Citation Nr: 0720781 Decision Date: 07/12/07 Archive Date: 07/25/07 DOCKET NO. 05-25 140 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for degenerative disc disease of the lumbar spine, to include on a secondary basis. 2. Entitlement to service connection for a right ankle disability, to include on a secondary basis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The veteran served on active duty from December 1978 to December 1982 and from June 1986 to December 1990. By rating decision dated in June 2003, the Regional Office (RO) denied the veteran's claim for service connection for a low back disability, to include on a secondary basis. He was notified of this determination and of his right to appeal by a letter dated the following month, but a timely appeal was not received. In December 2003, the veteran sought to reopen his claim for service connection for a low back disability. In a July 2004 rating action, the RO confirmed and continued the previous denial of the claim. In addition, the RO denied service connection for a right ankle disability, to include on a secondary basis. The issue of entitlement to service connection for a right ankle disability, to include on a secondary basis is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify you if further action is required on your part. FINDINGS OF FACT 1. Service connection is in effect for residuals of a left ankle fracture with arthritis, evaluated as 30 percent disabling. 2. A June 2003 rating decision denying service connection for chronic low back pain was not appealed. 3. Evidence received subsequent to that decision relates to an unestablished fact necessary to substantiate the claim and raise a reasonable possibility of substantiating the claim. 4. The competent medical evidence establishes that the veteran's left ankle disability contributed to the development of degenerative disc disease of the lumbar spine. CONCLUSIONS OF LAW 1. New and material evidence having been received, the claim for entitlement to service connection for a low back condition is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2006). 2. Degenerative disc disease of the lumbar spine is proximately due to or the result of a service-connected disease or injury. 38 U.S.C.A. §§ 501, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.310 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION The VCAA redefined VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2006). In light of the fully favorable decision on the issue on appeal, the Board finds that no further discussion of VCAA compliance is necessary. Analysis The Board has reviewed all the evidence in the appellant's claims file, which includes: his multiple contentions, include at two hearings, the service medical records, private and VA medical records, VA examination reports, and statements from the veteran's family members. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Pursuant to 38 U.S.C.A. § 7105(c), a final decision by the RO may not thereafter be reopened and allowed. The exception to this rule is found at 38 U.S.C.A. § 5108, which provides that "[i]f new and material evidence is presented or secured with respect to a claim, which has been disallowed, the [VA] shall reopen the claim and review the former disposition of the claim." Therefore, once an RO decision becomes final under section 7105(c), absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by the VA. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. 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. 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. 38 C.F.R. § 3.156(a). VA is required to review for its newness and materiality only the evidence submitted by a claimant since the last final disallowance of a claim on any basis in order to determine whether a claim should be reopened and re-adjudicated on the merits. Evans v. Brown, 9 Vet. App. 273 (1996). In the present appeal, the last final denial of the claim for service connection for a low back disability was in June 2003. Therefore, the Board must review the additional evidence submitted since that determination. The RO denied the appellant's claim for service connection for a low back disability in June 2003 on the basis that there was no clinical evidence linking the veteran's low back disorder to service or his service-connected residuals of a fracture to the left ankle. The additional evidence includes private and VA outpatient treatment records, as well as examination reports. In a statement dated in April 2006, a private physician noted that the veteran had an antalgic gait which, in turn, caused increasing back pain. In addition, following a VA examination in July 2006, the examiner concluded that the veteran's chronic back pain was multifactorial, caused by both degenerative joint disease and malpositioning secondary to a left ankle injury. Thus, the evidence relates to a previously unestablished fact and furnishes a reasonable possibility of substantiating the appellant's claim for service connection for a low back disability. Accordingly, the claim is reopened. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). The regulations provide that service connection is warranted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2006). Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service- connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995); see also 38 C.F.R. § 3.310(b) (effective October 10, 2006). With regard to the issue of whether service connection is warranted for degenerative disc disease of the lumbar spine, the evidence supporting the veteran's claim includes a November 2001 report from a private physician in which some left leg antalgia was noted. When seen in a VA outpatient treatment clinic in December 2002, the veteran related that he had jarred his back about six days earlier while going down some steps. An X-ray study of the lumbosacral spine revealed narrowing of L4-5 and L5-S1 disc space. The assessment was low back strain. In April 2004, a private physician stated that he had reviewed the veteran's medical records and lumbosacral radiographs. He noted that the veteran had experienced a parachuting accident that resulted in a left ankle fracture, and that X-ray studies in February 2004 were consistent with degenerative disc disease of the lumbar spine. He commented that what was unknown was whether the trauma the veteran experienced in the parachuting accident caused or contributed to the degenerative disc disease in the back. The physician indicated that it was known that joints experiencing significant trauma degenerate more rapidly than non- traumatized joints. He maintained that the relationship between the veteran's accident was possible, but not provable. He further pointed out that altered gait mechanics due to the leg/ankle injuries could also contribute to the development and severity of the degenerative disc disease. Another private physician noted in April 2006 that the veteran had been seen in September 2005 and reported an injury in 1987 that resulted in a crush injury to the left ankle, left fibula and left tibia. He asserted that the amount of osteoarthritis present in the ankle had resulted in decreased range of motion and the veteran had very little flexion or extension in the ankle. He added that because of the arthritis, the veteran had to rely primarily on the right leg and this caused overcompensation injuries to the right leg. He stated that the veteran had an antalgic gait and that this caused increasing back pain. He concluded that there was no question that the amount of arthritis the veteran had in the ankle had caused the antalgic gait and that this, in turn, had caused injury and pain to the lower back. Finally, the Board notes that the veteran was afforded a VA examination in July 2006. The veteran related that he had had an abnormal gait since the in-service injury, and that this had caused his chronic back pain. An examination revealed that the veteran had an antalgic gait. Following the examination, the diagnosis was chronic lower back pain secondary to abnormal gait and malpositioning secondary to a left foot injury. The examiner, based on a review of the veteran's medical records and claims folder, concluded that the veteran's chronic back pain was multifactorial, caused by both degenerative joint disease and malpositioning due to abnormal gait secondary to the left ankle injury. He explained that the abnormal gait could cause abnormal, inequivalent transmission of forces through the remainder of the axial skeleton, causing abnormal wear distribution and result in accelerated degenerative joint disease and chronic back pain. Based on a review of the claims folder, another VA physician concluded in August 2006 that the degenerative disc disease was less likely than not related to the left ankle injury in service. He noted that although the veteran described having an abnormal gait since the injury in 1987, VA examinations showed that he had a normal gait. The physician also stated that the fact that the veteran was overweight for his height would potentially result in increased stress in the lumbosacral region. He further commented that degenerative disc disease is a problem in medicine that has many potential etiologies. In this case, there are three medical opinions that support the veteran's allegations of a relationship between his service-connected left ankle injury and degenerative disc disease in the lumbar spine, and one that rejects it. The Board points out that it is not merely the fact that the number of favorable opinions is higher than the single opinion that is against the claim. In this regard, the Board concedes that the private physicians did not have access to the veteran's claims folder. The physician who provided the April 2004 opinion did review some (unspecified) medical records. His opinion was somewhat speculative, in that he said that it was possible, but not provable, that there was a relationship between the left ankle disability and a back disability. Nevertheless, he provided a rationale for his opinion, that is, the veteran's altered gait mechanics could contribute to the development of degenerative disc disease. Similarly, in April 2006, another private physician also explained that the veteran's antalgic gait was caused by arthritis, and this led to the veteran's back problem. While the August 2006 opinion from the VA examiner indicates that the record revealed a normal gait, on the initial VA examination following the veteran's discharge from service, conducted in February 1991, the examiner indicated that the veteran had a very slight limp. Subsequently VA examinations in April 1993, December 1996 and October 1998 did not specifically mention gait. The October 1998 examination noted that the veteran's ankle joint did not move very much and that when he tried to walk on his heel or toe, it was difficult for him to do this on either the left heel or toe. In July 1999 it was noted that the veteran was capable of walking with somewhat of a flatfoot gait, with smooth stride and step, but with no true heel strike. It was noted that he appeared to compensate well. A subsequent report in October 1999 noted no evidence of an antalgic gait, and it was noted on the May 2004 VA examination that he did not walk with a limp. Subsequent private notes indicated that he did have an antalgic gait. Upon review of the record, the Board finds that the evidence is in equipoise. Accordingly, the benefit of the doubt is resolved in the veteran's favor, and service connection for degenerative disc disease of the lumbar spine on a secondary basis is warranted. ORDER New and material evidence having been received, the claim for service connection for a low back disability is reopened. Service connection for degenerative disc disease of the lumbar spine on a secondary basis is granted. REMAND The veteran also asserts that service connection is warranted for a right ankle disability secondary to his service connected residuals of a fracture of the left ankle. The record discloses that when he was examined by the VA in April 2004, the veteran reported right ankle pain. The pertinent impression was pain in the right ankle. The examiner commented that he was unable to state with certainty that the left foot pain was causing the right ankle pain. The Board notes that pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). A private physician noted in April 2006 that due to osteoarthritis in the left ankle, the veteran relied primarily on his right leg, and this caused overcompensation injuries to the right leg. He also noted that the veteran had an antalgic gait and that there was no question that the arthritis in the ankle had caused the antalgic gait and that this, in turn, had caused injury and pain to the right leg. In a March 2007 statement, the same physician commented that the veteran's left leg pain resulted in an antalgic gait and this put additional strain on his right leg. The Board concedes that a specific disability of the right ankle has not been identified. However, in view of the indications in the record of problems involving the right leg, the Board is of the opinion that additional development of the record is warranted. Accordingly, the case is REMANDED to the RO for action as follows: 1. The RO should contact the veteran and request that he furnish the names, addresses, and dates of treatment of all medical providers from whom he has received treatment for a right ankle disability since his discharge from service. After securing the necessary authorizations for release of this information, the RO should seek to obtain copies of all treatment records referred to by the veteran, and which have not already been associated with the claims folder. 2. The veteran should then be afforded a VA orthopedic examination by a physician to determine the nature and etiology of any current right ankle disability. All necessary tests should be performed. The claims folder should be made available to and reviewed by the examiner in conjunction with the examination. The examiner is requested to furnish an opinion concerning whether a diagnosed right ankle disability is present and, if so, whether it is at least as likely as not that the veteran's service-connected residuals of a fracture of the left ankle caused or aggravated the right ankle disability beyond its normal course. If the left ankle disability caused an increase in the severity of any diagnosed right ankle disability, the examiner should specify, if possible, the extent to which the disability was aggravated. The examiner should set forth the rationale for any opinion expressed. 3. Following completion of the above, the RO should review the evidence and determine whether the veteran's claim may be granted. If not, he and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters 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 Supp. 2006). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs