Citation Nr: 21069005 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 18-53 166 DATE: November 17, 2021 ORDER As new and material evidence has been received, the claim for service connection for bilateral shin splints is reopened. REMANDED Service connection for bilateral shin splints is remanded. Service connection for a lumbar spine disorder is remanded. Service connection for a left ankle disorder is remanded. Service connection for bilateral plantar fasciitis is remanded. Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety disorder, and anger disorder is remanded. FINDINGS OF FACT 1. In December 2002, the RO denied service connection for bilateral shin splints; the Veteran did not express timely disagreement or submit new and material evidence within one year, and the decision is final. 2. Evidence received since December 2002 is new and material because it relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for bilateral shin splints and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The December 2002 rating decision that denied service connection for bilateral shin splints is final. 38 U.S.C. § 7105 (2002); 38 C.F.R. § 20.302 (2002). 2. New and material evidence has been received, the claim of entitlement to service connection for bilateral shin splints is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Marine Corps from August 1988 to August 1992 including service in Southwest Asia. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The Veteran's claims file contains a copy of the hearing transcript. The Board has recharacterized the issue on appeal in light of issues raise in the evidence of record and the benefits which the Veteran seeks. See Clemons v. Shinseki, 23 Vet. App, 1. 5 (2009). New and Material Evidence Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7104(b). A claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. "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. 38 C.F.R. § 3.156(a). 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. Id. 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). Further, 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 VA 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 credible for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Discussion The RO denied service connection for bilateral shin splints in a December 2002 rating decision. In a September 2017 rating decision, the RO continued and confirmed this denial. As the September 2017 rating decision incorporated consideration of the evidence discussed in the December 2002 rating decision, the RO considered evidence consisting of service medical records (also referred to as service treatment records (STRs)); VA Forms 119, Reports of Contact (February 13, 2002 and November 21, 2002): and VA treatment records from the Atlanta, Georgia VA Medical Center (VAMC). The RO stated that this evidence failed to disclose any complaints, treatment, and/or diagnosis of bilateral shin splints during active-duty service. As such, there was no evidence of an in-service incurrence. Since September 2017, VA has received new and material evidence consisting of additional batches of STRs; lay statements (associated with procedural documents); a June 2019 lay statement; and extensive hearing testimony concerning an in-service Humvee incidents and present manifestations of bilateral shin splints. Especially considering the low evidentiary threshold of Shade, this evidence is material to previously unestablished facts material to contended disabilities and the Veteran's service and raises reasonable possibilities of substantiating the claims. See 38 C.F.R. § 3.156(a). Consequently, this evidence is new and material. As such, the Board reopens the Veteran's service connection claim for bilateral shin splints. REASONS FOR REMAND Regrettably, a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran asserts that bilateral shin splints; a lumbar spine disorder; a left ankle disorder; bilateral plantar fasciitis; and, an acquired psychiatric disorder, to include PTSD, anxiety disorder, and anger disorder were incurred in, aggravated by, or otherwise attributable to, active-duty service. Service treatment records (STRs) during active duty include more than 150 pages. The Veteran sought treatment in October 1989 for low back pain following exercise. A clinician diagnosed muscle strain and prescribe rest and application of heat. The STRs also show treatment in January 1990 for a left ankle sprain while playing basketball and in April 1992 for fallen arches and pain in the left foot. There was no follow-up on any occasion. The Veteran testified during the Board hearing that he did not undergo a physical examination at the time of his discharge from the Marine Corps. However, the service treatment records do contain the results of July 1992 physical examination that is silent for any physical or mental health abnormalities other than residuals of an appendectomy. In a concurrent medical history questionnaire, the Veteran denied any orthopedic or psychiatric abnormalities. The Veteran reported for a VA thoracolumbar spine examination in September 2018. The clinician diagnosed degenerative arthritis of the spine. This clinician noted the Veteran's report that he had received private chiropractic and medical care for a decade. Even though the clinician indicated that the Veteran's STRs disclosed a complaint of back pain and the Veteranin addition to his accounts of continuous private treatmentreported that back pain forced him to move to a sedentary position (where he had formerly worked as a "active" deputy sheriff), the clinician provided a negative nexus opinion. As a primary rationale for this negative nexus the clinician reported that the "examination was unsatisfactory in that the Veteran did not move his back and [...] stated that it would hurt." While the Board acknowledges this VA clinician's opinion, it assigns diminished weight to it. Specifically, the clinician did not address the substance of treatment for the back on one occasion in service, the results of the discharge physical examination or the Veteran's accounts of continuity of symptoms, of which the Veteran is competent to report. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). During the Board hearing, the Veteran testified about the circumstances of a Humvee accident in service in which the Veteran landed on his back and sustained orthopedic injuries and joint injuries when the vehicle accelerated. The Board finds that the Veteran's accounts have been consistent and facially plausible. Caluza v. Brown, 7 Vet. App. 498, 511 (1995); Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Turning to the issue of acquired psychiatric disorder, here, too, the Board finds that that Veteran has presented facially plausible accounts concerning the death of his hometown fellow Marine by name; witnessing dead bodies; and anguish and anger associated with his in-service appendectomy. See id. A medical examination or medical opinion 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 a current diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that an event, injury, or disease occurred in service or certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) indicates that the disability or symptoms may be associated with the established event, injury or disease in service or with another service-connected disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. Id. Here, the evidence of record does indicate that bilateral shin splints; a lumbar spine disorder; a left ankle disorder; bilateral plantar fasciitis; and, an acquired psychiatric disorder, to include PTSD, anxiety disorder, and anger disorder may be associated with events or injuries during active-duty service. The matters are REMANDED for the following actions: 1. Contact the Veteran and request that he provide or identify and authorize the recovery of any additional private records of treatment for the claimed disabilities. The RO must follow the procedures laid out in 38 U.S.C. § 5103A(b)(2)(B). The Board takes especial notes of private chiropractic records and medical records from K-P. 2. Ascertain whether there are any outstanding service department records, to include line-of-duty reports and addition medical and personnel records from all applicable military and federal records depositories. The RO must follow the procedures laid out in 38 U.S.C. § 5103A(b)(2)(B). 3. Obtain any outstanding VA treatment records and associate them with the claims file. Arrange for VA knee; thoracolumbar spine; ankle; foot; lower leg; and mental health examinations with an appropriate clinician(s). The clinician(s) must review the entirety of the claims file and indicate such review in the body of each respective opinion or examination report. The Veteran has provided plausible lay accounts of in-service injuries and mental health trauma, which the Board finds credible. Upon completion of the above, the clinician(s) should respond to the following inquiries: a. What, if any current diagnoses are appropriate for 1) bilateral shin splints; 2) lumbar spine disorder; 3) left ankle disorder; 4) bilateral plantar fasciitis; and 5) and acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety disorder, and anger disorder? Upon each respective current diagnostic determination, the clinician should opine: b. Whether it is at least as likely as not (50 percent probability or more) that the respective diagnosed disability had its onset in service or is otherwise etiologically caused by the Veteran's active service, including any incidence of service? For all opinions, complete rationales should be provided. The clinician should reconcile any opinion with all other clinical evidence of record and the Veteran's and other lay evidence. The Veteran is competent to report his symptoms and history, but the examiner may place weight on these reports in the context of the examination and other evidence in the file. Such reports, including those of continuity of symptomatology, must be acknowledged and considered in formulating any opinion. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. J. Komins, 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.