Citation Nr: 21021627 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 20-04 378A DATE: April 13, 2021 ORDER The request to reconsider the claim of entitlement to service connection for a back condition with secondary right hip and leg pain is granted. REMANDED Entitlement to service connection for a back condition with secondary right hip and leg pain is remanded. Entitlement to service connection for seg and somatic dysfunction of the pelvis, as secondary to a back condition, is remanded. FINDINGS OF FACT 1. In an unappealed February 2005 decision, the RO denied service connection for a back condition with secondary right hip and leg pain and new and material evidence was not received within the one-year appeal period. 2. New evidence associated with the claims file since the February 2005 denial includes relevant official service department records not previously considered. CONCLUSIONS OF LAW 1. The February 2005 RO decision denying service connection for a back condition with secondary right hip and leg pain is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. As pertinent evidence received since the February 2005 denial includes official service department records not previously considered, the criteria for reconsideration of the claim for service connection for back condition with secondary right hip and leg pain are met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from August 2000 and December 2003. This matter came to the Board of Veterans’ Appeals (Board) on appeal from a September 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which reopened the claim of service connection for a back condition with secondary right hip and leg pain and denied the claim on the merits. The RO also denied service connection for seg and somatic dysfunction of the pelvis, as secondary to a back condition. In June 2018 the Veteran testified at a hearing before the Decision Review Officer (DRO). A transcript of that hearing has been associated with the claims file. In December 2020, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). In a January 2021 letter, the Veteran was notified that the Board hearing transcript was unable to be produced because of an audio malfunction and the Veteran had 30 days to request another hearing. In a February 2021 correspondence, the Veteran’s representative indicated that the Veteran did not want another Board hearing. As a final preliminary matter, the Board notes that in January 2021 the Veteran submitted a motion to advance this case on the docket due to financial hardship. This motion is granted, and the Board has advanced the case on the docket. 38 C.F.R. § 20.900(c). Reconsideration Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). However, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding the requirement that new and material evidence must first be received. 38 C.F.R. § 3.156(c). In this case, additional evidence was associated with the claims file following the February 2005 denial. Specifically, in May 2014, the RO received the Veteran’s service treatment records (STRs), which were not previously of record. These records are relevant to the Veteran’s claim on appeal, as the STRs provide a more complete picture of the Veteran’s back complaints and treatment during service. Here, these records existed at the time of the February 2005 RO denial, but were not associated with the claims file or considered by the RO until September 2017 (as indicated in the September 2017 rating decision) after the Veteran filed a claim to reopen the denied service connection claim. Pursuant to 38 C.F.R. § 3.156(c), these STRs require reconsideration of the claim for service connection, and effectively renders the prior denial non-final. Therefore, there is no basis for analysis of the claim under 38 C.F.R. § 3.156(a). REASONS FOR REMAND The Veteran’s STRS dated in January 2001 note that he had low back pain with tenderness; a February 2001 STR indicates that the Veteran cannot engage in heavy lifting due to a slip and fall. The Veteran underwent a VA examination in February 2005 in connection with his service connection claim for a back condition. The examiner found that there was no objective evidence of any diagnosed back condition. Post-service, private treatment records dated in October 2016 reflect that the Veteran had thoracic, lumbar, and sacral pain. In addition, a December 2016 private treatment record notes seg and somatic dysfunction of the pelvis, lumbar and thoracic regions; moderate to severe spasm in lower thoracic, right lower thoracic, right lumbar, sacral. In addition. the entire lumbar spine was noted to have “severely reduced” range of motion (ROM) with pain noted as well. September 2017 private treatment records reflect mild degenerative joint disease (DJD) and a reduction of lumbar lordosis. At his DRO hearing, the Veteran testified that his current back condition is related to service. Specifically, he contended that he sustained injuries when lifting heavy cargo and equipment while serving as a sailor aboard the USS Harry S. Truman. He stated that the strenuous lifting caused “hip pain, back pain, which is upper back, middle back, lower back. I also have restraints, I also strained my back and my hips and I’m having pain in my lower legs.” Moreover, he stated that when he went on sick call, he was prescribed Motrin, but that did not alleviate his back pain. In May 2020, the Veteran’s private chiropractor, Dr. G.F., opined that it was at least as likely as not that the Veteran’s back condition is a result of his in-service injuries. As rationale, Dr. G.F. stated that he reviewed the Veteran’s medical history and events from his military service. Dr. G.F. noted the Veteran’s diagnosed segmental and somatic dysfunction of lumbar spine with associated lumbago and right-side sciatic pain and concluded that there were no other risk factors to precipitate his condition. Given the now-available STRs documenting back-related injuries and the positive nexus opinion from Dr. G.F., the Board finds that remand is necessary to obtain VA medical opinion in order to reconcile the medical evidence of record. Regarding the seg and somatic dysfunction of the pelvis, the Veteran contends that his condition is secondary to his back condition. As noted above, the Veteran’s private treatment records dated in December 2016 reflects a diagnosis of seg and somatic dysfunction of the pelvis. The Board notes that the Veteran has not yet been afforded a VA examination. The Veteran’s claim, insofar as it is a competent assertion of seg and somatic dysfunction of his pelvis (confirmed by private treatment records), along with his assertions that it is related to his back condition, are sufficient to trigger VA’s duty to assist the Veteran by providing him a medical examination. McLendon v. Nicholson, 20 Vet. App. 79, 83, 86 (2006) (applying 38 U.S.C. § 5103A(d)); see also 38 C.F.R. § 3.159(c)(4). These matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any back condition with secondary right hip and leg pain. 2. Following review of the Veteran’s claims file, the examiner is then requested to respond to the following: Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s back condition with secondary right hip and leg pain is related to his active service? When rendering his or her opinion, the examiner should consider the Veteran’s STRs documenting in-service back injuries, as well as the May 2020 positive nexus opinion from Dr. G.F. finding that his back condition is related to service. The examiner should also consider the Veteran’s lay statements. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any seg and somatic pelvic dysfunction condition. Following review of the Veteran’s claims file, the examiner is then requested to respond to the following: (a) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s seg and somatic pelvic dysfunction is proximately due to or caused by his back condition with secondary right hip and leg pain? (b) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s seg and somatic pelvic dysfunction has been aggravated (made worse beyond its natural progression) by his back condition with secondary right hip and leg pain? If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kovacs, 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.