Citation Nr: 21011308 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 17-60 059 DATE: March 1, 2021 ORDER New and material evidence having been received, the application to reopen the claim for service connection for a back disorder is granted. New and material evidence having been received, the application to reopen the claim for service connection for a left ankle disorder is granted. New and material evidence having been received, the application to reopen the claim for service connection for a neck disorder is granted. New and material evidence having been received, the application to reopen the claim for service connection for a right hand disorder is granted. New and material evidence having been received, the application to reopen the claim for service connection for residuals of a broken tailbone is granted. REMANDED Service connection for a back disorder. Service connection for a left ankle disorder. Service connection for a neck disorder. Service connection for a right hand disorder. Service connection for residuals of a tailbone injury. FINDINGS OF FACT 1. The Veteran served on active duty from August 2006 to August 2010. 2. Service connection for a back disorder, a left ankle, a neck disorder and a right hand disorder was denied in an unappealed September 2014 rating decision. 3. Evidence received since the September 2014 rating decision is new and raises a reasonable possibility of substantiating the claims for service connection for a back disorder, a left ankle disorder, a neck disorder and a right hand disorder. 4. Service connection for a broken tailbone was denied in an unappealed April 2015 rating decision. 5. Evidence received since the April 2015 rating decision is new and raises a reasonable possibility of substantiating the claim for service connection for residuals of a tailbone injury. CONCLUSIONS OF LAW 1. The September 2014 rating decision which denied service connection for a back disorder, a left ankle, a neck disorder and a right hand disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2020). 2. Evidence submitted to reopen the claim of entitlement to service connection for a back disorder is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156(a) (2020). 3. Evidence submitted to reopen the claim of entitlement to service connection for a left ankle disorder is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156(a) (2020). 4. Evidence submitted to reopen the claim of entitlement to service connection for a neck disorder is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156(a) (2020). 5. Evidence submitted to reopen the claim of entitlement to service connection for a right hand disorder is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156(a) (2020). 6. The April 2015 rating decision which denied service connection for a broken tailbone is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2020). 7. Evidence submitted to reopen the claim of entitlement to service connection for residuals of a tailbone injury is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156(a) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In June 2020 the Veteran testified at a hearing held before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. “New” evidence means evidence “not previously submitted to agency decisionmakers.” “Material” evidence means “evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim.” 38 C.F.R. § 3.156(a). Back Disorder A September 2014 rating decision denied service connection for a back disorder on the basis that the STRs did not reflect any diagnosis of or treatment for a back disorder and the Veteran failed to report for examinations to assess his current symptoms. The rating decision did not address the tailbone. He filed a timely NOD and an SOC was issued in March 2016. The March 2016 SOC addressed the inservice broken tailbone injury and the Veteran’s related tailbone contentions. New and material evidence in the form of an April 2015 VA back/thoracolumbar spine examination (obtained in conjunction with the Veteran’s March 2015 claim for service connection for a broken tailbone) was received within one year of the September 2014 rating decision. However, the claim for service connection for a back disorder was readjudicated subsequent to the receipt of this new and material evidence in the March 2016 SOC. The Veteran did not file a timely substantive appeal. As such, the April 2015 rating decision became final. The evidence added to the record since the September 2014 denial is new and material, and reopening of the claim of entitlement to service connection for a back disorder is in order. In this regard, the evidence added to the record includes June and July 2020 letters from the Veteran’s private chiropractor which contains an opinion in favor of the claim. This new evidence relates to an unestablished fact necessary to substantiate the claim, that is a nexus. Accordingly, the claim is reopened and will be considered on the merits. Left Ankle, Neck, and Right Hand Disorders Service connection for a left ankle, a neck and right hand disorders was denied in a September 2014 rating decision on the basis that the service treatment records (STRs) did not reflect a diagnosis of or treatment for the disorders and the Veteran failed to report for examinations to assess his current symptoms. He filed a timely notice of disagreement (NOD) and a statement of the case (SOC) was issued in March 2016; however, he did not file a timely substantive appeal and no new and material evidence was received within the remainder of the appeal period. Therefore, the September 2014 rating decision is final. The evidence added to the record since the September 2014 denial is new and material, and reopening of the claims is in order. In this regard, the evidence added to the record includes June and July 2020 letters from the Veteran’s private chiropractor which contains opinions in favor of the claims. This new evidence relates to an unestablished fact necessary to substantiate the claims, that is a nexus. Accordingly, the claims are reopened and will be considered on the merits. Residuals of a Tailbone Injury In March 2015, the Veteran filed a claim for service connection for broken tailbone. An April 2015 rating decision, notice of which was mailed to him in May 2015, denied service connection for a broken tailbone because there was no nexus to service or any current residuals. He did not file a timely NOD and no new and material evidence was received within one year of the rating decision. As such, the April 2015 rating decision became final. The evidence added to the record since the April 2015 denial is new and material, and reopening of the claim is in order. In this regard, the evidence added to the record includes a July 2020 letter from the Veteran’s private chiropractor which includes an opinion in favor of the claim. This new evidence relates to an unestablished fact necessary to substantiate the claim, that is a nexus. Accordingly, the claim is reopened and will be considered on the merits. REASONS FOR REMAND The Veteran contends that he injured his back, tailbone, neck, and left ankle in service and that he has been having ongoing symptoms since service. He also contends that he began having right hand pain and cramping in service, and has had ongoing problems ever since. At the Board hearing he testified that his current right hand disorder was due to repetitive motion from doing small stitching as a parachute rigger in service. In a November 2016 written statement, he indicated that he injured his left ankle while on deployment in Qatar (between December 2008 and May 2009). He also indicated that his right hand cramping began in approximately mid-2009, that he was seen in service for neck pain in August or September 2006, that his back problems are due to lifting heavy survival gear in service, and his tailbone injury residuals are due to inservice injury slipping on ice. A September 2006 STR reflected that the Veteran was seen for neck pain and was diagnosed with cervicalgia/muscle sprain/spasm was rendered. A February 2008 STR indicated that he fell on ice and injured his coccyx and was diagnosed with coccydynia. In addition, he submitted a buddy statement confirming the circumstances of his left ankle injury in service. Further, November 2013 private treatment records noted the Veteran’s report that since service he has had hand pain, cramping and locking. A June 2017 VA treatment record indicated a diagnosis of left lateral ankle instability and possible left peroneal tendonitis. A June 2017 private CT scan revealed right L5 interarticularis pars defect, pars fracture, spondylolisthesis with low back pain. An October 2017 VA treatment record noted ATFL/CFL ligament tears and osteochondral defect talus, resulting in left ankle surgery (arthroscopy with microfracture, Brostrom ankle stabilization with internal brace and peroneal tendon repair). An August 2018 VA treatment record noted chronic intermittent left ankle pain after straining it in 2009. He reported associated laxity and stated he will sprain his ankle one to two times a month. An April 2015 VA spine examiner diagnosed thoracic spine strain. The examiner noted the Veteran’s tailbone injury in service, stated that the tailbone was no longer bothering him and opined that the current thoracic spine/strain and lack of flexibility was not related to the 2008 coccyx injury or the fall with neck pain in 2006. The record also contains February 2017 VA examination reports which stated that there was no evidence of a current neck or back disorder, and as such, it is less likely as not that either a neck or back disorder was incurred in or caused by an in-service event, injury, or illness. The record also contains a June 2020 letter from the Veteran’s private chiropractor, Dr. B., which stated that the Veteran is being treated for cervical, thoracic, and lumbar pain, with loss of range of motion and muscle spasms. Dr. B. stated that the neck pain had recent onset but the low back pain has been chronic and is attributed to military service. Dr. B. opined that the nature of the spinal injuries is such that it is appropriate to establish the repetitive strain and trauma of his military service as a primary cause of his back pain. Dr. B. then opined that it is more likely than not that his back pain was caused by military service. A July 2020 letter from Dr. B. indicated that the Veteran is treated for cervical, thoracic and lumbar spine pain with loss of range of motion and muscle spasm. He also has pain and reduced ability to perform normal daily activities due to right hand injury with crepitus, left ankle injury, tailbone (coccyx) bony deformity following fracture sustained in fall on ice, and cervical (neck) dysfunction with related pain and reduced range of motion. Dr. B. stated that the nature of these injuries is such that it is appropriate to establish his military service as a primary cause of his low back pain and it is more likely than not that these injuries were caused by his military service. Initially, the Board notes that the April 2015 VA examination report noted a current diagnosis of thoracic spine sprain. Further, a June 2017 private CT scan demonstrated right L5 interarticularis pars defect, pars fracture, spondylolisthesis with low back pain. Moreover, the private treatment records, VA treatment records and VA examination reports showed that he has current back and neck pain with reduced range of motion of the cervical, thoracic and lumbar spine, right hand pain with crepitus and locking, and left ankle pain, instability and peroneal tendonitis. As such, there is evidence of current disabilities. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (pain alone can constitute a disability if it results in functional impairment). Further, while there are several medical opinions of record, the April 2015 VA opinion is based on an inaccurate factual premise in that it indicated that the Veteran’s tailbone was no longer bothering him. Notably, at the Board hearing the Veteran testified that his tailbone was still very painful and he was unable to sit for extended periods of time. The February 2017 VA opinion is also based on an inaccurate factual premise in that it indicated the Veteran had no current back or neck disorder. Finally, the June and July 2020 private medical opinions do not contain any rationale nor do they reflect review of the claims file, to include the STRs (which reflect no complaints or findings related to the Veteran’s right hand, left ankle, back, neck, or tailbone at service separation). Under the circumstances, there is competent and credible evidence (July 2020 private medical opinion) that the current right hand and left ankle disorders may be associated with service. Therefore, a remand is warranted in order to obtain an examination with a medical opinion regarding the nature and etiology of the claimed right hand and left ankle disorders. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). With regard to the back, neck and tailbone, a remand is required in order to obtain addendum opinions which consider the fact that the Veteran has current tailbone complaints/symptoms and current neck and back disorders (pain with functional impairment), as well as a report of ongoing symptoms since service. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination or examinations in order to determine that nature and etiology of his right hand and left ankle disorders. The claims file, to include a copy of this remand, must be reviewed by the examiner. After examination and review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the currently present right hand pain with cramping, crepitus and locking, and left ankle disorder (ATFL/CFL tears, osteochondral defect talus, instability and peroneal tendonitis) is/are causally or etiologically related to the Veteran’s active service, to include the inservice left ankle injury, and/or repetitive stitching motion due to his MOS as an aircrew survival equipmentman. The examiner should note that a left ankle injury and repetitive hand motion/stitching, etc. during service are conceded. A complete rationale for any opinion expressed should be provided in a report. The Veteran is competent to report ongoing symptoms and treatment, and his reports must be taken into account, along with the other evidence of record. The examiner should address the June 2020 and July 2020 private opinions from Dr. B., the Veteran’s private chiropractor. 2. Send the claims file, to include a copy of this remand, to the April 2015 or February 2017 VA examiner in order to obtain an addendum medical opinion regarding the Veteran’s back, neck, and tailbone disorders. The claims file, to include a copy of this remand, must be reviewed by the examiner. After review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the currently present thoracic spine strain, right L5 interarticularis pars defect, pars fracture, spondylolisthesis with low back pain, and/or back, neck and tailbone disorders (pain with limited range of motion) is/are causally or etiologically related to the Veteran’s active duty, to include his 2008 coccyx injury, repeated heavy lifting, and/or the September 2006 neck pain/cervicalgia diagnosis, The examiner should note that repeated heavy lifting during service is conceded. A complete rationale for any opinion expressed should be provided in a report. The Veteran is competent to report ongoing symptoms and treatment, and his reports must be taken into account, along with the other evidence of record. The examiner should address the June 2020 and July 2020 private opinions from Dr. B., the Veteran’s private chiropractor. If both the April 2015 VA examiner and the February 2017 VA examiner are both unavailable, request that the above opinions be provided by another qualified VA clinician. If the clinician feels that another examination is warranted in order to provide the above requested opinions, one should be scheduled. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Redman, 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.