Citation Nr: 21074878 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-33 537 DATE: December 16, 2021 ORDER The application to reopen the claim of entitlement to service connection for a back disability is granted. The application to reopen the claim of entitlement to service connection for a swollen right leg disability is granted. The application to reopen the claim of entitlement to service connection for a swollen left leg disability is granted. Entitlement to service connection for a back disability is granted. REMANDED Entitlement to service connection for a swollen right leg disability is remanded. Entitlement to service connection for a swollen left leg disability is remanded. FINDINGS OF FACT 1. The evidence received since the final March 1983 RO decision relates to an unestablished fact necessary to substantiate the claims of service connection for a back disability and raises a reasonable possibility of substantiating the claim. 2. The evidence received since the final August 2011 RO decision relates to an unestablished fact necessary to substantiate the claims of service connection for right and left swollen leg disabilities and raises a reasonable possibility of substantiating the claims. 3. Resolving doubt in favor of the Veteran, the Veteran's back disability is related to his active service. CONCLUSIONS OF LAW 1. As additional evidence received since the prior March 1983 denial is new and material, the criteria for reopening the claim for service connection for a back disability are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. As additional evidence received since the prior August 2011 denial is new and material, the criteria for reopening the claim for service connection for a swollen right leg disability are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. As additional evidence received since the prior August 2011 denial is new and material, the criteria for reopening the claim for service connection for a swollen left leg disability are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The criteria for service connection for a back disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1971 to September 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely appealed that decision. In August 2021, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. In December 2021, the Board granted a motion to advance this case on the docket due to financial hardship. New and Material Evidence Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 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). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purposes of establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Petition to reopen service connection claims for a back disability The Veteran's claims for service connection for a back disability were previously considered and denied in a March 1983 rating decision because the RO found that although his service treatment records (STRs) documented back pain in service, his back condition was "acute and transitory" as his separation examination did not evidence any back abnormalities. Although notified of the March 1983 denial in a respective letter dated that same month, the Veteran did not initiate an appeal with respect to his back claim. See 38 C.F.R. §§ 20.200, 20.201. Moreover, no new and material evidence was received within the one-year appeal period from the date of the notice of the denial of the claim, and no additional service records (warranting reconsideration of the claim) have been received at any time. See 38 C.F.R. § 3.156(b), (c). Therefore, the March 1983 denial of the respective claim is final as to the respective evidence then of record and are not subject to revision on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. However, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The applicable regulation defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as 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 of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. This analysis is undertaken by comparing the newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). Where VA has previously denied a claim because one element of service connection is missing, the case must be reopened when evidence potentially fulfilling the missing element is submitted. See Molloy v. Brown, 9 Vet. App. 513 (1996). Further, the United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, viewing the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court has emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Id. New evidence pertinent to this claim includes the Veteran's lay assertions. Specifically, at the August 2021 Board hearing, the Veteran testified that his current back pain began in service when he was deployed to Germany and had a fall in a Gama Goat military, and his back got hit by a trailer hitch (as documented in an October 1972 STR) but contended that the back pain issues never resolved and have persisted since service discharge. In particular, the Veteran testified that he received Tylenol, which did not remedy his back pain, but he did not complain as he did not want his back issues to prevent him from continuing his military service. See Board hearing transcript, pp. 3-4. Given the "low threshold" standard of Shade, and presuming the credibility of the evidence, the Board finds that the additional evidence received since the prior March 1983 denial is new and material within the meaning of 38 C.F.R. § 3.156(a), warranting reopening of service connection claim for a back disability. Under these circumstances, the Board concludes that the criteria for reopening the claim for service connection for a back disability are met. 2. Petition to reopen the service connection claims for bilateral swollen legs Regarding the Veteran's petition to reopen his claims for right and left swollen legs disabilities, the Board notes that the claims were previously considered and denied in an August 2011 rating decision, because his STRs did not contain any complaints, treatment, or diagnoses of any swollen leg issues. The Veteran was notified of the RO's August 2011 decision, he did not appeal the decision within one year of its issuance, and new and material evidence was not received within that year. Therefore, the August 2011 decision became final. See 38 U.S.C. § 7105 (c); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 19.52(a), 20.1103. However, new evidence pertinent to his bilateral swollen leg claims include the Veteran's lay assertions. Specifically, at the August 2021 Board hearing, the Veteran testified that his bilateral swollen legs are caused by his back disability. See Board hearing transcript, pp. 6-7. The Board notes that this is a new theory of service connection entitlement, as he is claiming that his current bilateral swollen leg condition is secondary to his back disability. Thus, if the Board finds that the Veteran is entitled to service connection for his back disability, it could also adjudicate the issue of secondary service connection for his bilateral swollen legs. Given the "low threshold" standard of Shade, and presuming the credibility of the evidence, the Board finds that the additional evidence received since the prior August 2015 denial is new and material within the meaning of 38 C.F.R. § 3.156(a), warranting reopening of service connection claim for bilateral swollen legs disabilities. Under these circumstances, the Board concludes that the criteria for reopening the claims for service connection for bilateral swollen legs disabilities are met. 3. Entitlement to service connection claims for back disability Service connection is warranted for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.306. Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As noted above, STRs dated in October 1972 indicate that the Veteran had fallen off a truck and was found to have tenderness in the paravertebral spine area and a bruised back; he was prescribed heat, medication and instructed not to engage in heavy lifting for two days. STRs dated in April 1973 noted that the Veteran fell off the Gamma Goat in October 1972 and he is now complaining of intermittent back pain since the accident, which the physician indicated was low back pain. Post-service, in May 2014, Dr. P., the Veteran's VA physician submitted a letter noting that the Veteran has chronic low back pain. The Veteran underwent VA back examination in March 2015. The examiner found that the Veteran's low back condition was less likely than not related to his active service. As rationale, she stated that although the Veteran complained of low back pain in service (as documented in his STRs) it occurred over 30 years ago and he did not complaint of low back pain or seek treatment for the condition until around 2011/2012. Instead, she posited that the condition was more likely than not associated with more recent heavy lifting and a motor vehicle accident (MVA). In April 2021, the Veteran submitted a medical opinion from T.S., an advanced practice registered nurse (APRN), who opined that the Veteran's back condition was at least as likely as not related to his service. As rationale, she stated that the Veteran injured his back during service, but the Veteran continued to suffer ongoing back pain and the X-ray and MRI reports indicate degenerative changes of the lumbar spine. She further noted that degenerative disc disease (DDD) is a progressive chronic condition and "current research indicates that traumatic injuries such as the fall sustained by the [V]eteran during active service sets off a biochemical cascade that alters the structural integrity of the vertebral disc that leads to permanent dysfunction and accelerated degenerative arthritis changes." As set forth above, at his August 2021 Board hearing, the Veteran contended that his in-service back pain has persisted since service. He stated he did not go to a doctor immediately following service- and instead self-medicated with some pain pills- because "it wasn't something that [he] did"... and that he is "a workaholic" but simply could no longer tolerate the pain. See Board hearing transcript, pp. 4-5. The Board notes that the Veteran is competent to report continuous back pain during and since service, and that he is credible in his assertions. In addition, the APRN furnished a positive medical opinion. She corroborated the Veteran's reports about back pain with an underlying diagnosis of DDD. She also explained how the effects of the in-service fall can result in additional, progressive chronic lumbar spine disability. The Board attaches probative value to her April 2021 medical opinion since it includes a clear rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Although the March 2015 VA examination did not find evidence that the Veteran's current back issues are connected to service, instead attributing them to a more recent MVA and heavy lifting, the evidence is in equipoise as to whether there is a causal link between the Veteran's current back disability and his service. The benefit-of-the-doubt rule is therefore for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Resolving reasonable doubt in the Veteran's favor, the evidence supports the grant of service connection for a back disability. See 38 U.S.C. § 5107. REASONS FOR REMAND As noted above, at his Board hearing, the Veteran indicated that his current bilateral swollen legs may be related to his now service-connected back disability. VA treatment records date in December 2016 indicate that the Veteran has chronic bilateral lower leg pain. The Board notes that the Veteran has not been afforded a VA examination in conjunction with this service connection claims.VA examination is required when there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; evidence of an in-service event, injury, or disease; an indication that the current disability may be associated with the in-service event (or to an already service-connected disability); but there is insufficient evidence to decide the claim without a VA examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The issue of whether the Veteran's bilateral swollen foot condition is either caused or aggravated by his service-connected back disability has been raised by the evidence of record and should therefore be addressed in the medical opinion being obtained on remand. 38 C.F.R. § 3.159(c)(4)(i)(C) (VA examination warranted where the evidence indicates that a current disability may be associated with another service-connected disability). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his current bilateral swollen leg condition. The Veteran's entire electronic claims file must be made accessible to the designated professional for review. A detailed rationale for any opinion expressed should be provided. 2. Following the review of the claims file, the medical opinion provider is then requested to respond to the following: (a) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's right swollen leg condition is proximately due to or caused by his service-connected back disability? (b) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's right swollen leg condition has been aggravated (made worse beyond its natural progression) by his service-connected back disability? If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. (c) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's left swollen leg condition is proximately due to or caused by his service-connected back disability? (d) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's left swollen leg condition has been aggravated (made worse beyond its natural progression) by his service-connected back disability? If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. 3. When rendering the requested opinion(s), the examiner must consider the Veteran's August 2021 Board hearing testimony. The Veteran testified that his service-connected back condition may have caused his bilateral swollen leg condition. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Kovacs, 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.