Citation Nr: 22016353 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 19-16 335 DATE: March 22, 2022 ORDER New and material evidence having been received, the claim for service connection for a right hip disability is reopened. New and material evidence having been received, the claim for service connection for a shortening of the right leg is reopened. New and material evidence having been received, the claim for service connection for a back disability is reopened. REMANDED Entitlement to service connection for shortening of the right leg is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for radiating pain, right leg is remanded. Entitlement to service connection for a back disability is remanded. FINDINGS OF FACT 1. In an unappealed August 2016 rating decision, service connection for a right hip disability was denied because there was no evidence of a nexus to service; an unappealed March 2017 rating decision again denied the right hip disability finding no new and material evidence had been submitted. 2. The unappealed August 2016 rating decision also denied service connection for shortened right leg because there was no evidence of a current diagnosed disability. 3. In an unappealed March 2017 rating decision service connection for a back disability, claimed secondary to the right hip, was denied as the right hip disability was not service connected and there was no other evidence sufficient to associate the back to service. 4. Evidence added to the record since the final August 2016 and March 2017 rating decisions, specifically to include a private medical opinion stating that the claimed conditions are influenced by the Veteran's service-connected right ankle disability and hearing testimony describing both in-service injuries and how the ankle disability affects the claimed conditions, relates to unestablished facts necessary to substantiate the claims for service connection. CONCLUSIONS OF LAW 1. The August 2016 rating decision that denied service connection for a right hip disability and a shortened right leg is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The March 2017 rating decision that denied service connection for a back disability and found no new and material evidence had been submitted sufficient to reopen the right hip claim is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 3. New and material evidence having been received, the claim for entitlement to service connection for a right hip disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(c)(i). 4. New and material evidence having been received, the claim for entitlement to service connection for a shortening of the right leg is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(c)(i). 5. New and material evidence having been received, the claim for entitlement to service connection for a back disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(c)(i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from August 1998 to August 2002. These claims are on appeal from a June 2017 rating decision that declined reopening the issues finding no new and material evidence had been submitted. Thereafter, however, the RO reopened and readjudicated the issues on the merits in an April 2019 Statement of the Case (SOC). Regardless of the RO's actions, the Board is obligated to consider the issue of new and material evidence and make an independent determination. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The issues have been appropriately recharacterized above. At a March 2021 hearing, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). New and Material Evidence Generally, a claim which has been denied in an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). An 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 VA Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means evidence not previously submitted. Material evidence means existing evidence that by itself or when considered with previous evidence 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 final decision, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). If the evidence is new, but not material, the inquiry ends, and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." The Court further held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). As a final matter before turning to the specific facts of the Veteran's case, the Board notes that it has considered the applicability of 38 C.F.R. § 3.156(b), which provides that when new and material evidence is received prior to the expiration of the appeal period it will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. In the instant case, no new and material evidence was submitted within the relevant appeal periods. Accordingly, 38 C.F.R. § 3.156(b) is not applicable. See Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). The Veteran's original January 2016 claim for a right hip disability and shortened right leg were denied in an August 2016 rating decision. The RO determined that there was no evidence of an event, disease, or injury in service and no currently diagnosed disability. The Veteran did not appeal and the decision became final. Evidence of record at the time of the August 2016 rating decision included the Veteran's service treatment records (STRs) which contained notations of normal lower extremities in a January 1998 pre-enlistment examination and a denial of recurrent back pain in a report of medical history; a report of a left heel injury in September 1998 resulting in a limp and a note that the Veteran's left leg was slightly longer than his right leg; an October 1998 complaint of bilateral leg pain; a December 1998 report of medical history denying recurrent back pain; a May 2001 incident when he jumped off a structure and landed wrong, resulting in a right ankle fracture that was noted in June and July 2001 records to have since healed; and a May 2002 separation examination reflecting normal lower extremities and a report of medical history in which he specifically denied recurrent back pain. The Veteran submitted a claim to reopen the right hip disability and a new claim for a back disability in November 2016. In a March 2017 rating decision, the RO found that there had been no new and material evidence submitted sufficient to reopen the right hip service connection claim and denied the new back service connection claim. The RO concluded that there was no evidence of a back condition incurred in service and because the right hip disability was not service connected, service connection on a secondary basis was not warranted. Evidence added to the record since the August 2016 decision included private treatment records which demonstrated complaints of right hip pain in September 2016 and diagnoses of a right hip flexor strain and gluteal tendinitis in November 2016. The private treatment records also contained complaints of left lower back pain since May 2016 of unknown origin. The Veteran did not appeal the March 2017 decision and it became final. In May 2017, he submitted a claim to reopen the prior claims to service connection for a right hip disability, shortened right leg, and back disability. He also submitted a new claim for radiating pain, right leg. In a June 2017 decision, the RO found that new and material evidence regarding the right hip, shortened right leg, and back disability claims had not been received sufficient to reopen the claims. The new right leg pain claim was also denied due to no evidence of relevant complaints, treatment, or diagnosis in the STRs. Evidence added to the record since the March 2017 decision included private physical therapy records reflecting treatment for right hip and low back pain. The Veteran timely appealed the June 2017 decision. Evidence subsequently associated with the claims file included private records of chiropractic treatment for the Veteran's low back and right hip pain; VA treatment records reflecting physical therapy treatment for low back and right hip pain and observations of normal gait patterns; a March 2021 opinion from his treating chiropractor determining that his service-connected right ankle disability influenced his current hip, pelvic, and spinal pain and dysfunction; medical treatises; and a June 2019 lay statement and the March 2021 hearing testimony both describing the in-service incidents and how difficulties with the service-connected right ankle disability caused his right hip, right leg, and back conditions. 1. New and material evidence having been received, the claim for service connection for a right hip disability is reopened. 2. New and material evidence having been received, the claim for service connection for a shortening of the right leg is reopened. 3. New and material evidence having been received, the claim for service connection for a back disability is reopened. The Board finds that new and material evidence has been added to the record since the August 2016 and March 2017 final rating decisions, specifically to include the private medical opinion supporting a secondary theory of causation of the claimed conditions and the Veteran's hearing testimony providing additional information about the in-service injuries and effects of his service-connected right ankle disability on the claimed conditions. Such evidence relates to unestablished facts necessary to substantiate the claims for service connection. Therefore, the right hip disability, shortened right leg, and back disability claims are reopened. REASONS FOR REMAND 1. Entitlement to service connection for shortening of the right leg is remanded. As noted above, a September 1998 STR stated that the Veteran's left leg was slightly longer than his right leg. He has contended that either the shortening of the right leg is the result of service or was aggravated therein, or that the condition is the result of the service-connected right ankle disability or a right hip disability. Based on the in-service notation and the intertwined right hip claim, the Board finds that a VA examination and opinion are needed before a decision may be rendered on the claim. McClendon v. Nicholson, 20 Vet. App. 79 (2006); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). For purposes of entitlement to VA benefits, the law provides that congenital or developmental defects are not diseases or injuries within the meaning of the applicable legislation. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303(c), 4.9. Service connection, however, may be granted for disability which is shown to have resulted from a defect which was subject to a superimposed disease or injury during service. See VAOPGCPREC 82-90 (July 18, 1990). Here, there is a notation in service reflecting a slightly shorter right leg. The Veteran testified that he has never been told his right leg was shorter by any other treating clinicians. As such, several inquiries should be made upon remand, including whether the Veteran's right leg is shortened, whether such shortening is a congenital or developmental defect, and whether any in-service incident constitutes a superimposed injury which has resulted in a current disability. Additionally, any effect caused by the service-connected right ankle disability or the right hip disability on appeal should be discussed. 2. Entitlement to service connection for a right hip disability is remanded. 3. 3. Entitlement to service connection for radiating pain, right leg is remanded. 4. Entitlement to service connection for a back disability is remanded. The Veteran has contended that a current right hip disability, radiating pain in the right leg, and a back disability are the result of his service or his service-connected right ankle disability. The Veteran's treating chiropractor submitted an opinion in March 2021, stating that research has shown that foot and ankle injury can lead to mechanical dysfunction and pain in the hips, pelvis, and spine. He believed that the Veteran's previous ankle/foot injury influences his hip, pelvic, and spinal pain and dysfunction. A medical treatise was provided in support. The Board finds that a VA examination and opinion are needed before a decision may be rendered on the claims. The private clinician provided a positive opinion of some effect of the service-connected right ankle disability on the claimed conditions, noting that they were "influenced" by prior ankle injury. Given the suggestion of causation or aggravation, an opinion is needed which determines whether the claimed conditions are at least as likely as not caused or aggravated by the service-connected right ankle disability. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate clinician to determine the etiology his claimed shortening of the right leg. Following a review of the claims file, the examiner is asked to address the following: (a.) Determine whether the Veteran has a current condition of a shortening of the right leg. (b.) Determine whether a shortening of the Veteran's right leg is a congenital or developmental defect. (c.) Determine whether it is at least as likely as not that a shortening of the Veteran's right leg had a superimposed disease or injury in service, specifically to include the September 1998 left heel injury, October 1998 report of bilateral leg pain, and May 2001 right ankle fracture. (d.) Discuss the effect, if any, of the Veteran's service-connected right ankle disability and the right hip disability on appeal on his shortened right leg condition, if such condition is found; the examiner should specifically discuss the March 2021 private opinion. (e.) The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports should be acknowledged and considered in formulating any opinion. (f.) If medical literature is relied upon in rendering this determination, the examiner should identify and specifically cite each reference material used. (g.) All opinions should be accompanied by supporting rationale explaining how the examiner arrived at the conclusions expressed. 2. Schedule the Veteran for a VA examination with an appropriate clinician to determine the etiology of his claimed right hip disability, radiating pain of the right leg, and back disability. Following a review of the claims file, the examiner is asked to address the following: (a.) Identify all diagnosed conditions of the right hip, right leg, and back. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment of earning capacity, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. (b.) Is the disability related to an in-service injury, event, or disease? (c.) Is the disability caused or aggravated (i.e., worsened beyond natural progression) by the service-connected right ankle disability? (d.) The examiner is cautioned that the term "aggravated," as used in 38 C.F.R. § 3.310(b), does not require that there be "permanent worsening" of the nonservice-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence." See Ward v. Wilkie, 31 Vet. App. at 239. (e.) The examiner is specifically asked to discuss the March 2021 private opinion. (f.) The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports should be acknowledged and considered in formulating any opinion. (g.) If medical literature is relied upon in rendering this determination, the examiner should identify and specifically cite each reference material used. (h.) All opinions should be accompanied by supporting rationale explaining how the examiner arrived at the conclusions expressed. 3. After completing the above, and any additionally indicated development, readjudicate the claims. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rachel E. Jensen, 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.