Citation Nr: 20004591 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 17-22 622 DATE: January 21, 2020 ORDER New and material evidence having been received, the application to reopen the claim of entitlement to service connection for a lumbar spine disability is granted. New and material evidence having been received, the application to reopen the claim of entitlement to service connection for a right elbow disability is granted. New and material evidence having been received, the application to reopen the claim of entitlement to service connection for a right wrist disability is granted. New and material evidence having not been received, the application to reopen the claim of entitlement to service connection for a chest disorder is denied. Service connection for a lumbar spine disability is granted. REMANDED Entitlement to service connection for a right elbow disability is remanded. Entitlement to service connection for a right wrist disability is remanded. FINDINGS OF FACT 1. In an April 1969 rating decision, the Agency of Original Jurisdiction (AOJ) denied the Veteran’s claims of entitlement service connection for a lumbar disability, a right elbow disability, a right wrist disability, and a chest disorder; the Veteran did not appeal the April 1969 rating decision, and no evidence was received within one year of that rating decision. 2. The evidence associated with the claims file subsequent to the April 1969 final rating decision includes evidence that relates to unestablished facts necessary to substantiate the claims for service connection for a lumbar disability, a right elbow disability, and a right wrist disability, is not cumulative or redundant of the evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating the claims. 3. The evidence associated with the claims file subsequent to the April 1969 final decision with respect to service connection for a chest disorder is essentially cumulative of the evidence previously of record with respect to the basis for the prior denial. 4. Resolving reasonable doubt in the Veteran’s favor, his lumbar spine disability is at least as likely as not related to his military service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for a lumbar disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a right elbow disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103. 3. New and material evidence has been received to reopen the claim of entitlement to service connection for a right wrist disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103. 4. New and material evidence has not been received to reopen the claim of entitlement to service connection for a chest disorder. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103. 5. The criteria for service connection for a lumbar spine disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1965 to December 1968. These matters come before the Board of Veterans’ Appeals (Board) on appeal from September 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). By way of procedural history, an August 2013 rating decision denied service connection for a lumbar disability. Within one year, the Veteran requested that the lumbar disability be considered as secondary to a knee disability. In September 2014, a rating decision was issued denying service connection for a lumbar disability. A separate September 2014 rating decision was issued denying service connection for a right elbow disability, a right wrist disability, and a chest disorder. In July 2015, the Veteran submitted a notice of disagreement to the September 2014 rating decisions and a statement of the case was issued in March 2017. In April 2017, the Veteran submitted his substantive appeal and specifically limited his appeal to the issues of service connection for a lumbar disability, a right elbow disability, right wrist disability, and a chest disorder. The Board notes that the March 2017 statement of the case and February 2019 supplemental statement of the case each address the issues of bilateral lower extremity osteoarthritis and bilateral hip osteoarthritis. However, the Veteran excluded these issues from the current appeal on his April 2017 Form 9, and did not submit a Form 9 that included these issues subsequent to the February 2019 supplemental statement of the case. Consequently, the issues pertaining to his bilateral lower extremity osteoarthritis and bilateral hip osteoarthritis are not before the Board. 38 C.F.R. § 20.200. New and Material Evidence 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); Shade v. Shinseki, 24 Vet. App. 100 (2010). 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). 1. Reopening service connection for a lumbar spine disability 2. Reopening service connection for a right elbow disability 3. Reopening service connection for a right wrist disability The Veteran seeks to reopen his previously denied claim for service connection for a lumbar spine disability, a right elbow disability, and a right wrist disability. In an April 1969 rating decision, the AOJ, in pertinent part, denied the claims for service connection for a lumbar spine disability, a right elbow disability, and a right wrist disability on the grounds that there was no evidence of a current disability of the lumbar spine, the right elbow, or the right wrist. The Veteran did not file a timely notice of disagreement and no new and material evidence was received within one year of the April 1969 rating decision; therefore, the April 1969 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(b), 20.1103. While the August 2013 and September 2014 rating decisions noted that the above-referenced disabilities were denied in a June 2012 rating decision, the June 2012 rating decision did not address the issues of service connection for a lumbar spine disability, a right elbow disability, or a right wrist disability. Accordingly, it appears that the notations pertaining to the denial of service connection for the above-referenced disabilities in the June 2012 rating decision are incorrect. Accordingly, the most recent final rating decision pertaining to the lumbar spine disability, the right elbow disability, and the right wrist disability is the April 1969 rating decision. See January 2013 and April 2014 VA letters (noting that the issues of service connection for a lumbar spine disability, a right elbow disability, and a right wrist disability were previously denied in an April 1969 final rating decision). The Board finds that there is a sufficient evidentiary basis to reopen service connection for a lumbar spine disability, a right elbow disability, and a right wrist disability. Evidence received since the April 1969 rating decision includes VA back examinations, a private physician’s opinion regarding the Veteran’s lumbar spine disability, witness statements regarding the Veteran’s back and right arm, and a VA attending physician’s opinion regarding the back. The Board finds that this evidence is new in that it has not previously been received, and is not cumulative or redundant of evidence previously of record. The Board also finds this evidence to be material because it addresses previously unestablished service connection elements. Therefore, the Board finds the newly-received evidence to be both new and material to reopen service connection for a lumbar spine disability, a right elbow disability, and a right wrist disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The claims for service connection for a lumbar spine disability, a right elbow disability, and a right wrist disability, are, therefore, reopened. 4. Reopening service connection for a chest disorder The Veteran seeks to reopen his previously denied claim for service connection for a chest disorder. In an April 1969 rating decision, the AOJ, in pertinent part, denied the claim for service connection for a chest disorder on the grounds that a chest disorder was not shown. The Veteran did not file a timely notice of disagreement and no new and material evidence was received within one year of the April 1969 rating decision; therefore, the April 1969 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(b), 20.1103. While the September 2014 rating decision noted that service connection for a chest disorder was denied in a June 2012 rating decision, the June 2012 rating decision did not address the issue of service connection for a chest disorder. Accordingly, it appears that the notation with respect to the denial of service connection for a chest disorder in the June 2012 rating decision is incorrect. Therefore, the most recent final rating decision pertaining to service connection for a chest disorder is the April 1969 rating decision. See April 2014 VA letter (noting that the issue of service connection for a chest disorder was previously denied in an April 1969 final rating decision). Evidence at the time of the April 1969 rating decision included service treatment records that demonstrated that a heavy weight fell on the Veteran’s chest during service in March 1966, and that he had a tingling sensation in his chest while in service. The evidence also included assertions by the Veteran that he sustained an injury to the chest during service when a heavy box fell on him, as well as reports that he has had chest pain since the in-service injury, and that such pain was aggravated by deep breathing or twisting of the body. Upon VA examination in February 1969, the Veteran’s chest was found to be normal, to include based on x-ray testing. Evidence received since the April 1969 rating decisions includes assertions by the Veteran that he had chest pain. This evidence is not new because the evidence at the time of the April 1969 rating decision includes similar assertions that he had chest pain since the in-service injury. New medical documentation does not otherwise indicate that the Veteran has a chest disability, but repeatedly shows no pain and no problems with the chest. The record reflects that the Veteran was diagnosed with a seborrheic keratosis of the posterior chest in June 2013; however, there is no suggestion in the record that this skin condition has a connection to a heavy weight falling on the Veteran’s chest in service. The Veteran has not otherwise provided any evidence purporting to show that he has a chest disorder that may have been incurred in service or related to the in-service chest injury. The Board therefore finds no new and material evidence that is not cumulative to evidence considered in the April 1969 final denial, and the Veteran’s claim for service connection for a chest disorder is therefore not reopened. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 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. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). Entitlement to service connection for a lumbar disability The Veteran contends that he injured his low back while in the military, that his back pain continued after service, necessitating surgery, and that his lumbar spine disability is related to his military service. The record demonstrates that the Veteran has degenerative disc disease of the lumbar spine. Therefore, the existence of a current disability has been established. The Veteran’s service treatment records do not show a particular injury to the Veteran’s back while in service. However, the Veteran stated in January 1969 that he injured his back while in service, and the February 1969 VA examination notes that the Veteran injured his back in November 1968 while lifting a box. The February 1969 VA examination report also indicates that the Veteran hurt his back when a box fell on him. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). The Veteran is competent to report that he hurt his back lifting a box, and that his back hurt when a box fell on him. Additionally, the record reveals that the Veteran was a Material Facilities Specialist, which required the unloading of commercial trucks and lifting of heavy objects as an everyday function of his job. There is nothing in the record that contradicts the Veteran’s statements that he hurt his back in service, especially in view of the Veteran’s job duties. As such, the Board finds that there was an in-service injury to the back. The Veteran was afforded VA back examinations in February 2013 and September 2014. The February 2013 examiner opined that the Veteran’s lumbar disability was not related to his left knee chondromalacia. The September 2014 examiner opined that it is less likely than not that the Veteran’s lumbar disability was incurred in or caused by the claimed in-service injury, event or illness, and explained that the Veteran has a significant lumbar spine condition, but it is likely degenerative in nature and not related to his service injury. Of record is also a March 2013 private physician’ s opinion. The private physician provided a thorough background of the Veteran’s military duties and the strains that it placed on his back. Based on the heavy strains to the Veteran’s back required by his job as a Material Facilities Specialist, the private physician opined that it is as likely as not that there is a nexus between the Veteran’s chronic lumbar spine pathology pain and diminished function. The private physician also determined that it is as likely as not that there is a nexus between the Veteran’s left knee disability and his lumbar disability. In August 2014, an attending physician for the VA submitted an opinion. The attending physician acknowledged that the Veteran had back pain around the Veteran’s time of service, that he requested service connection for his back soon after service, and that back pain has persisted intermittently since that time. The attending physician opined that it is at least as likely as not that Veteran’s current back condition is related to wear and tear of military, overuse, etc. that may have caused injury to back that led to eventual development of degenerative disc disease. Medical evidence is considered probative when it is factually accurate, fully articulated, and provides sound reasoning for the conclusion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The February 2013 and September 2014 VA back examinations were performed by qualified physicians, however, the February 2013 examiner only addressed whether the Veteran’s lumbar spine disability was secondary to his left knee disability, and the September 2014 examiner simply determined that the Veteran’s condition is degenerative in nature, so it is not related to his military service. Neither of the opinions thoroughly addressed the central question of why the Veteran’s job in service, which required repetitive heavy lifting, did not cause or contribute to the Veteran’s lumbar disability. In fact, neither of the opinions even acknowledged the lifting activities the Veteran performed while in service. As such, the February 2013 and September 2014 VA examinations did not provide fully accurate facts with conclusions based on sound reasoning. The March 2013 private physician provided a detailed history, paying particular attention to the Veteran’s military specialty and the requirements of that position. The private physician explained that the Veteran’s military job placed heavy strains on his back. The private physician also acknowledges witness statements that confirm the Veteran’s continuing problems with his back after he left military service. Based on accurate factual information, the private physician opined that it is as likely as not that there is a nexus between the Veteran’s lumbar disability and his military service. Additionally, the private physician’s opinion was reviewed by the Veteran’s attending physician, who also found that it is at least as likely as not that the Veteran’s current back condition is related to wear and tear of the military. The Board finds that, taken together, the March 2013 private medical report and the August 2014 attending physician statement, carry significant weight as they were authored by physician’s possessing the necessary education, training, and expertise to provide the opinions, were based upon a thorough review of the evidence, and include adequate reasoning for the opinions. See 38 C.F.R. § 3.159(a)(2). Accordingly, in light of the foregoing, the Board finds that the evidence of record contains at least an approximate balance of positive and negative evidence establishing that the Veteran’s lumbar disability is related to his military service. Thus, the application of the benefit of the doubt doctrine is warranted in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection for a lumbar spine disability is warranted, and the appeal is, therefore, granted. REASONS FOR REMAND 1. Entitlement to service connection for a right elbow disability is remanded. 2. Entitlement to service connection for a right wrist disability is remanded. The Veteran seeks service connection for right elbow and right wrist disabilities. Pursuant to VA’s duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide a claim. 38 C.F.R. § 3.159(c)(4)(i). A medical examination or medical opinion may be deemed necessary where the record contains competent medical evidence of a current diagnosed disability or recurrent symptoms of a disability, establishes that the veteran suffered an event, injury or disease in service, and indicates that the claimed disability may be associated with the established event, injury, or disease in service. See id.; McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The record reflects that the Veteran has current disabilities of the right elbow and right wrist. A January 2014 private treatment records noted x-ray evidence of degenerative arthritis of the right elbow, as well as an absence of the distal ulna with arthritis in the radial ulna joint. A veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at the time of examination, acceptance, enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. In this case, the May 1965 service enlistment examination report noted that the Veteran could not completely supinate the hand and wrist, and the concurrent report of medical history shows that the Veteran reported being previously advised to have an operation on the right arm. See also September 1968 service treatment record (noting difficulties in pronation and supination as a result of an old right elbow problem). Therefore, the Board finds that a right wrist disability and a right elbow disability were “noted” when the Veteran was examined, accepted, and enrolled for service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). As the right wrist and right elbow disabilities were “noted” at service entrance, the presumption of soundness at entry into service does not attach, and service connection for a right wrist disability and right elbow disability may be granted only if it is shown that the right elbow and right wrist disabilities worsened in severity beyond their natural progression during service, i.e., was aggravated by service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Service treatment records noted that the Veteran sustained injuries to the right elbow and right wrist when a heavy weight landed on his right elbow and right wrist in March 1966. The September 1968 service separation examination noted that the Veteran was unable to fully supinate the right forearm, that he had fracture to the right elbow, radius, and ulna in childhood (1961), which was treated with surgical correction of limitation of motion. It was noted that the Veteran was casted for 6 weeks, with some minor loss of motion. The Veteran essentially contends that the preexisting right elbow and right wrist disabilities were worsened during service as a result of the March 1966 in-service injury. The Veteran has not been afforded a VA examination in connection with the claims for service connection for the right elbow and right wrist disabilities. Based on the foregoing, and in light of the “low threshold” for examination and medical opinion as announced in Mclendon, the Board finds that VA examination with a medical opinion on the question of whether the preexisting right elbow and right wrist disabilities worsened beyond normal progression during service would be helpful in deciding the claims for service connection based on aggravation of preexisting disabilities. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. The matters are REMANDED for the following actions: 1. Obtain any additional medical records pertaining to the claimed right elbow and right wrist disabilities that may have come into existence but has not been associated with the record, to include VA medical records and any private medical records that the Veteran may identify. 2. Thereafter, schedule the Veteran for an examination to determine the nature and etiology of the claimed right elbow and right wrist disabilities. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the examination. Any indicated tests and studies are to be conducted. The examiner is requested to provide the following opinions: Is it at least as likely as not that the Veteran’s right elbow disability, which was noted at service entry, was worsened in severity beyond its normal progression during service, to include as due to the March 1966 injury to the right elbow? Is it at least as likely as not that the Veteran’s right wrist disability, which was noted at service entry, was worsened in severity beyond its normal progression during service, to include as due to the March 1966 injury to the right wrist? A complete medical rationale for all opinions expressed must be provided. If an opinion cannot be provided without resorting to speculation, please provide complete explanations of why this is so. In so doing, please explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or whether you have exhausted the limits of current medical knowledge in providing an answer to that particular question. If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist’s opinion(s), or other information needed to provide the requested opinion. 3. Thereafter, and after completing any additional development deemed necessary, readjudicate the remaining claims on appeal. J. Ragheb Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Temple, 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.