Citation Nr: 1808046 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 13-25 511A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a back disability. 2. Entitlement to service connection for a back disability, claimed as a thoracolumbar condition. 3. Entitlement to service connection for a bilateral shin condition. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Silverblatt, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1989 to February 1992, with subsequent service in the Army National Guard and Army Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Jurisdiction has since been transferred to the RO in St. Petersburg, Florida. In the October 2011 rating decision, the RO denied the Veteran's application to reopen the claim of entitlement to service connection for a back disability. In November 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the record. The issues of entitlement to service connection for a back disability and a bilateral shin condition are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An unappealed December 1996 rating decision denied entitlement to service connection for a back disability. 2. New evidence received since the December 1996 rating decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a back disability. CONCLUSIONS OF LAW 1. The December 1996 rating decision that denied the claim of entitlement to service connection for a back disability became final. 38 U.S.C. § 7105(b), (c) (2014); 38 C.F.R. §§ 3.160(d), 20.201, 20.302, 20.1103 (2017). 2. The additional evidence received since the December 1996 rating decision is new and material, and the claim of entitlement to service connection for a back disability is reopened. 38 U.S.C. §§ 5108, 7105 (2014); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In light of the favorable decision herein as to the new and material issue on appeal, the Board finds that any deficiencies in notice were not prejudicial to the Veteran. II. New and Material Evidence The Veteran seeks to reopen a previously denied claim of entitlement to service connection for a back disability. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105(c). A claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. "New" evidence means existing evidence not previously submitted to agency decision makers. "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. 38 C.F.R. § 3.156(a). 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. Id. 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). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). The evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). At the time of the December 1996 rating decision that denied service connection for a back disability, the evidence of record consisted only of VA treatment records and a March 1996 VA examination. The RO denied service connection, stating that there was no evidence of an in-service back injury or a link between the Veteran's back disability and service. The Veteran was properly notified of the rating decision in a January 1997 letter and the decision became final. The Board finds that new and material evidence has been received to reopen the claim of entitlement to service connection for a back disability. Since the December 1996 rating decision, the evidence received into the record includes military personnel records and service treatment records from the Veteran's National Guard and Army Reserve service, statements from the Veteran, his wife, and his brother concerning his back disability, private treatment records, and the Veteran's testimony from the November 2017 Board hearing. In a May 2012 statement, the Veteran's wife stated that she had dated the Veteran since high school. She recalled that the Veteran had called her one day while in service and told her he had injured his back during training when he jumped from a hill. He told her that he had gone to sick call because he could hardly move. The Veteran visited sick call several times for his back injury and was prescribed medication. The Veteran's wife stated that although they had insurance, the remaining cost was a burden and the Veteran would abstain from seeking treatment. In a November 2012 statement, the Veteran's brother wrote that in 1990, the Veteran had told that him he had injured his back during training after jumping and landing wrong. During the November 2017 Board hearing, the Veteran testified that, prior to his active duty service, he had no problems with his back. He injured his back during a field training exercise in 1990. The Veteran stated he was carrying his weapon and a can of ammunition when he jumped over a hill and immediately hit the ground. He kept running but began experiencing pain in his back. The next day he could barely move, so he went to sick call where they prescribed him medication for back pain. The Veteran testified that he still experienced back pain when he entered the National Guard, but failed to note the back pain on his medical examination. The Veteran stated that he had been able to regularly do his job and had thought his back pain would eventually go away. After the National Guard, the Veteran testified that he relocated a few times to different states and would find primary care physicians to treat his back. He testified that the back pain from his in-service injury has been continuous to the present day. The Board finds that the evidence received subsequent to the December 1996 rating decision which denied service connection for a back disability satisfies the definition of new and material evidence, as it raises a reasonable possibility of substantiating the claim. These documents were not of record at the time of the prior final denial and they provide evidence that the Veteran incurred a back injury in service that may be linked to his current back disability. Accordingly, the Board finds that new and material evidence has been received to reopen the Veteran's previously denied claim of entitlement to service connection for a back disability. However, as will be explained below, the Board is of the opinion that further development is necessary before the merits of the Veteran's claim can be addressed. ORDER New and material evidence having been received, the claim of entitlement to service connection for a back disability is reopened, to this extent only the appeal is granted. REMAND The Veteran is seeking service connection for a back disability and a bilateral shin condition. Specifically, he contends that he injured his back during a field training exercise when he jumped over a hill and hit the ground. He experiences problems sleeping due to his back pain. Further, the Veteran contends that the stress from his combat boots caused shin splints while he was in service and he can no longer stand on his feet for long periods of time. Based on a review of the claims folder, the Board finds that additional development is needed prior to adjudication of the claims. In a May 2012 statement, the Veteran's wife recalled that the Veteran had called her during his active duty to tell her he had injured his back when jumping over a hill during training. She reported that he had gone to sick call the next day because he could hardly move. The Veteran went to sick call several times after and was prescribed medication for his back pain. The Veteran's wife also noted that the Veteran had told her he was given permission by a doctor to wear special tennis shoe-like boots because his combat boots were injuring his shins. In a November 2012 statement, the Veteran's brother reported that in 1989, the Veteran told him that he had visited sick call because his legs hurt and was told to wear jump boots instead of combat boots. The Veteran was told that his combat boots were causing shin splints. The Veteran's brother also reported that in 1990, the Veteran told him he had injured his back during training when he jumped and landed wrong. He recalled that the Veteran took medication for his back pain and that his girlfriend at the time would give him massages. The Veteran visited Dublin VA medical center (VAMC) on several occasions for treatment for back pain. In the November 2017 Board hearing, the Veteran testified that he injured his back during field training in 1990. He testified that he was carrying his weapon and a can of ammunition when he jumped over a hill and immediately hit the ground. He began to experience back pain and by the next day, he could barely move. The Veteran stated that he visited sick call several times for his back pain and was prescribed medication. The Veteran testified that he had continued to experience back pain since the in-service injury in 1990. With regard to his bilateral shin condition, the Veteran testified that prior to service, he had no problems with his lower legs. While in service, the Veteran visited sick call when he couldn't lace up his combat boot because his legs hurt. The healthcare professionals at the hospital in Auerbach, Germany told him that the stress from his combat boots was causing shin splints and they prescribed him different boots. The Veteran testified that, while the new boots alleviated some of the pain, he still felt pain in his lower legs. To the extent that the Veteran asserts that his back pain and shin pain is related to service, the Board observes that he may attest to factual matters of which he has first-hand knowledge, such as subjective complaints, and that his assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). He is competent to report incidents and symptoms in service and symptoms since then. Accordingly, the Board finds that the Veteran's statements regarding his in-service back and lower leg injuries, as well as the continuity of back and shin pain, to be competent and credible. With regard to the Veteran's back disability, the Veteran was afforded a VA examination in March 1996. However, the VA examiner did not provide an opinion as to whether the Veteran's back disability was incurred in service and the RO denied service connection due to the absence of evidence noting an in-service back injury or a back disability within one year of discharge from active duty. The Board notes that the Veteran's service treatment records are unavailable through no fault of the Veteran. When service treatment records are lost or missing, VA has a heightened obligation to satisfy the duty to assist. The United States Court of Appeals for Veterans Claims (the Court) has held that VA has a heightened duty "to consider the applicability of the benefit of the doubt rule, to assist the claimant in [otherwise] developing the claim, and to explain its decision when the veteran's medical records have been destroyed." Cromer v. Nicholson, 19 Vet. App. at 217-18. As the Veteran has provided competent and credible statements regarding his in-service injuries and continuity of pain, remand is warranted so that the Veteran may be afforded a new VA examination which addresses the competent and credible statements of the Veteran regarding his in-service injury and symptomatology, both during and after service. See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); Smith v. Derwinski, 1 Vet. App. 235, 237-38 (1991) (credibility determinations are within the purview of the Board). The Board further notes that the Veteran has not been provided with a VA examination to determine if his bilateral shin condition is etiologically linked to active duty. VA is obliged to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent evidence that the Veteran has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. As the Veteran has presented competent and credible evidence of a current bilateral shin condition and an in-service bilateral shin injury, the Board finds that the Veteran should be afforded a VA examination to determine if his bilateral shin condition is etiologically linked to active duty service. Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim. 2. Schedule the Veteran for a VA examination with an appropriate examiner to determine the likely nature and etiology of the Veteran's back disability. The claims file and a copy of this remand must be made available to the examiner in conjunction with the examination. All appropriate tests and studies should be accomplished. Based on a review of the Veteran's claims file, the results of his physical examination, and the Veteran's competent and credible statements regarding his in-service back injury and his continuity of back pain, the VA examiner is requested to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's back disability is related to active duty service. A complete rationale for all opinions expressed must be provided. If the examiner is unable to provide any required opinion, the examiner should explain why. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. Schedule the Veteran for a VA examination with an appropriate examiner to determine the likely nature and etiology of the bilateral shin condition. The claims file and a copy of this remand must be made available to the examiner in conjunction with the examination. All appropriate tests and studies should be accomplished. Based on a review of the Veteran's claims file, the results of his physical examination, and the Veteran's competent and credible statements regarding his in-service bilateral shin splint injuries and his continuity of bilateral shin pain, the VA examiner is requested to respond to the following questions: (a) Does the Veteran have a current bilateral shin disability? (b) If so, opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's bilateral shin disability is related to active duty service. A complete rationale for all opinions expressed must be provided. If the examiner is unable to provide any required opinion, the examiner should explain why. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the claims should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC) and return the case to the Board. The Veteran and his representative have the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2014). ______________________________________________ G. A. WASIK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs