Citation Nr: 21029599 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 17-50 125 DATE: May 14, 2021 ORDER New and material evidence is received to warrant reopening of the claim of entitlement to service connection for left hip condition. The appeal is granted to this extent only. New and material evidence is received to warrant reopening of the claim of entitlement to service connection for right hip condition. The appeal is granted to this extent only. New and material evidence is received to warrant reopening of the claim of entitlement to service connection for left ankle condition. The appeal is granted to this extent only. New and material evidence is received to warrant reopening of the claim of entitlement to service connection for back condition. The appeal is granted to this extent only. New and material evidence is received to warrant reopening of the claim of entitlement to service connection for left knee condition. The appeal is granted to this extent only. REMANDED Entitlement to service connection for left hip condition is remanded. Entitlement to service connection for right hip condition is remanded. Entitlement to service connection for left ankle condition is remanded. Entitlement to service connection for back condition is remanded. Entitlement to service connection for left knee condition is remanded. FINDINGS OF FACT 1. By a January 2008 rating decision, the Veteran's claims of entitlement to service connection for left hip, right hip, and left ankle were denied, and the decision became final. 2. Additional evidence is received which is not cumulative or redundant of the evidence of record at the time of the January 2008 rating decision and relates to unestablished facts necessary to substantiate the claims for service connection for the left hip, right hip, and left ankle. 3. By a June 2012 rating decision, the Veteran's claims of entitlement to service connection for back condition and left knee were denied, and the decision became final. 4. Additional evidence is received which is not cumulative or redundant of the evidence of record at the time of the June 2012 rating decision and relates to unestablished facts necessary to substantiate the claims for service connection for the back condition and left knee condition. CONCLUSIONS OF LAW 1. The January 2008 rating decision denying service connection for a left hip disorder is final. 38 U.S.C. §§ 7104; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 2. The January 2008 rating decision denying service connection for a right hip disorder is final. 38 U.S.C. §§ 7104; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 3. The January 2008 rating decision denying service connection for a left ankle disorder is final. 38 U.S.C. §§ 7104; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 4. The June 2012 rating decision denying service connection for a back condition is final. 38 U.S.C. §§ 7104; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 5. The June 2012 rating decision denying service connection for a left knee disorder is final. 38 U.S.C. §§ 7104; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 6. New and material evidence has been received to reopen the claim of entitlement to service connection for a left hip condition, and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 7. New and material evidence has been received to reopen the claim of entitlement to service connection for a right hip condition, and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 8. New and material evidence has been received to reopen the claim of entitlement to service connection for a left ankle condition, and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 9. New and material evidence has been received to reopen the claim of entitlement to service connection for a back condition, and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 10. New and material evidence has been received to reopen the claim of entitlement to service connection for a left knee condition, and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Marine Corps from June 1990 to June 1994. He then served in the United States Army from May 2003 to May 2004; and September 2005 to December 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). New and Material A claim may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is 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). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the "credibility" of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. The claims are reopened. The Veteran's claims for service connection for left and right hip condition and a left ankle condition were previously denied by the RO in a January 2008 rating decision. His claims for service connection for a back condition and left knee condition were most recently denied in a June 2012 rating decision. The decisions became final. In the January 2008 rating decision, the Veteran's claims for service connection for the bilateral hips and left ankle were denied based on the finding that the there was no treatment or diagnosis of the conditions while in service and that there was no evidence of a current disability of a hip or left ankle condition. At the time of the January 2008 rating decision, the pertinent evidence of record included the Veteran's service treatment records and VA and private treatment records. The evidence received since the January 2008 rating decision includes additional treatment records, a July 2016 VA ankle examination, testimony at a June 2017 DRO hearing and a February 2021 Board hearing and multiple buddy statements. The credibility of the evidence is assumed to be true for purposes of determining if new and material evidence has been received. This evidence is new, as it was not previous of record; and it is material as it goes to substantiating whether the Veteran has a current disability in his bilateral hips and/or left ankle and to inservice incurrence. Accordingly, the claims are reopened. As to his back condition and left knee conditions, the RO denied these claims in June 2012 based on the finding that they were not due to an undiagnosed illness or that they were not due to service. Pertinent evidence of record included a November 2007 VA examination, an August 2011 Back DBQ, an August 2011 Knee DBQ and VA opinion, and VA and private treatment records. Since the previous denial, pertinent evidence added to the record includes a July 2016 VA knee examination and a November 2019 independent medical examination which includes a positive nexus to service for the Veteran's back condition. Also, as noted, the Veteran has provided testimony at a June 2017 DRO Hearing and a February 2021 Board hearing and has also submitted multiple buddy statements, including reports of back pain and pain in his legs. The credibility of the evidence is assumed to be true for purposes of determining if new and material evidence has been received. This evidence is new and material as it pertains to whether the Veteran's low back condition and left knee condition are related to his active service, which is an unsubstantiated fact that is necessary to substantiate the claims. Therefore, the claims are reopened. REASONS FOR REMAND Entitlement to service connection for bilateral hip and left ankle disorders SSOC Since the previous SOC in September 2017, additional evidence has been added to the file. The Veteran has submitted a November 2019 nexus opinion for his back condition and private medical treatment records that discuss his back condition. Also, he has submitted multiple buddy statements reporting he experiences back pain and general pain, including in his legs and hips. ¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬ The RO has not readjudicated the claim nor has it issued a supplemental statement of the case (SSOC). Therefore, the Board finds a remand is necessary for the issuance of a SSOC. 38 C.F.R. §§ 19.9, 19.31(c) (2019). 1. Entitlement to service connection for back condition is remanded. While the Veteran has undergone a VA examination for his back in August 2011, a VA opinion has not been obtained. The Veteran has submitted a November 2019 private nexus opinion that reports the Veteran has a current lumbar condition that is related to service. He has also submitted buddy statements, including a statement from a veteran who reportedly served with the Veteran during Operation Iraqi Freedom. This buddy statement reports the Veteran sustained injuries to his back during service after a motor vehicle accident. The Veteran also testified at his Board hearing that he sustained injuries to his back due to an inservice motor vehicle accident. While the Veteran's inservice medical records show he was in a line of duty motor vehicle accident in December 2003, his medical records report he denied any resulting injuries or pain. Nevertheless, the Board finds the duty to assist has been triggered, and a remand for a VA opinion that addresses this evidence is needed. 2. Entitlement to service connection for left knee condition is remanded. The Veteran previously underwent a VA examination for his knees in August 2011. The examiner opined that the Veteran's current left knee pain was not related to his left knee pain in November 2006 as there was no evidence of any trauma to his knee and there is no chronicity of left knee pain while in service. Moreover, the current left knee was normal with x-ray findings. Since this opinion, VA medical records report mild arthritis with small fluid accumulation (September 2014) and patellar tendinitis in the left knee (July 2015). Moreover, the Veteran reported at his Board hearing that he injured his knee during service, and has submitted buddy statements, including one from his mother that reported he did not have his pain conditions prior to service. To that extent, the current opinion is inadequate as it relies on the absence of evidence in service and the lack of a current condition. See also Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015) (indicating that a VA examiner may not generally rely on the absence of evidence as negative evidence). However, as there is evidence that suggests a current left knee condition exists and there is also evidence that the Veteran injured his knee in service, an addendum opinion is needed. The matters are REMANDED for the following action: 1. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. 2. Obtain updated VA and private medical records and associate them with the record. 2. Obtain a medical opinion from a medical professional with appropriate expertise regarding the nature and etiology of the Veteran's back condition. The examiner should review the Veteran's claims file. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one. Based on a review of the record, and a new examination if necessary, the examiner must address the following: (a.) Is it at least as likely as not that any back condition is related to his active service or is caused by or aggravated by military service, to include his inservice motor vehicle accident? In addressing (a), the examiner should discuss the November 2019 private nexus opinion, the medical records associated with the Veteran's inservice motor vehicle accident, the Veteran's testimony at his DRO and Board hearing, and private buddy statements. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In all opinions rendered, the examiner is advised that the Veteran is competent to report his symptoms. The examiner must consider any lay statements of record. A complete rationale for all medical opinions is required. The examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). 3. Obtain an addendum medical opinion from a medical professional with appropriate expertise regarding the nature and etiology of the Veteran's left knee condition. The examiner should review the Veteran's claims file. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one. Based on a review of the record, and a new examination if necessary, the examiner must address the following: (a.) Is it at least as likely as not that any left knee condition is related to his active service or is caused by or aggravated by military service, to include his inservice motor vehicle accident? In addressing (a), the examiner should discuss the VA medical records reporting arthritis and tendinitis in his left knee; also, the Veteran's statements and submitted buddy statements should be addressed as well. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In all opinions rendered, the examiner is advised that the Veteran is competent to report his symptoms. The examiner must consider any lay statements of record. A complete rationale for all medical opinions is required. The examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). 4. Then, readjudicate the claims on appeal, with application of all appropriate laws and regulations, and consideration of any additional information obtained as a result of this remand. All evidence received since the September 2017 Statement of the Case should be considered. If the decision remains adverse to the Veteran, he should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Wade 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.