right knee disability. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156 (2017). 4. New and material evidence has been received to reopen the claim of entitlement to service connection for a left ankle disability. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156 (2017). 5. New and material evidence has been received to reopen the claim of entitlement to service connection for a right ankle disability. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1986 to December 1986 and May 1987 to August 1996. This matter comes before the Board of Veterans’ Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The Veteran did not appeal the issue of entitlement to service connection for an elbow disability. See Form 9 dated in August 2016. REFERRED The issue of entitlement to service connection for numbness in his right finger due to cervical spine disability was raised in an August 2016 statement and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. Petition to Reopen Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a claimant 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”-the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c) (2012). 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 decisionmakers. 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). Service connection for a back disability, right knee disability, left knee disability, right ankle disability and left ankle disability was denied in a September 1996 rating decision. The Veteran did not appeal this decision. The AOJ determined that there was no indication of current disabilities or link to the Veteran’s service. Since the September 1996 rating decision, evidence added to the record includes Disability Benefits Questionnaires completed for his back, knees and ankles and private x-ray findings of current disabilities. See December 2012 DBQs; see also August 2013 x-ray reports. As there is evidence suggesting current disabilities, the Board concludes that a previously identified defect has been cured, and that the claim for entitlement to service connection for a back disability, right knee disability, left knee disability, right ankle disability and left ankle disability may be reopened. The reopened claims are addressed in the remand which follows. REASONS FOR REMAND Entitlement to service connection for a neck disability, back disability, left knee disability, right knee disability, left ankle disability, and right ankle disability are remanded. The Veteran claims that his current neck, back, knee and ankle disabilities are due to injuries he sustained as a parachutist during service. In a May 2013 opinion, the examiner found that the Veteran did not have treatment for his neck, back, or knees following discharge from service and only had medical treatment a few years prior to his examination. The examiner concluded that his current disabilities were less likely than not related to military service and relied on no showing of chronic disabilities. In a May 2013 letter, the Veteran reported that he received a Gulf War examination in 2000 just four years after discharge. At that time, he reported joint pain, including ankle pain. A Gulf War examination and VA treatment records are missing from the claims file and are relevant to the claimed disabilities. A remand is needed so that these records can be obtained. The Veteran submitted a citation to an article about how veterans have twice the rate of osteoarthritis when compared to non-military populations. See August 2016 letter. The Veteran also submitted an article by the United States Public Health Command recognizing mechanical shock for military paratroopers as a reason for increased aches and pains. Id. He also submitted an article that noted overall prevalence of lumbar disc degeneration to be higher in ex-military parachutist. Id. These articles have not been reviewed by a medical examiner. The Veteran also mentioned that a record could not be found that documented a 1992 accident/injury following a parachuting accident. The Veteran is credible to report incidence that occurred during service regardless of what is included in the service treatment records. The Veteran’s statements should be considered. For these reasons, the Board finds that new examinations are needed that include a thorough interview with the Veteran regarding all injuries sustained during service, including injuries from a parachuting accident. The examiner should also review the article citations provided by the Veteran and review VA treatment record, including a Gulf War examination, before providing an opinion. The Board notes that the examiner who provided the May 2013 opinion found no current ankle disability. Despite this, the Veteran submitted an August 2013 x-ray showing tendinitis of the right and left ankles. For these reasons, a new examination and opinion is needed for his ankle disability. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records from 1996 to the present, including a Gulf War examination conducted in 2000. All records/responses received must be associated with the electronic claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any neck disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including a parachute accident. The examiner should review VA records, including a Gulf War examination, and article citations submitted by the Veteran in an August 2016 letter before providing the opinion. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any back disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including a parachute accident. The examiner should review VA records, including a Gulf War examination, and article citations submitted by the Veteran in an August 2016 letter before providing the opinion. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any knee disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including a parachute accident. The examiner should review VA records, including a Gulf War examination, and article citations submitted by the Veteran in an August 2016 letter before providing the opinion. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any ankle disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including a parachute accident. The examiner should review VA records, including a Gulf War examination, and article citations submitted by the Veteran in an August 2016 letter before providing the opinion. The examiner’s attention is directed to the August 2013 x-ray report. 6. Readjudicate the Veteran’s claims, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel