Citation Nr: 1746918 Decision Date: 10/20/17 Archive Date: 10/31/17 DOCKET NO. 13-19 159 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether to reopen a claim for entitlement to service connection for a low/mid back condition, claimed as secondary to service-connected right total right knee replacement. 2. Entitlement to service connection for a low/mid back condition with right lower extremity radiculopathy, claimed as secondary to service-connected total right knee replacement. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. Miller, Associate Counsel INTRODUCTION The Veteran had active military service from July 1979 to July 1982. The Veteran also served in the Tennessee Army National Guard for periods of active duty for training totaling 47 days between February 2002 and July 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of the Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee which denied service connection for right lower extremity radiculopathy/neuropathy, and denied reopening a previously denied claim for recurrent herniated disc condition in the lower back. The Veteran had a video hearing before the undersigned Veterans Law Judge (VLJ) in April 2016. The transcript of that hearing has been associated with the claims file. FINDINGS OF FACT 1. In unappealed May 2005and September 2005 decisions, the RO denied the claim for service connection for a low/mid back disability based on lack of a nexus with active service. The Veteran was notified of the decision and of his appellate rights, but he did not submit a notice of disagreement or submit new and material evidence within one year of the issuance of that decision. 2. The preponderance of the evidence is against finding that the Veteran's low/mid back condition is etiologically related to service. 3. The preponderance of the evidence is against finding that the Veteran's right lower extremity radiculopathy/neuropathy condition is etiologically related to service. CONCLUSIONS OF LAW 1. The May 2005 and September 2005 rating decisions, which denied service connection for a low/mid back condition are final. 38 U.S.C.A. § 7105 (West 2005); 38 C.F.R. § 3.105 (2005). 2. The evidence received subsequent to the September 2005 rating decision for a low back condition is new and material, and the issue of service connection for a low back disability is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2016). 3. The criteria for service connection for a low back condition have not been met. 38 U.S.C.A. §§ 1110, 1111, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2016). 4. The criteria for service connection for a right lower extremity neuropathy/radiculopathy condition have not been met. 38 U.S.C.A. §§ 1110, 1111, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to notify and assist The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. VA's duty to notify was satisfied by letters dated in December 2004 and June 2011. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA has thus far fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claims. Service treatment records (STRs), all identified and obtainable post-service treatment records, and lay statements have been associated with the record. With respect to the Veteran's claim for entitlement to service connection, a VA examination was afforded to the Veteran in July 2011. As the Veteran has not identified any additional evidence pertinent to the claims, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. Bernard v. Brown, 4 Vet. App. 384 (1993). II. Claim to Reopen In an unappealed May 2005 decision, the RO denied service connection for a back disability because the medical evidence of record did not show a nexus with active service. The Veteran did not timely disagree with that decision and it became final. 38 U.S.C.A. § 7105 (West 2005); 38 C.F.R. § 3.105 (2005). In September 2005, the RO reconsidered the May 2005 decision and continued to deny the claim for service connection for a low/mid back disability. A statement of the case (SOC) was issued in March 2007. Subsequent to the issuance of the SOC, the RO received a statement from the Veteran dated May 2007 in which the Veteran agreed with the decision to deny service connection for his low/mid back condition. In May 2011, the RO received a request from the Veteran which it considered as a new claim for service connection for neuropathy/radiculopathy in the right lower extremity, and a new claim to reopen the issue of entitlement to service connection for a low back disability, which the Veteran then claimed was a result of right total knee replacement in March 2011. In an October 2011 decision, the RO denied to reopen the lower back disability claim based on a lack of new and material evidence, and denied the claim for service connection for neuropathy/radiculopathy in the right lower extremity. In the most recent Statement of the Case of April 2013, the RO considered the evidence submitted since the prior final decision as new and material and reopened the claim for service connection for a low back disability. The RO then continued the denial for service connection for herniated disc of the lumbosacral spine with right lower extremity radiculopathy (claimed as secondary to the service-connected disability of status post total right knee replacement). The Veteran submitted a timely notice of disagreement (NOD) and VA Form 9. In reviewing the May 2005 and September 2005 decisions, the Board has determined that a new and material evidence analysis is proper for the low back disability claim on appeal, as it was clearly adjudicated by the May 2005 decision. See Velez v. Shinseki, 23 Vet. App. 199, 204 (2009) (when determining whether a new and material evidence analysis is required, the focus of VA's analysis must be on whether the evidence presented truly amounts to a new claim "based upon distinctly diagnosed diseases or injuries," or whether it is evidence tending to substantiate an element of the previously adjudicated matter). Regardless of the RO's actions, the Board has jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C.A. §§ 5108, 7105(c)). See also Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92 (March 4, 1992). While a new theory of entitlement cannot be the basis to reopen a claim under 38 U.S.C.A. § 7104(b), if the evidence supporting a new theory of entitlement constitutes new and material evidence, then VA must reopen the claim. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). Accordingly, the Board must initially determine whether there is new and material evidence to reopen the low back disability issue before proceeding to adjudicate the underlying merits of the claim. If the Board finds that no new and material evidence has been provided, that is where the analysis must end. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. 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) (2016). The question of whether new and material evidence has been received sufficient to reopen the matter is a threshold question in any case involving a previously denied claim. Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995). The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). That is, a finally decided claim must be reopened where the claimant submits new and material evidence relative to a fact that was unestablished at the time of the prior final decision on the claim. Shade, 24 Vet. App. at 119. For the purpose of reopening a claim, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Here, the Board finds that new and material evidence within the meaning of 38 C.F.R. § 3.156(a) has been received since the final May 2005 rating decision. Specifically, the RO afforded the Veteran a new VA spine examination in July 2011, the Veteran submitted additional treatment records, and the Veteran testified in a Board hearing in April 2016. This new evidence was neither cumulative nor redundant, as this VA examination opined on the possible relationship of the Veteran's back condition with his active service. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board finds that the additional medical evidence of record constitutes new and material evidence to reopen the claim for entitlement to service connection for a low back condition. In short, this evidence, if presumed credible, relates to an unestablished fact necessary to substantiate the back disability claim, i.e. whether the Veteran's low back disability was related to his active service, and raises a reasonable possibility of substantiating the claim. Accordingly, the Board finds that new and material evidence has been presented to reopen the Veteran's previously denied low back disability claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. II. Service Connection Upon review of the medical evidence of record, the Board has determined that service connection for a low back disability and neuropathy/radiculopathy of the right lower extremity, claimed as secondary to service-connected total right knee replacement, is not warranted. A veteran is entitled to VA disability compensation if there is disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C.A. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). As to secondary service connection, a disability can be service connected on a secondary basis if it is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310(a). Moreover, secondary service connection may be established, as well, by any increase in severity (i.e., aggravation) of a nonservice-connected condition that is proximately due to or the result of a service-connected condition. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. See 38 C.F.R. § 3.310(b), effective October 10, 2006. See 71 Fed. Reg. 52,744-52,747 (September 7, 2006); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Lay evidence can be competent and sufficient to establish the elements of service connection when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In short, when considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent on the issues of diagnosis and medical causation. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). For instance, a layperson is competent to identify such disorders as varicose veins, tinnitus, and flat feet. 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002); Falzone v. Brown, 8 Vet. App. 398, 405 (1995). In contrast, a layperson is not competent to identify medical conditions that require scientific, technical, or other specialized knowledge, such as in identifying bronchial asthma. 38 C.F.R. § 3.159(a)(1); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board must assess the competence and credibility of lay statements. Barr, 21 Vet. App. at 308. The Federal Circuit has held that the Board can favor competent medical evidence over lay statements offered by the Veteran, as long as the Board neither deems lay evidence categorically incompetent nor improperly requires a medical opinion as the sole way to prove causation. King v. Shinseki, 700 F.3d 1339, 1344 (2012). Service connection may be granted for a disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). The Veteran's STRs from his first period of active service from July 1979 to July 1982 are silent for injuries of his lower back or treatment for lower right extremity neuropathy or radiculopathy. November 1978 and April 1979 medical examinations were normal. Between service periods, the Veteran's claims file contains copious treatment records related to his lower back surgeries in October 1994 and September 1995 coincident with complaints of right lower extremity radiculopathy symptoms. On September 18, 1995 the examiner noted that the Veteran had pain radiating into right leg with numbness and tingling in right leg with severe cramping in right calf. The examiner noted an acute episode of back pain with right side radiculopathy. Treatment note dated September 21, 1995 described "considerable cramping and pain down into right calf, primarily low back pain." Postoperative note in September 1995 diagnosed "recurrent herniated nucleus pulposus, right L5-S1 with radiculopathy." Two years later in July 1997 the examiner noted complaints of "slight achiness right leg," and had the impression of possible right L5 radiculopathy. November 2000 private treatment records show complaints of right lower extremity radiculopathy, sometimes extending bilaterally. The treatment provider's impression was degenerative spondylitis with bilateral radiculopathy. August 2001 private treatment records show complaints of lower right extremity radiculopathy to the knee with an admitting diagnosis of spondylitis with bilateral radiculopathy. In December 2001 at the Veteran's entrance examination prior to beginning his National Guard tour in 2002, the examiner noted the prior herniated disc surgeries on the medical history. In a note dated April 2004 a doctor suggested that due to the Veteran's right lower extremity radiculopathy symptoms and low back pain, the Veteran should not be running for physical training in the National Guard. May 2004 treatment records show chronic lower back pain with intermittent mild radiculopathy symptoms. In March 2011, the Veteran underwent a total arthroscopic right knee replacement which was ultimately service-connected. The Veteran was afforded a VA examination for spinal conditions and peripheral neuropathy in July 2011. The examiner recorded complaints of constant numbness on the bottom, heel, and lateral foot since the knee surgery, which had improved slightly, with intermittent paresthesia on the bottom of the right foot with mild right leg weakness. The examiner diagnosed herniated nucleus pulposus with residuals of two surgeries with degenerative disc disease (DDD) of the lumbar spine and right lower extremity radiculopathy related to the back conditions. The opinion was that the symptoms of right lower extremity neuropathy/radiculopathy are not caused by or a result of the Veteran's active service or a result of the total knee replacement. The examiner noted the well-documented history of the Veteran's back condition and surgeries with documented right radiculopathy. The examiner opined that the herniated disc condition was not permanently aggravated by the Veteran's service-connected knee disability. According to the opinion, the right lower extremity neuropathy/radiculopathy condition cannot be determined to be aggravated by the Veteran's service-connected right knee replacement without resort to speculation with the rationale that after the total knee replacement surgery the Veteran claimed to have woken with acute squeezing and burning pain in the right foot, which can be caused by damage to the peroneal nerve during knee surgery. The Veteran reported that the symptoms had somewhat improved between surgery and the VA examination. The examiner noted that an EMG study within one month of surgery is ideal to determine if there is nerve conduction blockage but pointed out that the Veteran was scheduled for an EMG examination in July 2011 but failed to report. In September 2011, the Veteran underwent another lower back disc surgery to decompress the lower S1 nerve root. The Veteran submitted a postoperative report of this surgery which diagnosed pre- and post-operatively recurrent right L5-S1 disc herniation with S1 radiculopathy, notably the same diagnosis from the back surgery in September 1995. Also notable, the July 2011 VA examiner's opinion concluded that an MRI of the Veteran's spine showed a severe narrowing of the L5-S1 area which would predispose a person with DDD, such as the Veteran, to bulging or herniated discs. In June 2013 the Veteran submitted a written statement explaining that immediately after his knee replacement surgery in "April 2011" he had numbness and weakness in his right foot and inability to move his big toe. The Veteran claimed that because of these symptoms he had to undergo another back surgery in September 2011 to restore movement in the right big toe and reduce pain and pressure in the right foot. The Veteran denied that these symptoms existed prior to his knee replacement surgery in March/April 2011. In April 2016 the Veteran testified at a Board hearing regarding his lower back and lower right leg radiculopathy symptoms. The Veteran claimed that he had not had radiculopathy symptoms prior to the total knee replacement surgery in March 2011 and that he had not had back issues for about 10 years. When asked, the Veteran described his symptoms as numbness, burning, and tingling in his right foot and leg and stated that he could move his toes whereas for a period post-surgery he could not do so. The Board has considered the Veteran's own statements that he believes the total right knee replacement surgery caused his low back and radiculopathy symptoms. Lay evidence may be competent on a variety of matters concerning the nature and cause of disability. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Veteran is competent to report symptoms related to lower spine DDD and radiculopathy, like pain and tingling, but not to diagnose these disabilities or determine their etiology. Accordingly, his statements regarding the etiology of his current disabilities are of little probative value. In contrast, the July 2011 VA examination is both credible and performed by a medical examiner competent to discuss the etiology of the Veteran's herniated nucleus pulposus of the lumbar spine and radiculopathy to the right lower extremity. Once the threshold of competency is met, the Board must consider how much of a tendency a piece of evidence has to support a finding of the fact in contention. Not all competent evidence is of equal value. The Board finds the July 2011 VA examiner's report that the recurrent herniated nucleus pulposus of the lumbar spine, diagnosed in the 1990s, with surgery in October 1994 and September 1995, was not caused or aggravated by the Veteran's service-connected total knee replacement, is more probative than the Veteran's submitted lay statements. The VA examiner's report concluding that the Veteran's right lower extremity radiculopathy was also not secondary to the right total knee replacement is more probative than the Veteran's submitted lay statements. The VA examiner was able to review the overall record, including the Veteran's lay history and opinions. The examiner noted the Veteran's extensive medical history of back surgeries and radiculopathy and that his diagnosis of recurrent right L5-S1 disc herniation related to the lumbar spine predisposed the Veteran to bulging and herniated discs. In summary, the weight of the evidence does not support a finding that the Veteran's current herniated nucleus pulposus of the lumbar spine, or right lower extremity neuropathy/radiculopathy, are secondary to the knee replacement surgery or otherwise related to active service. The competent medical evidence of record shows the Veteran had been experiencing symptoms related to these conditions 17 years prior to his right total knee replacement. As a result, service connection is not warranted. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for a low/mid back condition is denied. Entitlement to service connection for right lower extremity neuropathy/radiculopathy is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs