Citation Nr: 22016459 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 17-11 306 DATE: March 22, 2022 ORDER New and material evidence having been received, the claim for service connection for a lumbar spine disability is reopened. 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 left hip disability is reopened. Entitlement to service connection for a lumbar spine disability is granted. Entitlement to service connection for a right hip disability is granted. Entitlement to service connection for a left hip disability is granted. FINDINGS OF FACT 1. An unappealed February 1996 rating decision is the last final decision that denied service connection for residuals of low back injury and hip pain. 2. The evidence received since the February 1996 rating decision is new and relates to unestablished facts necessary to substantiate the claims for service connection for lumbar spine, right hip, and left hip disabilities. 3. The evidence is in equipoise as to whether the Veteran's current lumbar spine disability had its onset during her active service. 4. The evidence is in equipoise as to whether the Veteran's current right hip disability had its onset during her active service. 5. The evidence is in equipoise as to whether the Veteran's current left hip disability had its onset during her active service. CONCLUSIONS OF LAW 1. The February 1996 rating decision denying service connection for residuals of low back injury and hip pain is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.160(d), 20.302, 20.1103. 2. The criteria to reopen the claims for service connection for lumbar spine, right hip, and left hip disabilities are met. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156(a). 3. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for a lumbar spine disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for a right hip disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for a left hip disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from March 1991 to June 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. In September 2018, the Veteran submitted a Rapid Appeals Modernization Program (RAMP) Opt-In Election form and requested higher-level review of all pending compensation appeals. In December 2021, the Board sent the Veteran a letter asking whether she still wished to participate in the modernized appeals system. The letter provided that if the Veteran did not respond within 60 days, the Board would assume that she would like the appeal to remain in the legacy appeals system. To date, no response has been received from the Veteran. Therefore, the Board will continue to process this appeal under the legacy appeals system. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions 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); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Whether new and material evidence has been received to reopen the claims for service connection for lumbar spine, right hip, and left hip disabilities Rating decisions are final, and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302. If the Board issues a decision on appeal confirming the RO's decision, then the Board's decision subsumes the RO's decision on the same issue at hand. 38 C.F.R. § 20.1104. Moreover, if the Board's decision is not timely appealed, then it, too, is final and binding based on the evidence then of record. 38 C.F.R. § 20.1100. VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of the claimant. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Regarding applications for reopening, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as 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 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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179 (2003). In order to reopen a claim, it is not necessary that new and material evidence be received regarding each previously unproven element of a claim. Indeed, newly submitted evidence need not be overwhelming as a "low threshold" standard is applied. Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). In this matter, the Veteran's original claim for service connection for residuals of low back injury and hip pain was denied by the RO in a February 1996 rating decision because there was no current objective medical evidence of a chronic residual disability. The Veteran did not appeal the February 1996 rating decision, nor was new and material evidence received within a year of notification of the rating decision. The Board acknowledges that service treatment records (STRs) were added to the claims file in October 2014. However, the February 1996 rating decision notes that the Veteran's service medical records were reviewed and specific STRs were discussed in the decision. There is no indication that the STRs associated with the Veteran's claims file in October 2014 are different from those available to the RO at the time of the February 1996 rating decision, such that the exception to finality under 38 C.F.R. § 3.156(c) would apply. Therefore, the February 1996 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 3.104(a). Thus, the question before the Board is whether the evidence received after the final February 1996 rating decision is both new and material. The record reflects that when the RO issued the February 1996 rating decision, the Veteran's claims file included a July 1995 claim application and a September 1995 VA examination report. Evidence received since the February 1996 rating decision includes the Veteran's July 2021 Board hearing testimony, in which she stated that she has had continuing back and hip problems since service. The Board finds the Veteran's July 2021 Board hearing testimony to be new as it was not previously submitted to the RO and it is material because it relates to unestablished facts necessary to substantiate the claims for service connection for lumbar spine, right hip, and left hip disabilities; namely, a nexus to service. Accordingly, the Board concludes that the evidence received since the last final decision is new and material and, for these reasons, the petitions to reopen are granted. Service Connection Claims Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995). Any amount of aggravation is sufficient to establish secondary service connection; permanent aggravation or worsening of a non-service-connected disability is not required. See Ward & Neal v. Wilkie, 31 Vet. App. 233 (2019). Relevant here, the Veteran's diagnosed arthritis is considered by VA to be a "chronic disease" as listed under 38 C.F.R. § 3.309(a). Therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307 to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). This rule does not mean that any manifestation in service will permit service connection. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A lay person is competent to report on the onset and reoccurrence of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana, 24 Vet. App. at 443 n. 4; see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. See Lynch v. McDonough, 999 F.3d 1391 (2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). If the evidence persuasively weighs against a claim, the claim is denied. 2. Entitlement to service connection for a lumbar spine disability The Veteran asserts she is entitled to service connection for a lumbar spine disability, to include as secondary to her service-connected bilateral knee disabilities. As an initial matter, the Board finds that the Veteran has a current lumbar spine disability, to include mechanical low back pain and arthritis. See February 2015 VA examination report. Next, the Board finds that the Veteran had multiple in-service complaints related to her back. The Veteran endorsed back pain in STRs dated August 1992, October 1992, April 1993, and November 1994. Notably, in an April 1995 Report of Medical History, the Veteran reported recurrent back pain. Therefore, an in-service event is established. Thus, the remaining question before the Board is whether there is competent evidence of a nexus between the Veteran's in-service back complaints and her current lumbar spine disability. On review, the Board finds that the evidence is at least in equipoise as to whether the Veteran's current lumbar spine disability had its onset during her active service and has continued ever since. First, the Board finds the Veteran's competent reports that her back problems onset in service and continued ever since to be credible and highly probative. See November 2015 VA chiropractic consultation report; May 2016 private treatment record; July 2021 Board hearing testimony. Statements, such as these, made to clinicians for purposes of diagnosis and treatment are exceptionally trustworthy because the Veteran has a strong motive to tell the truth in order to receive proper care. Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Second, medical evidence supports the in-service onset and ongoing nature of the Veteran's low back pain. In the September 1995 VA examination report, which was conducted less than three months after the Veteran's separation from active service, the examiner noted the in-service complaint of low back pain in 1993 and determined that it was "compatible with mechanical low back pain." The examiner then rendered a current diagnosis of mechanical low back pain. In a May 1999 VA treatment record, the provider noted an impression of "Back pain Possible mechanical," and the February 2015 VA examiner noted a diagnosis of mechanical low back pain. Furthermore, the Board finds it highly significant that post-service treatment providers characterized the Veteran's low back pain as "chronic." See private treatment records dated July 2015 to September 2016; VA treatment records dated November 2015 to March 2016. Third, the September 1995 VA examiner did not render an etiology opinion, and the February 2015 VA examiner only provided an opinion as to secondary service connection. Thus, the Board acknowledges that there is no adequate medical opinion of record regarding direct service connection for the Veteran's lumbar spine disability. While a lay person is not always competent to relate past symptoms to a current diagnosis, in this case it is within the competence of a lay Veteran, and the lay adjudicator, to reach that conclusion based upon the observable nature of back pain. See Kahana, 24 Vet. App. at 438. For these reasons, and with resolution of all reasonable doubt in the Veteran's favor, the Board finds that service connection for a lumbar spine disability is warranted. The appeal is therefore granted. 3. Entitlement to service connection for a right hip disability 4. Entitlement to service connection for a left hip disability The Veteran asserts she is entitled to service connection for right and left hip disabilities, to include as secondary to her service-connected bilateral knee disabilities. As an initial matter, the Board finds that she has current right and left hip disabilities. In Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the Federal Circuit Court held that pain alone, even without an underlying pathology or diagnosis, can constitute a disability under VA law where such pain results in functional impairment of earning capacity. During the February 2015 VA examination, the Veteran endorsed pain in the hip joints and reported that flareups of pain may occur with long automobile rides and physical activity involving twisting, bending, and turning. The Veteran stated that she avoids heavy lifting and that doctors have told her to avoid lifting anything heavier than 10 pounds. The February 2015 VA examiner opined that the Veteran's hip conditions impacted her ability to perform any type of occupational task. Thus, the Board finds that the Veteran's right and left hip pain results in functional impairment of earning capacity and, accordingly, are considered disabilities under Saunders. Next, the Board finds that the Veteran had multiple in-service complaints related to her hips. The Veteran endorsed hip pain in STRs dated September 1991, October 1991, April 1992, October 1994, and November 1994. In the September 1991 STR, service medical personnel assessed the Veteran with overuse syndrome of the bilateral lower extremities secondary to biomechanics. In an April 1995 Report of Medical History, the Veteran reported that she was taking Tolectin and Flexeril for chronic pain in her hips and that her chronic hip pain was due to physical stress and overexposure to cold weather. Therefore, an in-service event is established. Thus, the remaining question before the Board is whether there is competent evidence of a nexus between the Veteran's in-service hip complaints and her current right and left hip disabilities. On review, the Board finds that the evidence is at least in equipoise as to whether the Veteran's current right and left hip disabilities had their onset during her active service and have continued ever since. First, the Board finds the Veteran's competent reports that her hip pain onset in service and continued ever since to be credible and highly probative. See May 1999 VA treatment record; May 2016 private treatment record; November 2016 VA nursing note; July 2021 Board hearing testimony. Statements, such as these, made to clinicians for purposes of diagnosis and treatment are exceptionally trustworthy because the Veteran has a strong motive to tell the truth in order to receive proper care. Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Second, medical evidence supports the in-service onset and ongoing nature of the Veteran's bilateral hip pain. During the September 1995 VA examination, which was conducted less than three months after the Veteran's separation from active service, she endorsed hip pain. In a February 1999 VA treatment record, the Veteran complained of bilateral hip pain and noted she was previously treated at another VA Medical Center. In a May 1999 VA treatment record, the Veteran endorsed left hip pain that was off and on since 1991. Furthermore, the Board finds it highly significant that post-service treatment providers characterized the Veteran's hip pain as "chronic." See VA treatment records dated December 2014 to November 2016; private treatment records dated May 2016 to September 2016. Third, the September 1995 VA examiner did not render an etiology opinion, and the February 2015 VA examiner only provided an opinion as to secondary service connection. Thus, the Board acknowledges that there is no adequate medical opinion of record regarding direct service connection for the Veteran's right and left hip disabilities. While a lay person is not always competent to relate past symptoms to a current diagnosis, in this case it is within the competence of a lay Veteran, and the lay adjudicator, to reach that conclusion based upon the observable nature of hip pain. See Kahana, 24 Vet. App. at 438. For these reasons, and with resolution of all reasonable doubt in the Veteran's favor, the Board finds that service connection for right and left hip disabilities is warranted. The appeal is therefore granted. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. M. Gill, 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.