Citation Nr: 21074086 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 16-60 377 DATE: December 14, 2021 ORDER New and material evidence having been received, the petition to reopen a previously denied claim for entitlement to service connection for a low back disability, claimed as chronic back pain, is granted. New and material evidence having been received, the petition to reopen a previously denied claim for entitlement to service connection for a right shoulder disability, to include a rotator cuff injury and shoulder impingement syndrome, is granted. New and material evidence having been received, the petition to reopen a previously denied claim for entitlement to service connection for a right ankle disability, to include as secondary to a hip disability, is granted. New and material evidence having been received, the petition to reopen a previously denied claim for entitlement to service connection for a left ankle disability, to include as secondary to a hip disability, is granted. Entitlement to service connection for a right shoulder disability, to include a rotator cuff injury and shoulder impingement syndrome, is denied. REMANDED Entitlement to service connection for a low back disability, claimed as chronic back pain, is remanded. Entitlement to service connection for a right ankle disability, to include as secondary to a hip disability, is remanded. Entitlement to service connection for a left ankle disability, to include as secondary to a hip disability, is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. FINDINGS OF FACT 1. The Veteran was notified on October 7, 1996, that his claims for service connection for a low back disability, right shoulder disability, and bilateral ankle disabilities had been denied. The decision then became final as neither an appeal nor new and material evidence were received within one year of the notification of the rating decision. 2. Evidence received since the denial of the claim for service connection for a low back, right shoulder, and bilateral ankle disabilities relates to a previously unestablished element of the claims. 3. The preponderance of the evidence is against finding that a right shoulder disability began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The October 1996 rating decision denying service connection for a low back, a right shoulder, and bilateral ankle disabilities is final, but new and material evidence has been received to reopen the claims. 38 U.S.C. §§ 5108; 38 C.F.R. §§ 3.104(a), 3.156, 3.160(d). 2. The criteria for service connection for a right shoulder disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 1989 until his honorable discharge in June 1996. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision of the Regional Office of the Department of Veterans Affairs (VA). In April 2015, the Veteran applied to reopen the above claims and filed for service connection for bilateral knee disabilities. In an August 2015 rating decision, the Regional Office denied his petition to reopen the low back claim. The Regional Office failed to address the petition to reopen the right shoulder claim and addressed it on the merits at that time, denying the claim for service connection. The Regional Office also reopened both ankle claims and then denied them. The bilateral knee claims were denied at that time as well. In August 2021, the Veteran testified before the undersigned at a hearing via videoconference. A transcript of his testimony has been associated with the claims file. New and Material Evidence Generally, if a claim of entitlement to 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 decision makers. 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 threshold to reopen the claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). This is a "low threshold" in which the phrase "raises a reasonable possibility" should be interpreted as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The credibility of the newly-submitted evidence is presumed, though not blindly accepted as true if patently incredible. Justus v. Principi, 3 Vet. App. 510 (1992). Unfavorable evidence that supports the prior denial of a claim cannot trigger the reopening of a claim. See Villalobos v. Principi, 3 Vet. App. 450, 452 (1992). 1. Petition to reopen a previously denied claim for entitlement to service connection for a low back disability, claimed as chronic back pain. The Veteran asserts that his low back disability was caused by physical training in service and then was injured further by a motor vehicle accident during service. See August 2021 Hearing Transcript. He first filed for service connection for a low back disability in June 1996. The claim was denied by the Regional Office in an October 1996 decision because there was no nexus between his disability and service. The Regional Office then declined to reopen the claim in an August 2015 rating decision. The October 1996 rating decision found that the Veteran's service treatment records showed an in-service injury to the back. However, the claim was denied because there was no evidence of a current disability or nexus between a current disability and service. He had also missed the scheduled VA examination. Since the opinion became final, he has had VA examinations in November 2016, March 2021, and August 2021. The August 2021 examiner identified x-rays that show degenerative disc disease of the spine and the March 2021 examiner diagnosed him with a lumbar strain. Abnormal range of motion evidence was also present. This evidence is both new and material and raises a reasonable possibility of substantiating the claim. New and material evidence in the form of the examinations and his Board hearing testimony have been associated with the file. He testified that he injured his back with three different injuries to the low back, the first while "running PT" in 1990, the second in a motor vehicle accident in 1994, and the third while working in the private sector after service in 2010 or 2011. See August 2021 Hearing Testimony. This evidence is both new and material. As such, the Board will reopen his claim. 2. Petition to reopen a previously denied claim for entitlement to service connection for a right shoulder disability. The Veteran asserts that his right shoulder was injured while playing softball in service which has caused chronic pain since then. See August 2021 Hearing Transcript. He first filed for service connection for a right shoulder disability in June 1996. The claim was denied by the Regional Office in an October 1996 decision because there was no current disability. The Regional Office then failed to address whether the claim was reopened in the August 2015 rating decision and addressed the merits of the claim. This is an implied grant to reopen the claim as the Regional Office addressed the merits of the claim for service connection which would only be done if the claim was reopened. The October 1996 rating decision found that the Veteran's service treatment records showed an in-service injury to the right shoulder. However, the claim was denied because there was no evidence of a current disability or nexus between a current disability and service. He had also missed the scheduled VA examination. Since the opinion became final, he has had a VA examination in July 2015. The examiner noted that he had shoulder impingement syndrome, pain with overhead activity, Hawkins impingement syndrome, and evidence of a mild rotator cuff impingement. This is new and material evidence of a current diagnosis. New and material evidence in the form of the examination and his Board hearing testimony has been associated with the file. He testified that he had pain in his shoulder, that he did not seek treatment as he had more severe disabilities, and that he has never injured his shoulder outside of service. As such, the Board will reopen his claim. 3. Petition to reopen a previously denied claim for entitlement to service connection for a right ankle disability. 4. Petition to reopen a previously denied claim for entitlement to service connection for a left ankle disability. Due to the similar dispositions for the above claims on appeal, the Board will address them in a common discussion below. The Veteran asserts that his ankles were injured as a result of his service-connected bilateral hip disability that caused gait issues. See August 2021 Hearing Transcript. He first filed for service connection for bilateral ankle disabilities in June 1996. The claims were denied by the Regional Office in an October 1996 decision because there was no current disability. The Regional Office then reopened the claims in the August 2015 rating decision. The October 1996 rating decision found that the Veteran's service treatment records showed separate in-service injuries to the right and left ankles. However, the claim was denied because there was no evidence of a current disability or nexus between a current disability and service. He had also missed the scheduled VA examination. Since the decision became final, he has had a VA examination in July 2015 and asserted that his ankle disabilities were caused by service-connected hip disabilities which has not been addressed. At his August 2021 hearing he asserted that he developed his bilateral ankle disabilities secondary to his service-connected hip disabilities. He reported at the hearing that his doctors told him that his ankle disabilities were a result of his hip disabilities. This theory of entitlement, and the evidence presented by the Veteran, have not been addressed by VA. New and material evidence in the form of the examination and his Board hearing testimony have been associated with the file and so the Board will reopen his claim. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that 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). Generally, service connection may be granted 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(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service the so-called "nexus" requirement. Holton v Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially 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). Furthermore, in deciding whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (2014); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. Id. 5. Entitlement to service connection for a right shoulder disability, to include a rotator cuff injury and shoulder impingement syndrome. The Veteran first filed a claim for entitlement to service connection in June 1996 asserting that he had a rotator cuff tear. The subsequent rating decision in October 1996 denied his claim. The Regional Office had concluded that his right acromioclavicular separation in May 1993 and the pain and tendonitis that followed were not chronic and were not related to a current disability. Following his petition to reopen, he then asserted at the August 2021 hearing that he has shoulder impingement syndrome of the right shoulder. He reported that he had pain with overhead activity and right arm weight bearing at the July 2015 VA examination. He asserts that this injury occurred in service while playing softball. The July 2015 VA examination diagnosed the Veteran with shoulder impingement syndrome which manifested as right shoulder pain. A rotator cuff disability was suspected as the Hawkins' impingement test was positive and he had "signs of mild rotator cuff impingement." See July 2015 VA Examination. As such, the first element of service connection has been met. The Veteran was diagnosed with right shoulder tendonitis in August 1993 after he injured his right shoulder playing softball in May 1993. See Service Treatment Records. As a result, he has met the second element of service connection. Unfortunately, there is no nexus between the Veteran's right shoulder disability and service. The July 2015 VA examiner concluded that his "[mild rotator cuff impingement] is not typically associated with a specific trauma" and that "his pain is likely related to recent overuse and has persisted due to lack of directed treatment." The Veteran testified at his August 2021 hearing that he had shoulder impingement syndrome and he denied having shoulder trauma outside of his softball injury during service at his July 2015 VA examination. He also had x-rays taken for his July 2015 VA examination that appeared normal with no significant degenerative change. Shoulder instability, dislocation, or labral pathology was not suspected. Furthermore, he received treatment for tendonitis in the right shoulder from May 1993 until September 1994 and there is no further documentation of follow up treatment in service. The July 2015 VA examiner also concluded that his current disability was not due to a traumatic event. He later sought treatment for lower back pain without seeking treatment for his right shoulder pain. He reported back pain but did not report right shoulder issues at that time or during physical therapy treatments in service. See January 1995 Service Treatment Records. His separation examination lists rotator cuff as an injury playing softball, but not that he had a current complaint of shoulder pain. The examiner reported that the Veteran was in "good health." The Veteran testified that he has continued to have pain since service and that he did not get treatment for his shoulder disability because he had more severe health issues to address. This assertion was addressed by the July 2015 examiner. The examiner stated that the Veteran had reported having right shoulder pain since service but that he did not have a formal workup or directed conservative management of the pain. The examiner then went on to conclude that his pain was due to recent overuse and not from his in-service injury or a traumatic injury. As such, his claim for service connection for a right shoulder disability is denied. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a low back disability, claimed as chronic back pain. The Veteran asserts that he had three different injuries to the low back, the first while "running PT" in 1990, the second in a motor vehicle accident in 1994, and the third while working in the private sector after service in 2010 or 2011. See August 2021 Hearing Testimony. The Board finds that a medical opinion addressing the likely etiology is required. The etiology of his current back disability symptoms has not been reviewed by a VA examiner in this context. He previously had VA examinations in November 2016, March 2021, August 2021, and November 2021, but none of the examinations addressed the assertions he made at his Board hearing that his current disability was a result of multiple injuries in service. 2. Entitlement to service connection for a right ankle disability, to include as secondary to a hip disability. 3. Entitlement to service connection for a left ankle disability, to include as secondary to a hip disability. Due to the similar dispositions for the above claims on appeal, the Board will address them in a common discussion below. The Veteran asserts that he has bilateral ankle disabilities due to his service-connected hip disabilities which caused him to have an abnormal gait. See August 2021 Hearing Transcript. His original assertion was that arthritis caused by an in-service injury caused his bilateral ankle disability. He had a VA examination in July 2015 for his ankle disabilities that stated, "his mild bilateral lower extremity edema is not related to an orthopedic condition but rather is physiologic swelling due to venous pooling or possibly to a mild cardiovascular insufficiency." However, this examination failed to address the Veteran's claims that his hip disability caused or aggravated his ankle disability. As such, his claim must be remanded. 4. Entitlement to service connection for a right knee disability. 5. Entitlement to service connection for a left knee disability. Due to the similar dispositions for the above claims on appeal, the Board will address them in a common discussion below. The Veteran asserts that he has a bilateral knee disability due to his service-connected hip disabilities which caused him to have an abnormal gait. See August 2021 Hearing Transcript. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA's duty to assist includes providing a medical examination when one is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Regional Office did not provide the Veteran with an examination. Such development 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 diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, has a presumptive disease during the pertinent presumptive period, or is service-connected for a disability that may have caused or aggravated the Veteran's disability; and (3) indicates that the claimed disability may be associated with the in-service event, injury, disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). The Veteran reported "significant pain" in his knees to VA treating physicians. See June 2021 VA Treatment Record. He further reported radiating pain from his back to his knee and foot and that both knees occasionally buckle. Furthermore, range of motion of the knees was limited due to pain. See June 2015 VA Treatment Record. He asserts that his knee pain is caused by his service-connected hip disability. As a result of this evidence along with the Veteran's assertions, the Regional Office has a duty to provide him with a VA examination for his knees. The matters are REMANDED for the following action: 1. After any additional records are associated with the claims file, obtain a new examination regarding the nature and etiology of the Veteran's low back disability from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent probability or greater) that the low back disability had its onset in or is otherwise related to active service. The examiner must specifically address the following: (a.) Whether he has a back disability to the L3 and L4 levels and also at the L5 and S1 levels, and whether either disability is related to service. (b.) The Veteran's assertions made during his hearing that his back disability was possibly caused by two separate injuries: the first while "running PT" in 1990 and the second in a motor vehicle accident in 1994. See August 2021 Hearing Testimony. 2. Obtain a new examination regarding the nature and etiology of the Veteran's bilateral ankle disability from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent probability or greater) that the bilateral ankle disability had its onset in or is otherwise related to active service. The examiner must specifically address the following: (a.) Whether there is a current diagnosis of a right and/or left ankle disability? The Board points the examiner to the January 1987 sprained ankle, the October 1993 twisted ankle, and the September 1994 motor vehicle accident that caused a "limping gait." See Service Treatment Records. (b.) Whether any ankle disability was (1) caused by or (2) aggravated by the Veteran's service-connected hip disabilities? 3. Obtain a new examination regarding the nature and etiology of the Veteran's bilateral knee disability from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent probability or greater) that the bilateral ankle disability had its onset in or is otherwise related to active service. The examiner must specifically address the following: (a.) Whether there is a current diagnosis for any current right and/or left knee disability? (b.) Whether any knee disability was (1) caused by or (2) aggravated by the Veteran's hip disabilities? (c.) Whether it is at least as likely as not (50 percent probability or greater) a September 1994 motor vehicle accident where he had a "limping gait" in service afterwards caused a right or left knee disability? (Continued on the next page) 4. After, readjudicate the Veteran's claim. If the claim remains denied, send the Veteran and his representative a supplemental statement of the case (SSOC), and allow them an appropriate time to respond before returning the issue to the Board for further appellate consideration. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Johnston, 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.