Citation Nr: 21008302 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 17-20 614 DATE: February 16, 2021 ORDER New and material evidence has been received and the claim of service connection for trauma to back/degeneration of discs L1-S1 is reopened. New and material evidence has been received and the claim of service connection for a left knee condition, to include as due to claimed trauma to back/degeneration of discs L1-S1, is reopened. New and material evidence has been received and the claim of service connection for a right hip condition, to include as due to claimed trauma to back/degeneration of discs L1-S1, is reopened. New and material evidence has been received and the claim of service connection for a left hip condition, to include as secondary to claimed trauma to back/degeneration of discs L1-S1, is reopened. REMANDED Entitlement to service connection for ischemic heart disease, to include as due to claimed herbicide exposure and/or claimed exposure to other toxic chemicals, is remanded. Entitlement to service connection for trauma to back/degeneration of discs L1-S1 is remanded. Entitlement to service connection for a left knee condition, to include as secondary to claimed trauma to back/degeneration of discs L1-S11, is remanded. Entitlement to service connection for a right hip condition, to include as secondary to claimed trauma to back/degeneration of discs L1-S1, is remanded. Entitlement to service connection for a left hip condition, to include as secondary to claimed trauma to back/degeneration of discs L1-S1, is remanded. FINDINGS OF FACT 1. The January 2005 rating decision denying service connection for trauma to back/degeneration of discs L1-S1 is final. Evidence received since then is neither cumulative nor redundant of the evidence at the time of the January 2005 rating decision and assuming its credibility, raises a reasonable probability of substantiating the claim. 2. The December 2008 rating decision denying service connection for a left knee condition is final. Evidence received since then is neither cumulative nor redundant of the evidence at the time of the December 2008 rating decision and assuming its credibility, raises a reasonable probability of substantiating the claim. 3. The December 2008 rating decision denying service connection for a right hip condition is final. Evidence received since then is neither cumulative nor redundant of the evidence at the time of the December 2008 rating decision and assuming its credibility, raises a reasonable probability of substantiating the claim. 4. The December 2008 rating decision denying service connection for a left hip condition is final. Evidence received since then is neither cumulative nor redundant of the evidence at the time of the December 2008 rating decision and assuming its credibility, raises a reasonable probability of substantiating the claim. CONCLUSIONS OF LAW 1. The January 2005 rating decision denying service connection for trauma to back/degeneration of discs L1-S1 is final and the evidence received for service connection subsequently is new and material to reopen the claim for service connection. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156 (b), 3.303, 20.1105. 2. The December 2008 rating decision denying service connection for a left knee condition is final and the evidence received for service connection subsequently is new and material to reopen the claim for service connection. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156 (b), 3.303, 20.1105. 3. The December 2008 rating decision denying service connection for a right hip condition is final and the evidence received for service connection subsequently is new and material to reopen the claim for service connection. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156 (b), 3.303, 20.1105. 4. The December 2008 rating decision denying service connection for a left hip condition is final and the evidence received for service connection subsequently is new and material to reopen the claim for service connection. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156 (b), 3.303, 20.1105. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from August 1966 to May 1970. These matters come before the Board of Veterans’ Appeals (Board) on appeal from March 2014 and March 2018 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a November 2020 virtual Board hearing. A transcript of that hearing has been associated with the claims file. New and Material Evidence 1. Whether new and material evidence has been received to reopen the claim of service connection for trauma to back/degeneration of discs L1-S1. By way of procedural history, service connection for trauma to back/degeneration of discs L1-S1 was denied in a January 2005 rating decision. The Veteran did not perfect an appeal of that decision and it became final. In a December 2008 rating decision, the RO declined to reopen the matter and the Veteran did not initiate an appeal. As such, that decision is final. The RO reopened the claim of service connection and again declined on the merits in a September 2019 Statement of the Case (SOC). Subsequently, the Veteran perfected an appeal to the Board. Regardless of the RO's actions, the Board has jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. See, Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)). See also, Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92 (March 4, 1992). Accordingly, the Board must initially determine whether there is new and material evidence to reopen the issue before proceeding to adjudicate the underlying merits of the claim. If the Board finds that no new and material evidence has been provided, that is where the analysis must end. Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed. 38 U.S.C. §§ 7105 (c), (d)(3); 38 C.F.R. § 20.1103. A previously denied claim may be reopened by the submission of new and material evidence. See 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156. New evidence is defined as evidence not previously submitted to agency decision makers. 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). The Board is aware that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. Moreover, the Court of Appeals for Veterans Claims ("Court") explained this standard is intended to be a low threshold. Id. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In a February 12, 2018 buddy statement, J. MacDonald stated that he served with the Veteran at Norton AFB from 1968 to 1970. He then stated that the Veteran "got in a motorcycle accident in 1968 when [he] first got to Norton", though acknowledged that he "was not there when it happened, but [he[ knew that he was injured", further stating that they "worked 2 different shifts and [they] would pass each other." The Board finds that this evidence was not previously submitted to VA before any prior rating decision and that, assuming its credibility for purposes of deciding whether to reopen the claim, this evidence addresses a requirement of service connection that was previously denied: evidence of an in-service injury. Therefore, this evidence is "new" and "material" and the Veteran's claim for service connection for trauma to back/degeneration of discs L1-S1 is reopened. 2. Whether new and material evidence has been received to reopen the claim of service connection for a left knee condition, to include as due to claimed trauma to back/degeneration of discs L1-S1. 3. Whether new and material evidence has been received to reopen the claim of service connection for a right hip condition, to include as due to claimed trauma to back/degeneration of discs L1-S1. 4. Whether new and material evidence has been received to reopen the claim of service connection for a left hip condition, to include as secondary to claimed trauma to back/degeneration of discs L1-S1. The Board has found new and material evidence sufficient to reopen the claim of service connection for trauma to back/degeneration of discs L1-S1. Hence, the secondary claims are considered to be reopened as well as they are inextricably intertwined with the reopened trauma to back/degeneration of discs L1-S1 service connection claim. These secondary claims are remanded for the RO to adjudicate on the merits. See, Hickson v. Shinseki, 23 Vet. App. 394 (2010). REASONS FOR REMAND 1. Entitlement to service connection for ischemic heart disease, to include as due to claimed herbicide exposure and/or claimed exposure to other toxic chemicals, is remanded. The Veteran contends that his heart condition is due to claimed exposure to Agent Orange and/or toxic chemicals listed on an Environmental Protection Agency (EPA) document titled “Contaminants of Concern at Norton Air Force Base”. While the Board notes that development has been conducted regarding the Veteran’s claimed Agent Orange exposure, no development has been done for his claimed exposure to other toxic chemicals. Further, the Board cannot make a fully-informed decision on the issue of ischemic heart disease because no VA examiner has opined whether it relates to the Veteran’s service. 2. Entitlement to service connection for trauma to back/degeneration of discs L1-S1 is remanded. The Veteran was afforded a VA contract examination on September 2019. The examiner noted that the Veteran's 1970 discharge examination was silent for any findings regarding his back and that he denied having any back pain. A mild back muscle sprain in November 1967 and a muscle sprain in December 1966 were noted. It was further noted that in a February 2018 buddy statement, a fellow airman recalled the Veteran having a motorcycle accident in 1968. The examiner opined that the Veteran's claimed back condition was less likely than not incurred in or caused by his claimed in-service injury, event or illness, noting that his current back condition is degenerative disc/joint disease "which is usually due to aging." He then stated that the available records do not support a chronic back condition that caused his chronic degenerative condition. The examiner again noted that the Veteran denied having any back pain on his 1970 discharge examination, noting that it "conflicts with his contention that he had a serious back injury during service." The examiner then stated that "[i]f he had a serious back injury in association with the alleged 1968 motorcycle accident, there should be some evidence in the [service treatment records]." When VA undertakes to provide an examination or opinion, it must ensure that it is adequate. See, Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the VA examiner relied almost entirely on a lack of service treatment records to reach their conclusion. See, Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on a Veteran's report of in-service injury and instead relied on the lack of evidence in the service treatment records to provide a negative opinion). As such, the Board finds this opinion is of no probative value and remands this matter for a new examination. 3. Entitlement to service connection for a left knee condition, to include as secondary to claimed trauma to back/degeneration of discs L1-S11, is remanded. 4. Entitlement to service connection for a right hip condition, to include as secondary to claimed trauma to back/degeneration of discs L1-S1, is remanded. 5. Entitlement to service connection for a left hip condition, to include as secondary to claimed trauma to back/degeneration of discs L1-S1, is remanded. The Board cannot make a fully informed decision on the issues of entitlement to service connection for left knee/right hip/left hip conditions because no VA examiner has opined whether they relate to the Veteran’s service. The matters are REMANDED for the following action: 1. Take all actions necessary to verify the Veteran's claim of exposure to environmental containments while at Norton Air Force Base, to include submitting a request to the JSRRC for verification of the claimed exposure as referenced by the "Superfund" report by the EPA. See https://cumulis.epa.gov/supercpad/SiteProfiles/index.cfm?fuseaction=second.contams&id=0902760. The JSRRC's response must be associated with the record. Heart Disease 2. Schedule the Veteran for a VA examination for his ischemic heart disease. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: EXPOSURE TO AGENT ORANGE OR OTHER HERBICIDES HAS NOT BEEN CONCEDED. Is the Veteran’s ischemic heart disease at least as likely as not related to service, including claimed exposure to Agent Orange and/or other toxic chemicals? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? The examiner is asked to discuss the Veteran’s risk factors for developing ischemic heart disease. The examiner’s attention is invited to the April 21, 1966 report of medical history for enlistment at which the Veteran reported that his father had heart trouble and died at age 50 of a heart attack. Lumbar Spine 3. Schedule the Veteran for a VA examination for his claimed trauma to back/degeneration of discs L1-S1. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the Veteran’s claimed trauma to back/degeneration of discs L1-S1 at least as likely as not related to service, including a claimed motorcycle accident? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? Is it at least as likely as not that the Veteran’s claimed back condition (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? The examiner’s attention is invited to the December 12, 1966 service treatment record which notes the Veteran reported having lower back pain for 2 to 3 days after sleeping in an awkward position. Muscle spasm was diagnosed. The examiner’s attention is invited to the November 29, 1967 service treatment record which notes the Veteran reported playing football the previous night and developing pain in the lumbar region after. Upon examination, pain on forward flexion was noted and a mild muscle sprain was diagnosed. The examiner’s attention is invited to the May 29, 1970 report of medical history for separation which notes the Veteran denied having back trouble of any kind. The examiner’s attention is invited to the February 12, 2018 buddy statement from J. MacDonald who stated that he served with the Veteran at Norton AFB from 1968 to 1970. He then stated that the Veteran "got in a motorcycle accident in 1968 when [he] first got to Norton", though acknowledged that he "was not there when it happened, but [he[ knew that he was injured", further stating that they "worked 2 different shifts and [they] would pass each other." The examiner must address the Veteran’s contention that he was involved in a motorcycle accident in service during which he was thrown in the air for 50 to 100 feet and that he has suffered from low back pain ever since. Left Knee 4. Schedule the Veteran for a VA examination for his claimed left knee disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the claimed left knee disability at least as likely as not related to service, including a claimed motorcycle accident? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? Is the Veteran’s left knee condition at least as likely as not proximately due to his claimed trauma to back/degeneration of discs L1-S1? Is the Veteran’s left knee condition at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his claimed trauma to back/degeneration of discs L1-S1? Right Hip 5. Schedule the Veteran for a VA examination for his claimed right hip disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the Veteran’s right hip at least as likely as not related to service, including a claimed motorcycle accident? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? Is the Veteran’s right hip condition at least as likely as not proximately due to his claimed trauma to back/degeneration of discs L1-S1? Is the Veteran’s right hip condition at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his claimed trauma to back/degeneration of discs L1-S1? The examiner’s attention is invited to the April 28, 2006 VA treatment record which notes the Veteran was "a contractor, and he is often lifting heavy building materials in carrying them a certain distance" but had been unable to do much work for the prior 6 months due to right knee pain and constant need to use a cane. He reported that he tends to favor the knee and developed right hip pain. Left Hip 6. Schedule the Veteran for a VA examination for his left hip condition. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the Veteran’s left hip condition at least as likely as not related to service, including a claimed motorcycle accident? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible?] Is the Veteran’s left hip condition at least as likely as not proximately due to his claimed trauma to back/degeneration of discs L1-S1? Is the Veteran’s left hip condition at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his claimed trauma to back/degeneration of discs L1-S1? (Continued on the next page)   7. After completing the requested actions, and any additional development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority. If the benefits sought remain denied, furnish to the Veteran and his representative a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brian P. Keeley 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.