Citation Nr: 18159606 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 17-07 784 DATE: December 19, 2018 ORDER New and material evidence having been received, the request to reopen a claim of service connection for a back disability is granted. New and material evidence having been received, the request to reopen a claim of service connection for a left leg disability is granted. Entitlement to service connection for a back disability is granted. REMANDED Entitlement to service connection for a left leg disability is remanded. FINDINGS OF FACT 1. Evidence received since the March 1999 rating decision denying service connection for a back disability and left leg disability relate to unestablished facts necessary to substantiate the claims, or raises a reasonable possibility of substantiating the claims. 2. The Veteran’s back disability is etiologically related to service. CONCLUSIONS OF LAW 1. The March 1999 rating decision denying service connection for a back disability and left leg disability is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103 (2018). 2. New and material evidence has been received to reopen the claims of service connection for a back disability and left leg disability. 38 U.S.C. §§ 5104, 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2018). 3. The criteria for entitlement to service connection for a back disability have been satisfied. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from November 1981 to November 1985. Claims to Reopen The Veteran is seeking to reopen claims of service connection for a low back disability and left leg disability that were previously denied in a rating decision dated March 1999. 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 (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, VA shall reopen the claim and review the former disposition of the claim. New and material evidence is defined as evidence not previously submitted to agency decision makers which bear directly and substantially upon the specific matter under consideration; such 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). The evidence shows that the Veteran’s claims of service connection for a back disability and left leg disability were previously denied in a March 1999 rating decision on the basis that the claims were not well-grounded. Specifically, the RO determined that the evidence failed to show an in-service injury to the Veteran’s back or left leg, and that his current back and leg conditions were not related to service. The Veteran was notified of this action and of his appellate rights, but did not file a timely NOD or submit new and material evidence within a year thereafter. Therefore, the March 1999 VA rating decision is final. See 38 U.S.C. § 7105(b), (d); 38 C.F.R. §§ 20.302, 20.1103. In September 2014, the Veteran filed to reopen his claims. Evidence submitted since the March 1999 rating decision include statements from the Veteran, as well as, statements from two individuals purporting to have served with the Veteran while stationed in Germany and witnessing the Veteran’s back and leg injury. For instance, the Veteran reported in an October 2015 written correspondence that he first injured his back in approximately 1982 to 1983 during a training obstacle course while stationed in Fort Lewis, Washington. He reported being treated at North Fort Hospital and being placed on bedrest for three weeks with follow-up therapy. The Veteran further reported that he reinjured his back during a live firing mission in approximately 1984 to 1985 while stationed in Germany. He indicated that this injury resulted in bedrest and that he was limited in his duties for approximately two months. With regard to the Veteran’s left leg, the Veteran reported that he broke his left leg while playing basketball with the company team in Germany, resulting in his leg being placed in a cast for three months. The Veteran’s reported injuries are supported by a statement from a former servicemember by the name of T.J. who indicated that he was also stationed in Germany between 1983 to 1984. T.J. reported that the Veteran injured his leg during a PT run, and that he subsequently saw the Veteran with a whole leg cast on. He further reported that the Veteran was on his unit’s basketball team and that the Veteran could no longer play after injuring his back. Similarly, a former servicemember by the name of D.C. also reported being stationed in Germany and that she saw the Veteran coming through the chow line with crutches and a cast on his leg. Additionally, a September 2018 private medical opinion found that the Veteran’s back disability is more likely than not related to service, and the examiner further found that his leg disability is more likely than not related to his back disability. The Board recognizes that the Veteran and his former service members are competent to report an observable event or injury that may have occurred. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). As a result, the Board finds the evidence is new and material as it is not cumulative nor redundant of the evidence previously of record, and raises a reasonable possibility of substantiating the claim. Accordingly, the claims are reopened. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a) (2017). To establish a right to compensation for a present disability, 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, the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease initially diagnosed after service 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). Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b). Entitlement to service connection for a back disability. The Veteran is seeking service connection for a low back disability. The Board has thoroughly reviewed the record and finds that the preponderance of the evidence weighs in favor of granting the claim. In so finding, the Board initially notes that the Veteran’s STRs have been deemed unavailable; however, the Veteran is competent to report the occurrence of an in-service event or injury. Here the Veteran has competently reported that he injured his back during an obstacle training course in approximately 1982 to 1983 while in Fort Lewis, Washington, requiring light duty for three weeks. Additionally, he reported reinjuring his back in approximately 1984 to 1985 while in Germany. Military personnel records confirm that the Veteran was stationed in Washington and Germany during the reported time periods. In addition, the Veteran’s statements have been substantiated by a former service member who reported being on the same basketball unit as the Veteran, and that the Veteran could not play due to injuring his back. In light of this evidence, the Board finds the Veteran’s statements competent and credible, and the element of an in-service injury for service connection has been met. With regard to a current diagnosis, the Veteran has been diagnosed with degenerative disc disease. A January 1998 MRI for his lumbar spine revealed minimal positional changes and disc bulges posteriorly at L4 and L5-S1 levels. Medical treatment records also show that the Veteran has received treatment for his back since service. For example, in June 1998, the Veteran requested rehab for his back at a VA Medical Center Montrose, and reported being treated for prolapse disc by his private physician. In an August 1998 medical treatment record, the Veteran complained of back pain and having had such for 13 years. The Veteran was referred to physical therapy. In February 2012 the Veteran presented to the emergency room for a complaint of back pain. A lumbar spine MRI showed mild degenerative changes from L2-3 to L5-S1, and mild narrowing of the left neural foramina at the L3-4 and L4-5 levels. The Veteran was given pain medication and was advised to follow up with his primary care physician. In June 2018, the Veteran presented to the emergency room complaining of low back pain for 30 years. He denied any recent trauma but noted that it “flared up this morning.” The Veteran was given a small amount of gabapentin and was advised to follow up with his orthopedic doctor. Concerning a nexus, it was noted in a September 2018 medical opinion that the Veteran’s current back disability was caused by service. Specifically, a private physician found that it is more likely than not that the Veteran’s in-service low back injuries accelerated the development of lumbar spine and degenerative disc disease (DDD) causing the Veteran’s chronic low back pain. In so finding, the examiner noted in part that stress caused by mechanical repetitive overloading of the lumbar spine is an important factor in the etiology of the lumbar DDD, and that low back pain is also associated with posterior disc bulges. The examiner pointed out that the Veteran’s medical records from August 1998 show a L4-L5 posterior bulge as well as chronic low back ache. Further, the examiner noted that it is known that low back pain is strongly associated with certain occupations and activities … and will contribute to degeneration over time, especially those that involve heavy lifting or trauma exposure. The examiner further noted that the Veteran underwent two episodes of significant lumbar spine injury where he needed medical treatment and bedrest for both, with the second injury being more severe. The examiner concluded that the Veteran’s current back disability was more likely than not caused by his service. Based on the above and remaining evidence, the Board finds that service connection is warranted. The Board finds the afore-mentioned medical opinion probative as the examiner considered the Veteran’s medical history, lay statements of record, medical literature, and she provided a detailed rationale supporting her position. Additionally, the evidence shows that the Veteran has consistently reported having back pain since service and the Board has no reason to doubt the credibility of those statements. Given the probative medical opinion and the absence of any evidence refuting or contradicting the Veteran’s credible testimony and reported in-service injury, the Board finds the preponderance of evidence weighs in favor of granting the claim. Accordingly, the claim of service connection for a back disability is granted. REMANDED ISSUE Entitlement to service connection for a left leg disability. The Veteran seeks service connection for a left leg disability. As mentioned previously, the Veteran reported that he broke his left leg while playing basketball in service. Post-service records show that the Veteran has complained of pain, tingling, and numbness in his left lower extremity. A March 2012 treatment note shows that the Veteran was given nortriptyline for his radiculopathy symptoms. Additionally, in the September 2018 private medical opinion referenced above, the examiner found that the Veteran’s pain and sensory impairment is worsened by his back disability causing some radiculopathy. Although the Veteran was given a general VA examination in 1998, the examiner did not indicate whether the Veteran has a current leg disability, but merely noted that the Veteran has a history of left fibula fracture. In light of the Veteran’s competent report of an in-service injury, in addition to, the examiner’s finding of a possible secondary service connection claim, the Board finds an examination and medical opinion is warranted to determine the etiology of the Veteran’s left leg disability. McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). While on remand, the AOJ should take necessary steps to retrieve any outstanding private treatment records as the Veteran reported in an October 2015 correspondence that he received treatment, medication, and physical therapy partly for his left leg from a private physician. Similarly, an August 1998 medical treatment record noted that an MRI was scheduled for the Veteran’s left lower extremity; however, these records appear to be incomplete. As VA has a duty to assist the Veteran in substantiating his claim, the AOJ should attempt to obtain any outstanding private and VA treatment records relevant to the Veteran’s claim. The Board also notes that the Veteran’s claims file appears to be incomplete. In a June 2015 correspondence, the RO determined that the Veteran’s STRs were unavailable. In doing so, the correspondence noted that requests were made to PIES, the Records Management Center, and Defense Personnel Records Information System (DPRIS). In addition, the correspondence noted that negative responses were received; however, none of the requests or responses have been associated with the Veteran’s claims folder. On remand, any requests and responses relative to locating the Veteran’s STRs should be associated with the file. The matter is REMANDED for the following action: 1. Obtain any outstanding VA medical records and associate the same with the Veteran’s claim file. 2. Associate all requests and responses that have been sent and received, pertaining to the unavailability of the Veteran’s service treatment records, with the Veteran’s claims file. 3. Ask the Veteran to identify any treatment received from private providers related to his left leg disability. The AOJ should undertake appropriate development to obtain any outstanding private treatment records. The Veteran’s assistance should be requested as needed. All obtained records should be associated with the evidentiary record. 4. After the above development has been completed, and after any records obtained have been associated with the evidentiary record, the Veteran should be afforded a VA examination with an appropriate examiner to determine the nature and etiology of any left leg disability. The claims file, including a copy of this remand, must be made available to, and reviewed by the examiner. Any indicated studies should be performed. The VA examiner should offer an opinion with supporting rationale as to the following: a) Please list any currently diagnosed left leg disability. If the Veteran does not have a left leg disability, the examiner must opine whether the Veteran has leg pain resulting in functional impairment. b) For each disability listed above, or if no disability is diagnosed, for any pain with functional impairment, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that such disability or pain had its onset during the Veteran’s service or is otherwise etiologically related to such service? c) The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that such disability or leg pain with functional impairment was proximately caused by the Veteran’s service-connected back disability? The examiner must consider the Veteran’s lay statements regarding the onset of his leg injury and symptomatology both during and since active service. 5. Then, readjudicate the claim. If any benefit requested on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Laffitte, Associate Counsel