Citation Nr: 23023486 Decision Date: 04/24/23 Archive Date: 04/24/23 DOCKET NO. 19-13 622 DATE: April 24, 2023 ORDER New and material evidence having been submitted, a claim for service connection for a right hip disability is reopened. New and material evidence having been submitted, a claim for service connection for a left hip disability is reopened. New and material evidence having been submitted, a claim for service connection for a right leg disability is reopened. New and material evidence having been submitted, a claim for service connection for a left leg disability is reopened. Entitlement to service connection for a lumbar spine disability is granted. REMANDED Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a right leg disability is remanded. Entitlement to service connection for a left leg disability is remanded. FINDINGS OF FACT 1. The claim for service connection for a bilateral hip and bilateral leg disability was previously denied in a March 2015 rating decision, the Veteran did not appeal the decision, and no new evidence pertinent to the claim was received within one year from the date that the notice of the decision was mailed to the Veteran. 2. Evidence received since the final March 2015 rating decision relates to an unestablished fact, is not cumulative or redundant of the evidence previously of record and is sufficient to raise a reasonable possibility of substantiating the claim the current bilateral hip and bilateral leg conditions. 3. The Veteran's lumbar disability is related to service. CONCLUSIONS OF LAW 1. The March 2015 rating decision denying a claim to service connection for a for a bilateral hip and bilateral leg disability is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Evidence received since the final March 2015 rating decision is new and material; and reopening of the Veteran's claim for entitlement to service connection for a bilateral hip and bilateral leg disability is therefore warranted. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156 (a), 20.1103. 3. The criteria for service connection for a lumbar disability are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1976 to July 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). New and Material Evidence VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). "New" evidence is evidence not previously submitted to agency decision makers and" material" evidence is 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). In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Cox v. Brown, 5 Vet. App. 95, 98 (1993); Justus v. Principi, 3 Vet. App. 510, 513 (1992). VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of the claim on any basis, whether a decision on the underlying merits or, a petition to reopen. Evans v. Brown, 9 Vet. App. 273, 283 (1996). In Shade v. Shinseki, 24 Vet. App. 100 (2010), the United States Court of Appeals for Veterans Claims (Court) held that § 3.159(c)(4) does not require new and material evidence as to each previously unproven element of a claim for the claim to be reopened and the duty to provide an examination triggered. In a fact pattern where a prior denial was based on lack of current disability and nexus, the Court found that newly submitted evidence of a current disability was, in concert with evidence already of record establishing an injury in service, new and material and sufficient to reopen the claim and obtain an examination. Regardless of any RO determinations that new and material evidence has been submitted to reopen service connection, the Board must still determine whether new and material evidence has been submitted in this matter. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a right hip disability 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a left hip disability 3. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a right leg disability 4. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a left leg disability The Veteran seeks to reopen his claims of service connection for a bilateral hip and bilateral leg disability. The Veteran's bilateral hip and leg disabilities were originally denied in a June 2012 rating decision. The June 2012 Notification Letter indicated the denials were due to a lack of nexus, i.e., the evidence failed to show the current disabilities are related to service. The most recent denial was a March 2015 rating decision denying the claims due to a lack of new and material evidence. The evidence of record at the time of the March 2015 rating decision included the service treatment records, military personnel records, VA treatment records, a June 2011 and July 2011 VA examination and opinion for the bilateral hip claim; a May 2012 failure to report to the bilateral leg VA examination; and May 2009 VA treatment records reflecting complaints of left hip numbness and unilateral leg swelling. The Veteran did not timely appeal these claims, nor did he submit new and material evidence. Therefore, the March 2015 rating decision became final. 38 U.S.C. § 7105; (2014); 38 C.F.R. § 20.1103. The relevant evidence received since the final March 2015 rating decision is detailed below: An October 2020 positive etiology opinion from Dr. D.M. indicating the Veteran's bilateral lower extremity radiculopathy is a direct result of his thoracolumbar condition. In view of the grant for service connection below concerning the lumbar spine and the possibility of bilateral radiculopathy associated therewith; and in conjunction with the above-described evidence that includes a nexus opinion addressing the lower extremities which includes the bilateral hips and legs, evidence submitted since the previous rating decision contains information that tends to prove a matter at issue in this claim. Therefore, the claim to reopen the bilateral hip and bilateral leg claim is granted. Service Connection 5. Entitlement to service connection for a lumbar spine disability The Veteran claims his lumbar spine disability is related to in-service parachute jumps. For the reasons discussed below, the Board agrees. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For specific enumerated diseases designated as "chronic," such as arthritis, there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. For the presumption to attach, the disease must have become manifest to a degree of 10 percent or more within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive service connection for chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a) Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the weight of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Turning to the evidence, service treatment records (STRs) do not reflect any symptoms, diagnosis, or treatment for a back disability. In a June 1979 report of medical history, the Veteran denied recurrent back pain. On the July 1983 separation examination normal clinical findings were noted for the spine. Post service, in November 2016 private treatment records the Veteran reported lumbar discogenic pain and chronic low back pain with an onset in October 2016. He received a lumbar translaminar epidural steroid injection. In February 2017 Social Security Administration records the Veteran reported chronic low back pain. In October 2020 the Veteran provided a positive etiology opinion from Dr. D.M. The doctor opined that it is at least as likely as not that the Veteran's present thoracolumbar condition is the direct result of injuries he incurred while on active duty. It was also opined that the bilateral lower extremity radiculopathy is a direct result of his thoracolumbar condition. The doctor indicated the Veteran's lumbar spine disability is the result of one incident of parachuting in service. It was noted that the wind speed was almost double the wind speed allowed and on the first parachute jump the Veteran landed in the drop zone. However, for the second jump he was thrown on his back and dragged 30 to 40 feet before he could release his parachute. He experienced immediate severed pain in his back. Prior to this incidence the Veteran had intermittent low back pain that would typically clear up after several days. He did not go to sick call mainly because this was during the Vietnam War, and he wanted to set a good example and not be perceived as unable to complete his duties. The doctor's opinions are based on several articles that deal with chronic mechanical low back syndrome, review of the file, and his expertise. It was concluded that the Veteran has been experiencing intermittent low back pain and generalized body pain from his multiple parachute jumps. It was also noted that the Veteran sustained insult to his spine in general, secondary to the vibration associated with his flying. The doctor included literature review and discussed the Veteran's in-service parachute landings and its connection to his lumbar condition. The doctor further opined that it is at least as likely as not that the Veteran's lumbar condition is directly related to extensive exposure to whole body vibration and provided summaries of studies. Regarding the doctor's favorable opinion for bilateral lower extremity radiculopathy, the rationale indicated the bilateral lower extremity follows the course of the L5 nerve root. The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds the current disability is related to service. In this regard the Board finds the October 2020 private opinion probative. The doctor provided an adequate and thorough rationale. The Veteran's MOS indicates he was a cannon crewman, and he received a parachute badge. The Board has no reason to find his in-service reports of parachute jumping as not credible. There are no contrary medical opinions of record. Accordingly, entitlement to service connection for the lumbar spine disability is granted. REASONS FOR REMAND Entitlement to service connection for a right hip disability Entitlement to service connection for a left hip disability Entitlement to service connection for a right leg disability Entitlement to service connection for a left leg disability For the reasons set forth below, a remand is warranted. As noted above the October 2020 private doctor opined that the bilateral lower extremity radiculopathy is a direct result of the Veteran's thoracolumbar condition. As a result of this decision the Board has granted service connection for the thoracolumbar condition. The bilateral hip and bilateral leg disabilities are joints of the lower extremity and are therefore inextricably intertwined with the service connection grant for the thoracolumbar condition. Notably in August 2019 VA treatment records the Veteran complained of bilateral hip pain and radicular pain in both legs. In November 2019 VA treatment records the Veteran complained of right hip pain that radiates down both legs. Therefore, the Board finds the October 2020 noted bilateral lower extremity radiculopathy is intertwined with the bilateral hip and bilateral leg disability. In addition to implementing the grant of the thoracolumbar condition, the VA should confirm the Veteran's radiculopathy and provide a rating. Therefore, remand is warranted. The matters are REMANDED for the following action: 1. Implement the Boards grant of service connection for a thoracolumbar disability, including all associated disabilities. 2. In so doing, take any additional development deemed necessary to ascertain the current nature and etiology of any potential disability affecting the bilateral hips and bilateral legs, to include radiculopathy. 3. Conduct any other development deemed necessary and then readjudicate the Veteran's claim. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jackman, Bridget 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.