Citation Nr: 18161133 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 15-12 753 DATE: December 28, 2018 ISSUES 1. Whether new material evidence has been received to reopen the claim for service connection for small muscle strain, left foot, claimed as bilateral foot condition; and if so, whether the claim should be granted. 2. Whether new material evidence has been received to reopen the claim for service connection for lumbar strain, claimed as back condition; and if so, whether the claim should be granted. 3. Whether new material evidence has been received to reopen the claim for service connection for musculoligamentous strain bilateral knees, claimed as bilateral knee condition; and if so, whether the claim should be granted. 4. Whether new material evidence has been received to reopen the claim for service connection for musculoligamentous strain bilateral ankles, claimed as bilateral ankle condition; and if so, whether the claim should be granted. 5. Whether new material evidence has been received to reopen the claim for service connection for bursitis both hips, claimed as bilateral hip condition; and if so, whether the claim should be granted. 6. Whether new material evidence has been received to reopen the claim for service connection for small muscle strain, right foot, claimed as bilateral foot condition; and if so, whether the claim should be granted. 7. Entitlement to a compensable disability rating for bilateral hearing loss (BHL). ORDER The Board having determined that new and material evidence has been received, the claims for service connection for small muscle strain, left foot, claimed as bilateral foot condition; lumbar strain, claimed as back condition; musculoligamentous strain bilateral knees, claimed as bilateral knee condition; musculoligamentous strain bilateral ankles, claimed as bilateral ankle condition; bursitis both hips, claimed as bilateral hip condition; and small muscle strain, right foot, claimed as bilateral foot condition, are reopened, and to that extent only the claims are granted. REMANDED Entitlement to service connection for small muscle strain, left foot, claimed as bilateral foot condition is remanded. Entitlement to service connection for lumbar strain, claimed as back condition is remanded. Entitlement to service connection for musculoligamentous strain bilateral knees, claimed as bilateral knee condition is remanded. Entitlement to service connection for musculoligamentous strain bilateral ankles, claimed as bilateral ankle condition is remanded. Entitlement to service connection for bursitis both hips, claimed as bilateral hip condition is remanded. Entitlement to service connection for small muscle strain, right foot, claimed as bilateral foot condition is remanded. Entitlement to a compensable disability rating for BHL is remanded. FINDINGS OF FACT 1. Service connection for a lumbar spine disorder, bilateral knee disorder, bilateral hip disorder, bilateral foot disorder, and bilateral ankle disorder was denied in an October 2008 Board decision that was not appealed. 2. Evidence received since the October 2008 Board decision includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claims for service connection. CONCLUSIONS OF LAW As new and material evidence has been received since the issuance of the aforementioned final decision, the criteria for reopening the claim for service connection for small muscle strain, left foot, claimed as bilateral foot condition; lumbar strain, claimed as back condition; musculoligamentous strain bilateral knees, claimed as bilateral knee condition; musculoligamentous strain bilateral ankles, claimed as bilateral ankle condition; bursitis both hips, claimed as bilateral hip condition; and small muscle strain, right foot, claimed as bilateral foot condition are met. 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1969 to September 1970. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Veteran testified before the undersigned during a July 2018 videoconference hearing; a transcript is of record. Claim to Reopen Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. 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 is defined as existing evidence not previously submitted to agency decisionmakers. 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). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Given the previous unappealed denial of the claim on appeal, the Board has a legal duty under 38 U.S.C. §§ 5108, 7104 (West 2014) to address the question of whether new and material evidence has been received to reopen the claim for service connection. This matter goes to the Board’s jurisdiction to reach the underlying claims and adjudicate the claims on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). Historically, service connection for a lumbar spine disorder, bilateral knee disorder, bilateral hip disorder, bilateral foot disorder, and bilateral ankle disorder was denied in an October 2008 Board decision that was not appealed. Service connection was denied based on a determination that these conditions were not manifested in service and were not attributable to service. The evidence received in pertinent part since this decision includes the Veteran’s detailed testimony before the undersigned in July 2018 and a private opinion submitted in August 2018 in which the examiner stated that the multiple insults to the Veteran’s musculoskeletal system, including those described during his Board hearing, were clearly more likely than not connected to his current health conditions. Because such opinion and testimony were not present at the time of the prior final denial, this evidence is sufficient to reopen the previously-denied claims. The foregoing evidence is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claims. Therefore, this evidence is new and material, and reopening of the claims for service connection for small muscle strain, left foot, claimed as bilateral foot condition; lumbar strain, claimed as back condition; musculoligamentous strain bilateral knees, claimed as bilateral knee condition; musculoligamentous strain bilateral ankles, claimed as bilateral ankle condition; bursitis both hips, claimed as bilateral hip condition; and small muscle strain, right foot, claimed as bilateral foot condition is in order. Shade v. Shinseki, No. 08-3548 (U.S. Vet. App. Nov. 2, 2010). REASONS FOR REMAND The Board is of the opinion that additional development is required before the Veteran’s claims on appeal are decided. The Veteran contends that service connection is warranted for small muscle strain, left foot, claimed as bilateral foot condition; lumbar strain, claimed as back condition; musculoligamentous strain bilateral knees, claimed as bilateral knee condition; musculoligamentous strain bilateral ankles, claimed as bilateral ankle condition; bursitis both hips, claimed as bilateral hip condition; and small muscle strain, right foot, claimed as bilateral foot condition as related to his combat service in Vietnam, to specifically include jumping from helicopters. The Veteran’s DD Form 214 shows his decorations and awards include a Combat Infantryman Badge and that his military occupational specialty (MOS) was infantry. Therefore 38 U.S.C. § 1154 (b) and its implementing regulation, 38 C.F.R. § 3.304 (d), are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. The Federal Circuit has held that, in the case of a combat Veteran, not only is the combat injury presumed, but so, too, is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). As such, in-service bilateral foot, back, bilateral knee, bilateral ankle, and bilateral hip injuries are conceded. Notwithstanding, the Federal Circuit explained that “[e]ven when the section 1154(b) combat presumption applies, a ‘veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the injury, disease, or aggravation of a preexisting injury or disease incurred during active duty.’” Id. In response to his claim for service connection for these claimed disabilities, the Veteran was afforded a VA examination in August 2006 in which the examiner noted that the etiological question posed was whether the claimed conditions were related to the Veteran’s military service during combat when he jumped numerous times from helicopters. The examiner stated that there was no documentation at all about any of these joints in the record. There was one entry without a date (possibly from 1969) in which a left foot strain was noted; otherwise, the record was completely silent up until 2006 where foot problems were mentioned. The examiner also noted that the Veteran’s separation examination was completely normal. The examiner stated that since there had been essentially no health care since his military days, it appeared less likely that these conditions were due to multiple jumps from helicopters, based on lack of documentation. The Veteran was also afforded a VA examination in November 2006 in which the examiner stated that she could not state that the current lumbar condition was caused by frequent jumps from helicopters without resorting to mere speculation. Dr. C.M. submitted an opinion in December 2007 in which he stated that the Veteran had chronic back pain per history dating back to service incidents in 1970 when he often jumped out of planes; he also had chronic ankle and foot complaints. The doctor stated that this all seemed to stem by history from the Veteran’s service in Vietnam. The Veteran was afforded a VA examination in December 2014 in which the examiner opined that the diagnosis of a small muscle strain, left foot (now claimed as chronic foot pain with use of orthotics), was less likely than not incurred in or caused by the muscle strain across top of left foot during service. The examiner also stated that there were no residuals of muscle strain, left foot, found on this evaluation or in the post-service records; thus, the available evidence did not support the claim. As noted above, a private opinion received in August 2018 from Dr. C.M. stated that the multiple insults to the Veteran’s musculoskeletal system, including those described during his Board hearing, were clearly more likely than not connected to his current health conditions. The Board finds that additional clarification is required as to the etiology of the claimed disabilities on appeal. Namely, the August 2006 VA examiner’s opinion and December 2007 private opinion appears to be speculative at best. Bloom v. West, 12 Vet. App. 185, 187 (1999) (stating that medical opinions that are equivocal in nature, such as those expressed in speculative language (e.g., “could have caused”, etc.), do not provide the degree of certainty required for medical nexus evidence); Black v. Brown, 5 Vet. App. 177, 180 (1993); Reonal v. Brown, 5 Vet. App. 458, 460 (1993). Moreover, it is symptoms, not treatment, which are the essence of any evidence of continuity of symptomatology. Savage v. Gober, 10 Vet App. 488, 496 (1997) (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Upon remand, the examiner is reminded that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Finally, a significant lapse in time between service and post-service medical treatment may be considered a factor in the analysis, but that such absence of documented treatment, in and of itself, is not a basis for discrediting his lay statements of continuity. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). As to the December 2014 VA opinion, the requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case, the Board finds that the Veteran should be afforded a new VA examination on remand to address the etiology of any bilateral foot, back, bilateral knee, bilateral ankle, and bilateral hip disabilities diagnosed during the pendency of this appeal, specifically addressing his contentions that these disabilities are related to his conceded in-service injuries during combat. Regarding the claim for a compensable disability rating for BHL, the Veteran was most recently afforded a VA examination in August 2015 for this disability. During his July 2018 videoconference hearing, the Veteran reported that his BHL had worsened since his most recent examination. As such, the Board finds that a remand is necessary to afford the Veteran a contemporaneous examination to determine the current severity of his BHL. See Allday v. Brown, 7 Vet. App. 517, 526 (1995) (indicating that, where the record does not adequately reveal the current state of the claimant’s disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). Finally, the Board notes that during the July 2018 hearing, the Veteran indicated that a buddy statement from R.D. might be outstanding. As such, the RO should request the statement on remand. The matter is REMANDED for the following action: 1. Obtain and associate with the claims file the aforementioned buddy statement from R.D.; any outstanding VA treatment records; and, with appropriate authorization from the Veteran, any additional outstanding private treatment records identified by him as pertinent to his claim. 2. After the above development is completed, schedule the Veteran for VA examination(s) to determine the nature and etiology of his claimed bilateral foot, back, bilateral knee, bilateral ankle, and bilateral hip disabilities. The electronic claims files, to include a copy of this remand, must be made available to and be reviewed by the examiner in conjunction with the examination. All necessary testing should be accomplished, as appropriate. The examiner should address the following: Opine whether it is at least as likely as not (50 percent probability or greater) that any bilateral foot, back, bilateral knee, bilateral ankle, and bilateral hip disabilities diagnosed during the pendency of this appeal had its onset in service or is otherwise etiologically related to service, to include the conceded injuries from jumping from helicopters during combat and in-service diagnosis of muscle strain across the top of the left foot. In addressing this question, the examiner is advised that in-service injuries as related to bilateral foot, back, bilateral knee, bilateral ankle, and bilateral hip disabilities are established by virtue of the combat presumption, despite no documentation of the same. Failure to concede in-service injuries and the resulting disabilities will render the opinion inadequate. A full and complete rationale for all opinions expressed must be provided. The examiner should address the aforementioned VA and private opinions of record. If the examiner is unable to offer any of the requested opinions, a rationale should be provided for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 2. Then, arrange for the Veteran to be afforded a VA examination in order to ascertain the current severity of the service-connected BHL. Access to the electronic claims file must be made available to and reviewed by the examiner, and any indicated studies should be performed. All appropriate diagnostics should be accomplished and all clinical findings should be reported in detail. 3. Upon completion of the addendum and examination ordered above, review the reports to ensure that they provide all information required. Any inadequacies should be addressed prior to recertification to the Board. 4. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim on appeal. If any benefit sought on appeal remains denied, furnish the Veteran and his representative with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.M.K., Counsel