Citation Nr: 1632618 Decision Date: 08/17/16 Archive Date: 08/24/16 DOCKET NO. 14-19 831A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence has been received to reopen the service connection claim for a low back condition. 2. Entitlement to service connection for a low back condition. 3. Entitlement to service connection for a bilateral foot condition. REPRESENTATION Appellant represented by: Mark R. Lippman, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Stuart Sparker, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1979 to April 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran testified at a hearing before the undersigned on January 15, 2016. A transcript is of record. FINDINGS OF FACT 1. An October 2010 decision of the Board last denied entitlement to service connection for a low back disorder. 2. Additional evidence received since the October 2010 Board decision is neither cumulative nor redundant of the evidence previously of record, and raises a reasonable possibility of substantiating the claim for a low back disability. 3. The Veteran's degenerative disc disease at the L4-L5 is related to his in-service motor vehicle accident. 4. The Veteran's bilateral plantar fasciitis and a right Achilles enthesophyte are related to his military service. CONCLUSIONS OF LAW 1. The October 2010 Board decision, which denied service connection for a low back disability, is final. 38 U.S.C.A. §§ 511, 7103, 7104 (West 2014); 38 C.F.R. § 20.1100 (2015). 2. New and material evidence has been submitted to reopen the service connection claim for a low back disability. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 3. The criteria for service connection for degenerative disc disease at the L4-L5 level have been met. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). 4. The criteria for service connection for bilateral plantar fasciitis and a right Achilles enthesophyte have been met. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Lumbar Spine Disorder New and Material Evidence The Veteran petitions to reopen the previously denied service connection claim for a lumbar spine disability. For the following reasons, the Board finds that reopening is warranted. Service connection for a disability of the back was denied by the Board in an October 2010 decision. This decision is final. 38 U.S.C.A. §§ 511, 7103, 7104(a); 38 C.F.R. § 20.1100 (2015) (providing that, with certain exceptions not applicable here, all Board decisions are final on the date stamped on the face of the decision). The claim for a back disability denied in the October 2010 Board decision, and the current claim for a low back disability, including degenerative disc disease at L4, L5, and S1, are the same claim, as both concern musculoskeletal disability of the same anatomical location (the claim for a back disability denied in the January 2010 Board decision necessarily includes the low back). See Velez v. Shinseki, 23 Vet. App. 199 (2009); see also Boggs v. Peake, 520 F.3d 1330 (2008). Indeed, the Board considered this diagnosis in its October 2010 Board decision. Thus, the claim for a low back disability has previously been adjudicated in a final decision. In order to reopen a previously and finally disallowed claim, new and material evidence must be submitted by the claimant or secured by VA with respect to that claim since the last final denial, regardless of the basis for the last denial. See 38 U.S.C.A. § 5108; Evans v. Brown, 9 Vet. App. 273, 282-3 (1996) (holding that § 5108 requires a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened). VA regulation defines "new and material evidence" as follows. "[n]ew evidence" means evidence not previously submitted to agency decision makers, and "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. 38 C.F.R. § 3.156(a). In order to warrant reopening, the new evidence must neither be 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.; see Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (holding that there is a "low threshold" for reopening). For the purpose of determining whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection for a back condition was denied in the October 2010 Board decision because, in pertinent part, the Board found the evidence did not show that the Veteran's lumbar spine condition was incurred in or aggravated by active military service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (holding that entitlement to service connection requires, among other things, evidence of a nexus between the current disability and in-service injury). Evidence submitted since the October 2010 Board decision includes a December 2012 medical opinion from a private doctor, Craig N. Bash, MD, concluding that the Veteran's lower back disability was more likely than not causally related to the Veteran's in-service motor vehicle accident as well as the strenuous work he performed while in the Marines. The December 2012 opinion by Dr. Bash is both new and material, as it relates to an unestablished fact necessary to support the claim, is not cumulative or redundant of evidence previously of record, and raises a reasonable possibility of substantiating the claim in light of the Veteran's documented in-service low back injury from the in-service motor vehicle accident as well as the physically demanding duty he performed. See 38 C.F.R. § 3.156(c); Shade, 24 Vet. App. at 117. Accordingly, new and material evidence is of record to reopen the claim for a lumbar spine disability. See id. Service Connection Service connection means that a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). Entitlement to service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "medical nexus" between the current disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see 38 C.F.R. § 3.303(a). There is also a presumption of service connection for the chronic diseases listed in 38 C.F.R. § 3.309(a), including osteoarthritis. See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012). Under the presumption, if the chronic disease manifested in service or during a presumptive period following service separation, then service connection will be established for subsequent manifestations of the same chronic disease at any date after service, no matter how remote, without having to show a causal relationship or medical nexus, unless the later manifestations are clearly due to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012). When the condition noted during service or the presumptive period is not shown to be chronic, or its chronicity may be legitimately questioned, then a continuity of symptoms after service must be shown to establish service connection under this presumption. Id.; Walker, 708 F.3d at 1338-39; Fountain v. McDonald, 27 Vet. App. 258, 263-64 (2015). In addition, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, there is a presumption of service connection for osteoarthritis if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Historically, the Veteran served on active duty in the United States Marine Corps from October 1979 to April 1987. An August 1984 treatment report noted the Veteran's complaints of headaches and back pain for the previous two days, following a motor vehicle accident. Physical examination revealed slight tenderness to the L4-L5 area with pain radiating from left to right. The report concluded with an assessment of headaches and low back pain. A January 1987 Report of Medical Board noted the Veteran's history of right heel pain beginning in August 1985, followed shortly thereafter by moderate pain in the left Achilles region and, ultimately, accompanied by moderate left low back discomfort. The report noted that the back discomfort was transient and resolved over a six week period. The report concluded with a diagnosis of chronic foot pain, secondary to erosive enthesopathy. A March 1990 treatment report noted that the Veteran had reinjured his cervical/thoracic spine by lifting at work. A June 1990 private treatment letter reported that the Veteran had presented himself for treatment in March 1990 with complaints of headaches, neck, and back pain for the previous three to four years. An April 2005 MRI of the lumbar spine revealed an impression of mild to moderate symmetric bulge at L4-L5, with slight decreased disc hydration, and no evidence of HNP. A May 2005 letter from private physician G. C., M.D. noted that the Veteran reported that he had lower back pain that began in 1987 while he was in the military. A September 2006 MRI of the lumbar spine revealed an impression of degenerative disc disease at the L4-L5 level, with mild diffuse disc protrusion. In June 2008, a VA QTC examination was conducted. The report noted the Veteran's history of low back pain since 1987. The Veteran reported that the pain occurred constantly, and traveled down into his legs. Following a physical examination, the report concluded that here was no diagnosis of a lumbar spine disorder because there was no pathology to render a diagnosis. A January 2009 VA MRI of the lumbar spine reveal normal findings with the exception of a very tiny right paracentral disc protrusion at L4-L5. A February 2009 opinion letter was received from VA physician assistant S.D. In this letter, S.D. opined that it was "highly possible that [the Veteran's back] condition is related to the strenuous activities required during his service." In July 2009, the Veteran testified at a hearing before the Board sitting at the RO. Specifically, the Veteran testified that he began to notice a pulling type sensation in his lower back when he went "hiking and stuff" in the military. He indicated that he treated this with Motrin and hot towels. In September 2009, a VA examination of the spine was conducted. The VA examiner noted that the Veteran's claims folder had been thoroughly reviewed. The report noted the Veteran's complaints of spine pain since his discharge from the service. An x-ray examination of the lumbar spine revealed apparent upper lumbar spine mild disc space narrowing. The report concluded with diagnoses of chronic lumbar sprain due to mild degenerative lumbar joint disease. The VA examiner opined that the Veteran's lumbar problems were not "service-connected." In support of this opinion, the VA examiner noted that the Veteran had made no mention of any spinal problems while in the service during his examination, and a thorough review of the claims file revealed only a minor and short lived complaint of lower back pain while in the military, "which, in my opinion, has no bearing on his present circumstance." In December 2012, Craig N. Bash, MD, reviewed the Veteran's records and provided an opinion concluding that his lower back disability was more likely than not causally related to his in-service motor vehicle accident as well as the strenuous work he performed while in the Marines. Dr. Bash provided a supporting rationale for his opinion, with citation to the evidence of record. In March 2013, the Veteran underwent an additional VA examination of his lumbar spine. The examiner provided an opinion that the Veteran's current lumbar spine disorder was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury. As a rationale, the examiner explained that the Veteran's service treatment records demonstrated only a two-day history of low back pain after a motor vehicle accident without any evidence of an injury serious enough to cause longstanding symptoms and without documentation that there were ongoing symptoms due to the back. The Veteran is competent to report when he first experienced low back symptoms and that they have continued since service. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board finds the Veteran to be credible in that assertion. Resolving doubt in favor of the Veteran, the Board finds that service connection for a lumbar spine disability is warranted. The medical evidence shows that the Veteran has a current lumbar spine disability, diagnosed as degenerative disc disease at the L4-L5 level. The evidence of record also demonstrates that he injured his low back in service as the result of a motor vehicle accident. There are probative positive and negative medical opinions of record concerning the relationship between the Veteran's current lumbar spine disorder and his military service. Therefore, in light of the above, the Board will resolve doubt in favor of the Veteran and grant the claim for service connection for degenerative disc disease at the L4-L5 level. See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015). Bilateral Foot Disorder As noted above, the Veteran's service treatment records include a January 1987 Report of Medical Board noting the Veteran's history of right heel pain beginning in August 1985, followed shortly thereafter by moderate pain in the left Achilles region. The report concluded with a diagnosis of chronic foot pain, secondary to erosive enthesopathy. Post service, an April 2011 x-ray of the Veteran's right foot showed a small right Achilles enthesophyte. In December 2012, Craig N. Bash, MD, reviewed the Veteran's records and provided an opinion that the Veteran likely now has plantar fasciitis as he has pain on palpation of his plantar fascia. Dr. Bash also provided an opinion, with supporting rationale, that the Veteran's current foot disorder was related to his military service. The Veteran underwent a VA examination in March 2013, wherein the examiner determined that there was no pathology of the foot. Resolving doubt in favor of the Veteran, the Board finds that service connection for bilateral plantar fasciitis and a right Achilles enthesophyte is warranted. Although the March 2013 VA examiner determined that the Veteran did not have a current foot disorder, the diagnostic testing in April 2011 showed a small right Achilles enthesophyte. Dr. Bash also subsequently diagnosed bilateral plantar fasciitis. The service treatment records demonstrate that the Veteran was treated for right heel pain and pain in the left Achilles region, with a diagnoses of chronic foot pain, secondary to erosive enthesopathy. Also, Dr. Bash provided a medical opinion relating the Veteran's current foot disorder to his military service. Of note, the Veteran was diagnosed as having erosive enthesopathy during service and as having a small right Achilles enthesophyte after service in 2011. Therefore, in light of the above, the Board will resolve doubt in favor of the Veteran and grant the claim for service connection for bilateral plantar fasciitis and a right Achilles enthesophyte. See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015). ORDER Entitlement to service connection for degenerative disc disease at the L4-L5 level is granted. Entitlement to service connection for bilateral plantar fasciitis and a right Achilles enthesophyte is granted. _________________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs