Citation Nr: 21022346 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 16-61 158 DATE: April 15, 2021 ORDER New and material evidence has been received and the claim of entitlement to service connection for a left leg condition is reopened. REMANDED Entitlement to service connection for a bilateral foot condition is remanded. Entitlement to service connection for a left leg condition is remanded. FINDINGS OF FACT 1. A December 2008 rating decision denied entitlement to service connection for a left leg condition. The Veteran was notified of the denial and submitted a Notice of Disagreement (NOD) within one year. A Statement of the Case (SOC) was issued in June 2013 but the Veteran did not perfect the appeal. The December 2008 denial became final. 2. Evidence received since the December 2008 rating decision relates to unestablished facts necessary to reopen the claim of entitlement to service connection for a left leg condition. CONCLUSIONS OF LAW The December 2008 rating decision is final. New and material evidence has been received to reopen the claim of entitlement to service connection a left leg condition. 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 July 1987 to April 1996 and September 2001 to June 2002. This appeal comes to the Board of Veterans’ Appeals (Board) from a February 2015 rating decision by the Department of Veterans’ Affairs (VA). The Veteran testified at a hearing with the undersigned in December 2020. At the Board hearing, the Veteran made clear that he intended for his December 2016 VA Form 9 to include the left leg issue. Interpreting the evidence in the light most favorable to the Veteran, the Board accepts jurisdiction of the left leg issue. Percy v. Shinseki, 23 Vet. App. 37 (2009). New and material evidence having been received, the claim of entitlement to service connection for a left leg condition is reopened A claim that has been denied in an unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The exception to this rule is 38 U.S.C. §5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App.510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit has held, however, that 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 the Board. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been submitted, 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, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is generally "low." See Shade v. Shinseki, 24 Vet. App.110, 117 (2010). A December 2008 rating decision denied entitlement to service connection for a left leg disorder. The Veteran was notified of the denial and submitted a Notice of Disagreement (NOD) within one year. A Statement of the Case (SOC) was issued in June 2013 but the Veteran did not perfect the appeal. The denial therefore became final. Evidence received since the December 2008 rating decision includes hearing testimony and expert opinion evidence. These are new, as they were not before the agency of original jurisdiction in December 2008. This evidence relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for a left leg condition. Specifically, the evidence pertains to nexus and current disability elements. The Board thus reopens the Veteran’s claim of entitlement to service connection for a left leg condition for a de novo review on the merits. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS FOR REMAND Entitlement to service connection for a bilateral foot condition and left leg condition is remanded The medical evidence of record, to include the June 2007 letter of a private physician, indicates the Veteran’s injuries came about as a result of in-service car accidents in 1990 and 1991 and an in-service fall in 2007. Specifically, the physician states the traumatic injuries, over a period of time, caused a hypermobility in the Veteran’s thoracic and lumbosacral spine, creating an unstable back that could subluxate at any time or during any activity. During the December 2020 hearing testimony with the undersigned, an expert witness (Mr. M.) testified that the Veteran’s physical condition, specifically his difficulty using his left leg walking upstairs and walking with a limp, were consistent with the type of pain the Veteran has consistently complained of on record. He stated it was also consistent with a VA diagnosis of myofascial dysfunction. Mr. M. identified a current disability in the left leg of myofascial dysfunction. The Veteran has reported foot pain during the appeal period but the record does not contain evidence of a diagnosis for the bilateral feet. Mr. M did not testify specifically about diagnosis or treatment of the feet. Mr. M testified that the Veteran’s current leg pain is consistent with his prior reports of pain. However, the hearing testimony did not contain a nexus opinion with the medical certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). He was asked if the myofascial pain syndrome “could be the same type of pain that [the Veteran] was complaining of all these years?” and replied “Absolutely.” However, using the term ‘could,’ without supporting clinical data or other rationale... simply is too speculative in order to provide the degree of certainty required for medical nexus evidence.” Bloom v. West, 12 Vet. App. 185, 187 (1999). Mr. M. also agreed with the statement that “there is a high probability that [the Veteran’s] impairment may well predispose him to further problems from aggravation brought on by normal activities.” However, this statement does not actually tie the Veteran’s current left leg disability to an event in service. The Veteran has not been provided with VA examinations for these claims. The Board finds that the hearing testimony is sufficient to trigger the duty to assist by providing an examination to address both the current disability of the bilateral feet and provide nexus opinions for both claims. Accordingly, the 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 the bilateral foot condition. The examiner should state: (a.) What bilateral foot disabilities have been present at any time since June 26, 2014? (b.) For each bilateral foot disability identified, is it at least as likely as not: 1. that the disability began in service? 2. related to an in-service injury or disease, to include the 1990 and 1991 car accidents, and the 1997 fall? 3. proximately caused by degenerative disc disease of the lumbar spine? 4. aggravated beyond its natural progression by degenerative disc disease of the lumbar spine? A rationale containing medical reasoning must be provided to support each opinion. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of a left leg condition. The examiner should state: (a.) What left leg disabilities have been present at any time since June 26, 2014, to include myofascial pain syndrome? (b.) For each identified left leg disability, is it at least as likely as not 1. that the disability began in service? 2. related to an in-service injury or disease to include the 1990 and 1991 car accidents, and the 1997 fall? 3. proximately caused by a back condition, to include degenerative disc disease of the lumbar spine? 4. aggravated beyond its natural progression by a back condition, to include degenerative disc disease of the lumbar spine? A rationale containing medical reasoning must be provided to support each opinion. The rationale should specifically discuss Mr. M’s testimony at the hearing regarding the myofascial pain syndrome. LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Brewer, 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.