Citation Nr: 21063810 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 18-13 354 DATE: October 18, 2021 ISSUES 1. Whether new material evidence has been received to reopen a previously denied claim of entitlement to service connection for multilevel disc bulging, with associated left-sided neural foraminal narrowing (neck disability). 2. Entitlement to service connection for a neck disability. 3. Entitlement to service connection for a pelvis disability, diagnosed as chronic sacroiliac sprain/hypermobility. 4. Entitlement to service connection for a right hip disability. 5. Entitlement to service connection for a left hip disability. 6. Entitlement to a disability rating in excess of 20 percent for the service-connected lumbar strain. ORDER New and material evidence has been received sufficient to reopen a previously denied claim for service connection for a neck disability, and the appeal is granted to this extent only. Entitlement to service connection for a pelvis disability, diagnosed as chronic sacroiliac sprain/hypermobility, is granted. REMANDED Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to a disability rating in excess of 20 percent for the service-connected lumbar strain is remanded. FINDINGS OF FACT 1. The claim for service connection for a neck disability was denied in a November 2015 rating decision that was not appealed. 2. Evidence received since the November 2015 rating decision for the claim of service connection for a neck disability includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claim for service connection. 3. The Veteran's pelvis disability, diagnosed as chronic sacroiliac sprain/ hypermobility, was caused by her service-connected lumbar strain. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the previously denied and final claim of service connection for a neck disability. 38 U.S.C. §§ 5103, 5103A, 5107, 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. The criteria for service connection for pelvis disability, diagnosed as chronic sacroiliac sprain/hypermobility, have been met. 38 U.S.C. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2001 to February 2002. This case comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned during a July 2021 Board videoconference hearing; a copy of the transcript is of record. During this hearing, the record was held open for 60 days; however, the Veteran did not subsequently submit additional evidence. New and Material Claim Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly received evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). The Court has also held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade, 24 Vet. App. 110. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of the RO's actions, given the previous unappealed denial of the claim on appeal, the Board has a legal duty under 38 U.S.C. §§ 5108, 7104 (West 2014) to address the question of whether new and material evidence has been received to reopen the claims for service connection. This matter goes to the Board's jurisdiction to reach the underlying claims and adjudicate the claims on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). Historically, the claim for service connection for a neck disability was denied in a November 2015 rating decision that was not appealed. To this point, effective March 24, 2105, a standard form for a notice of disagreement (NOD), VA Form 21-0958, was required. This November 2015 determination was based upon a finding that examination findings could not establish a link between the claimed condition and the Veteran's service connected condition. Assuming its credibility, the evidence received in pertinent part since the November 2015 rating decision includes the Veteran's detailed testimony before the undersigned, to include testimony as to how her claimed neck disability is related to her service-connected lumbar strain. The Board finds that this evidence is sufficient to reopen the previously-denied claim. The foregoing evidence is not cumulative or redundant of the evidence previously of record and relates to unestablished facts necessary to substantiate the claim. Therefore, this evidence is new and material, and reopening of the claim for a neck disability is in order. Shade v. Shinseki, No. 08-3548 (U.S. Vet. App. Nov. 2, 2010). Service Connection Claim The Veteran Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Given the favorable decision is a full grant of the issue addressed, further explaining how VA has fulfilled the duties to notify and assist is unnecessary. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2017). In order to establish service connection for the claimed disorder, there must be (1) competent 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) competent evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection may also be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310 (a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See Id; Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury. To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). When positive and negative evidence approximately balance regarding the merits of an issue material to determining the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b). The Veteran contends, and testified before the undersigned, that her pelvis disability, diagnosed as chronic sacroiliac sprain/hypermobility, is secondary to her service-connected lumbar strain. Private treatment records show diagnoses of chronic sacroiliac sprain/ hypermobility. Moreover, the Veteran is service-connected for a lumbar strain. Thus, the remaining question on appeal is whether the Veteran's pelvis disability, diagnosed as chronic sacroiliac sprain/hypermobility, is proximately caused or aggravated by her service-connected lumbar strain. The Veteran submitted a private opinion in December 2018 in which the examiner noted his review of the evidence of record to include the Veteran's medical history and circumstances and events of her military service. The examiner noted that the Veteran was a patient of his since March of 2002. The examiner stated that the Veteran was diagnosed with chronic sacroiliac sprain/hypermobility which was secondary to the low back service-connected disability. The examiner stated that when there was trauma or injury to the joints and the supporting structures of the spine, weakness and instability would occur; this weakness of the lumbar spine put extra stress of the joints of the sacroiliac joint, which eventually weakened and is injured more easily. The examiner stated that once this foundation of the spine was involved and became chronic, the areas above and below could start to have problems. The examiner stated that the gait and the biomechanics of the entire spine changed and could create many problems, with some becoming severe. The examiner stated that it was his opinion that this is what happened with the Veteran. The examiner stated in pertinent part that the original sprain/strain over time caused her to acquire a pelvis problem. The examiner opined that it was at least as likely as not that the Veteran's chronic sacroiliac sprain/hypermobility was secondary to her service-connected disability of the lower lumbar strain. Based upon the foregoing supportive evidence and resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's pelvis disability, diagnosed as chronic sacroiliac sprain, is secondary to her service-connected lumbar strain and service connection is warranted. REASONS FOR REMAND The Board finds that additional evidentiary development is warranted before adjudication of the remaining issues on appeal. The Veteran was afforded a VA examination in November 2015 in which the examiner stated that the neck/spine/cervical/sacrum/thoracic pain was less likely as not caused by or the result of the service-connected lumbar spine strain. The examiner opined that the Veteran's cervical foraminal narrowing at the C6-C7 level and the C4-C5 level was less likely as not caused by or the result of the service-connected lumbar spine strain. The Veteran was afforded a VA examination in June 2016 in which the examiner stated that there was no diagnosed hip condition on file, and examination / X-rays had been benign. The examiner also stated that there was no evidence of a diagnosis specific to the hip joint itself with any nexus to the service-connected lumbar strain. In this case, the Board notes that in Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. Lexis 8467 (Fed. Cir. Apr. 3, 2018), the Federal Circuit found that the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability." The case reversed years of precedent that had held that "pain alone is not a disability for the purposes of VA disability compensation." Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. As the Veteran has reported bilateral hip pain, pursuant to Saunders, the Board finds that an addendum opinion should be sought on remand to address whether her pain alone results in functional impairment. Moreover, an addendum opinion should address whether it is at least as likely as not (50 percent probability or greater) that any neck and hip disabilities diagnosed during the pendency of this appeal were caused or aggravated (permanently worsened) by the Veteran's service-connected lumbar strain or service-connected chronic sacroiliac sprain/hypermobility. In regards to the Veteran's claim for an increased rating for the service-connected lumbar strain, the Board notes that she was last afforded a VA examination in June 2017. The Veteran testified before the undersigned as to her worsening symptoms to include neurological as well as orthopedic symptoms and a decreased range of motion. As such, the Board finds that remand is warranted to assess the current severity of the service-connected lumbar strain. The matters are REMANDED for the following action: 1. Provide the Veteran's claims file to the November 2015 examiner, or an appropriate substitute if this individual is not available, to provide an addendum opinion. An examination is only required if deemed necessary by the examiner. The examiner must opine whether it is at least as likely as not (50 percent probability or greater) that any neck disabilities diagnosed during the pendency of this appeal was caused or aggravated (permanently worsened) by the Veteran's service-connected lumbar strain or service-connected chronic sacroiliac sprain/hypermobility. The examiner must opine whether it is at least as likely as not (50 percent probability or greater) that any neck pain alone had onset in service or is otherwise etiologically related to service. The examiner should state whether any pain claimed by the Veteran is supported by adequate pathology, and if so, whether it is as likely as not (50 percent or greater) whether such pain symptomatology represents a functional loss or impairment. A full and complete rationale for all opinions expressed must be provided. 2. Provide the Veteran's claims file to the June 2016 examiner, or an appropriate substitute if this individual is not available, to provide an addendum opinion. An examination is only required if deemed necessary by the examiner. The examiner must opine whether it is at least as likely as not (50 percent probability or greater) that any right or left hip disabilities diagnosed during the pendency of this appeal was caused or aggravated (permanently worsened) by the Veteran's service-connected lumbar sprain service-connected chronic sacroiliac sprain/hypermobility. The examiner should opine whether it is at least as likely as not (50 percent probability or greater) that any right or left hip pain alone had onset in service or is otherwise etiologically related to service. The examiner should state whether any pain claimed by the Veteran is supported by adequate pathology, and if so, whether it is as likely as not (50 percent or greater) whether such pain symptomatology represents a functional loss or impairment. A full and complete rationale for all opinions expressed must be provided. 3. Schedule the Veteran for a VA examination to assess the neurological and orthopedic manifestations of the service-connected lumbar strain. The electronic record, to include a copy of this remand, must be reviewed in conjunction with the examination. All testing deemed necessary must be conducted and results reported in detail. The examiner should: Conduct all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, express any functional loss in terms of additional degrees of limited motion of the Veteran's disability, i.e., the extent of the Veteran's pain-free motion. Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), please record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. If a joint cannot be tested on "weight-bearing," please specifically indicate why that testing cannot be done. Pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is instructed to inquire whether there are periods of flare-ups. If the answer is "yes," the examiner should state their severity, frequency, and duration explaining if there are any additional or increased symptoms and limitations experienced during flares. The examiner must ALSO name the precipitating and alleviating factors. The examiner must ALSO estimate, "per [the] veteran," to what extent, if any, they affect functional impairment. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. 4. Review the record to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and her representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M.K., 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.