Citation Nr: 20002121 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 16-51 757 DATE: January 9, 2020 ORDER The application to reopen the previously denied claim of service connection for lumbar spine disability is granted. The application to reopen the previously denied claim of service connection for bilateral hip disability is granted. The application to reopen the previously denied claim of service connection for left ankle disability is granted. The application to reopen the previously denied claim of service connection for right shoulder disability is granted. Service connection for lumbar spine disability is granted. Service connection for bilateral hip disability is granted. Service connection for radiculopathy of bilateral lower extremity is granted. Service connection for left ankle strain is granted. REMANDED Service connection for an acquired psychiatric disability, to include anxiety and depression, is remanded. Service connection for right shoulder disability is remanded. FINDINGS OF FACT 1. In a March 2003 rating decision, the RO denied service connection for lumbar spine disability based on a lack of current disability or nexus to service. The RO declined to reopen the claim for service connection for lumbar spine disability in April 2009. Additional evidence submitted since then relates to an unestablished fact necessary to substantiate the claim. 2. In a March 2003 rating decision, the RO denied service connection for bilateral hip disability and left ankle disability, finding no current disabilities. The RO declined to reopen the claims in April 2009. Additional evidence submitted since then relates to an unestablished fact necessary to substantiate the claim. 3. In an April 2009 rating decision, the RO denied service connection for right shoulder disability based on a lack of nexus to service. Additional evidence submitted since then relates to an unestablished fact necessary to substantiate the claim. 4. The evidence supports a finding that the Veteran’s service-connected residuals of fracture of left tibia likely caused or exacerbated a lumbar strain. 5. The evidence supports a finding that the Veteran’s service-connected residuals of fracture of left tibia likely caused or exacerbated a bilateral hip strain. 6. The evidence supports a finding that the Veteran’s service-connected residuals of fracture of left tibia likely caused or exacerbated bilateral lower extremity radiculopathy. 7. Left ankle strain is due to the Veteran’s in-service injuries. CONCLUSIONS OF LAW 1. The April 2009 rating decision declining to reopen the claims for service connection for lumbar spine disability, bilateral hip disability, and left ankle disability, and denying service connection for a right shoulder disability, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2019). 2. Evidence submitted since then is new and material; and the claims for service connection for lumbar spine disability, bilateral hip disability, left ankle disability, and right shoulder disability are reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2019). 3. A lumbar strain is caused or aggravated by service-connected residuals of fracture of left tibia. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2019). 4. Bilateral hip strain is caused or aggravated by service-connected residuals of fracture of left tibia. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2019). 5. Radiculopathy of bilateral lower extremity is caused or aggravated by service-connected residuals of fracture of left tibia. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2019). 6. Left ankle strain was incurred in peacetime service. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from October 1976 to March 1980. He timely appealed these matters from a May 2012 rating decision. In October 2019, the Veteran and his wife and his sister testified during a video conference hearing before the undersigned. All available records identified by the Veteran as relating to each of his claims have been obtained, to the extent possible. The record does not otherwise indicate any existing pertinent evidence that has not been obtained. Regarding the reopening of a previously denied claim, the Veteran was not entitled to an examination prior to submission of new and material evidence. 38 C.F.R. § 3.159(c)(4)(iii). The Veteran attempted to initiate an appeal with regard to the rating for the left ankle disability, but did not do so on the proper, supplied form for such. At this time, there is therefore no appeal with regard to that issue. Reopening VA may reopen and review claims that have been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Under 38 C.F.R. § 3.156(a), “new evidence” is existing evidence not previously submitted; “material evidence” is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claims. The RO originally denied service connection for lumbar spine disability, bilateral hip disability, and left ankle disability in January 2003 based in part on absence of evidence showing in-service disease or injury and absence of evidence showing current disability. In April 2009, the RO declined to reopen these claims because new and material evidence was not submitted. Since then, VA records show current treatment for lumbar, ankle, and hip pain, confirmed in private records. Additionally, service connection for the left tibia fracture is established. Reopening of the previously denied claims is appropriate. The RO originally denied service connection for right shoulder disability in February 2008 based on a lack of evidence relating current disability to active service. Since then, the Veteran testified in October 2019 that his current right shoulder disability was secondary to residuals of fracture of left tibia and resulted from the same in-service motorcycle accident. Service connection for the ankle has now been granted, and this theory requires development. Reopening of the previously denied claim is appropriate. Service Connection Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection on a direct basis, the record must contain competent evidence of: (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). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability that are subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Some chronic diseases, such as arthritis, may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). The applicable presumptive period is one year from separation. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Lumbar Spine Disability, Bilateral Hip Disability, and Radiculopathy of Bilateral Lower Extremity Clinical evaluation at the time of the Veteran’s entry examination in active service in October 1976 shows normal musculoskeletal spine. On a medical history report completed by the Veteran at that time, he checked “no” in response to whether he ever had or now had recurrent back pain or bone or joint or other deformity. The Veteran did not wear a brace or back support. He also checked “no” for neuritis. Service treatment records show that the Veteran was injured in a motorcycle accident in July 1977, and he sustained a left tibial fracture. The fracture was described as closed, midshaft, with no nerve and artery involvement. A long leg cast was applied, and the Veteran was assigned limited duty. He elected to forego a separation examination in March 1980. X-rays of lumbosacral spine taken in January 2004 were “okay.” Private records, dated in August 2004, show continuing complaints of lower back pain with radicular symptoms into lower extremities. Inspection of lumbar spine was stable. Straight leg raising test was positive. Sensation was diminished in right lower extremity. Chronic back pain was noted in May 2008. VA records show hip and leg pain in April 2011, and low back pain and sciatica in January 2011 and in February 2012. In July 2016, the Veteran reported pain in lower back, hips and pelvic area. In October 2019, the Veteran’s treating physician for several years had reviewed the Veteran’s claims file and medical history; and opined that the Veteran’s bilateral hip strain and lumbar spine strain with bilateral radiculopathy are at least as likely as not due to the service-connected residuals of fracture of left tibia. The physician reasoned that medical literature supports favoring one side of body can alter biomechanics and cause back problems and hip problems. The Veteran’s back strain and bilateral [hip] strain have been aggravated beyond the natural progression by service-connected residuals of fracture of left tibia. In October 2019, the Veteran testified that he took pain medication for radiculopathy of bilateral lower extremity; and his doctor advised that the disability was related to active service. The Veteran clarified that his broken leg in service caused back problems, resulting in radiculopathy of bilateral lower extremity. The Veteran testified that his doctor felt that lumbar disability was due to overcompensating for the limping left leg. The left leg was estimated to be shorter than right leg by approximately two-to-three inches. The Veteran also testified that his bilateral hip disability resulted from the same in-service accident; and his doctor advised that the disability was related to his back and leg disability and active service. Here, the evidence is in favor of finding that the Veteran’s current diagnoses of lumbar strain, bilateral hip strain, and radiculopathy of bilateral lower extremity are caused by or aggravated by service-connected residuals of fracture of left tibia. When considering the service treatment records, the post-service medical evidence substantiating the Veteran’s claims, as well as the October 2019 private physician’s favorable opinion; and resolving all reasonable doubt in the Veteran’s favor, the Board finds that lumbar disability, bilateral hip disability, and radiculopathy of bilateral lower extremity are aggravated by service-connected disease or injury. See 38 C.F.R. § 3.310(a). Left Ankle Disability Clinical evaluation at the time of the Veteran’s entry examination in active service in October 1976 shows normal lower extremities. Pes planus was noted. On a medical history report completed by the Veteran at that time, he checked “no” in response to whether he ever had or now had foot trouble. As noted above, the Veteran sustained a left tibia fracture in July 1977. Service treatment records show that the Veteran reported no feeling in his left foot in June 1978. Examination at that time revealed no appreciable swelling or discoloration. There was a dull feeling when pricking the left foot approximately two inches above the left lateral ankle and behind little toe. Further evaluation revealed a rash. In May 1979, the Veteran injured his left ankle playing football. X-rays at the time revealed no evidence of fracture. The Veteran elected to forego a separation examination in March 1980. X-rays taken of the left ankle in May 2003 were normal. The Veteran reported numbness of left ankle in December 2003 and reported chronic ankle pain in January 2004. During a June 2005 VA examination, the Veteran reported a sensation around his outer left ankle, which he described as tingling. He occasionally had discomfort in the area of his outer left ankle, which felt “like a nerve.” Examination in June 2005 revealed no evidence of deformity or angulation in left leg. His gait was normal. The examiner opined that it is not at least as likely as not that current symptoms of tingling around left ankle are related to the previous healed, closed fracture of left tibia. In September 2010, the Veteran reported experiencing left ankle numbness in active service that resulted from the fractured left tibia. In November 2012 and in November 2018, the Veteran’s treating physician reviewed the Veteran’s service treatment records and noted that the Veteran sustained a fractured left tibia as a result of a motorcycle accident in July 1977. The physician also noted that the Veteran experienced a left ankle sprain in May 1979 while on active duty, and that the Veteran has experienced ongoing problems with both his left leg and left ankle since active service. The physician opined that the Veteran’s left ankle condition is at least as likely as not related to injuries sustained in active service. The physician reasoned that due to repetitive nature of military training, his condition is clearly a continuation of problem first encountered on active service. The Veteran has experienced continuous pain, swelling, and arthritis of left ankle. He has used a walking cane to assist with ambulation since 1987. In October 2019, the Veteran testified that the numbness of the left leg goes down by the ankle and that he uses a cane for walking. His doctor also advised that the left ankle disability was related to active service. The Veteran testified that he had limited flexibility and weakness in the left ankle. Here, the Veteran reported recurring symptoms of left ankle pain that gradually worsened over the years, following his discharge from active service. The Board finds the Veteran’s report of ongoing symptoms of left ankle pain after service, as credible and persuasive. In this case, the evidence is in favor of finding that left ankle strain is related to the in-service injuries. The Board acknowledges the private opinions in November 2012 and November 2018, in which the treating physician reasoned that the repetitive nature of military training resulted in a continuation of left ankle problems. This opinion is persuasive, and corroborated by the Veteran’s lay statements of ongoing symptomatology. While the June 2005 VA opinion provided an adverse nexus opinion in regards to tingling around left ankle, this opinion did not discuss onset of left ankle disability in service. When considering the competent and credible lay statements, and the private physician’s favorable opinion; and resolving all reasonable doubt in his favor, the Board finds that left ankle strain is related to the in-service injuries. See 38 C.F.R. § 3.102. REASONS FOR REMAND Acquired Psychiatric Disability, to Include Anxiety and Depression The Veteran contends that an acquired psychiatric disability, to include anxiety and depression, is secondary to his service-connected residuals of fracture of left tibia. Service treatment records show that the Veteran completed a medical history report at entry in October 1976. He checked “no” in response to whether he ever had or now had depression or excessive worry or nervous trouble of any sort. Clinical evaluation revealed a normal psychiatric system in October 1976. The Veteran elected to forego a separation examination in March 1980. Results of depression screening in January 2004 were normal. In October 2019, the Veteran’s treating physician for several years noted that the Veteran currently experienced anxiety and major depression due to exacerbation of chronic pain regarding his service-connected residuals of fracture of left tibia. The physician referred to medical literature as supporting that people with chronic pain were more likely to experience depression and anxiety. Here, the evidence reflects manifestations of psychiatric disability. A reasonable basis for a possible nexus is raised, and examination or medical review is required; determination of proximate cause and degree of aggravation, if possible, are especially important. McLendon v. Nicholson, 20 Vet. App. 79 (2006). An examination is needed to determine whether the Veteran currently has a diagnosis of an acquired psychiatric disorder, to include as secondary to service-connected disabilities. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4). Right Shoulder Disability The Veteran contends that right shoulder disability had its onset in active service or is secondary to his service-connected residuals of fracture of left tibia. Service treatment records show that the Veteran completed a medical history report at entry in October 1976. He checked “no” in response to whether he ever had or now had painful or “trick” shoulder or bone or joint or other deformity. Clinical evaluation revealed normal upper extremities in October 1976. The Veteran elected to forego a separation examination in March 1980. VA records show a diagnosis of osteoarthrosis of right shoulder region in May 2008. The Veteran had an injection in the joint with some relief in 2009. In September 2010, the Veteran reported that he sustained a right shoulder injury in the motorcycle accident in active service. More recent VA records show chronic right shoulder pain. In October 2019, the Veteran testified that he had difficulty raising his right arm; and that his doctor felt his right shoulder disability was related to active service. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records for the period from January 2019 to the present. 2. Schedule a VA mental disorders examination; the claims file must be reviewed in conjunction with examination. The examiner must identify all current psychiatric disabilities. The examiner must opine as to whether any such are at least as likely as not caused or aggravated by service or service-connected disabilities. A full and complete rationale for all opinions expressed is required. 3. Schedule a VA joint examination or medical review, as appropriate; the claims file must be reviewed in conjunction with examination. The examiner must identify all current right shoulder disabilities, including arthritis. The examiner must opine as to whether any such are at least as likely as not caused or aggravated by service or service-connected disabilities. A full and complete rationale for all opinions expressed is required. 4. Then, readjudicate the claims on appeal. If the benefits sought are not granted, furnish a supplemental statement of the case (SSOC) and then return the appeal to the Board after a proper period to respond, if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mary C. Suffoletta The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.