Citation Nr: 20037512 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 18-53 853 DATE: June 2, 2020 ORDER New and material evidence having been received; the claim for entitlement to service connection for a right knee condition is reopened. New and material evidence having been received; the claim for entitlement to service connection for a left knee condition is reopened. New and material evidence having been received; the claim for entitlement to service connection for low back strain is reopened. New and material evidence having been received; the claim for entitlement to service connection for migraines is reopened. Entitlement to service connection for a right knee condition is granted. Entitlement to service connection for a left knee condition is granted. Entitlement to service connection for low back strain is granted. Entitlement to service connection for migraines is granted. Entitlement to service connection for allergies is granted. Entitlement to service connection for asthma is granted. Entitlement to service connection for hernia is granted. FINDINGS OF FACT 1. In the last final August 2014 rating decision, the RO declined to reopen the claims for service connection for a bilateral knee condition, low back strain, and migraines. The Veteran did not submit a Notice of Disagreement (NOD), no new and material evidence was submitted within one year of the decision, and the decision became final. 2. Evidence received since the August 2014 rating decision relates to unestablished facts necessary to substantiate the claims of entitlement to service connection for a bilateral knee condition, low back strain, and migraines. 3. The Veteran’s right knee condition is related to service. 4. The Veteran’s left knee condition is related to service. 5. The Veteran’s low back strain is related to service. 6. The Veteran’s migraines are related to service. 7. The Veteran’s allergies are related to service. 8. The Veteran’s asthma is related to service. 9. The Veteran’s hernia is related to service. CONCLUSIONS OF LAW 1. The October 2001, March 2004, April 2008, and August 2014 rating decisions are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.1103 2. New and material evidence to reopen the Veteran’s claims for service connection for a bilateral knee condition, low back strain, and migraines has been submitted since the August 2014 rating decision; the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for a right knee condition have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303. 4. The criteria for entitlement to service connection for a left knee condition have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303. 5. The criteria for entitlement to service connection for low back strain have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303. 6. The criteria for entitlement to service connection for migraines have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309. 7. The criteria for entitlement to service connection for allergies have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303. 8. The criteria for entitlement to service connection for asthma have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303. 9. The criteria for entitlement to service connection for hernia have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty service from March 1995 to May 1998. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2016 rating decision by the Department of Veteran Affairs (VA) Regional Office. The Board notes that additional VA treatment records were associated with the claims file after the case was certified to the Board. If additional evidence is received after the RO furnishes a SOC, and that evidence is pertinent and not duplicative, the RO must furnish a Supplemental Statement of the Case (SSOC) as provided in 38 C.F.R. § 19.31. Here, the RO has not issued a SSOC after receipt of this new evidence. See 38 C.F.R. §§ 19.31, 19.37. Nevertheless, the additional VA treatment records are not pertinent to the claims being decided herein. Therefore, a remand for a SSOC is not necessary. See 38 C.F.R. § 20.1305 (c). New and Material Evidence In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (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. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). 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, to include by triggering the Secretary’s duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. 1. New and material evidence having been received; the claim for entitlement to service connection for a right knee condition is reopened. 2. New and material evidence having been received; the claim for entitlement to service connection for a left knee condition is reopened. 3. New and material evidence having been received; the claim for entitlement to service connection for low back strain is reopened. 4. New and material evidence having been received; the claim for entitlement to service connection for migraines is reopened. The Veteran applied for service connection for his disabilities in April 2001. Her claims were denied in the October 2001 rating decision on the basis that there was no current diagnoses and the claimed conditions were acute and transitory. The Veteran requested reconsideration of her claims in October 2003, February 2008, and July 2013. Her claims were denied in March 2004, April 2008, and August 2014 rating decisions on the basis that evidence submitted was not new and material evidence to substantiate the claims. The Veteran did not file NODs with these decisions and new and material evidence was not received within one year of their promulgation, and they became final. Evidence associated with the claim since the August 2014 rating decision includes VA treatment records, private disability benefit questionnaires, and private medical opinions addressing the etiologies of the Veteran’s conditions. The Board finds that there is new and material evidence sufficient to reopen the claims for service connection. The above-mentioned evidence relates to unestablished facts necessary to substantiate the Veteran’s claim. The claims are therefore reopened. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303(a), (b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). Service may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disability, there must be (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, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2018); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A veteran is entitled to the benefit of the doubt, standard of proof for benefit claim decisions. 38 U.S.C. § 5107(b). The benefit of the doubt is applicable when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 5. Entitlement to service connection for a right knee condition is granted. 6. Entitlement to service connection for a left knee condition is granted. The Veteran contends her bilateral knee condition is related to service. In her service treatment records (STRs) there are various notes of bilateral knee pain. For example, in the April 1995 and July 1995 STRs, it is noted she complained and was treated for bilateral knee pain. In the August 2016 statement, Dr. W.H.A., the Veteran’s VA physician, opined that it is at least as likely as not that the Veteran’s bilateral knee degenerative joint disease is a continuation of conditions first treated on active duty. Dr. W.H.A. noted that the Veteran has been seen multiple times in primary care for her bilateral knee condition and radiological images show evidence of it. In the March 2019 private medical opinion, Dr. C.B. opined that it is at least the 90 percent level of probability that the Veteran’s bilateral knee condition was caused by her service experiences. Dr. C.B. reasoned that the Veteran had in-service symptoms related to her current bilateral knee condition and these symptoms continued post-service. Further, the time lag between the Veteran’s in-service bilateral knee symptoms and current bilateral knee pathology are consistent with known medical principles and the natural history of her bilateral knee condition. Based upon review of the evidence, the Board finds the Veteran’s bilateral knee condition is related to service. Dr. W.H.A. and Dr. C.B. opinions are highly probative because they collectively are based on examination of the Veteran, complete review of her medical records, and medical literature. Accordingly, the Board finds the evidence supports the claim for entitlement to service connection for bilateral knee condition. 38 U.S.C. § 5107; Gilbert 1 Vet. App. at 49. 7. Entitlement to service connection for low back strain is granted. The Veteran contends that her low back strain is related to service. In her STRs there are various notes of back pain. For example, in March 1996 and January 1998 STRs, it is noted she complained and was treated for back pain. In an August 2016 VA treatment record, Dr. W.H.A. opined that it is at least as likely as not that the Veteran’s low back strain is a continuation of a condition first treated on active duty. Dr. W.H.A. noted that the Veteran has been seen multiple times in primary care for low back strain and radiological images show evidence of it. In the March 2019 private medical opinion, Dr. C.B. opined that it is at least the 90 percent level of probability that the Veteran’s low back strain is due to her in-service auto accident trauma. Dr. C.B. reasoned that axial loads are known to cause neck injuries and the cumulative effect of the Veteran’s military service likely injured her lumbar spine. Further, she had medical visits for spine problems post-service. Based upon review of the evidence, the Board finds the Veteran’s back strain is related to service. Dr. W.H.A. opinion is probative because it is based on examination of the Veteran and complete review of her medical record and medical history. Less probative weight is given to Dr. C.B.’s opinion because it is primarily based on the Veteran’s statement that she had a cervical spine injury from an in-service auto accident. There is no record of an auto accident nor a cervical spine injury in the Veteran’s STRs. Dr. C.B.’s opinion is based on inaccurate factual premises and is therefore inadequate. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). However, the Board finds the evidence supports the claim for entitlement to service connection for low back strain based upon the opinion from Dr. W.H.A. 38 U.S.C. § 5107; Gilbert 1 Vet. App. at 49. 8. Entitlement to service connection for migraines is granted. The Veteran contends her migraines are related to service. In the November 1996 STR, it is noted she complained of headaches and dizziness. Also, in the December 1996 STR, it is noted she has migraines. In the March 2019 private medical opinion, Dr. C.B. opined that it is at least the 90 percent level of probability that the Veteran’s migraines are caused by her service experiences. Dr. C.B. reasoned that that the Veteran had in-service headache symptoms related to her current migraines and these symptoms continued post-service. Further, the time lag between the Veteran’s in-service headache symptoms and current migraines pathology are consistent with known medical principles and the natural history of her migraines. Based upon review of the evidence, the Board finds the Veteran’s migraines are related to service. Dr. C.B. opinion is probative because it is based on a complete review of the Veteran’s medical record and medical literature. Accordingly, the Board finds the evidence supports the claim for entitlement to service connection for migraines. 38 U.S.C. § 5107; Gilbert 1 Vet. App. at 49. 9. Entitlement to service connection for allergies is granted. 10. Entitlement to service connection for asthma is granted. The Veteran contends her allergies and asthma are related to service. In her STRs there are various notes for these conditions. For example, in the August 1996 STR, it is noted she complained of allergy related symptoms such as sinus headaches and congestion. Also, in May 1995 STR, it is noted she complained about asthma related symptoms such as difficulty breathing and chest pain. In the March 2019 private medical opinion, Dr. C.B. opined that it is at least the 90 percent level of probability that the Veteran’s allergies and asthma are caused by her service experiences. Dr. C.B. reasoned that the Veteran had in-service symptoms related to her allergies and asthma and these symptoms continued post-service. Further, the time lag between the Veteran’s in-service allergies and asthma symptoms and current allergies and asthma are consistent with known medical principles and the natural history of these conditions. Based upon review of the evidence, the Board finds the Veteran’s allergies and asthma are related to service. Dr. C.B. opinion is probative because it is based on a complete review of the Veteran’s medical record and medical literature. Accordingly, the Board finds the evidence supports the claim for entitlement to service connection for allergies and asthma. 38 U.S.C. § 5107; Gilbert 1 Vet. App. at 49. 11. Entitlement to service connection for hernia is granted. The Veteran contends her hernia is related to service. In the January 1997 STRs, it is noted she complained of abdominal pain and pelvic pressure. In the March 2019 private medical opinion, Dr. C.B. opined that it is at least the 90 percent level of probability that the Veteran’s hernia was caused by her service experiences. Dr. C.B. reasoned that the Veteran had symptoms related to hernia pain in-service without a direct diagnosis and these symptoms did not exist when she entered service. Further, her hernia symptoms have continued post-service based on her lay statements. Based upon review of the evidence, the Board finds the Veteran’s hernia is related to service. Dr. C.B. opinion is probative because it is based on a complete review of the Veteran’s complete medical record, lay statements, and medical experience. Accordingly, the Board finds the evidence supports the claim for entitlement to service connection for hernia. 38 U.S.C. § 5107; Gilbert 1 Vet. App. at 49. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Willoughby, 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.