Citation Nr: 1757781 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 12-11 689 ) 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 a low back disability. 2. Entitlement to service connection for a low back disability, to include as secondary to service-connected left and right knee disabilities. REPRESENTATION Veteran represented by: Tennessee Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD J. R. Higgins, Associate Counsel INTRODUCTION The Veteran served on active duty training from May 1979 to August 1979 and on active duty from May 1981 to June 1983. This matter is before the Board of Veterans' Appeal (Board) on appeal from a September 2009 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In March 2015 and August 2016, the Board remanded this matter for further development, and the case has been returned for appellate consideration. The Veteran presented testimony at a travel board hearing in December 2013 before a Veterans Law Judge (VLJ). A copy of the transcript is associated with Virtual VA paperless claim file. However, the VLJ who held the December 2013 hearing is no longer with the Board. In an April 2016 letter, the Board provided the Veteran with an opportunity to have another hearing with a current VLJ. The Veteran, however, has not indicated whether he would like a new hearing and the thirty (30) day waiting period has expired, thus the Board will assume that the Veteran does not want an additional hearing. This appeal was processed using the Virtual VA/VBMS paperless claim processing system. Accordingly, any future consideration of this Veteran's case should take into account the existence of this electronic record. The issue of entitlement to service connection for a low back disability, to include as secondary to service-connected left and right knee disabilities is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. By a rating decision dated July 2007, the RO denied a claim of entitlement to service connection for a low back disability, to include as secondary to service connected right knee, and the Veteran did not appeal that determination, nor was any new and material evidence received within the appeal period. 2. Evidence added to the record since the July 2007 RO denial, considered in conjunction with the record as a whole, relates to an unestablished fact necessary to substantiate the claim for service connection for a low back disability to include as secondary to service connected right knee, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The July 2007 rating decision, which denied a claim of entitlement to service connection for a low back disability, to include as secondary to service connected right knee, is final. 38 U.S.C.A. § 7105 (c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2006). 2. New and material evidence has been received since the July 2007 RO denial for entitlement to service connection for a low back disability to include as secondary to service connected right knee. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2017) (applying Scott to a duty to assist argument). This claim was most recently remanded by the Board in August 2016. At that time, the RO was instructed to (1) contact the Veteran and afford him the opportunity to identify or submit any outstanding medical records, specifically treatment records from the St. Mary Medical Center; (2) obtain updated VA treatment records and copy of a lumbar spine MRI performed at some time between July and November 2015; (3) issue a Supplemental Statement of the Case (SSOC) if the claim remained denied. A veteran has the right to substantial compliance with remand directives. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the United States Court of Appeals for Veterans Claims Court (Court) or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders); see also D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required). Here, the Board notes that any outstanding private or VA medical treatment records identified by the Veteran were associated with the claims file, and any negative response to the acquiring of those medical records was noted in the file. The RO requested the Veteran to sign and return medical authorization forms in April 2015 and September 2016 to assist in the acquisition of any outstanding private records, specifically treatment records from St. Mary Medical Center. The Veteran, however, failed to comply with either request. See 38 C.F.R. § 3.159(c) (1) (i) (a claimant must fully cooperate with VA's reasonable efforts to obtain relevant records from a non-Federal agency or department custodians). The claim was subsequently readjudicated, and an SSOC was issued in May 2017. As such, the Board finds that there has been substantial compliance with its August 2016 remand directives. The Board will now review the merits of the Veteran's claims. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a low back disability, to include as secondary to service connected right knee. The Veteran contends that he has presented new and material evidence to reopen his claim of service connection for a low back disability, to include as secondary to service connected right knee. Pertinent procedural regulations provide that nothing in 38 U.S.C. § 5103A 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. See 38 U.S.C. § 5103A (f). Reopening a claim for service connection which 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; Evans v. Brown, 9 Vet. App. 273, 285 (1996). New evidence means existing evidence not previously submitted to VA. 38 C.F.R. § 3.156 (a) (2017). 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. The Court has held that new evidence may be sufficient to reopen a claim if it can 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. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998); Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). The Board must first determine whether the veteran has presented new and material evidence under 38 C.F.R. § 3.156 (a) to have a finally denied claim reopened under 38 U.S.C. § 5108. Elkins v. West, 12 Vet. App. 209 (1999). Then the Board may proceed to evaluate the merits of the claim after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). 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 in conjunction with the evidence already of record. Id. The question for the Board is whether the Veteran has presented new and material to reopen his claim of service connection for a low back disability, to include as secondary to service connected right knee. The Board finds that the Veteran has provided the satisfactory evidence to reopen his claim. Here, the claim of entitlement to service connection for a low back disability was originally denied in a March 2007 rating decision. Subsequently, the Veteran submitted new evidence, but the claim was denied again in July 2007, and the Veteran did not appeal that decision and it became final. The claim was denied because there was no evidence that a back disability began in service or was caused by service. In a September 2009 rating decision, the Veteran's application to reopen his claim of service connection for a low back disability, to include as secondary to service connected right knee was granted, but the claim was denied because the Veteran was unable to establish a nexus between his low back disability and his military service or his service-connected right knee disability. Although the RO granted to reopen the claim in September 2009, RO decisions are not binding on the Board and, consequently, the Board must decide whether new and material evidence has been received to reopen the Veteran's claim. Jackson v. Principe, 265 F.3d 1366 (Fed. Cir. 2001) (holding that Board reopening is unlawful when new and material evidence has not been submitted). As the July 2007 rating decision is the last final disallowance regarding the claims, the Board must review all of the evidence submitted since that time to determine whether the Veteran's claim should be reopened and readjudicated on a de novo basis. The credibility of the new evidence is presumed for the purpose of determining whether the new evidence is material. Justus, 3 Vet. App. at 512-13. The Board notes that the Veteran's claim for low back disability was initially adjudicated on a direct basis, i.e. due to service, and he now asserts that his low back disability is secondary to service-connected knee disabilities. The Board observes that separate theories in support of a claim for a particular benefit are not equivalent to separate claims and a final denial on one theory is a final denial on all theories. As such, new and material evidence is necessary to reopen a claim for the same benefit asserted under a different theory. Robinson v. Mansfield, 21 Vet App 545 (2008); Roebuck v. Nicholson, 20 Vet. App. 307 (2006); Bingham v. Principi, 18 Vet. App. 470 (2004). Since the unfavorable adjudication in July 2007, the Veteran has submitted his and his wife's testimony from the December 2013 Board hearing as evidence. This evidence qualifies as new as it was not of record at the time of the July 2007 rating decision. The Board must now determine whether this evidence also qualifies as material, such that it relates to an unestablished fact necessary to substantiate the Veteran's claim. In undertaking this analysis, the Board notes that the evidence of record prior to the July 2007 rating decision did not establish a nexus between the Veteran's low back disability, and his military service, and/or his service connected right knee. As such the Board will analyze the new information of record for evidence to substantiate whether there is a nexus between the Veteran's low back disability, and his military service and/or his service connected right knee. In doing so, the Board finds that the new evidence also qualifies as material, as it raises a reasonable possibility of substantiating the Veteran's claim. 38 C.F.R. § 3.156(a). The Board notes that the statements provided by the Veteran and his spouse during the December 2013 Board Hearing raise a reasonable possibility of substantiating the Veteran's claim. The Veteran stated that his back pain became progressively worse as his right knee disability progressed over the years. Specifically, the Veteran contended that his right knee instability caused the 2003 incident that led to subsequent back surgery. The Veteran sustained an injury to his back in 2003 at the steel mill, where he was employed at the time. The Veteran reported that when he attempted to lift counter weights his knee gave out, which caused him to fall and further injure his back. The Veteran additionally provided that a physician told him that the right knee led to the 2003 accident and back injury. The Veteran's spouse added that the Veteran told her at the time that his right knee went down first during the 2003 accident at the steel mill. The Board finds that the aforementioned testimony raises a reasonable possibility of substantiating the Veteran's claim because it establishes a connection between the Veteran's low back disability and his service connected right knee. As the above reports are presumed credible for the limited purpose of reopening the claim, the Board finds that it qualifies as material. See Justus, 3 Vet. App. at 512-1. Therefore, the Board finds that new and material evidence is of record since the prior final denial of this claim in July 2007. Shade, 24 Vet. App. at 117. The claim of entitlement to service connection for a low back disability, to include as secondary to service connected right knee is thus reopened. ORDER New and material evidence having been received, the Veteran's claim for entitlement to service connection for a low back disability is reopened, and to that extent only, the appeal is granted. REMAND Although the Board has reopened the claim for entitlement to service connection a low back disability, further development is necessary before a decision can be made on the merits. The Veteran contends that he is entitled to service connection for a low back disability including as secondary to his service connected left and right knee disabilities. VA conducted a low back examination of the Veteran in September 2009, which following formal evaluation, noted a medical history of chronic back pain and a herniated disk. The VA examiner stated that the Veteran's low back disability was not related to the Veteran's service connected right knee. While the examiner provided a medical opinion that addressed the matter of secondary service connection, in general, the examiner did not specifically address the issue of aggravation on a secondary basis. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (noting that the findings of "not due to," "not caused by," and "not related to" a service-connected disability are insufficient to address the question of aggravation under 38 C.F.R. § 3.310(b)). Moreover, the Veteran and his spouse provided statements in the December 2013 VA hearing that his right knee instability caused an accident in 2003 that led to him further injuring his back. The Veteran also reported that his lower back pain has worsened as his right knee disabilities have progressed over the years. Additionally, since the VA examination, in addition to right knee chondromalacia, the Veteran has been service connected for right knee instability and a left knee strain, which were not service connected when the opinion was rendered. In this regard, the Board notes that a December 2006 VA treatment record indicated that a left straight-leg-raising test caused pain in the Veteran's lower back. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for an examination to determine the nature and etiology of his low back disability. The entire claims file should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. The examiner must elicit a full medical history from the Veteran. An explanation for all opinions expressed must be provided. The examiner should clearly identify all current disabilities related to the Veteran's low back. For any low back disorders found provide the following medical opinions: Whether it is at least as likely as not (50 percent probability or more) that any low back disability was caused or aggravated by the Veteran's service-connected left and/or right knees. Whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that any low back disability is the result of disease or injury incurred in or aggravated by service. The examiner should consider the lay testimony of record. Specifically, the examiner should consider the testimony the Veteran and his Spouse provided at his December 2013 Board hearing. The examiner should address whether the Veteran's contention that right instability contributed to the fall that injured the Veteran's back in 2003. The examiner should address the December 2006 VA treatment records that indicated that a left straight-leg-raising test caused pain in the Veteran's lower back. See March 2007 VA Treatment Records. (The term at least as likely as not does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A detailed rationale supporting the examiner's opinion must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 2. After completing the above, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. 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). (CONTINUED ON NEXT PAGE) 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. §§ 5109B, 7112 (2012). ______________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs