Citation Nr: 1500074 Decision Date: 01/05/15 Archive Date: 01/09/15 DOCKET NO. 11-18 743 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for degenerative disc disease (DDD), lumbosacral spine (claimed as low back problem), as secondary to the service-connected bilateral pes planus. 2. Entitlement to service connection for DDD, lumbosacral spine (claimed as low back problem), as secondary to the service-connected bilateral pes planus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Abrams, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1966 to March 1968. These matters are before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Board notes that in October 2009, the Veteran filed an increased rating claim for his bilateral hearing loss, which was denied in an April 2010 rating decision. In April 2010, the Veteran submitted a Notice of Disagreement with the April 2010 rating decision, and a Statement of the Case was subsequently issued in May 2011. However, on the Veteran's July 2011 VA Form 9, in which he appealed the issues noted on the cover page, the Veteran indicated that he only wished to appeal his service connection DDD claim, not his increased rating claim for bilateral hearing loss. As such the Veteran did not perfect his appeal in regard to his bilateral hearing loss claim, and it is no longer before the board. The issue of entitlement to service connection for DDD, lumbosacral spine (claimed as low back problem), as secondary to the service-connected bilateral pes planus, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A May 2008 rating decision denied service connection for entitlement to service connection for DDD, lumbosacral spine (claimed as low back problem), as secondary to the service-connected bilateral pes planus. 2. The new evidence received since the last final rating decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for DDD, lumbosacral spine (claimed as low back problem), as secondary to the service-connected bilateral pes planus, and raises a reasonable possibility of substantiating that claim. CONCLUSIONS OF LAW 1. The May 2008 rating decision that denied service connection for DDD, lumbosacral spine (claimed as low back problem), as secondary to the service-connected bilateral pes planus, reaction is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2014). 2. New and material evidence has been received to reopen a claim of entitlement to service connection for DDD, lumbosacral spine (claimed as low back problem), as secondary to the service-connected bilateral pes planus. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (West 2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2014). Given the favorable disposition of the claim of new and material evidence, the Board finds that all notification and development action needed to fairly adjudicate this claim has been accomplished. II. New and Material Evidence Analysis Pertinent procedural regulations provide that nothing in 38 U.S.C.A. § 5103A (West 2014) shall be construed to require VA to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in 38 U.S.C.A. § 5108 (West 2014). See 38 U.S.C.A. § 5103A(f) (West 2014). Reopening a claim for service connection that has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C.A. § 5108 (West 2014); Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). New evidence means existing evidence not previously submitted to VA. 38 C.F.R. § 3.156(a) (2014). Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. 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. Id. In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the United States Court of Appeals for Veterans Claims (Court) held the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) (2014) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108 (West 2014). Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court has held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). To determine whether new and material evidence has been submitted, it is necessary to consider all evidence added to the record since the last time the claim was denied on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). After reviewing the evidence added to the claims folder since the May 2008 denial, the Board finds that additional evidence has been received that is sufficient to reopen the Veteran's claim. At the time of the May 2008 denial, there was no medical evidence suggesting a nexus connecting the Veteran's back disability to his service-connected pes planus. In a June 2011 VA podiatry note, the Veteran's podiatrist noted that the Veteran's flat feet caused the pain in his back and feet. This evidence was not before the RO in May 2008 and it is not cumulative or redundant evidence then of record. It raises a reasonable possibility of substantiating the Veteran's claim. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (explaining that 38 C.F.R. § 3.156(b) (2014) contemplates additional development following reopening a claim in order to substantiate the claim). Accordingly, the Board finds that new and material evidence has been added to the record since the May 2008 rating decision and the claim must be reopened. ORDER The claim of entitlement to service connection for DDD, lumbosacral spine (claimed as low back problem), as secondary to the service-connected bilateral pes planus, is reopened, and to that limited extent, the appeal is granted. REMAND In a February 2008 letter, the Veteran's private chiropractor, T. L. N., R.N. D.C., wrote that the Veteran was an excellent case study of the relationship between foot dysfunction and low back instability. He wrote that it was at least as likely as not that the Veteran's foot condition had aggravated and exacerbated his low back condition. T. L. N. wrote that this condition was permanent in nature and would lead to further degeneration over time. In a June 2011 VA podiatry note, the Veteran's podiatrist noted that the Veteran's flat feet caused the pain in his back and feet. The Board notes that both these positive nexus opinions are conclusory and provide no rationale. Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In a February 2012 Compensation and Pension (C&P) Back Examination, the Veteran was diagnosed with mild DDD. The VA examiner opined that the Veteran's low back condition had less likely than not been aggravated beyond its natural progression by his bilateral progression. Additionally, he opined that that it was less likely than not that the Veteran's low back condition was proximately due to, or the result of, his bilateral pes planus. His rationale was the same for both: that lumbar spondylosis was a degenerative condition that affects the lower spine. He noted that this condition was usually caused by old age. The Board notes that the VA examiner did not review the Veteran's claims file before making his/her opinion, did not take into account the Veteran's lay statements or the positive medical evidence of record, and was speculative. As such, the Board finds this examination to be inadequate. Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In an August 2012 C&P Back Opinion, the VA examiner noted that he had reviewed the Veteran's claims file. He opined that it was less likely than not that the Veteran's back condition was proximately due to, or the result of, or aggravated by, his service-connected pes planus. The examiner explained that the Veteran provided no evidence other than his own statement. As noted above, there is both a positive nexus opinion from the Veteran's chiropractor, as well as a treatment record from his VA podiatrist linking the Veteran's back condition to his bilateral pes planus. Additionally, the August 2012 examiner did not address the Veteran's competent lay assertions regarding his low back condition. Instead, the C&P examiner just seemed to dismiss the Veteran's lay statements without explaining why. As a result, the Board finds the August 2012 C&P Opinion to be inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination must consider lay evidence of in-service incurrence or continuity of symptomatology since service). Because both the February 2012 C&P Back Examination and the August 2012 C&P Opinion are inadequate, a new examination is necessary to determine the etiology of the Veteran's DDD. Accordingly, the case is REMANDED for the following actions: 1. Obtain copies of the complete updated VA clinical, and private, records of all evaluations and treatment the Veteran received for his low back condition. All requests for records and responses must be associated with the claims folder. If, after making reasonable efforts to obtain named records the AOJ is unable to secure same, notify the Veteran and (a) identify the specific unavailable records; (b) briefly explain the efforts made to obtain those records; and (c) describe any further action to be taken with respect to the claim. Give the Veteran an opportunity to respond. 2. After the completion of the foregoing, obtain an addendum opinion from the same examiner who conducted the August 2012 examination or, if unavailable, the Veteran should be afforded a new VA examination. If the August 2012 VA examiner determines that additional examination of the Veteran is necessary to provide the requested opinion, then one should be scheduled. The claims file and a copy of this remand must be reviewed by the examiner. The VA examiner should indicate in the report whether the claims file was reviewed. The examiner is asked to address the following questions: a. Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's DDD was proximately due to, or the result of, his active service. b. Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's DDD was proximately due to, or the result of, his service-connected bilateral pes planus. The examiner is advised that the term "at least as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as to find against causation. c. Whether it is at least as likely as not (50 percent probability or more) that the Veteran's DDD was chronically aggravated beyond its natural progression by his service-connected bilateral pes planus. The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent possible, the baseline before the onset of the aggravation. 3. Any opinion offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any part of the requested opinions without resorting to pure speculation, he or she should so indicate and provide a rationale as to why such a finding is made. 4. Upon completion of the above, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the Veteran should be provided with a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the Veteran. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs