Citation Nr: 20003308 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 19-25 772 DATE: January 14, 2020 ORDER New and material evidence having been received, the Veteran’s appeal to reopen the claim for entitlement to service connection for residuals of a fracture, right femur, including osteomyelitis, is reopened. Entitlement to service connection for residuals of a fracture, right femur, including osteomyelitis, is granted. FINDINGS OF FACT 1. Evidence associated with the record since the most recent final denial in October 2014 relates to unestablished facts that raise a reasonable possibility of substantiating the Veteran's service connection claim for residuals of a fracture, right femur, including osteomyelitis. 2. Resolving all doubt in the Veteran’s favor, the Veteran’s current residuals of a fracture, right femur, including osteomyelitis, has been related to his active military service. CONCLUSIONS OF LAW 1. New and material evidence has been received to warrant reopening of the previously denied claim of entitlement to service connection for residuals of a fracture, right femur, including osteomyelitis. 38 U.S.C. §§ 1110, 1131, 5103, 5108; 38 C.F.R. §§ 3.156, 3.303, 20.1103. 2. The criteria for entitlement to service connection for residuals of a fracture, right femur, including osteomyelitis have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army on active duty from October 1952 to December 1952. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Board notes that the Veteran’s request for a video-conference Board hearing was noted in his appeal to the Board (Form 9) received in August 2019, but such request was not reflected in the subsequent Certification of Appeal (Form 8). Consequently, a Hearing clarification request was sent to the Veteran and his representative in November 2019. However, neither the Veteran or his representative responded to such request within the required thirty-day period. The Veteran’s claim for service connection for residuals of right femur fracture, including osteomyelitis, was originally denied by the RO in February 1953. The Veteran filed a timely appeal to the Board. In its August 1955 decision, the Board also denied the Veteran’s claim, determining that the evidence did not support the Veteran’s claim that his pre-existing fractured right femur was aggravated during his active service or that there was evidence of active osteomyelitis during his active duty. The Veteran filed a request for reconsideration to the Board in August 1955 and submitted his post service hospital admission records (December 1954 – January 1955) as a basis for his reconsideration request. The Board subsequently affirmed its denial of the Veteran’s claim in December 1955, noting that the additional evidence submitted after its August 1953 decision did not change the outcome of its previous denial. The Veteran thereafter also filed multiple claims to reopen, in which he basically submitted additional medical records documenting residuals disability. His most recent final denial was a RO rating decision in October 2014. As shown more fully below, the Board has determined that new and material evidence has been received to reopen the claim in light of the evidence of recurrent bone infections (chronic osteomyelitis) associated with the Veteran’s right femur fracture. New and Material Evidence Generally, when a claim is disallowed, it may not be reopened and allowed unless new and material evidence is submitted. 38 C.F.R. § 5108. Evans v. Brown, 9 Vet. App. 273, 285 (1996). Graves v. Brown, 8 Vet. App. 522, 524 (1996). “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. 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. 38 C.F.R. § 3.156(a). If it is determined that new and material evidence has been submitted, the claim must be reopened. The evidence is presumed credible for the purposes of reopening a claim, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510 (1992). A finding by the Board of new and material evidence is required in order to establish its jurisdiction to review the merits of a previously denied claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also VAOPGCPREC 05-92. The question of whether new and material evidence has been received to reopen a claim must be addressed in the first instance by the Board because the issue goes to the Board’s jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). If the Board finds that no such evidence has been offered, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Id at 1369. In this regard, the Court in Shade v. Shinseki, 24 Vet. App. 110 (2010) held that the language of 38 C.F.R. § 3.156(a) created a low threshold and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Further, 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 VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. If it is determined that new and material has been submitted, the claim must be reopened. The Board may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. Request to Reopen Claim In its December 1955 final denial of Veteran’s claim, the Board found that the medical evidence of record at the time did not reflect that the Veteran’s osteomyelitis was active during his active duty military service, and/or that residuals of his well-healed fractured, right femur (both clearly noted upon entry) were otherwise aggravated during such service. Further, that an in-service X-ray, after the Veteran’s report of his injury, revealed no recent injury to the Veteran’s right femur. Since its final denial of the Veteran’s claim by the Board in December 1955, the Veteran has made several requests to reopen his claim, which have each been denied, starting in June 2000, then July 2002, March 2013, October 2014, and finally May 2018, which the Veteran is currently appealing, and each time has submitted medical evidence of his ongoing post-service outpatient treatment for his right femur fracture and osteomyelitis condition. He previously filed an untimely appeal to the Board in March 2002, and consequently, his appeal was cancelled. In his May 2018 Notice of Disagreement (NOD), the Veteran also asserted that denial of reopening of his claim is a clear and unmistakable error (CUE). However, he cannot claim CUE in the current appeal as it is not yet final and he did not specify which previous final denial contained CUE. Therefore, the Board does not find that a claim for CUE is a subject for current appellate review. Compared to the record at the time of this last final denial, the Board finds that there is additional evidence that relates to unestablished facts necessary to substantiate the Veteran’s claim. More specifically, in his May 2018 notice of disagreement, while the Veteran does not correctly assert a claim for clear and unmistakable error with respect to a prior decision, his statement that “[o]ne has to only be in the military 1 day, have a fall or other incident, and a prior injury can be aggravated,” is found to be a new assertion based on the facts of this case, and that because the statement most be presumed credible for new and material evidence purposes, the Board finds that this statement is capable of substantiation and therefore sufficient to reopen the Veteran’s claim. Accordingly, having determined that new and material evidence has been submitted, the Veteran's claim for service connection for aggravation of fracture, right femur, including osteomyelitis is reopened. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§§ 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. §§ 3.303(b), Walker v. Shinseki 708 F.3d 1331. (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disease was incurred in service. 38 C.F.R. §§ 3.303(d). In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). A Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for active 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. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during that service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as contrasted to the symptoms of that disability, has worsened. Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). To rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. 38 C.F.R. § 3.304(b); VAOPGCPREC 3-03, 69 Fed. Reg. 25,178 (2004); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). If both of these requirements are not met, the presumption of soundness is not rebutted, and the case becomes one of direct service connection. Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. Vanerson v. West, 12 Vet. App. 254, 258 (1999). It is an onerous evidentiary standard, requiring that the no-aggravation result be undebatable. Cotant, 17 Vet. App. at 131. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306 (b). See also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) (which holds that evidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat Veteran to establish an increase in disability). Except as provided in 38 C.F.R. § 3.300 (c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. This includes any increase in disability not due to normal progression (aggravation). Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Veteran has always contended that his subsequent recurrent treatment and hospitalizations for residuals related to his pre-existing right femur fracture is due to aggravation when he hurt his right knee/thigh during in-service Basic Training. See, May 1953 Correspondence. See, September 1954. He now more specifically contends that just one such fall or incident is sufficient for purposes of a claim for service connection based on aggravation. See, May 2018 NOD. First, the Board notes that the record reflects that the Veteran had a preexisting right femur fracture and osteomyelitis diagnosis prior to his October 1952 enlistment, as this was clearly noted at entry. See, Service Treatment Records (STRs). Since the condition was clearly noted upon entry, the presumption of soundness is rebutted. Therefore, the question for consideration is whether it is at least as likely that this condition was aggravated during active service, and the burden then shifts to VA to prove by clear and unmistakable evidence that the Veteran’s preexisting disability was not aggravated by his military service. As to a current diagnosis, the record reflects that the Veteran’s diagnosis of recurrent chronic osteomyelitis secondary to his right femur fracture is still current. See, March 2018 treatment records. Regarding in-service occurrence, as previously noted, the Veteran’s service treatment records (STRs) reflect that he had a preexisting right femur fracture and osteomyelitis disability. What is at issue is whether or not there was an aggravation. The Board notes that there is no medical examination on record that evaluated whether there is clear and unmistakable evidence that the Veteran’s preexisting disability was not aggravated by his military service. However, the Veteran’s has made consistent statements about the worsening of his symptoms (aggravation) related to his right femur fracture and osteomyelitis, including his in-service hospitalization (November 1952), which resulted in his military discharge in December 1952. Further, the Veteran’s post-service treatment records also reflects reports of the recurrence of his osteomyelitis every 1 to 2 years, associated with symptoms of right thigh swelling, increased pain and mild limitation of movement. See, May 2018 VA treatment record. The Board finds the Veteran’s statements of aggravation and continuity of his symptoms credible because they are consistent with his report of the circumstances of his service, and there is no direct evidence to the contrary. More importantly, the Veteran has also submitted various post-service medical treatment records and hospital admission records to support his assertions of aggravation. These specifically include the June 1957, March 1963 and July 2001 treatment records, in which the respective medical personnel noted that the Veteran’s osteomyelitis is recurrent, relating it to his preexisting 1952 right femur fracture, and that his condition has been exacerbated. As such, the Board finds these medical statements tantamount to a positive nexus opinion and accepts them as such. Consequently, the Board finds that the current evidence of record against the Veteran’s claim does not rise to the level of "clear and unmistakable evidence" which is needed for the VA to overcome the high evidentiary burden to rebut the presumption of aggravation. Service treatment notations that the Veteran’s condition remain unchanged is insufficient to meet this higher evidentiary standard, especially in light of the Veteran’s documented complaints of worsening of his preexisting right femur fracture and osteomyelitis during service, and subsequent post service recurrent infections of the same region. Further, recurrences of the Veteran’s chronic osteomyelitis were foreseeable; in fact, it was the primary basis for the Veteran’s discharge, as acknowledged in the summary of the Medical Disposition Board Proceedings - “chronic osteomyelitis shown by X-rays of the right thigh would probably flareup under the exigencies of the military duties”. The Veteran’s argument is that this started as a result of a single incident during service, and the Board finds that VA has not met its burden to establish by clear and unmistakable evidence that it wasn’t. Accordingly, the Board concludes that the presumption of aggravation has not been rebutted and that service connection for the residuals of the Veteran’s right femur fracture, including osteomyelitis, is warranted. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.B. King, Associate Counsel 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.