Citation Nr: 18160020 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 15-08 955A DATE: December 20, 2018 ORDER The Veteran’s Board decision dated August 31, 2018, is vacated. New and material evidence has been received, and a claim of service connection for a left leg disability is reopened; the appeal is granted to this extent only. REMANDED Entitlement to service connection for a left leg disability. Entitlement to service connection for arthritis of the knees, back, shoulders, and hips. FINDINGS OF FACT 1. The Board’s decision of August 31, 2018, was decided on an incomplete factual basis and, to ensure due process of law, the decision should be vacated. 2. Evidence received since a June 1990 final rating decision relates to an unestablished fact, is not cumulative or redundant of the evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating the claim of service connection for a left leg disability. CONCLUSIONS OF LAW 1. The criteria for vacatur of the August 31, 2018, Board decision have been met. 38 U.S.C. § 7104(a) (2012); 38 C.F.R. §§ 20.904(a), 20.1304(c) (2017). 2. Evidence received since a final June 1990 rating decision is new and material; therefore, the Veteran’s claim of entitlement to service connection for a left leg disability is reopened. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. §§ 3.156(a), 20.1103 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1969 to April 1969. This appeal is before the Board of Veterans’ Appeals (Board) from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine. In February 2018, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge via videoconference. A transcript is included in the claims file. 1. Whether Veteran’s Board decision dated August 31, 2018, should be vacated On August 31, 2018, the Board issued a decision in this appeal, denying the Veteran’s claims of service connection for arthritis of the knees, back, shoulders, and hips, and denying his appeal to reopen his claim of service connection for a left leg disability. With a September 2018 motion for reconsideration, the Veteran and his representative have shown that relevant medical evidence was received by VA prior to the issuance of the decision, though it had not yet been processed and associated with the Veteran’s claims file. The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board’s own motion, when an appellant has been denied due process of law. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. Because relevant evidence was submitted but not considered in the decision of August 31, 2018, the Board finds that it was decided on an incomplete factual basis and, to ensure due process of law, that decision must be vacated upon the Board’s own motion. The Veteran’s appeal is thus addressed in this decision based on all the evidence of record. 2. Whether new and material evidence has been received to reopen a claim of service connection for a left leg disability The Veteran claims service connection for a left leg disability. Service connection for this disability has been previously denied. VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). “New” evidence is evidence not previously submitted to agency decision makers and “material” evidence is 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 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). In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Cox v. Brown, 5 Vet. App. 95, 98 (1993); Justus v. Principi, 3 Vet. App. 510, 513 (1992). VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of the claim on any basis, whether a decision on the underlying merits or, a petition to reopen. Evans v. Brown, 9 Vet. App. 273, 283 (1996). In Shade v. Shinseki, 24 Vet. App. 100 (2010), the United States Court of Appeals for Veterans Claims (Court) held that § 3.159(c)(4) does not require new and material evidence as to each previously unproven element of a claim for the claim to be reopened and the duty to provide an examination triggered. In a fact pattern where a prior denial was based on lack of current disability and nexus, the Court found that newly submitted evidence of a current disability was, in concert with evidence already of record establishing an injury in service, new and material and sufficient to reopen the claim and obtain an examination. Regardless of any RO determinations that new and material evidence has been submitted to reopen service connection, the Board must still determine whether new and material evidence has been submitted in this matter. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Service connection for a left leg disability was initially denied in a May 1983 rating decision based on a finding that the condition existed prior to entry on active duty and there was no aggravation demonstrated beyond the normal progression. A subsequent claim to reopen was denied in June 1990 with no change in the prior determination. The Veteran neither appealed this decision nor submitted new and material evidence within the one-year appeal period. The decision therefore became final. Among the evidence submitted by the Veteran in August 2018 was a July 2018 opinion from a private orthopedic surgeon. The surgeon opined that it was at least as likely as not that while in service the Veteran sustained repeated injuries to the left hip, aggravating and accelerating a condition of degenerative osteoarthritis of the left hip. This opinion relates to an unestablished fact, is not cumulative or redundant of the evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating the claim of service connection for a left leg disability. The Veteran’s claim of service connection is therefore reopened and remanded, as explained below. REASONS FOR REMAND Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). For certain chronic diseases, such as arthritis, a presumption of service connection arises for Veterans with at least 90 days of service if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Because the Veteran served less than 90 days, this presumption is not applicable to his claims. When determining service connection, a presumption of soundness ordinarily applies. 38 C.F.R. § 3.304(b). Pursuant to such presumption, a Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). Only such conditions as are recorded in examination reports are to be considered as noted. The burden falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. 38 U.S.C. § 1153; Wagner, 370 F.3d at 1096. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. VA has a duty to provide a medical examination where there is (1) competent evidence of a current disability or symptoms thereof; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability is associated with service; and (4) insufficient competent medical evidence to decide the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). 1. Entitlement to service connection for a left leg disability The Veteran claims service connection for a left leg disability. In a July 2018 private opinion, a private orthopedic surgeon opined that it was at least as likely as not that while in service the Veteran sustained repeated injuries to the left hip, aggravating and accelerating a condition of degenerative osteoarthritis of the left hip. The opinion does not appear to be based on a rationale, and it fails to address the Physical Evaluation Board’s contemporaneous finding, undisputed by the Veteran at the time, that his disability was not aggravated by his 42 days of service. Remand for an examination is therefore necessary. The Board notes that clear and unmistakable evidence shows that the Veteran’s left leg disability existed prior to induction into service. Neither the Veteran nor the July 2018 private orthopedic surgeon dispute this. Rather, the issue is whether the symptoms exhibited during basic training were the normal progression of the preexisting disability, or if the strain of service caused a previously resolved disability to recur. Because no abnormality was noted at the Veteran’s December 1968 induction examination, his claim will be denied only if clear and unmistakable evidence shows that no aggravation of the disability occurred in service. The examiner therefore must provide an opinion as to whether the disability clearly and unmistakably was not aggravated. 2. Entitlement to service connection for arthritis of the knees, back, shoulders, and hips The Veteran claims service connection for arthritis of the knees, back, shoulders, and hips. The July 2018 private opinion further opined that the Veteran’s left leg disability in addition to subsequent gait pattern changes caused a lumbosacral invertebral disc syndrome with left sciatic radiculitis. Furthermore, there is evidence elsewhere in the record which indicates a possibility that his arthritis elsewhere could be secondary to his left leg disability. Specifically, private treatment records reflect that in November 2011 the Veteran’s private treating physician stated a belief that his back pain could be secondary degenerative joint disease related to his underlying diagnosis of Legg-Perthes disease. At his February 2018 Board hearing, the Veteran’s representative implied that the claim was one for secondary service connection. As such, the Board finds that this issue must be remanded as inextricably intertwined with the claim of service connection for a left leg disability. See Ephraim v. Brown, 5 Vet. App. 549, 550 (1993) (inextricably intertwined claims should be remanded together). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any additional medical evidence that may have come into existence but has not been associated with the record. 2. Schedule the Veteran for a VA examination for his left leg disability. The claims file must be reviewed by the examiner. Following a review of the claims file and any clinical examination results, the examiner should offer an opinion as to whether the Veteran’s left leg disability clearly and unmistakably did NOT sustain an increase in severity during service (e.g., was not aggravated) that was not due to the natural progression of the disease. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After completing the above, and any other development deemed necessary, readjudicate the appeal. If any benefit sought remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Gallagher, Counsel