Citation Nr: 20021879 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 18-06 363 DATE: March 27, 2020 ORDER New and material evidence has been received and the petition to reopen a claim of entitlement to service connection for a lumbar spine disability is granted. Service connection for left hip osteoarthritis is granted. Service connection for right hip osteoarthritis is granted. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a cervical spine disability is remanded. FINDINGS OF FACT 1. In an April 2000 rating decision, VA denied service connection for a lumbar spine disability on the basis that the evidence did not show that the Veteran’s lumbar spine disability manifested to a compensable degree within one year of separation from service or that his current disability was chronic in service or otherwise incurred in or related to service. The Veteran did not file a notice of disagreement; therefore, the decision became final. Evidence received since the April 2000 rating decision, by itself, or in conjunction with previously considered evidence, relates to unestablished facts necessary to substantiate the underlying claim. 2. Resolving all doubt in the Veteran’s favor, his currently diagnosed left hip osteoarthritis is related to active service. 3. Resolving all doubt in the Veteran’s favor, his currently diagnosed right hip osteoarthritis is related to active service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen a claim of service connection for a lumbar spine disability. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. § 3.156 (2019). 2. The criteria for service connection for left hip osteoarthritis have been met. 38 U.S.C. §§ 1101, 1110, 1111, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2019). 3. The criteria for service connection for right hip osteoarthritis have been met. 38 U.S.C. §§ 1101, 1110, 1111, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1971 to August 1997. This matter comes to the Board of Veterans’ Appeals (Board) from an October 2016 rating decision which, in pertinent part, denied entitlement to service connection for cervical spine, left hip, and right hip disabilities, and declined to reopen a claim of service connection for a lumbar spine disability on the basis that new and material evidence had not been submitted. In January 2020, the Veteran and S.B. testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing. A copy of the transcript is of record. Subsequent to the October 2017 statement of the case (SOC) and certification of the appeal to the Board, additional evidence was associated to the claims file, including VA and private treatment records and VA examination reports. Although initial Agency of Original Jurisdiction (AOJ) review is automatically waived for evidence submitted by the Veteran or his representative when the VA Form 9 is received after February 2, 2013, the automatic waiver does not apply to VA-generated evidence not submitted by the Veteran. 38 U.S.C. § 7105(e). Further, waiver of a supplemental statement of the case is only applicable to evidence submitted by the Veteran or his representative. See 38 C.F.R. § 20.1304. However, the Board is granting the petition to reopen the claim of service connection for a lumbar spine disability and service connection for bilateral hip osteoarthritis, which is a full award of the benefits sought. As to the remaining service connection claims on appeal, the Board is remanding the claims as discussed below and the AOJ will have an opportunity to review the evidence such that no prejudice results to the Veteran as a result of the Board’s consideration of this evidence for the limited purpose of issuing a comprehensive and thorough remand. See 38 C.F.R. § 20.1304(c). Reopening of Claims Despite the RO’s action, the Board must perform its own de novo review of whether new and material evidence has been received to reopen the claim of service connection for a lumbar spine disability before addressing the claim on its merits. See 38 U.S.C. § 7104 (2012); see also Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 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). In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App. 273, 283 (1996); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase “raises a reasonable possibility of substantiating the claim” enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Whether new and material evidence has been received to reopen a claim of service connection for a lumbar spine disability. In an April 2000 rating decision, VA denied service connection for a lumbar spine disability on the basis that the evidence did not show that the Veteran’s lumbar spine disability manifested to a compensable degree within one year of separation from service or that his current disability was chronic in service or otherwise incurred in or related to service. VA notified the Veteran of the decision in a May 2000 letter, but the Veteran did not file a timely notice of disagreement; therefore, the decision became final. In August 2016, the Veteran attempted to reopen his claim of service connection for a lumbar spine disability. Since the April 2000 rating decision, evidence added to the claims file includes VA and private treatment records, VA examinations, and hearing testimony. While a September 2016 VA examiner opined that the Veteran’s lumbar spine disability was less likely than not incurred in or a result of service, the Veteran’s treating clinician stated in a letter dated in October 2018 that the Veteran initially injured his lower back in service from training in full gear and participating in physical training and opined that it was more likely than not that his lower back condition developed while he was in active service. During the January 2020 Board hearing, the Veteran testified that he had a preexisting back disability that was aggravated by the rigors of service. Here, the Board finds that new and material evidence within the meaning of 38 C.F.R. § 3.156(a) has been received since the last, final April 2000 rating decision. An October 2018 opinion from the Veteran’s treating clinician links the Veteran’s current lumbar spine disability to his active service, and the Veteran testified in January 2020 that his preexisting lumbar spine disability was aggravated during service. Thus, new evidence has been submitted since VA’s April 2000 rating decision, when considered with the previous evidence of record, relates to unestablished facts (i.e., an in-service event or nexus) necessary to substantiate the claim. Additionally, the Veteran’s competent lay statements are presumed credible for the purposes of meeting the criteria for new and material evidence. Therefore, new and material evidence has been received since VA’s April 2000 rating decision and reopening the claim of service connection for a lumbar spine disability is warranted. The Veteran’s petition is granted only to this extent. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that “Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability, there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of a “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With a chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Entitlement to service connection for a bilateral hip disability. The Veteran contends that service connection is warranted for a bilateral hip disability. Specifically, he contends that his bilateral hip osteoarthritis is due to the rigors of service. The Board concludes that the Veteran has a current bilateral hip disability that is related to the rigors of service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Private treatment records show the Veteran has a current diagnosis of bilateral hip osteoarthritis. Service treatment records show that in January 1992, the Veteran reported left flank pain after being struck by a van. Imaging studies of the Veteran’s left hip and pelvis were negative for fracture or dislocation. An April 1992 periodic examination shows the Veteran reported painful or swollen joints, arthritis, and leg cramps, as well as painful shoulder, recurrent back pain, and tricked knee, and reported that he had been under medical treatment for various injuries to his left flank until a few days beforehand. The Veteran was noted to have a history of arthritis in his shoulders and knees, but his spine and lower extremities were otherwise normal. A March 1994 medical assessment for insurance showed that the Veteran reported that his left flank discomfort had resolved. The Veteran’s service treatment records are otherwise silent for complaints of pain or treatment for a left or right hip disability. Thus, the question becomes whether the Veteran’s current bilateral hip osteoarthritis is related to service. In an letter dated in October 2018, the Veteran’s treating physician indicated that the Veteran reported marching in full gear, participating in physical training, and running and jumping over uneven terrain. The Veteran reported progressively worsening hip pain over the years, and that it was now painful to walk or stand due to hip pain. Upon examination, FABER’s testing was positive, and imaging studies revealed degenerative changes consistent with osteoarthritis. After reviewing his service treatment records and medical records, the physician opined that it was more likely than not that the Veteran’s bilateral hip osteoarthritis developed during active service. On his December 2017 VA Form 9 (Appeal to the Board of Veterans’ Appeals) and during his January 2020 Board hearing, the Veteran indicated that he did not seek treatment for pain in his hips during his service as a Marine, but rather self-treated with heat, ice, and over-the-counter pain medication so as to avoid being labeled a “sickbay commando.” Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue”). In this case, the Veteran is not competent to diagnose bilateral hip osteoarthritis, he is competent report that he has experienced hip pain during service due to long marches, obstacle courses, and quarterly fitness tests. The Board finds that the Veteran’s statements and testimony as to onset and symptoms of his hip pain to be credible. The Veteran has continuously asserted that he has experienced hip pain during service due to long marches, obstacle courses, and quarterly fitness tests, and his reasons for not seeking treatment during service. He reports that his hip pain has continued since service, progressively worsening. His statements have been consistent with each other regarding the facts and circumstances of his physical activity while in service and his treating physician has opined that his current bilateral hip osteoarthritis is related to the rigors of service. Resolving all reasonable doubt in favor of the Veteran, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current bilateral hip osteoarthritis is related to the rigors of service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for bilateral hip osteoarthritis is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND During the January 2020 Board hearing, the Veteran identified relevant outstanding private treatment records from TriCare and a Naval hospital from 2005 until 2010, with additional private treatment records after 2010. A remand is required to allow VA to obtain authorization and request these records. 1. Entitlement to service connection for a lumbar spine disability is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a lumbar spine disability at this time. Service treatment records dated in October 1985 and May 1993, as well as a June 1986 reenlistment examination, reflect the Veteran complained of low back pain and that he had hereditary “sway back.” During a November 1999 VA examination, the Veteran reported he had a hereditary back condition and low back pain since his teenage years. While a September 2016 VA examiner opined that the Veteran’s lumbar spine disability was less likely than not incurred in or caused by service, the Board finds the examiner’s opinion inadequate, as it appears the examiner’s opinion did not consider the October 1985 and May 1993 in-service complaints of back pain. In an October 2018 letter, while the Veteran’s treating physician opined that the Veteran initially injured his back in service from training in full gear, the Board finds the private opinion inadequate, as it does not appear whether the clinician considered that the Veteran’s back disability may have preexisted service. Therefore, the Board finds that a remand is warranted for a VA examination and medical opinion as to the nature and etiology of the Veteran’s lumbar spine disability. 2. Entitlement to service connection for a cervical spine disability is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a cervical spine disability at this time. Service treatment records are silent for complaints of or treatment for a cervical spine disability, but the Veteran reported on his March 1997 separation examination that he had been hit by a car in January 1965. In a December 2018 statement, the Veteran reported that he had a pre-service event which included a head trauma and loss of consciousness, and that his cervical spine disability was aggravated by the rigors of service. An April 2019 VA examination report reflects that the Veteran reported he was hit by a car at age 11 and tossed 30 feet away. He reported having an intermittent stiff neck since. He also reported that in 1982, he had a stiff neck that snapped and popped and then improved. During the January 2020 Board hearing, the Veteran attributed this 1982 incident as his initial injury in service. In a letter dated in October 2018, the Veteran’s treating physician opined that the Veteran initially injured his neck in service from training in full gear. However, the Board finds the private opinion inadequate, as it does not appear whether the clinician considered that the Veteran’s cervical spine disability may have preexisted service. Additionally, while an April 2019 VA examiner opined that the Veteran’s cervical spine disability was at least as likely as not incurred in or caused by service, the examiner’s opinion appears to be based on the October 2018 private opinion in which the clinician found the Veteran’s cervical spine was initially injured during service. As discussed above, the Board has found the October 2018 opinion inadequate to establish service connection for a cervical spine disability. Furthermore, while the April 2019 examiner noted the Veteran’s car accident and intermittent stiff neck since he was a child, the examiner did not opine as to whether the Veteran’s cervical spine disability may have preexisted service. Therefore, the Board finds that a remand is warranted for a VA examination and medical opinion as to the nature and etiology of the Veteran’s cervical spine disability. The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for treatment received through TriCare, by Dr. Corbo, or at any Naval hospital prior to 2010, and any private treatment received since 2010. Make two requests for the authorized records from the identified providers and facilities, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA treatment records for the period from May 2018 to the present. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any lumbar spine disability. The examiner must opine as to whether the Veteran has a congenital defect of the lumbar spine within the meaning of VA regulations. The Board notes that defects are usually static in nature, so not generally subject to episodic improvement or worsening, whereas diseases are. If the Veteran’s lumbar spine disability is considered a congenital disease, provide an opinion as to whether there is clear and unmistakable evidence that the disease preexisted service and was NOT aggravated beyond natural progression during service. If the Veteran’s lumbar spine disability is considered a defect, provide an opinion as to whether there is additional disability due to disease or injury superimposed upon such defect during service. If the examiner finds the Veteran’s lumbar spine disability is neither a congenital disease or defect, the examiner must opine whether the Veteran’s lumbar spine disability clearly and unmistakably (undebatable) preexisted the Veteran’s service. If the examiner finds it did clearly and unmistakably preexist service, the examiner must opine whether it was clearly and unmistakably not aggravated by service. If the examiner finds that it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether the Veteran’s lumbar spine disability at least as likely as not (1) began during active service, to include related to an in-service injury, event, or disease, including the Veteran’s lay statements concerning the rigors of service and October 1985, June 1986, and May 1993 service treatment records showing complaints of back pain, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any cervical spine disability. The examiner must opine whether the Veteran’s cervical spine disability clearly and unmistakably (undebatable) preexisted the Veteran’s service. If the examiner finds it did clearly and unmistakably preexist service, the examiner must opine whether it was clearly and unmistakably not aggravated by service. If the examiner finds that it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether the Veteran’s cervical spine disability at least as likely as not (1) began during active service, to include related to an in-service injury, event, or disease, including the rigors of service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. 5. After completing the above, and any other development as may be indicated, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). (Continued on next page)   An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Owen, 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.