Citation Nr: 21007758 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 17-38 437 DATE: February 10, 2021 ORDER New and material evidence has been received to reopen a claim for entitlement to service connection for a back condition. New and material evidence has been received to reopen a claim for entitlement to service connection for a respiratory condition. REMANDED Entitlement to service connection for a back condition is remanded. Entitlement to service connection for a respiratory condition is remanded. FINDINGS OF FACT 1. In February 2013, the VA denied entitlement to service connection for a claimed back condition; the Veteran did not appeal this decision and new and material evidence was not received within the one-year appeal period. 2. New evidence received since the February 2013 rating decision relates to an unestablished fact and raises a reasonable possibility of sustaining a claim of entitlement to service connection for the claimed back condition. 3. In February 2013, the VA denied entitlement to service connection for a claimed respiratory condition; the Veteran did not appeal this decision and new and material evidence was not received within the one-year appeal period. 4. New evidence received since the February 2013 rating decision relates to an unestablished fact and raises a reasonable possibility of sustaining a claim of entitlement to service connection for the claimed respiratory condition. CONCLUSIONS OF LAW 1. The February 2013 rating decision that denied entitlement to service connection for a back condition is final; new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. 2. The February 2013 rating decision that denied entitlement to service connection for a respiratory condition is final; new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1962 to August 1964. This claim is before the Board of Veterans’ Appeals (Board) from an April 2015 rating decision by the Department of Veteran’s Affairs (VA) Regional Office (RO). The April 2015 rating decision declined to reopen the issues of entitlement to service connection for a back condition and a respiratory condition. The Veteran timely appealed and requested a Board hearing by live videoconference, which occurred in January 2021. The transcript has been associated with the file. New and Material Evidence A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). "New" evidence means existing evidence not previously submitted to agency decisionmakers. "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. 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. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a back condition. In a February 2013 rating decision, VA denied entitlement to service connection for a back condition, claimed as spinal deterioration, based on a finding that the record did not contain supporting credible evidence showing that “intervertebral disc syndrome of the lumbar spine with bilateral sciatic nerve involvement, status post lumbar laminectomy, degenerative joint disease of the thoracolumbar spine, were ‘clearly and unmistakably’ not aggravated or incurred in service.” The Veteran did not appeal this decision and new and material evidence was not received within the one-year appeal period. Thus, the decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In October 2014, the Veteran requested to reopen his claim. In an April 2015 rating decision, VA determined that new and material evidence had not been received to reopen a claim of service connection for a back condition. Relevant evidence added to the record since the final February 2013 rating decision includes a September 2016 VA examination, a July 2017 statement from the Veteran, and a January 2021 hearing transcript. This evidence is new as it was not previously considered. During the January 2021 hearing, the Veteran stated the September 2016 examiner was asked to determine if his scoliosis was aggravated by service. However, the Veteran asserts the twist in his back is a side effect of his third back surgery and not scoliosis. Additionally, the Veteran asserts his original back injury is a result of falling down a set of steps while in service, from being hit in the chest by a pallet while trying to stabilize cargo being lifted and removed from the ship, and from loading and carrying heavy cargo. This assertion was not previously considered by any decision maker and speaks directly to an unestablished element of the claim, an in-service occurrence or injury. This is material in that it relates to an unestablished fact and raises a reasonable possibility of substantiating the service connection claim. Moreover, new evidence will raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Shade, 24 Vet. App. at 117. Here, the new evidence has already triggered the duty to assist, resulting in the September 2016 VA examination. The Board thus reopens the Veteran’s claim of entitlement to service connection for lumbosacral strain for a de novo review on the merits. 38 U.S.C. § 5108 ; 38 C.F.R. § 3.156. Whether new and material evidence has been received to reopen a claim to service connection for a respiratory disorder. In a February 2013 rating decision, VA denied entitlement to service connection for shortness of breath due to lung calcification based on a finding that the record did not show that the Veteran had a current disability. The Veteran did not appeal this decision and new and material evidence was not received within the one-year appeal period. Thus, the decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In October 2014, the Veteran requested to reopen his claim of entitlement to service connection for a respiratory condition. In an April 2015 rating decision, VA determined that new and material evidence had not been received to reopen a claim of service connection for shortness of breath due to lung calcification (claimed as respiratory condition). Relevant evidence added to the record since the final February 2013 rating decision includes a VA treatment records, a July 2017 statement from the Veteran, and a January 2021 hearing transcript. This evidence is new as it was not previously considered. During the January 2021 hearing, the Veteran stated that he had been prescribed a steroid inhaler to aid with his “shortness of breath.” VA treatment records show a diagnosis of dyspnea (shortness of breath). This evidence speaks directly to an unestablished element of the claim: a current diagnosis. Moreover, new evidence will raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Shade, 24 Vet. App. at 117. Here, the new evidence has triggered the duty to assist, resulting in this Remand of the issue for an examination. Considering the low standard set forth in Shade, the claim is reopened. 38 C.F.R. § 3.156(a). REASONS FOR REMAND 1. Entitlement to service connection for a back condition is remanded. The Veteran underwent a VA examination in September 2016 in which the examiner concluded the claimed back condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated this was based on a gap in treatment from 1963 to 1991, shortly after the Veteran reported falling. The examiner stated the Veteran’s condition could not have begun in service due to a lack of treatment for his back, but the Board must look to continuity of symptomatology, not treatment. See 38 C.F.R. § 3.303(b). Additionally, the examiner made this assertion believing the Veteran was diagnosed with scoliosis in March 2016. However, the September 2016 examiner did not indicate the Veteran had a current scoliosis diagnosis on that examination but rather indicated the Veteran had “degenerative arthritis of the spine, spinal stenosis, spondylolisthesis, and facet pain syndrome.” The Veteran was diagnosed with “pronounced scoliosis” in February 2016 during a physical therapy examination. The physical therapist determined this diagnosis based on an exterior postural assessment and not with the aid of advanced imaging such as an x ray. However, during the January 2021 hearing, the Veteran testified the twist in his back began after his third back surgery. The Veteran stated he was then put into a back brace from neck to pelvis for six months in an attempt to correct the twist. The Veteran further states he has never had a diagnosis of scoliosis. The Veteran’s wife, who has known the Veteran since 1983, also testified that she had watched the deterioration of the Veteran’s back for “40 years.” She further stated that she “watched this process evolve” and she “could watch him begin to bend.” She testified that she observed his back pain, radicular pain, and “floppy foot” as far back as 1983. The examiner concluded that the Veteran’s back injury was a result of a fall in 1991 and a motor vehicle accident in 1999. In contrast, the Veteran testified at the hearing that he had a back disability while still in service and his injury began in service and has persisted though the present due to a fall while in service and being hit in the chest with a pallet. Specifically, the Veteran testified that he experienced “radicular pain from a back injury” while he was still in service. The Veteran is competent to report on his back pain and symptoms he has experienced since service. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Additionally, the Veteran’s wife is competent to report on the observable symptoms the Veteran is experiencing and how his symptoms have changed over the years. Id. The Board finds no reason to doubt the credibility of the Veteran or his wife in making these statements. As a result, the September 2016 VA examination and February 2016 physical therapy note are insufficient to decide the appeal as they did not consider lay evidence of onset and continuity of symptoms since service. The record does not contain a competent medical nexus opinion considering the competent and credible lay evidence. As a result, an additional examination is required. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Entitlement to service connection for a respiratory condition is remanded. During the January 2021 hearing, the Veteran asserted that his current respiratory condition is a result of being hit in the chest by a pallet while attempting to unload it from the ship. Alternatively, the Veteran attributes his respiratory condition to exposure to asbestos, chemicals, and lead paint onboard ships while in service. At the January 2021 hearing the Veteran has offered credible evidence of a symptoms of a current respiratory disability; specifically, he is prescribed an inhaler used to combat shortness of breath. Service treatment records show x-ray evidence of calcifications of the lung in service, establishing an in-service injury or disease. The Veteran’s competent and credible testimony indicates a possible nexus between the two. The Veteran has not been afforded a VA examination for his claimed respiratory condition and VA has a duty to assist him in substantiating his claim by obtaining a competent medical opinion addressing the etiology and onset of a respiratory condition. See 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 85-86 (2006). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his back condition with an appropriate clinician. The examiner must review the claims file. (a.) The examiner should confirm or deny whether the Veteran has a current scoliosis diagnosis. In doing so, the examiner should address the Veteran and his wife’s reported history of the curvature in the back as a side effect of the third back surgery. (b.) The examiner must opine whether the back condition is at least as likely as not related to an in-service injury, event, or disease, to include falling down a 20 foot ladder, being “knocked about” on the ship, and being smashed between a pallet and a railing. The examiner must address the hearing testimony of the Veteran and his wife from the January 2021 hearing regarding the onset of pain, radicular symptoms, and “floppy foot.” (c.) Is it at least as likely as not that arthritis of the back began during active service or manifested by August 1965? In making this determination, the examiner is advised that the Veteran is competent to report an in-service back injury with continued symptoms. If there is a medical basis to doubt the history as reported, the examiner should state and explain why. A complete, well-reasoned rationale must be provided for any opinion offered. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), or by a deficiency in the record (additional facts are required), or the examiner (does not have the needed knowledge or training). 2. Schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of any respiratory disorder. The examiner must review the claims file. The examiner is asked to provide a response to the following: (a.) Identify all respiratory diagnoses present at any time since October 2014. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider the symptoms a “disability” for the purpose of providing the requested opinion(s) below. (b.) For each identified disability, is it at least as likely as not related to service, including the lung calcifications shown on x-ray in service, being hit in the chest with a pallet, and in-service exposure to chemicals, asbestos, and/or lead paint on the ship? (Continued on the next page)   A complete, well-reasoned rationale must be provided for any opinion offered. LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.