Citation Nr: 21069726 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 15-14 060 DATE: November 19, 2021 ORDER The application to reopen the claim for service connection for a back disability is granted. REMANDED Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a back disability is remanded. FINDING OF FACT 1. In a December 1979 decision, the RO denied service connection for a back disability. 2. Evidence received since the December 1979 decision relates to an unestablished fact necessary to substantiate the claim of service connection for a back disability. CONCLUSION OF LAW 1. The December 1979 rating decision denying service connection for a back disability is final. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § § §§ 3.156, 19.129, 19.192. 2. New and material evidence has been received regarding the claim of service connection for a back disability, and the claim is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § § § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1969 to April 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision by the Nashville, Tennessee, Department of Veterans Affairs (VA) Regional Office. In July 2019, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the Veteran's claims file. In a December 2019 decision, the Board denied the Veteran's application to reopen the claim for service connection for a low back disability, and service connection for a right hip disability. In May 2021, the United States Court of Appeals for Veterans Claims (Court) vacated the Board's denial and remanded the above referenced issues to the Board pursuant to a Memorandum Decision. 1. Whether new and material evidence has been received to reopen the claim for service connection for a back disability. The Veteran has asserted he suffers from a back disability as a result of his time in service. The Veteran's service treatment records (STRs) indicate that he was seen with complaints of back pain, and he had tenderness in the right L5. There is no mention of a diagnosis, and upon discharge there is no indication of a back disability. In December 1979, the RO denied service connection for a back disability. The basis for the denial was that the one-time treatment in service was acute and transitory and no residual disability was shown at the time of his discharge, and the Veteran did not submit any evidence to show continuity of any back disability since discharge. Further, the Veteran reported re-injuring his back in October 1979. At a January 2013 visit with his primary care provider he reported chronic back problems since a fall in service 40 years ago. In April 2013, the Veteran filed to reopen his claim for service connection, and reported his back symptoms had been continuously present since service. In December 2013, he reported slipping on the ice in 1971. In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). 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 (2010). Moreover, 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 VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Since the December 1979 decision, VA received statements in support of his claim, medical records, and an examination report. The Veteran's 2013 statements that he has had back pain since service, relates to an unestablished fact. The 2013 statements of continuity are accepted as credible for the purposes of considering whether to reopen the claim. Justus v. Principi, 3 Vet. App. at 510, 513 (1992). These statements in support, treatment records, and examination, could reasonably substantiate the claim, and the claim is therefore reopened. REASONS FOR REMAND 1. Entitlement to service connection for a right hip disability is remanded. The Veteran contends that he suffers from a right hip disability as a result of his time in service, to include as secondary to a back disability. The record contains current diagnoses of right hip pain, right hip arthritis, and right lower extremity radiculopathy. He was afforded a VA examination in December 2013 and was diagnosed with a lumbosacral strain. The Veteran reported slipping on ice in 1971 and having chronic low back pain with non-anatomic radicular complaints in the right leg ever since. He was found to have right lower extremity radiculopathy. The examiner determined it is less likely than not his low back disability and right leg pain was incurred in or caused by an in-service injury, event, or illness. The rationale was that on examination there were no signs of chronic neural compression (no weakness or sensory disturbances on examination). His reflexes were normal, and he had a negative straight leg raise. If the Veteran did indeed have long-standing compressive neuropathy from the injury in 1971, there would be hard physical exam findings, and he has none. The examiner further noted the low back ache in service was most likely a sprain, and he added lumbar radiculopathy is a common condition that resolves 90 percent of the time without any medical treatment. At the Board hearing the Veteran reported that he has back pain that causes his hip to hurt. As there is no opinion with regard the Veteran's claim of a right hip disability, a remand is needed for an examination. 2. Entitlement to service connection for a back disability is remanded. The Veteran has asserted he suffers from a back disability as a result of his time in service. The Veteran's service treatment records (STRs) indicate that he was seen with complaints of back pain, and he had tenderness in the right L5. There is no mention of a diagnosis, and upon discharge there is no indication of a back disability. He underwent a back examination in on in December 2013 and was diagnosed with a lumbosacral strain. The Veteran reported slipping on ice in 1971 and having chronic low back pain with non-anatomic radicular complaints in the right leg ever since. He was found to have right lower extremity radiculopathy. The examiner determined it is less likely than not his low back disability was incurred in or caused by an in-service injury, event, or illness. The rationale was the Veteran's low back ache described in service was most likely a low back sprain. Low back strains and lumbar radiculopathy is a common condition that resolves 90 percent of the time without any medical treatment. Private treatment records for the period 2012 through 2013 from the Medina Family Medical Clinic were reviewed. These records indicate the Veteran was assessed as having low back pain and right hip joint pain. The clinician noted the Veteran had arthritis pain in his knees and back. VAMC treatment records indicate that in February 2005, the Veteran was seen with complaints of back pain and right thigh pain following a motor vehicle accident in February 2004. In November 2007, the Veteran was seen with complaint of low back pain. At that time, he reported falling in 1970 and being stiff for a little while. He reported that his back tightened in 1973, and again in the early-1980s. In October 2011, the Veteran reported back pain that radiates to his legs. The Veteran has asserted his back symptoms have been continuous since his time in service. As the December 2013 opinion makes no mention of the Veteran's contentions of continuity, an opinion is needed clarifying the etiology of his back disability. The matters are REMANDED for the following action: 1. Afford the Veteran a VA examination to determine the nature and etiology of his claimed back disability. The examiner is asked to answer the following: Is it at least as likely as not that any diagnosed back condition is related to his service? The examiner is asked to address the Veteran's contentions, personnel records, and STRs. The examiner is asked to address the Veteran's in-service report of back pain. To the extent the Veteran reported back pain since service, he is competent to so report. The examiner is asked to provide a rationale for all opinions reached. 2. Afford the Veteran a VA examination to determine the nature and etiology of his claimed right hip disability. The record contains current diagnoses of right hip pain, right hip arthritis, and right lower extremity radiculopathy. The examiner is asked to answer the following: a) Identify each right hip disability. b) Is it at least as likely as not that a hip disability is related to his service? c) Is it at least as likely as not that a right hip disability was caused or aggravated by his back disability? If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the hip disability by the back disability. The examiner is asked to address the Veteran's contentions, personnel records, and STRs. To the extent the Veteran reported hip pain since service, he is competent to so report. The examiner is asked to provide a rationale for all opinions reached. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Skiouris, 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.