Citation Nr: 21065886 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 19-22 597 DATE: October 27, 2021 ORDER New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for a back disability is granted. New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for a right hip disability is granted. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a right hip disability is remanded. FINDINGS OF FACT 1. In a March 2012 rating decision, the RO denied the Veteran's claim of entitlement to service connection for a back disability. The Veteran was duly notified of the decision and his appellate rights, but he did not perfect an appeal within the applicable time period, nor was new and material evidence received within one year of notification. 2. In a February 2015 rating decision, the RO confirmed the previous denial of service connection for a back disability because the evidence submitted was not new and material and denied service connection for a right hip disability. The Veteran was duly notified of the decision and his appellate rights, but he did not perfect an appeal within the applicable time period, nor was new and material evidence received within one year of notification. 3. Evidence received since the final February 2015 rating decision confirming the previous denial of service connection for a back disability and denying service connection for a right hip disability relates to an unestablished fact necessary to substantiate the claims and, presuming its credibility, raises a reasonable possibility of substantiating the claims for service connection for back and right hip disabilities. CONCLUSIONS OF LAW 1. The March 2012 rating decision denying service connection for a back disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. The February 2015 rating decision confirming the previous denial of service connection for a back disability and denying service connection for a right hip disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 3. New and material evidence has been received to warrant reopening of the claims of service connection for back and right hip disabilities. 38 U.S.C. § 5107, 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1970 to April 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which, inter alia, continued the previous denial of service connection for back and right hip disabilities because the evidence submitted was not new and material. In February 2020, the Board denied reopening the previously denied claims of entitlement to service connection for back and right hip disabilities. The Veteran appealed the February 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court). While the matter was pending before the Court, the Veteran and VA's General Counsel filed a joint motion for remand (JMR). In June 2021, the Court granted the parties' motion, vacated the February 2020 Board decision, and remanded the matter for actions consistent with the JMR. New and Material Evidence In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. For claims to reopen such as this one, filed on or after August 29, 2001, 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. To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the credibility of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). 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, to include by triggering the Secretary's duty to assist. Id. at 118; but see Villalobos v. Principi, 3 Vet. App. 450 (1992) (evidence that is unfavorable to a claimant is not new and material). 1. New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for a back disability is granted. 2. New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for a right hip disability is granted. In December 2010, the Veteran, inter alia, submitted a claim of service connection for a back disability. In a final March 2012 rating decision, the RO denied the claim, finding that the evidence did not show that the condition, which existed prior to service, permanently worsened as a result of service. The RO considered the Veteran's service treatment records (STRs), as well as a VA examination which indicated that the examiner was unable to determine if the Veteran's back disability was aggravated beyond its normal progression by military service without resort to mere speculation, as the Veteran denied recurrent back pain at separation and did not file a claim for back complaints until December 2010. The record on appeal shows that the Veteran was duly notified of the RO's decision and his appellate rights. He did not, however, initiate an appeal within the applicable time period nor was new and material evidence received within one year of notification of the March 2012 rating decision. The Veteran does not contend otherwise. Thus, the March 2012 rating decision is final and not subject to revision on the same factual basis. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. In August 2014, the Veteran, inter alia, submitted a claim to reopen service connection for a back disability and a new claim for service connection for a right hip disability. In a final February 2015 rating decision, the RO denied both claims, finding that the evidence submitted for the back disability claim was not new and material, as it failed to show that the Veteran's back condition permanently worsened as a result of service. The claim also failed for lack of an event, disease, or injury in service or evidence of a nexus. The RO denied the service connection claim for a right hip disability on the lack of a persistent disability in service or a nexus between service and the disability. The record on appeal shows that the Veteran was duly notified of the RO's decision and his appellate rights. He did not, however, initiate an appeal within the applicable time period nor was new and material evidence received within one year of notification of the February 2015 rating decision. The Veteran does not contend otherwise. Thus, the February 2015 rating decision is final and not subject to revision on the same factual basis. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this appeal, the Veteran seeks to reopen his claims of service connection for back and right hip disabilities. As noted above, despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. In order to determine whether new and material evidence has been received, the Board has reviewed the entire record, with particular attention to the additional evidence received since the final February 2015 rating decision. After reviewing the record, the Board finds that the additional evidence received is new and material within the meaning of 38 C.F.R. § 3.156. The additional evidence received since the February 2015 rating decision includes VA treatment records noting the Veteran's reports of low back and hip pain and a diagnosis of severe osteoarthritis of the right hip. See August and October 2017 VAMC records. Also received since the final rating decision is the Veteran's April 2018 Notice of Disagreement (NOD) indicating that the Veteran injured his back and hip during active duty when he was ejected from a vehicle. The Veteran stated that he sought medical treatment for his injuries but was denied because the treating clinician did not think his fall was serious enough to treat. He further stated that his symptoms began during active duty and persisted continuously since that time. See April 2018 NOD. The additional evidence also includes a May 2019 VA examination and negative nexus opinion regarding the Veteran's back disability. After reviewing the record, the Board finds that new and material evidence has been received sufficient to reopen the claims. Specifically, the April 2018 NOD, indicating that during active duty the Veteran began experiencing back and right hip symptoms after he was ejected from a vehicle, which persisted continuously since that time, was not before agency decision-makers at the time of the February 2015 rating decision. This record is therefore new, and directly addresses unestablished facts necessary to substantiate the claims of service connection for back and right hip disabilities, particularly evidence of an in-service incurrence and causation. When presumed credible, it raises a reasonable possibility of substantiating the claims and triggers the VA's duty to assist. Accordingly, the standards under 3.156(a) have been met and the claims are reopened. See Shade, 24 Vet. App. at 117. Although this evidence is sufficient to reopen the claims, it is not sufficient to award the benefits sought. For that reason, additional development is necessary. REASONS FOR REMAND 1. Entitlement to service connection for a back disability is remanded. The Veteran contends that he injured his back when he was ejected from a vehicle during active duty. He asserts that since service he has experienced continuous back symptoms. In the alternative, the Veteran contends that his back disability is secondary to his nonservice-connected right hip disability. See January 2018 VA Form 21-526EZ Application for Disability Compensation and Related Compensation Benefits; April 2018 NOD. A June 1971 entry in the Veteran's STRs noted the Veteran's complaints of a "bad cold" and that he fell out of a truck 4 days prior while the truck was going about 20 miles per hour. Mild tenderness over the medial aspect of the right scapula and spine in the T11-12 area was noted. X-rays were negative. See June 1971 Chronological Record or Medical Care. The Veteran was most recently afforded a VA examination in May 2019. The examiner noted a diagnosis of degenerative arthritis of the spine. The Veteran reported pain in the low back to the upper buttocks. After examination of the Veteran and review of the claims file, the examiner rendered a negative etiological opinion regarding the Veteran's back. The examiner opined in pertinent part, The Veteran's service treatment records contain his report of a back injury/back trouble/back pain at the time of his enlistment on October 5, 1970. No diagnosed disqualifying condition was found. In June 1970, the Veteran fell out of a moving truck that was going about 20 MPH, injuring his back. X-ray images were negative. The Veteran was diagnosed with a thorax strain. Separation exam dated March 21, 1972 is silent for chronic back condition. Available STRs are silent for a diagnosis of degenerative arthritis of the lumbar spine with sciatica. STRs are silent for a diagnosis of herniated disc lumbar spine. Post-service general medical exam completed on April 10, 1973 is also negative for any thoracolumbar spine/musculoskeletal complaints or findings. A back DBQ exam was completed on November 18, 2011, where the Veteran was diagnosed with a back strain. The examiner opined that it would be resorting to mere speculation to state that the Veteran's herniated disc was aggravated beyond normal progression when his discharge physical in 1972 noted "no" for recurrent back pain, and then did not file for his back complaints until current. However, there was no mention regarding the back strain/herniated disc/back condition being directly related to the in-service fall off of the truck. Post-service treatment records with the Cleveland VAMC show ongoing care for back pain, without subsequent injury starting around 2011. UH records list a herniated disc on a 2012 problem list. The Veteran has a history of obesity, smoking and working as a laborer in his post-service life. These are the likely causes of his degenerative arthritis of the lumbar spine with sciatica. The Veteran had a self-limited back strain in service with no chronic ongoing problems as a result. The back strain in service did not hasten nor alter the natural progression of his degenerative arthritis of the lumbar spine with sciatica. The Board finds that the VA examination is inadequate. In that regard, the examiner failed to consider the Veteran's April 2018 NOD indicating that the Veteran began to experience back symptoms during active duty after he was ejected from a vehicle and the continuity of symptomatology since that time. As such, a remand is warranted for an addendum medical opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007). 2. Entitlement to service connection for a right hip disability is remanded. The Veteran contends that he injured his right hip when he was ejected from a vehicle during active duty. He asserts that since service he has experienced continuous hip symptoms. See April 2018 NOD. The Veteran was afforded a VA examination in January 2015. The examiner noted diagnoses of right hip osteoarthritis and joint replacement. After examination of the Veteran and review of the claims file, the examiner rendered a negative etiological opinion regarding the Veteran's right hip. The examiner opined, This veteran is claiming that his right hip condition is incurred in or caused by his hip injury on October 20, 1971. The right leg injury that was documented in his STR's was a right hamstring strain and a right knee MCL strain in 10/71. His right hamstring strain was a self limited muscular injury that would have resolved in a matter of a few weeks to months. It would not lead to the development of right hip DJD and resulting right total hip replacement. The veteran had a Right total hip replacement on 9/24/14. The veteran states that he began to have chronic right hip pain only a few years ago and he was diagnosed with right hip DJD about 1 year ago. The veteran was discharged from the military in 1972. After that he worked in apartment maintenance then grounds keeping and maintenance for a total of 36 years. Therefore, it would be less likely than not that this veteran's right hip condition was incurred in or caused by his hip injury on October 20, 1971. The Board finds that the VA examination is inadequate. In that regard, the opinion is based, in part, on an inaccurate factual premise, namely that the Veteran is claiming that his "right hip condition is incurred in or caused by his hip injury on October 20, 1971." While the Veteran's August 2014 claim indicated that he sought service connection for a right hip disability due to "injury in service," subsequent to the VA examination, the Veteran explained in his April 2018 NOD, discussed above, that he injured his right hip when he was ejected from a vehicle during active duty. As set forth above, the Veteran's STRs note his reports of falling from a truck in June 1971. Mild tenderness over the medial aspect of the right scapula and spine in the T11-12 area was noted at the time. As such, a remand is warranted for an addendum medical opinion to address the nature and etiology of the Veteran's current right hip disability, to include the June 1971 fall from a truck. Accordingly, the matters are REMANDED for the following action: 1. Obtain an addendum medical opinion regarding the nature and etiology of the Veteran's current back disability. Access to the Veteran's electronic claims file should be made available to the examiner for review in connection with the opinion. A VA examination may be provided if deemed necessary by the clinician. After reviewing the record, the examiner should provide an opinion, with supporting rationale, as to the following: Is it at least as likely as not that the Veteran's current back disability was incurred in or otherwise related to his active service, to include the June 1971 fall from a truck? In providing the requested opinion, the clinician should consider the Veteran's reported symptoms in service and thereafter, including the onset, progression and severity of the Veteran's reported symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? The Board makes no credibility findings at this juncture. If service connection for a right hip disability is granted, the examiner must also provide an opinion as to the following: Is it at least as likely as not that the Veteran's current back disability is caused by a service-connected right hip disability? If not, is it at least as likely as not that the Veteran's current back disability is aggravated by a service-connected right hip disability? If aggravation is found, the examiner must attempt to establish a baseline level of severity of the disability, prior to aggravation. A complete explanation must be provided for any opinion offered. In providing the requested opinion, the examiner should reference any relevant evidence of record, to include the Veteran's April 2018 NOD indicating that he has experienced continuous back symptoms since he was ejected from a vehicle during active duty. 2. Obtain an addendum medical opinion regarding the nature and etiology of the Veteran's current right hip disability. Access to the Veteran's electronic claims file should be made available to the examiner for review in connection with the opinion. A VA examination may be provided if deemed necessary by the clinician. After reviewing the record, the examiner should provide an opinion, with supporting rationale, as to the following: Is it at least as likely as not that the Veteran's current right hip disability was incurred in or otherwise related to his active service, to include the June 1971 fall from a truck? In providing the requested opinion, the clinician should consider the Veteran's reported symptoms in service and thereafter, including the onset, progression and severity of the Veteran's reported symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? (Continued on the next page) In providing the requested opinion, the examiner should reference any relevant evidence of record, to include the Veteran's April 2018 NOD indicating that he has experienced continuous right hip symptoms since he was ejected from a vehicle during active duty. In providing the requested opinion, the clinician should consider the Veteran's reported symptoms in service and thereafter, including the onset, progression and severity of the Veteran's reported symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? The Board makes no credibility findings at this juncture. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Ruddy, 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.