Citation Nr: 21070022 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 19-25 125 DATE: November 22, 2021 ORDER New and material evidence having been received, the petition to reopen the claim of entitlement to service connection for paralysis, muscle flaccid secondary to polio of the right lower extremity and back and scoliosis (also claimed as right leg and lower back) is granted. REMANDED Entitlement to service connection for paralysis, muscle flaccid secondary to polio of the right lower extremity and back and scoliosis is remanded. FINDINGS OF FACT 1. In a September 1967 rating decision, the Agency of Original Jurisdiction (AOJ) denied the claims of service connection for paralysis, muscle flaccid secondary to polio of the right lower extremity and back and scoliosis; a timely notice of disagreement (NOD) was not filed, and no new and material evidence was received within the appeal period. 2. Additional evidence received since the September 1967 rating decision is new, relates to an unestablished fact necessary to substantiate the claim of service connection for paralysis, muscle flaccid secondary to polio of the right lower extremity and back and scoliosis, and raises a reasonable possibility of substantiating the claims. CONCLUSION OF LAW The criteria for reopening the claim of service connection for paralysis, muscle flaccid secondary to polio of the right lower extremity and back and scoliosis are met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1957 to February 1958. These matters are before the Board of Veterans' Appeals (Board) on appeal from August 2016 and January 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2021, the Veteran testified, sitting in Illinois, before the undersigned via a videoconference hearing. A transcript of the hearing has been associated with the virtual file and reviewed. New and Material Evidence Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239-40 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA's duty to provide a VA examination is triggered. There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening. Shade, 24 Vet. App. at 117-20. 1. Whether new and material evidence has been received to reopen the claim of service connection for paralysis, muscle flaccid secondary to polio of the right lower extremity and back and scoliosis. In September 1967, the AOJ denied the Veteran's claim of entitlement to service connection for paralysis, muscle flaccid secondary to polio of the right lower extremity and back and scoliosis based on a lack of service records indicating an aggravation of the Veteran's pre-existing polio condition. The Veteran did not file a timely NOD and no new and material evidence was received within the appeal period; therefore, the September 1967 became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(b), 20.1103. Consequently, the Board will consider evidence received since the September 1967 decision as it is the last final denial regarding the paralysis, muscle flaccid secondary to polio of the right lower extremity and back and scoliosis claim. Since the last denial, the Veteran submitted September 2016 and December 2019 medical opinions from his treating clinician suggesting that his current progressive back condition is related to an in-service aggravation of his childhood poliomyelitis. Specifically, the physical labor during the Veteran's period of active duty resulted in progressive, chronic, and incapacitating lower back pain. 11/28/2016, Medical Treatment Record Non-Government Facility; 01/02/2020, Medical Treatment Record Non-Government Facility. Therefore, the Board finds this evidence is both new and material to the Veteran's claims as it provides evidence indicating a possible in-service aggravation or incurrence during Veteran's active service which were, in part, a reason for the last final denial. As such, the petition to reopen is granted. REASONS FOR REMAND 2. Entitlement to service connection for paralysis, muscle flaccid secondary to polio of the right lower extremity and back and scoliosis is remanded. The Veteran seeks service connection for right leg and lower back conditions as directly attributable to his in-service duties. During a September 2021 Board hearing, the Veteran testified that he had polio as a child. During his period of active service, the Veteran asserts that he was denied access to medical treatment for lower back and leg conditions until he passed out and was hospitalized. Therein, a clinician noted that one of the Veteran's leg was significantly smaller than the other, which ultimately resulted in his discharge from service. This incident occurred between December 28, 1957, and January 2, 1958. The Veteran contends that he did not have any lower back conditions prior to enlistment into active service and he was able to participate in all basic training exercises. Additionally, the Veteran provided an article indicating that strenuous exercise causes people who had previously had polio to become weaker and predisposes them to injury. 09/22/2021, Hearing Transcript; 09/22/2021, Correspondence. VA law provides that a veteran is presumed to be in sound condition, except for defects, infirmities, or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C. § 1111. The presumption of soundness attaches only where there has been an induction examination during which the disability about which the veteran later complains was not detected. Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). Here, the Veteran's entrance examination is missing from the record. As such, there's no evidence of lower back or lower extremity conditions being identified at the entrance examination. This suggests that the presumption of soundness may not be rebuttable. In addition, in September 2016 and December 2019 medical opinions, the Veteran's treating clinician opined that the physical labor during the Veteran's period of active duty resulted in progressive, chronic, and incapacitating lower back pain. 11/28/2016, Medical Treatment Record Non-Government Facility; 01/02/2020, Medical Treatment Record Non-Government Facility. Upon review of the record as noted above, the Board finds that the Veteran is to be afforded a VA examination to determine the nature and etiology of his right leg and lower back conditions. This matter is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. Additionally, request the Veteran to submit any relevant private treatment reports or provide VA with authorization to obtain any such records. 2. Attempt to obtain any outstanding service treatment records from the Veteran's active service period, to include the entrance examination. Additionally, if needed, request any in-service hospitalization records. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran and his representative must be notified of the attempts made and why further attempts would be futile and allowed the opportunity to provide such records as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. After completing directives # 1 and 2, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any right leg and lower back conditions. The examiner is asked the review the claims file to become familiar with the relevant medical history related to the Veteran's low back pain, to include obtaining a full history from the Veteran. Please complete the functional impact section of the report. Further, as needed, conducted diagnostic testing. The examiner is to address: (a.) For any current diagnosis of a right leg and/or lower back condition, is it at least as likely as note related to an event, disease, or injury in service? **The examiner is to specifically address the Veteran's contention that strenuous activity during his period of active service caused him to become to become weaker and more predisposed to injury due to his childhood polio. The examiner must specifically consider any medical treatises and/or articles submitted by the Veteran. See 09/22/2021, Correspondence. Additionally, the examiner must specifically consider the medical opinions of the Veteran's treating clinician. See 11/28/2016, Medical Treatment Record Non-Government Facility; see also 01/02/2020, Medical Treatment Record Non-Government Facility.** The examiner is asked to provide a comprehensive rationale for any opinion offered. The examiner must consider lay reports from the Veteran. If the examiner cannot offer an opinion without resort to speculation, he or she should explain why and state what additional evidence, if any, would be required to offer an opinion. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David Han 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.