Citation Nr: 21012835 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 19-10 881 DATE: March 5, 2021 ORDER New and material evidence has been received, and the claim for service connection for a cervical spine disability is reopened. New and material evidence has been received, and the claim for service connection for a lumbar spine disability is reopened. New and material evidence has been received, and the claim for service connection for a left knee disability is reopened. New and material evidence has been received, and the claim for service connection for a right knee disability is reopened. Service connection for a cervical spine disability is granted. Service connection for a lumbar spine disability is granted. Service connection for a left knee disability is granted. Service connection for a right knee disability is granted. Service connection for cognitive impairment is granted. REMANDED Service connection for peripheral neuropathy, left lower extremity, is remanded. Service connection for peripheral neuropathy, right lower extremity, is remanded. Service connection for peripheral neuropathy, left upper extremity, is remanded. Service connection for peripheral neuropathy, right upper extremity, is remanded. FINDINGS OF FACT 1. An unappealed July 2014 rating decision denied service connection for cervical spine, lumbar spine, and bilateral knee disabilities. 2. Evidence received since the July 2014 rating decision raises a reasonable possibility of substantiating the claims for service connection for cervical spine, lumbar spine, and bilateral knee disabilities. 3. Resolving any reasonable doubt in his favor, the Veteran’s cervical spine disability is etiologically related to service. 4. Resolving any reasonable doubt in his favor, the Veteran’s lumbar spine disability is etiologically related to service. 5. Resolving any reasonable doubt in his favor, the Veteran’s left knee disability is etiologically related to service. 6. Resolving any reasonable doubt in his favor, the Veteran’s right knee disability is etiologically related to service. 7. Resolving any reasonable doubt in his favor, the Veteran’s cognitive impairment is etiologically related to service. CONCLUSIONS OF LAW 1. The July 2014 rating decision denying service connection for cervical spine, lumbar spine, and bilateral knee disabilities is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103. 2. New and material evidence sufficient to reopen the claims for service connection for cervical spine, lumbar spine, and bilateral knee disabilities has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for a cervical spine disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 4. The criteria for service connection for a lumbar spine disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 5. The criteria for service connection for a left knee disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 6. The criteria for service connection for a right knee disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 7. The criteria for service connection for cognitive impairment have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1959 to November 1962. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2018 rating decision issued by a Department of Veterans Affairs (VA) regional office. In October 2020, the Veteran and his spouse, “P.C.,” testified before the undersigned Veterans Law Judge at a virtual hearing. A copy of the hearing transcript is included in the claims file. New and Material Evidence First, the Veteran seeks to reopen previously denied claims for service connection for cervical spine, lumbar spine, and bilateral knee disabilities. The Board finds that VA has received new and material evidence sufficient to reopen the claims. Generally, a claim denied in a final unappealed VA decision may not be reopened and allowed. 38 U.S.C. § 7105(c). However, if new and material evidence is received, VA shall reopen and review the former disposition of the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). In any case involving a prior final denial, the Board must address whether the evidence is sufficient to reopen the claim before addressing the merits, regardless of whether the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995). “New” evidence means existing evidence not previously submitted to agency decisionmakers, while “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 deciding whether evidence is new and material, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). The threshold for determining whether evidence is new and material is low. Shade v. Shinseki, 24 Vet. App. 110, 116-18 (2010) (reopening is warranted if the new evidence, when considered in conjunction with the old evidence, would at least trigger VA’s duty to assist the Veteran). However, evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to VA. Anglin v. West, 203 F.3d 1343, 1345 (Fed. Cir. 2000). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In this case, the AOJ originally denied service connection for cervical spine, lumbar spine, and bilateral knee disabilities in a July 2014 rating decision. With respect to the spine and right knee claims, the AOJ found no link between the Veteran’s disabilities and military service. As for the left knee claim, the AOJ found no evidence of a current diagnosed disability. The Veteran did not appeal the rating decision within one year of notification. That decision is final. Since the prior final denial, the Veteran has submitted three private medical opinions and a 2013 sports medicine journal article on judo-related injuries in support of his claims. In October 2020, he and P.C. provided pertinent testimony about his in-service injuries and medical history since service. Additional VA treatment records were also associated with the claims file. The evidence above was not before the AOJ at the time of the 2014 rating decision. It raises a reasonable possibility of substantiating each of the claims. The Board finds that new and material evidence has been received. Accordingly, the claims for service connection for cervical spine, lumbar spine, and bilateral knee disabilities are reopened. Service Connection In general, the Veteran attributes his current disabilities to numerous injuries sustained practicing judo and playing football during service. At hearing, he testified that his regular duties as a physical conditioning expert included training pilots in hand-to-hand combat, and that he competed in over 100 judo matches. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the current disability and the disease or injury incurred or aggravated during service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Secondary service connection may be granted when a disability is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 447-48 (1995). Presumptive service connection may be established for certain chronic diseases, including arthritis, which manifest to a compensable degree within one year of separation from active service, provided the Veteran served continuously for 90 or more days. 38 C.F.R. §§ 3.307, 3.309. When a disease is not shown to be chronic during service or within the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b); Walker, 708 F.3d at 1338. 1. Service connection for a cervical spine disability After careful review, the Board finds that service connection for a cervical spine disability is warranted. Service treatment records reflect that the Veteran injured his neck at least twice on active duty. In September 1961, he was treated for neck strain. In September 1962, he was treated for cervical sprain and spasms after a “whiplash type” injury to the neck playing football; he also complained of headaches and left arm numbness afterwards. At hearing, the Veteran’s representative asserted that these records are incomplete, as the October 1962 separation examination report notes another 1961 judo injury (to the right wrist and right knee) which is not documented elsewhere in the available treatment reports. Post-service medical records show complaints of neck pain going back to the mid-1990s. A September 1998 MRI revealed advanced cervical spondylosis at the C6-C7 level, plus additional degenerative changes at the C4-C5 level. In June 2012, the Veteran underwent surgery to treat severe cervical stenosis with myelopathy. At a June 2014 VA examination, the Veteran reported ongoing problems ever since he fell and slammed into his neck during a judo match in Tokyo in 1960. He also stated that he required care for ongoing neck pain within a year of separation. The examiner diagnosed him with degenerative arthritis, and concluded that his disability was less likely than not incurred in or caused by service. In reaching this conclusion, the examiner reasoned that “no permanent residual or chronic disability … is shown by the service medical records or demonstrated by the evidence following service.” The examiner noted there was no mention of neck problems or a relevant diagnosis at the time of separation, and no objective evidence of treatment within one year of service. The Board finds that the examiner improperly discounted favorable lay evidence—that is, the Veteran’s statements about the onset of his subjective symptoms and treatment history—and instead relied on the absence of contemporaneous evidence in his medical records. As a result, the 2014 VA opinion is inadequate. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). In June 2018, the Veteran submitted a medical opinion from “Dr. L.B.,” a non-VA physician. Dr. L.B. determined that the Veteran’s cervical spine disability more likely than not stems from military judo and football, reasoning that he had no other history of injuries, he developed arthritis at a young age, there was no family history of arthritis, and individuals who play football and participate in judo competitions have a much higher probability of developing arthritis. Dr. L.B. also noted that he had seen the Veteran on multiple occasions over many years, and he had reviewed his military and private treatment records. Dr. L.B.’s opinion provides a well-reasoned explanation for the cervical spine disability, which is based on both the available medical records and the Veteran’s own competent, credible lay statements. The Board finds this opinion highly probative. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Accordingly, resolving any remaining reasonable doubt in the Veteran’s favor, the Board finds that the disability is etiologically related to service. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The appeal is granted. 2. Service connection for a lumbar spine disability The Board finds that service connection for a lumbar spine disability is also warranted. Service treatment records reflect that the Veteran complained of ongoing low back pain in March 1962. He was treated for probable strain related to judo. Two months later, he reported pain and swelling around the coccyx region. Post-service medical records show treatment for low back problems, including lumbar stenosis, since 2003. During the 2014 VA examination, the Veteran reported having back trouble for 40-50 years, and that the only injury to his back occurred at a judo match in service. The examiner diagnosed him with degenerative arthritis, and determined that the lumbar disability was less likely than not incurred in or caused by service. This opinion is based, in part, on the examiner’s inaccurate finding that there was no documentation of an injury or treatment for an acute or chronic back condition in service. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (an opinion based on an inaccurate factual premise has no probative value). In addition to overlooking pertinent evidence in the service treatment records, the examiner also failed to acknowledge the Veteran’s lay statements about the onset and course of his back problems since service. Dalton, 21 Vet. App. at 39-40. Consequently, the VA opinion is inadequate. On the other hand, Dr. L.B.’s 2018 opinion indicates that the lumbar disability more likely than not stems from judo and football in service. As discussed above, Dr. L.B. reasoned that the Veteran had no other history of injuries or family history of arthritis, he developed arthritis at a young age, and he had a higher probability of developing arthritis because he played football and participated in judo competitions. Dr. L.B.’s opinion is coherent, informed by relevant lay and medical evidence, and highly probative. Nieves-Rodriguez, 22 Vet. App. at 304. It is also consistent with other medical evidence of record, including the private medical opinion from “Dr. D.D.,” who likewise attributed the disability to the Veteran’s experience as a judo and combat measures instructor. Resolving any reasonable doubt in the Veteran’s favor, the Board thus finds that the lumbar spine disability is etiologically related to service. Gilbert, 1 Vet. App. at 53. The appeal is granted. 3. Service connection for left knee and right knee disabilities The Board finds that the record supports service connection for left and right knee disabilities. According to service treatment records, the Veteran reported a history of swollen or painful joints at separation. The separation examination report indicates that he injured his right knee in a judo match in 1961; he treated it with heat and whirlpool baths, and reported no recurring trouble. Post-service medical records show treatment, including multiple surgeries, for right knee osteoarthritis since at least 2005. During the 2014 VA examination, the Veteran reported that he injured his right knee in a judo match in service, and that he started to require care for the knee in the 1960s. However, he denied any specific left knee pathology at the time of the examination. The examiner found no nexus between the right knee disability and service, noting—despite the Veteran’s clear statement to the contrary—that he “was not treated until 40 years after military service.” The Board finds that the VA opinion is improperly based on the absence of contemporaneous medical records, and, therefore, inadequate. Dalton, 21 Vet. App. at 39-40. The Veteran has since submitted private medical opinions in support of his knee claims. In June 2018, Dr. L.B. noted a history of treatment for both right knee and left knee arthritis, and attributed the bilateral disability to judo and football in service. Dr. L.B. cited various factors in support of this opinion, including the Veteran’s age at the time of the onset of his arthritis and that he had no other history of injuries. His opinion is probative. Nieves-Rodriguez, 22 Vet. App. at 304. It is also consistent with other medical evidence of record, including Dr D.D.’s opinion, which likewise attributes degenerative changes in the Veteran’s knees to his experience as a judo and combat measures instructor. Accordingly, resolving any reasonable doubt in the Veteran’s favor, the Board finds that his left knee and right knee disabilities are etiologically related to service. Gilbert, 1 Vet. App. at 53. Service connection is granted. 4. Service connection for cognitive impairment Finally, the Board finds that service connection for cognitive impairment (claimed as memory loss) is warranted. There is no evidence that the Veteran experienced memory loss or any other cognitive problems prior to separation. However, in 2020, he testified that he sustained multiple head injuries during judo matches or football games in service, one of which resulted in loss of consciousness. As noted above, the available service treatment records document complaints of headaches following a neck injury in 1962. In 2018, Dr. L.B. wrote that the Veteran has been treated for memory loss with advanced dementia. Dr. L.B. determined that this disability more likely than not stems from the Veteran’s experience practicing judo and playing football in service. In reaching this conclusion, Dr. L.B. reasoned that the Veteran developed memory loss at a young age, that there was no family history of memory loss, and that individuals who play football or participate in judo competitions have a much higher probability of memory loss. Dr. L.B.’s opinion provides a cogent explanation for the Veteran’s memory loss, based on his medical history. The opinion is also uncontradicted by any other competent evidence of record. The Board finds it highly probative. Nieves-Rodriguez, 22 Vet. App. at 304. Resolving any reasonable doubt in the Veteran’s favor, the Board thus finds that his cognitive impairment is etiologically related to service. Gilbert, 1 Vet. App. at 53. The appeal is granted. REASONS FOR REMAND The Veteran also seeks service connection for peripheral neuropathy of the bilateral upper and lower extremities, to include as secondary to his cervical and/or lumbar spine disabilities. Although Dr. L.B. and Dr. D.D. both provided favorable nexus opinions, neither physician provided a clear medical rationale linking peripheral neuropathy to service or to another disability. See e.g. Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012) (medical opinions are adequate when they sufficiently inform the Board of a medical expert’s judgment on a medical question and the essential rationale for that opinion). To date, the Veteran has not received a VA examination in connection with his claimed peripheral neuropathy. As there is insufficient medical evidence to decide the claims, remand to the AOJ for an examination is necessary. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Board also notes that the most recent medical records on file are from 2018. On remand, the AOJ should attempt to obtain any outstanding records. The Board by this remand makes no determination, expressed or implied, concerning the credibility of any statements on file. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. Attempt to obtain and associate with the claims file any outstanding private medical records that the Veteran identifies and authorizes for release. 2. Schedule the Veteran for a VA examination in connection with his peripheral neuropathy claims. After reviewing the claims file, the examiner should address the following questions: (a.) Is it at least as likely as not (50 percent or greater probability) that left lower extremity peripheral neuropathy (or similar disability, such as radiculopathy) was incurred in or is otherwise etiologically related to service? (b.) Is it at least as likely as not (50 percent or greater probability) that left lower extremity peripheral neuropathy (or similar disability, such as radiculopathy) is proximately due to or aggravated beyond its natural clinical course by another service-connected disability? (c.) Is it at least as likely as not (50 percent or greater probability) that right lower extremity peripheral neuropathy (or similar disability, such as radiculopathy) was incurred in or is otherwise etiologically related to service? (d.) Is it at least as likely as not (50 percent or greater probability) that right lower extremity peripheral neuropathy (or similar disability, such as radiculopathy) is proximately due to or aggravated beyond its natural clinical course by another service-connected disability? (e.) Is it at least as likely as not (50 percent or greater probability) that left upper extremity peripheral neuropathy (or similar disability, such as radiculopathy) was incurred in or is otherwise etiologically related to service? (f.) Is it at least as likely as not (50 percent or greater probability) that left upper extremity peripheral neuropathy (or similar disability, such as radiculopathy) is proximately due to or aggravated beyond its natural clinical course by another service-connected disability? (g.) Is it at least as likely as not (50 percent or greater probability) that right upper extremity peripheral neuropathy (or similar disability, such as radiculopathy) was incurred in or is otherwise etiologically related to service? (h.) Is it at least as likely as not (50 percent or greater probability) that right upper extremity peripheral neuropathy (or similar disability, such as radiculopathy) is proximately due to or aggravated beyond its natural clinical course by another service-connected disability? The examiner’s opinion must reflect consideration of the Veteran’s October 2020 testimony and the June 2018 private medical opinions from “Dr. L.B.” and “Dr. D.D.” 3. Review the medical opinion above to ensure substantial compliance with the Board’s directives. Take any necessary corrective action. 4. Readjudicate the Veteran’s claims. If any claim remains denied, issue a supplemental statement of the case and allow the Veteran and his representative the opportunity to respond. Then return to the Board for further appellate review. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.Z. Wall, 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.