Citation Nr: 21075375 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 16-63 658 DATE: December 20, 2021 ORDER New and material evidence having been received, the previously denied claim for entitlement to service connection for a back disability is reopened. New and material evidence having been received, the previously denied claim for entitlement to service connection for a left shoulder disability is reopened. Entitlement to service connection for a back disability is granted. Entitlement to service connection for bilateral lower extremity radiculopathy is granted. REMANDED Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD), depression, and anxiety, is remanded. Entitlement to special monthly compensation (SMC), based on the need for regular aid and attendance or by reason of being housebound, is remanded. FINDINGS OF FACT 1. In a February 1998 rating decision, the agency of original jurisdiction (AOJ) denied the Veteran's service connection claim for a left shoulder disability and a back disability. The Veteran did not file a timely substantive appeal, and no new and material evidence was received prior to the expiration of the appeal period. 2. Evidence received since the February 1998 decision relates to an unestablished fact necessary to substantiate the Veteran's service connection claims for his left shoulder and his back disabilities. 3. The Veteran's back disability was at least as likely as not incurred during service. 4. The Veteran's bilateral lower extremity radiculopathy was at least as likely as not incurred during service. CONCLUSIONS OF LAW 1. The evidence received since the February 1998 rating decision is new and material, and the claim of entitlement to service connection for back and left shoulder disabilities are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for a lumbar disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for bilateral lower extremity radiculopathy are 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 had active service in the U.S. Army from January 1971 to November 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from June 2013 and August 2014 ratings decisions issued by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in August 2021. A transcript of that proceeding is associated with the claims file. I. Duty to Assist The Veteran was notified that numerous attempts had been made to locate his service treatment records (STRs), but they could not be found. The AOJ indicated that all efforts to obtain the information had been exhausted and that further attempts to obtain the records would be futile. When service treatment records are unavailable through no fault of a veteran, there is a heightened obligation on the part of VA to assist the claimant in the development of his case, explain findings and conclusions, and to carefully consider the benefit of the doubt rule. Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis of the Veteran's claims has been undertaken with these heightened duties in mind. II. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a back disability and a left shoulder disability. The Veteran's service connection claims for a back disability and left shoulder disability were initially denied in February 1998. The Veteran did not submit a timely substantive appeal in response to this decision, and no new and material evidence was received prior to the expiration of the appeal period. Accordingly, the February 1998 rating decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103. Although a decision is final, a claim will be reopened if new and material evidence is presented. 38 U.S.C. § 5108. New and material evidence can be neither cumulative, nor redundant, of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. New evidence means existing evidence not previously submitted to VA. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence need not relate specifically to the reason as to why the claim was last denied. Rather, it need only relate to any unestablished fact necessary to substantiate the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Additionally, the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Id. at 117. Reopening is required when the newly submitted evidence, combined with VA assistance, and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. at 117. In the February 1998 rating decision, the AOJ denied the Veteran's claims because his STRs could not be located, and the Veteran did not submit to a VA examination or provide any additional evidence to support his claims. In connection with his request to reopen his claim in 2013, VA treatment records were associated with the claims file that document the Veteran's reports of injuring himself from a fall during service in 1971. These records also document current disabilities involving the back and the left shoulder. This evidence is new and material as it is not cumulative or redundant of the previous evidence of record, it relates to the previously unestablished fact of the Veteran's service connection claims for left shoulder and back disabilities, and it raises the reasonable possibility of substantiating the claims. Therefore, the Board finds that new and material evidence has been submitted, and the claims are reopened. 38 C.F.R. § 3.156 (a). III. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 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, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Service connection may also be granted for any disease initially diagnosed after service 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). Service connection must be considered on the basis of the places, types, and circumstances of his service as shown by his service records, the official history of each organization in which he or she served, his or her medical records, and all pertinent medical and lay evidence. See 38 C.F.R. § 3.303 (a); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) and Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). 1. Entitlement to service connection for a lumbar disability 2. Entitlement to service connection for bilateral lower extremity radiculopathy The Veteran maintains that his lumbar disability arose from an injury he sustained during service. The Board agrees and finds that a preponderance of the evidence supports a finding that the Veteran's lumbar disability and associated bilateral lower extremity radiculopathy are directly related to service. With respect to current disability, treating records document consistent care for lumbar pain radiating into the Veteran's legs. Magnetic resonance imaging (MRI) performed in March 2012 revealed the presence of diffuse degenerative disc disease with significant stenosis at L4-L5 due to a herniated disc and bilateral facet hypertrophy. In September 2012, a private physician confirmed that the Veteran continues to experience low back pain with functional loss and radiculopathy in the bilateral lower extremities. Accordingly, current disabilities have been established. With respect to in-service incurrence, the Veteran testified that he fell during a training exercise at Fort Dix, New Jersey in February 1971. He indicated that the exercise involved running up and down stairs, and as a better recruit, he was in the lead. He elaborated that there were over 100 recruits running fast behind him and they knocked him over a railing down one or two floors. He further testified that he landed on his shoulders and back and then he was trampled on by the recruits who could not stop because there were too many of them. He indicated that he was hospitalized for two days in and Army hospital and his drill instructor convinced him to leave and return to basic training. However, he reported that he was hospitalized again after basic training for two weeks and was put in traction to treat his condition. Consistent with these reports, the Veteran's mother submitted a statement in which she indicated that Veteran returned from basic training with a slight limp, and he told her that it was caused by a fall during a training exercise. She also indicated that she visited the Veteran when he was put in traction at the hospital to treat his ongoing back pain. Additionally, a friend of the Veteran's submitted a statement in which he indicated that the Veteran reported on many occasions that he hurt his back during the training exercise in service. The Board notes that the Veteran, his mother, and his friend are competent to report symptoms and observable events within the realm of their personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470-471 (1994); Jandreau, 492 F.3d at 1377. Furthermore, the Board finds no reason to doubt the credibility of these statements. The Veteran has been reporting that his back pain began with this accident in treating visits since 1996. Accordingly, the Board finds that these competent and credible lay statements sufficiently establish the in-service incurrence element of this claim. The remaining question is whether there is a nexus between the Veteran's in-service incurrence and his current lumbar disability with radiculopathy. The record contains a highly probative, positive opinion addressing this question. In September 2015, a private physician concluded that the Veteran's lumbar disability and bilateral lower extremity radiculopathy is most likely related to the fall the Veteran sustained during basic training in 1971. He elaborated that he has a high degree of certainty that this in-service injury caused the Veteran's back conditions and bilateral lower extremity radiculopathy. This opinion is thorough and supported by a complete rationale. It is based on a review of the Veteran's medical record and a full examination of the Veteran. Accordingly, the Board finds that it is highly probative and affords it significant weight. In addition to this evidence, the Veteran has consistently reported that his back pain has persisted since sustaining injuries from the fall during service in 1971. The Board notes that the Veteran is competent to report the onset and continuity of his symptoms and the Board finds no reason to doubt the credibility of these statements. 38 C.F.R. § 3.303(a); see also Jandreau, 492 F.3d at 1377. Treating records dating back as far as 1996 reveal that the Veteran has reported that his back pain has persisted since his fall during service. Furthermore, the statements submitted by the Veteran's mother and friend corroborate the Veteran's reports of continuity of symptoms since service. Based on the foregoing, the Board finds that the most probative evidence of record, the private positive nexus opinion and the lay statements submitted by the Veteran, his mother, and his friend, demonstrate that the criteria for service connection for a lumbar disability and bilateral lower extremity radiculopathy have been met. Accordingly, service connection is granted. REASONS FOR REMAND 1. Entitlement to service connection for a left shoulder disability is remanded. 2. Entitlement to service connection for a right shoulder disability is remanded. 3. Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD), depression, and anxiety, is remanded. The Veteran has not been afforded a VA medical examination in connection with his service connection claims for a left shoulder disability, right shoulder disability, and psychiatric disability. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159(c)(4). An examination or opinion is necessary if the evidence of record (1) contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of a disability; (2) establishes that the claimant suffered an event, injury, or disease in service, or has a presumptive disease or symptoms of such a disease manifesting during an applicable presumptive period; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service, or with another service-connected disability; but (4) does not contain sufficient competent medical evidence to decide the claim. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing the four elements to consider in determining whether a VA medical examination must be provided). The Veteran maintains that his shoulder and psychiatric disabilities stem from the fall that occurred during basic training in 1971 and have persisted since this time. As noted, the Veteran reported that he landed on his back and shoulders and was trampled by the recruits running behind him who could not stop because there were so many of them. He testified that he thought his head was going to bust wide open and he began having psychiatric symptoms after the fall. In particular, he testified that he has flashbacks daily about going over the banister, as well as intrusive thoughts about his head splattering on concrete. He also testified that he has a fear of ledges. In addition to the Veteran's reports, treating records document care for bilateral shoulder pain. These records reveal that the Veteran was diagnosed with degenerative joint disease of the right shoulder in 2012 and document reports from the Veteran that his pain stemmed from an in-service injury in 1971. These records also document a diagnosis of a displaced fracture mid/distal clavicle of the left shoulder. Additionally, treating records reveal that the Veteran received mental health treatment for PTSD, depression, anxiety, and alcohol use disorder with complaints of irritability, flashbacks, and nightmares. As the Veteran is competent to report the onset and continuity of his symptoms and given that the Veteran has current diagnoses for his shoulder and psychiatric disabilities, VA examinations are warranted to determine the nature, onset, and etiology of these conditions. See Layno, 6 Vet. App. at 470; see also Jandreau, 492 F.3d at 1377, see also McLendon v. Nicholson, 20 Vet. App. 79, 81-22 (2006). 4. Entitlement to SMC based on the need for regular aid and attendance or by reason of being housebound is remanded. In October 2013, the Veteran submitted a completed VA Form 21-2680 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance. This examination suggests that the Veteran's need for aid and attendance is, at least in part, due to his service-connected back disability and lower extremity radiculopathy, as well as his shoulder disability, PTSD, anxiety, and depression. As this examination was done over eight years ago, a VA examination is necessary to establish the Veteran's current need and whether this need is related to his service-connected disabilities. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). Therefore, the Board must remand this matter to afford the Veteran an opportunity to undergo a VA examination. The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran's claims file any outstanding VA treatment records. 2. Schedule the Veteran for VA examinations to determine the nature, onset, and etiology of his left shoulder disability, right shoulder disability, and psychiatric disability. The claims file and a copy of this remand must be made available to the examiners, and the examiners should indicate in the report that the claims file was reviewed. The Veteran is competent to attest to observable events and symptomatology and that such reports must be acknowledged and considered in formulating any opinions. If the Veteran's reports are discounted, the examiners should provide a reason for doing so. The examiners should provide an opinion as to the following: (a) SHOULDER DISABILITIES: (i) Whether it is at least as likely as not (50 percent probability or better) that the Veteran's right shoulder disability is etiologically related to service, to include injuries sustained from the fall during a training exercise in 1971. (ii) Whether it is at least as likely as not (50 percent probability or better) that the Veteran's left shoulder disability is etiologically related to service, to include injuries sustained from the fall during a training exercise in 1971. *The Board finds that the Veteran's claimed in-service fall during basic training did in fact occur and the examiner must consider this fall in formulating an opinion. * The examiner must also consider the Veteran's statements that his symptoms of shoulder pain have persisted since the fall, which includes statements made during the course of treatment in 2012 that he has had shoulder pain since 1971. (b) PSYCHIATRIC DISABILITY: (i) The examiner is asked to indicate whether the Veteran has a current diagnosis for PTSD in accordance with the DSM-5. (ii) The examiner is also asked to identify any other psychological diagnoses supported by the record. * The Board finds that the Veteran's fall during basic training is a verified in-service stressor and the examiner must consider this stressor in formulating an opinion. * The examiner must also consider the Veteran's diagnoses on record of PTSD, depression, anxiety, and alcohol use disorder in formulating an opinion. A thorough rationale is required for all conclusions. 3. After completing the preceding development, schedule the Veteran for a VA examination to determine whether he needs regular aid and attendance or is housebound. The claims file and a copy of this remand must be made available to the examiner, and the examiner should indicate in the report that the claims file was reviewed. The examiners should provide an opinion as to the following: (i) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran has a permanent need for regular aid and attendance due to his service-connected disabilities. (ii) Whether, as a result of the service-connected disabilities, the Veteran requires assistance on a regular basis for the following activities: dressing or undressing himself, or keeping himself ordinarily clean and presentable; adjusting frequently any special prosthetic or orthopedic appliances; feeding himself due to loss of coordination of upper extremities or through extreme weakness; attending to the wants of nature; or to protecting himself from the hazards or dangers incident to his daily environment. All functional impairments caused by the service-connected disabilities should be set out. (iii) Whether the Veteran is housebound, due to his service-connected disorders. The examiner should specifically determine whether the Veteran is substantially confined to his dwelling or the immediate premises as a direct result of his service-connected disabilities. 4. After completing the preceding development, the AOJ should re-adjudicate the claims. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Beech, 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.