Citation Nr: A24029764 Decision Date: 06/06/24 Archive Date: 06/06/24 DOCKET NO. 231201-398203 DATE: June 6, 2024 ORDER New and relevant evidence having been received, the readjudication of the claim for entitlement to service connection for a back disability is granted. New and relevant evidence having been received, the readjudication of the claim for entitlement to service connection for a left knee disability is granted. New and relevant evidence having been received, the readjudication of the claim for entitlement to service connection for left lower extremity (LLE) radiculopathy is granted. Entitlement to service connection for a back disability is granted. Entitlement to service connection for a left knee disability is granted. Entitlement to service connection for left lower extremity (LLE) radiculopathy is granted. FINDINGS OF FACT 1. In the March 2016 statement of the case (SOC), the claims of entitlement to service connection for a back disability, left knee disability, and LLE radiculopathy were denied. 2. Following the issuance of the March 2016 SOC, the Veteran did not file a substantive appeal (VA Form 9), and the claims became final. 3. Since the March 2016 SOC became final, evidence was received that was not previously part of the record and which tends to prove or disprove a matter at issue in the service connection for a back, a left knee, and LLE radiculopathy claims. 4. Resolving reasonable doubt in the Veteran's favor, his back disability is at least as likely as not related to the injuries sustained from a tornado hitting his home on base during service. 5. Resolving reasonable doubt in the Veteran's favor, his left knee disability is at least as likely as not related to the injuries sustained from a tornado hitting his home on base during service. 6. Resolving reasonable doubt in the Veteran's favor, his LLE radiculopathy is at least as likely as not related to the injuries sustained from a tornado hitting his home on base during service. CONCLUSIONS OF LAW 1. As new and relevant evidence has been received, the criteria for readjudication of the claim for entitlement to service connection for a back disability have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 3.2501. 2. As new and relevant evidence has been received, the criteria for readjudication of the claim for entitlement to service connection for a left knee disability have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 3.2501. 3. As new and relevant evidence has been received, the criteria for readjudication of the claim for entitlement to service connection for left lower extremity (LLE) radiculopathy have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 3.2501. 4. The criteria for entitlement to service connection for a back disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for entitlement to service connection for a left knee disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for entitlement to service connection for left lower extremity (LLE) radiculopathy have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1954 to August 1957. The rating decision on appeal was issued in November 2023 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the December 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on February 29, 2024. Therefore, the Board may only consider the evidence of record at the time of the November 2023 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. New and Relevant Evidence A claimant may request readjudication of a previously denied claim, if new and relevant evidence is presented or secured. VA will readjudicate the claim taking into consideration all evidence of record. New evidence means existing evidence not previously submitted to agency decisionmakers. The term "relevant evidence" means evidence that tends to prove or disprove a matter in issue. See 38 U.S.C. § 5108; Pub. L. No. 115-55. 1. New and relevant evidence having been received, the readjudication of the claim for entitlement to service connection for a back disability 2. New and relevant evidence having been received, the readjudication of the claim for entitlement to service connection for a left knee disability 3. New and relevant evidence having been received, the readjudication of the claim for entitlement to service connection for left lower extremity (LLE) radiculopathy In a March 2016 statement of the case (SOC), the AOJ denied service connection for a back disability, a left knee disability, and radiculopathy of the LLE, finding that there was no causal relationship between the disabilities and service. The Veteran did not perfect his appeal by filing a timely substantive appeal (VA Form 9); thus, the March 2016 SOC became final. See 38 C.F.R. § 20.1103. Evidence received since the March 2016 SOC includes lay statements from the Veteran's youngest daughter, son-in-law,, and oldest daughter, as well as private treatment records. This evidence is new as it was not previously part of the record and relevant as it goes towards previous unestablished facts of the claims. Based on the foregoing, the Board finds that the criteria to readjudicate the claims for service connection for a back disability, left knee disability, and radiculopathy of the LLE are met. 4. Entitlement to service connection for a back disability 5. Entitlement to service connection for a left knee disability 6. Entitlement to service connection for left lower extremity (LLE) radiculopathy The Veteran seeks service connection for a back disability, a left knee disability, and LLE radiculopathy he contends are due to injuries he received from a May 1957 tornado hitting his off-base house during service. See February 2024 Board Hearing Transcript. Generally, to establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). The November 2023 rating decision made the favorable finding that the Veteran has a diagnosed back and left knee disability. The May 2014 Disability Benefits Questionnaire (DBQ) notes the Veteran has been diagnosed with radiculopathy of the LLE. Therefore, the Board finds the first element of service connection, a current disability, has been met. Next, the Board notes the Veteran's service treatment records and military personnel records were destroyed by a fire in July 1973 at the National Personnel Records Center. Therefore, the Veteran's account of having experienced injuries due to a tornado while on active service cannot be corroborated with those records. However, the Board notes that the Veteran is competent to assert the occurrence of an in-service injury. See Bennett v. Brown, 10 Vet. App. 178 (1997). The Board believes the Veteran's reports of injuring his back, left knee, and LLE following a May 1957 tornado hitting his home off base and throwing him into a wall during service to be credible. See February 2024 Board Hearing Transcript. In addition, the Veteran has submitted a National Weather Service Report showing that a tornado hit near the base in May 1957. See Web Documents. Therefore, based on the Veteran's competent and credible account, and the corroborating document from the National Weather Service, the Board finds the second element of service connection has been met. Finally, the Veteran submitted a positive nexus opinion from Dr. R.J. who stated the Veteran's back disability is due to injuries sustained from the tornado. See October 2023 Private Treatment Record. However, the opinion is conclusory and contains no rationale. Therefore, the Board finds this opinion has low probative value. In a May 2014 statement, the Veteran reported that he sought treatment in 1957 during service for his back, knee, an LLE radiculopathy following his injuries from the tornado. See May 2014 Statement in Support of Claim. However as previously stated, the Veteran's service treatment records and military personnel records were destroyed by a fire in July 1973 at the National Personnel Records Center. Lay statements from the Veteran's youngest daughter, son-in-law,, and oldest daughter, all state that as long as they can remember, the Veteran has had pain and sought treatment for back, knee, and LLE problems, and that the Veteran attributed these problems to injuries from a tornado. Two Disability Benefits Questionnaires include notations from doctors which note the Veteran has had chronic back, knee, and LLE pain since the 1957 tornado. Despite the low probative value of the opinion by Dr. R.J., the Board finds the evidence is at least in equipoise as to whether the Veteran's current back, left knee, and LLE radiculopathy disabilities are due to injuries sustained during a tornado in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that the last element of service connection, a nexus, has been met. Service connection for a back, left knee, and LLE radiculopathy is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The claims are granted. David H. Robertson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Boyd, 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.