Citation Nr: 21064947 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 19-15 220 DATE: October 22, 2021 ORDER New and material evidence having been received, the claim of service connection for degenerative joint disease of the thoracic spine and lumbar spine strain, with bilateral sacroiliitis is granted. REMANDED Entitlement to service connection for a thoracolumbar spine disorder is remanded. Entitlement to service connection for a left shoulder disorder is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for arthritis of the left hip is remanded. Entitlement to service connection for arthritis of the right hip is remanded. FINDINGS OF FACT 1. Service connection for degenerative joint disease of the thoracic spine and lumbar spine strain with bilateral sacroiliitis was denied by the Regional Office (RO) in a November 2012 rating action. The Veteran was notified of this action and of his appellate rights, but did not file a timely appeal. 2. Since the July 2012 decision denying service connection for degenerative joint disease of the thoracic spine and lumbar spine strain with bilateral sacroiliitis, the additional evidence, not previously considered, relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW The additional evidence received subsequent to the July 2012 decision of the RO that denied service connection for degenerative joint disease of the thoracic spine and lumbar spine strain with bilateral sacroiliitis is new and material; thus, service connection for this disability is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1971 to January 1993. In October 2021, a videoconference board hearing was held before the undersigned. New and material evidence to reopen the claim of service connection for degenerative joint disease of the thoracic spine and lumbar spine strain with bilateral sacroiliitis. Service connection for degenerative joint disease of the thoracic spine and lumbar spine strain with bilateral sacroiliitis was previously denied by the RO in a November 2012 rating decision and notification letter. The Veteran did not appeal this determination or submit new and material evidence within one year of that determination; therefore, it is final. In such cases, it must first be determined whether or not new and material evidence has been received such that the claim may now be reopened. 38 U.S.C. §§ 5108, 7105; Manio v. Derwinski, 1 Vet. App. 140 (1991). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. 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). 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, 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, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received, without regard to other evidence of record. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Evidence of record at the time of the November 2012 denial of service connection for a spine disorder included the Veteran's service treatment records (STRs), which show he complained of back pain with muscle spasm in July 1976 and following a motor vehicle accident in October 1976. Additional evidence included an X-ray study of the lumbar spine dated in April 1997 that was interpreted as normal and the report of a March 2005 VA examination that noted that the Veteran had been diagnosed as having degenerative joint disease of the spine in 2001. Service connection was denied on the basis that the evidence did not show an event, disease or injury in service. Evidence received subsequent to the November 2012 rating decision includes the Veteran's testimony before the undersigned at his hearing in October 2021. At that time, he stated that he spent many years in service carrying heavy equipment for long periods of time, essentially stating that his disability relates to wear and tear sustained during his many years of service. For the purpose of determining whether evidence is new and material to reopen a claim, the credibility of the evidence is to be presumed. Justus 3 Vet. App. at 510. The Board finds that the Veteran's hearing testimony constitutes new and material evidence such that the claim may be reopened. To this extent, the appeal is allowed. REASONS FOR REMAND Entitlement to service connection for a thoracolumbar spine disorder, bilateral shoulder disorders and bilateral hip disorders During the October 2021 hearing before the undersigned, the Veteran testified that he had been receiving treatment from VA for each of the claimed disabilities from the time of his separation from service in 1993. Thus, it is indicated that there may be outstanding relevant VA treatment records. During the hearing, the Veteran reported that he was treated at the Fayetteville, North Carolina VA Medical Center in 1993 and 1994. Any VA treatment records are within VA's constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. The Board also cannot make a fully-informed decision on the issues because no VA examiner has opined whether any thoracolumbar spine, bilateral shoulder or bilateral hip disorders may be related to stresses sustained over the years from physical labor and training during over 20 years of active duty. Similarly, there is no opinion regarding whether the Veteran's orthopedic disabilities may be related to the motor vehicle accident in which he was involved in 1976. The matters are REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records from Fayetteville, North Carolina VA Medical Center for the period from 1993 to 1995. 2. Schedule the Veteran for a VA examination for his thoracolumbar spine, bilateral shoulder and bilateral hip disorders. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinions below. The examiner is asked to provide a response to the following: (a) Are current thoracolumbar spine, bilateral shoulder and bilateral hip disorders at least as likely as not related to service, including the motor vehicle accident in which the Veteran was involved in 1976 or the physical nature of his 20 plus years of service? (Continued on the next page) (b) Is it at least as likely as not that any arthritis of the spine, shoulder or hips (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Provide a rationale to support the opinions. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph P. Gervasio 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.