Citation Nr: 21002807 Decision Date: 01/15/21 Archive Date: 01/15/21 DOCKET NO. 17-04 580 DATE: January 15, 2021 ORDER New and material evidence having been submitted, the claim of service connection for cervical spine disability is reopened. New and material evidence having been submitted, the claim of service connection for low back disability is granted. Entitlement to service connection for right ankle disability is granted. Entitlement to service connection for lower back disability as secondary to right ankle disability is granted. REMANDED Entitlement to service connection for cervical spine disability is remanded. FINDINGS OF FACT 1. The February 2015 rating decision denying service connection for lower back and cervical spine conditions was not appealed and became final. 2. Evidence received since the February 2015 rating decision relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for the cervical spine disability. 3. Evidence received since the February 2015 rating decision relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for the lower back disability. 4. The probative evidence of record is at least in relative equipoise that the Veteran’s right ankle condition is related to active military service. 5. The probative evidence of record is at least in relative equipoise that the Veteran’s current lower back disability resulted from his right ankle condition. CONCLUSIONS OF LAW 1. Evidence received since the February 2015 rating decision is new and material, and the claim of entitlement to service connection for cervical spine disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. Evidence received since the February 2015 rating decision is new and material, and the claim of entitlement to service connection for lower back disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for entitlement to service connection for right ankle disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to service connection for lower back disability as secondary to right ankle disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army on active duty from May 1968 to May 1970. The issues come before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in November 2020. A transcript of the hearing has been included with the record. 1. Whether new and material evidence has been submitted to reopen the Veteran’s claims of service connection for cervical spine and lower back disabilities A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. §§ 5108, 7103, 7104, 7105; 38 C.F.R. §§ 3.156, 20.1100. 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 sustaining the claim. 38 C.F.R. § 3.156(a). New and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). The Veteran’s claims of service connection for cervical spine and low back disabilities were previously denied in February 2015 because there were no current disabilities. The Veteran did not appeal this decision or submit new and material evidence within one year of the decision, and it became final. Since February 2015, the Veteran has provided private and VA medical records that show treatment for diagnoses of low back and neck disorders, to include degenerative changes, spondylosis, and bone spurs of the cervical and lumbar spine. The Veteran provided additional evidence regarding pain and symptomatology associated with his lower back and neck conditions. In September 2016, the Veteran submitted competent lay statements from a fellow service member regarding an in-service injury, and a statement from his ex-wife regarding the onset of his lower back and neck issues while stationed in Germany in 1969. Moreover, the Veteran testified under oath at a Board hearing in November 2020, that he fell during service, re-injuring his right ankle and affecting his gait. This evidence relates to unestablished facts, the existence of current disabilities and an in-service injury, necessary to substantiate the Veteran’s claims. The Board finds the low threshold for reopening a claim of service connection has been met. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Veteran’s claims of service connection for lower back disability and cervical spine condition are reopened. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be warranted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 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 caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310. 2. Entitlement to service connection for a right ankle disability The Veteran contends that he suffers from a right ankle disability as a result of an in-service injury during active duty. The Veteran’s service treatment records contain a note from July 1968, which reported the Veteran had a history of pain and discomfort in his right ankle and foot. In July 2016, the Veteran underwent a VA examination of his right ankle condition. During the clinical interview the Veteran reported experiencing right ankle pain for over 50 years. The Veteran complained of a dull ache and pain in the heel and right Achilles. The VA examiner confirmed the Veteran’s currently diagnosed right Achilles tendonitis and provided the medical opinion that it is less likely than not that the Veteran’s right ankle condition incurred in or was caused by the right ankle issues that occurred during service. The VA examiner noted there were no records indicating an ongoing ankle injury as a result from service. The Veteran submitted a VA treatment record from August 2016, which identified x-ray results of the Veteran’s right ankle. The treating physician assistant noted the x-ray showed a slight abnormality of the medial malleolus, and opined the abnormality was due to prior trauma. In an August 2017 VA treatment note, the Veteran’s treating VA physician provided a medical opinion as to the etiology of the Veteran’s right ankle disability. The VA physician noted the Veteran’s stated history of a right ankle injury during his military service. The treatment records noted the Veteran’s complaints of continued ongoing persistent pain in the right ankle. Based on examination and objective clinical findings, the VA physician opined that it was at least as likely as not that the Veteran’s current ongoing right ankle condition was consistent with residuals of the right ankle injury as he described occurring in military service. In September 2016, the Veteran submitted a competent lay statement from a fellow service member who, while stationed in Germany, witnessed the Veteran slip and fall off a trailer while loading a piece of heavy equipment. He noted the Veteran injured his ankle and back in the fall. The Veteran testified in the November 2020 Board hearing that he first injured his foot while stationed at Fort Rucker and then re-injured his ankle after sustaining a fall while stationed in Germany. He noted injuring his ankle; however, he did not seek treatment. Subsequently, he developed a noticeable limp on his right leg and reported excessive wear on his right shoe. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the probative lay and medical evidence of record shows that the Veteran sustained a right ankle injury during active military service. The Veteran’s lay statement testimony is consistent with the service treatment record noting a history of right ankle pain and discomfort. Additionally, the Veteran as a lay person is competent to provide opinions on certain subjective medical issues and of observable symptomatology, including his history of right ankle pain and abnormal gait since his injury while stationed in Germany. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). While the July 2016 examination provided a negative nexus opinion regarding whether the Veteran’s right ankle condition was related to in-service ankle complaints, the Board finds that, given the Veteran’s credible lay statements, the evidence is at least in relative equipoise on this matter. The Board notes the Veteran’s August 2017 VA treatment records provide a positive nexus opinion regarding the connection between the residuals of the Veteran’s in-service ankle injury and his current ankle disability. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, by law, the Board must resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. §§ 1154(b); 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Thus, the benefit of the doubt must be resolved in favor of the Veteran and entitlement to service connection for the Veteran’s right ankle disability is warranted. 3. Entitlement to service connection for lower back disability as secondary to right ankle disability As indicated above, the Veteran contends he injured his ankle and back during an in-service fall, affecting his gait and resulting in his lower back disability. The Veteran’s medical treatment records noted the Veteran suffers from a chronic low back disability. The record shows the Veteran has had 4 surgeries on his back for spinal stenosis and lower back pain. The Veteran’s August 2016 medical treatment record noted that the Veteran reported his ankle pain caused him to walk with a limp, which in turn caused back pain. The Veteran submitted a VA treatment record from August 2017 noting the Veteran’s ankle and low back disabilities. The treating VA physician noted the Veteran’s shoes demonstrated abnormal treadwear indicating evidence of altered gait and uneven load bearing. Upon examination, the VA physician noted the Veteran demonstrated evidence of diffuse degenerative changes of the lumbar spine. The VA physician provided the medical opinion that it is at least as likely as not that changes in load bearing and biomechanics over the years, secondary to the Veteran’s altered gait from his right ankle disability, has contributed to his current lower back disability. The Board finds the August 2017 medical opinion, offered by the Veteran’s treating VA physician, as probative evidence of service connection on a secondary basis. The VA physician provided the competent and credible medical opinion that the Veteran’s lower back disability was the result of residuals of the Veteran’s in-service ankle injury and the current ankle disability. Thus, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310. Accordingly, the Board finds the evidence of record weighs in favor of entitlement to service connection for the Veteran’s lower back disability as secondary to his right ankle condition, and the benefit of the doubt doctrine applies. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND Entitlement to service connection for cervical spine disability is remanded. The Veteran contends that his neck disability is related to his active duty service. The Board finds that the Veteran has not been afforded a VA examination for the claim on appeal. VA’s duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The threshold for finding a link between a current disability and service so as to require medical examination is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006). Here, the Veteran has submitted lay statements from his fellow service member that noted the Veteran injured his ankle and back in an in-service fall while stationed in Germany. Additionally, the record contains the lay statements from the Veteran’s ex-wife, recounting the onset of the Veteran’s back issues occurring while they were stationed in Germany in 1969. Remand is needed to determine if the Veteran’s current cervical spine condition is associated with the Veteran’s noted in-service injury, and as secondary to the residuals of the Veteran’s in-service right ankle injury and subsequent lower back disability. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s cervical spine disability. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. Following a review of the entire record, the Veteran’s competent lay statements, as well as the onset of current symptomatology, the examiner should opine as to: Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s cervical spine condition is related to the Veteran’s active military service. Additionally, the examiner must address the Veteran’s cervical spine condition as secondary to the Veteran’s right ankle and lower back conditions. The examiner should opine as to: 1. Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s cervical spine condition was proximately due to, or the result of, his service-connected right ankle or lower back disabilities. 2. Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s cervical spine condition was aggravated by his service-connected right ankle or lower back disabilities. For purposes of this examination and opinion, the examiner must consider the full record, to include VA and private medical treatment records, the Veteran’s lay statements, and lay statements submitted by the Veteran’s ex-wife and fellow service member. A clearly stated rationale for any opinion offered should be provided and must not be based solely on the lack of records. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.V. Bona, 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.