Citation Nr: 21071469 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-03 354 DATE: November 30, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for a back disability is reopened is granted. Entitlement to service connection for a back disability is granted. Entitlement to service connection for a right knee disability, to include as secondary to a service-connected disability is granted. Entitlement to service connection for a left knee disability, to include as secondary to a service-connected disability is granted. REMANDED Entitlement to an increased rating for a left hip disability is remanded. FINDINGS OF FACT 1. In a final December 2004 rating decision, the RO denied the Veteran's claim for entitlement to service connection for a back disability. 2. The evidence received since the December 2004 rating decision is not cumulative or redundant of evidence previously of record and relates to unestablished facts necessary to substantiate the claims for service connection for a back disability. 3. Resolving doubt in the Veteran's favor, his back disability is proximately due to his service-connected left hip disability. 4. Resolving doubt in the Veteran's favor, his right and left knee disabilities are proximately due to the Veteran's service-connected left hip disability. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim for service connection for a back disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for a back disability as secondary to a service-connected left hip disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for entitlement to service connection for right and left knee disabilities, to include as secondary to a service-connected left hip disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from September 2000 to August 2004. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2021, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is available in the record. As an initial matter, the Board notes the claims for denying reopening the claim of entitlement to service connection for a back disability and denying entitlement to service connection for a back, right knee, and left knee disability were denied in a March 2013 rating decision. The Veteran indicated in his Notice of Disagreement that he wished to appeal the March 2013 denial of these issues. However, a Statement of the Case was never issued as to these claims. At the November 2021 Board hearing and on the record, the Veteran waived his right to a Statement of the Case as to these issues. As such, the Board assumes jurisdiction and will address these issues below. 1. New and material evidence having been received, the claim for entitlement to service connection for a back disability is reopened. Generally, if a claim for service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. "New" evidence is defined as existing evidence not previously submitted to agency decisionmakers. "Material" evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The Court interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Despite the determination reached by the RO, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In an unappealed December 2004 rating decision, the RO denied service connection for a back disability because there was no evidence of a diagnosed disorder. The Veteran was notified of the rating decision but did not appeal it. As such, the December 2004 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The evidence received since the December 2004 decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. The medical evidence reflects a diagnosis and treatment for a back disability. In November 2021, the Veteran provided testimony regarding the onset of his claimed back disability. The credibility of this evidence is presumed for purposes of reopening the claims. See Justus, 3 Vet. App. at 513. Accordingly, the claim is reopened. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307 (a). When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). To be "shown in service," the disease identity must be established, and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303 (b). There is no "nexus" requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. Service connection may also be granted on a secondary basis for a condition that is not directly caused by the Veteran's service. 38 C.F.R. § 3.310. In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be proximately due to the service-connected disability or disabilities. Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition. See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Entitlement to service connection for a back disability The Veteran seeks service connection for a back disability, to include as secondary to his service-connected left hip disability. A February 2013 VA treatment record noted a diagnosis of mild chronic left L5-S1 radiculopathy with subtle signs of denervation. Service treatment records note the Veteran complaining of back pain. See April and June 2004 Service Treatment Records. An in-service diagnosis of sacroiliitis and a back strain was given in service. Id. At the November 2021 Board hearing, the Veteran testified that he has continuously had back pain since service. Importantly, the Veteran is competent to report he has experienced back pain since the documented in-service injury, and the Board finds his statements are credible as they are supported by his available service treatment records and post-service treatment records as described above. 38 C.F.R. § 3.303; Walker, 708 F.3d 1331. The Board acknowledges that there are no supporting medical opinions specific to the claim, but the Veteran's post-service treatment records show he consistently reported his back pain began years earlier, even when he complained of back pain to VA treatment providers. These treatment records corroborate the Veteran's assertion that he experienced ongoing back pain since service. As such, the Board will resolve doubt in the Veteran's favor and find entitlement to service connection for a back disability is warranted. 3. Entitlement to service connection for a right knee disability, to include as secondary to a service-connected disability 4. Entitlement to service connection for a left knee disability, to include as secondary to a service-connected disability The Veteran seeks service connection for a bilateral knee disability he contends was caused by his service-connected left hip disability. The Veteran has a current diagnosis of bilateral knee pain. See January 2013 VA Examination. Pain without an accompanying diagnosis can constitute a disability. Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018). However, as explained in Saunders, a subjective assertion of pain alone does not establish a disability, and "[t]o establish the presence of a disability, a veteran will need to show that [his or] her pain reaches the level of a functional impairment of earning capacity." Id. at 1368-69. In this case, the VA examiner noted the Veteran's pain causes functional impairment and functional loss of his knees that impacts his ability to work. As such, the Board finds a current bilateral knee diagnosis is warranted. The Veteran underwent a VA examination for his knees in January 2013. The VA examiner opined it was less likely than not that the Veteran's bilateral knee disability was due to his service-connected hip disability. In contrast, the August 2016 VA examiner noted when the Veteran has hip pain, he also has knee pain. He also noted that when the Veteran bends his knees, pain from his hip radiates down to his knees. After a review of the evidence of record, the Board finds the evidence is at least in equipoise as to whether the Veteran's bilateral knee disability is caused by his service-connected left hip disability. As a result, the Board will resolve any doubt in favor of the Veteran and finds entitlement to service connection for a bilateral knee disability due to the Veteran's service-connected left hip disability is warranted. REASONS FOR REMAND 1. Entitlement to an increased rating for a left hip disability is remanded. The Board regrets the delay, however a remand for a new examination is warranted. In this case, a VA examination of the Veteran's left hip was last conducted in August 2016. Since that examination, the Veteran has asserted that his left hip disability has worsened in severity since his last examination. See November 2021 Board Hearing Transcript. As there is evidence of a worsening of the disability since the last VA examination, the claim must be remanded for a new examination to determine the current severity of the disability. 38 C.F.R. § 3.159; see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). In addition, at the November 2021 hearing, the Veteran testified that he was having mechanical difficulty with his left leg as a result of his left hip disability. Upon remand, the VA examiner should also perform a hip and thigh examination. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of his service-connected left hip disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner is asked to specifically perform a hip and thigh examination in addition to any peripheral nerve condition examination. As this case is Advanced on Docket and the Veteran is severely ill, the Board asks that the left hip and rating examinations in this case be scheduled as expeditiously as possible. 2. After completion of the aforementioned, the agency of original jurisdiction (AOJ) should readjudicate the Veteran's claim. If the benefit sought on appeal is not granted, then the AOJ should provide the Veteran with a supplemental statement of the case and afford him the appropriate opportunity to respond thereto. 3. Thereafter, the case must be returned to the Board for further appellate review. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Holcombe, 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.