Citation Nr: 1803991 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-09 662 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a lumbar spine disability (claimed as severe back, leg, and hip pain). 2. Entitlement to service connection for a lumbar spine disability. 3. Entitlement to service connection for radiculopathy of the right lower extremity as secondary to service-connected lumbar spine disability. 4. Entitlement to service connection for asthma. REPRESENTATION Appellant represented by: Shannon L. Brewer, Attorney ATTORNEY FOR THE BOARD D. Abdelbary, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1988 to August 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) (Denver) in Lakewood, Colorado, which denied the Veteran's claims for service connection for posttraumatic stress disorder (PTSD), bilateral hearing loss, tinnitus, sleep apnea, asthma, lumbosacral strain with degenerative disc disease with bilateral lower extremity pain, and allergies. In January 2013, the Veteran filed a Notice of Disagreement to all of the above claims, with the exception of PTSD. In a February 2014 Statement of the Case, the RO denied the Veteran's claims for service connection for bilateral hearing loss, tinnitus, sleep apnea, asthma, lumbosacral strain with degenerative disc disease with bilateral lower extremity pain, and allergies. In a March 2014 VA Form 9, the Veteran filed an appeal only to the issues of entitlement to service connection for lumbosacral strain with degenerative with bilateral lower extremity pain and asthma. Therefore, these two issues are the only issues on appeal and before the Board at this time. 38 U.S.C. § 7105(a); 38 C.F.R. § 20.200. The Board notes that based on the evidence of record, which contains multiple diagnoses associated with the Veteran's lumbar spine, the Board has re-characterized the Veteran's claim of entitlement to service connection for lumbosacral strain with degenerative with lower extremity pain, more broadly as a claim of entitlement to service connection for a lumbar spine disability, as reflected on the title page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). The issue of entitlement to service connection for radiculopathy of the right lower extremity has been raised by the record; and, the Board will grant service connection for that disability in the first instance. While investigating the pending claim, VA received medical evidence indicating that the Veteran also has a diagnosis of radiculopathy of the right lower extremity, which was proximately due to or the result of his service-connected lumbar spine disability. Accordingly, the issue of entitlement to service connection for radiculopathy of the right lower extremity as secondary to service-connected lumbar spine disability is included in the present appeal. See DeLisio v. Shinseki, 25 Vet. App. 45, 54 (2011). In a May 2017 letter, the Veteran withdrew his request for a Board hearing. The issue of entitlement to service connection for asthma is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a final decision issued in December 1999, the RO denied the Veteran's claim of entitlement to service connection for lumbosacral strain with degenerative with bilateral lower extremity pain (now claimed as a lumbar spine disability). 2. Evidence added to the record since the December 1999 prior final denial in is not cumulative or redundant of the evidence of record at the time of the prior decision and raises a possibility of substantiating the Veteran's claim for a lumbar spine disability. 3. The evidence is in equipoise as to whether the Veteran's lumbar spine disability, resulting from a disease or injury, was incurred in or aggravated by active service. 4. The evidence is in equipoise as to whether the Veteran's radiculopathy of the right lower extremity is proximately due to or the result of his service-connected lumbar spine disability. CONCLUSIONS OF LAW 1. As new and material evidence has been received since the issuance of a final December 1999 decision, the criteria for reopening the claim of entitlement to service connection for a lumbar spine disability have been met. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017). 2. The criteria for entitlement to service connection for a lumbar spine disability have been met. 38 U.S.C. §§ 1131, 1154, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). 3. The criteria for entitlement to service connection for radiculopathy of the right lower extremity as secondary to service-connected lumbar spine disability have been met. 38 U.S.C. §§ 1131, 1154, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence A. Legal Principles and Regulations In order to reopen a claim which has been denied by a final decision, a claimant must present new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (regardless of action taken by RO, Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial). New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). 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) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." In determining whether this threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened by triggering VA's duty to assist. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Here, in a December 1998 rating decision, the RO denied the Veteran's claim for service connection for lumbosacral strain with degenerative with bilateral lower extremity pain for a lack of a nexus opinion linking an asserted current disability to service. The Veteran filed a timely Notice of Disagreement. In March 1999, the RO issued a Statement of the Case, denying the Veteran's claim. In a December 1999 Supplemental Statement of the Case, the RO reviewed the additional evidence that was received and again denied the Veteran's claim. This decision is final, as the Veteran did not appeal this decision. 38 U.S.C. § 7105 (c) (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). In March 2012, the Veteran submitted a claim to reopen his lumbar spine disability claim. The evidence of record at the time of the final prior denial in December 1999, included, inter alia, the Veteran's service treatment records, post-service treatment records (including outpatient treatment records from First Health Service and a July 1998 VA examination report), and Veteran's lay statements. The evidence submitted and obtained since the December 1999 prior final denial includes an April 2012 Gulf War General Medical VA examination, an April 2012 VA Back Conditions Disability Benefits Questionnaire (DBQ), post-service VA and non-VA treatment records (including Dr. D.B.M.'s March 28, 2017 independent medical evaluation report) and the Veteran's lay statements and buddy statements. Upon review, the Board finds this evidence is both new and material sufficient to reopen the Veteran's claim. The evidence is "new" as it had not been previously considered by VA, and the evidence is "material" because it relates to unestablished facts necessary to substantiate the underlying secondary service connection claim. Specifically, the March 28, 2017 independent medical evaluation report by Dr. D.B.M. supports a finding of competent evidence that the Veteran's lumbar spine disability is at least as likely as not related to his in-service back injuries. II. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists and (2) that the current disability was either (a) proximately due to or the result of; or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310 (b); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability, comparing it to the current level of disability, and showing that the secondary condition was not due to the natural progression of a disease. 38 C.F.R. § 3.310 (b). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. A. Lumbar Spine Disability The Veteran seeks service connection for a lumbar spine disability, which he relates to his service. Specifically, the Veteran contends that during his service in Germany, he suffered two consecutive injuries to his back within several hours apart. With respect to the first element of service connection, a current disability, the Veteran's medical records show multiple diagnoses associated with the Veteran's lumbar spine, to include a lumbosacral strain with limited motion in 1998, bilateral pars defect at L5 resulting in grade one anteroliesis of L5 on S in April 2012, and mechanical low back syndrome in March 2017. See July 1998 VA examination report, April 2012 Back Conditions DBQ, and March 2017 independent medical evaluation report. Thus, the first element of service connection is satisfied. With respect to the second element of service connection, in-service incurrence aggravation of a disease or injury, the Veteran's service treatment records reflect that on February 15, 1989, December 29, 1989, January 3, 1990, January 12, 1990, and February 5, 1990, the Veteran reported lower back pain due to in-service back injuries. Thus, the second element of service connection is satisfied. Therefore, the dispositive issue in this case is with respect to the third element, a causal relationship, i.e., nexus between the claimed in-service disease or injury and the current disability. The Board finds that the medical evidence of record equipoise as to whether the Veteran's lumbar spine disability, resulting from a disease or injury, was incurred in or aggravated by active service. In the April 2012 VA Back Conditions DBQ, although the VA examiner noted a diagnosis of bilateral pars defect at L5 resulting in grade one anterolisthesis of L5 on S, the VA examiner opined that the Veteran's back disability was less likely than not incurred in or caused by the Veteran's service. The rationale provided was that there was no documented follow up for the Veteran's back condition following military service until 1996. However, the Board notes that the lack of contemporaneous medical records does not, in and of itself, render lay evidence incredible or serve as an "absolute bar" to service connection. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Conversely, in the March 2017 independent medical evaluation report, Dr. D.B.M. diagnosed the Veteran with chronic mechanical low back syndrome. This diagnosis infers a chronic, painful, lumbar region. After a thoroughly review of the medical records, consideration of the Veteran's lay and buddy statements, and reference to orthopedic medical literature, Dr. D.B.M. opined that it is at least as likely as not that the Veteran's present lumbar spine disability was caused by the Veteran's service. In reaching this conclusion, Dr. D.B.M noted that due to the Veteran's in-service back injuries, the Veteran underwent nine months of physical therapy, with no improvement, which the Dr. D.B.M. noted showed the severity of the Veteran's back condition. Additionally, Dr. D.B.M. noted that when the Veteran sought medical treatment in 1996, he reported a long history of low back pain following an injury that occurred during service. Furthermore, Dr. D.B.M. noted that etiologies of chronic mechanical low back pain result in accelerated degenerative changes in the spine. Here, Dr. D.B.M. points out that the Veteran was not afforded an MRI until June 2012. The MRI revealed moderate spinal stenosis of three levels of the lower lumbar spine, moderate compression of the right and left L5 nerve roots, as well as what appeared to be an old compression fracture at both T12 and L1. He explains that these results reflect how significant the lumbar pathology is, noting that the MRI findings certainly correlate well with the Veteran's injuries during service. Dr. D.B.M. noted that the severity of the Veteran's injuries in 1989 is further confirmed by the fact that the Veteran's symptoms were so severe that a permanent neurostimular was implanted in the Veteran's lumbar region. Based on the foregoing, the Board finds that Dr. D.B.M.'s independent medical evaluation report, which links the Veteran's lumbar spine disability to his in-service injuries, supports a finding that the Veteran's lumbar spine disability is at least as likely as not related to the Veteran's service. Thus, the third element of service connection is satisfied. The Board acknowledges, when considering all the evidence of record, some of it is favorable and some of it is unfavorable and thus in equipoise. A claim will be denied only if the preponderance of the evidence is against the claim. If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107. Resolving reasonable doubt in the Veteran's favor, entitlement to service connection for a lumbar spine disability is warranted. B. Radiculopathy of the right lower extremity Here, the Veteran contends that he has radiating pain in his right lower extremity that began on the same day of his 1989 in-service back injuries. The Veteran reported that the pain would radiate from his right buttock and down to the lateral side of his right thigh ending at the level of his knee. See March 2017 Dr. D.B.M. independent medical evaluation report. As noted above, the first element of secondary service connection requires evidence of a current disorder. In a March 2017 medical opinion, Dr. D.B.M. opined that the Veteran has radiculopathy of the right lower extremity. Thus, the Veteran has satisfied the first element of secondary service connection. The second element of secondary service connection requires evidence of a service-connected disability. Here, based on this Board decision, the Veteran is service-connected for a lumbar spine disability. Thus, the Veteran has satisfied the second element of secondary service connection. Lastly, the third element of secondary service connection requires medical nexus evidence establishing a connection between the service-connected disability and the current disorder. In an April 2012 Back Conditions DBQ, the VA examiner opined that the Veteran's lumbar spine and bilateral lower extremity radiculopathy was less likely than not related to the Veteran's service. In Dr. D.B.M.'s March 2017 medical opinion, he opined that it is at least as likely as not that the Veteran's right lower extremity radiculopathy is the direct result of his lumbar pathology. Based on the foregoing, the Board finds that Dr. D.B.M.'s independent medical evaluation report, which links the Veteran's radiculopathy to the Veteran's lumbar spine disability, supports a finding that the Veteran's radiculopathy of the right lower extremity is proximately due to or a result of his service-connected lumbar spine disability. Thus, the third element of secondary service connection is satisfied. The Board acknowledges, when considering all the evidence of record, some of it is favorable and some of it is unfavorable and thus in equipoise. A claim will be denied only if the preponderance of the evidence is against the claim. If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107. Resolving reasonable doubt in the Veteran's favor, entitlement to service connection radiculopathy of the right lower extremity is warranted. ORDER New and material evidence having been received, the claim of entitlement to service connection for a lumbar spine disability is reopened. Entitlement to service connection for a lumbar spine disability is granted. Entitlement to service connection for radiculopathy of a right lower extremity as secondary service-connected lumbar spine disability is granted. REMAND After reviewing the record, the Board finds that additional evidentiary development is necessary prior to final adjudication of the remaining claims on appeal. See 38 C.F.R. § 19.9. Here, the Veteran contends that he is entitled to service connection for asthma due to exposure to oil well fires during his service in Southwest Asia. Specifically, the Veteran contends that subsequent to exposure to oil well fires during his service, he has suffered from breathing problems which have intensified gradually throughout the years. In an April 2012 VA Respiratory Conditions DBQ, the Veteran reported symptoms of sudden onset of shortness of breath while stationed in Kuwait in 1991, stating that his symptoms gradually increased after his discharge from service. The VA examiner noted the Veteran has a diagnosis of asthma. In an associated Gulf War General Medical Examination DBQ, the VA examiner noted that asthma is a diagnosable disease with a clear etiology. Furthermore, the VA examiner opined that the Veteran's asthma cannot be due to any environmental exposures during his service in Southwest Asia because the Veteran reported symptoms that began following a chronic cough in 2008, which was approximately 17 years after the reported exposure. The Board finds that the VA examiner's opinion is inadequate, as it does not consider the Veteran's lay statements. Although the Veteran did report that he had a chronic cough in 2008 and that is when he sought treatment for his condition, the VA examiner disregarded the Veteran's statements that the onset of his shortness of breath was while the Veteran was still in service and that his symptoms have increased gradually since his discharge from service. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination was inadequate where the examiner did not comment on a veteran's report of in-service injury and instead relied on the absence of evidence in a veteran's service medical records to provide a negative opinion). Thus, remand is necessary for an addendum opinion that considers the Veteran's lay statements. Accordingly, the case is REMANDED for the following action: 1. Request an addendum opinion from a qualified medical professional as to the nature and etiology of the Veteran's asthma. Access to the Veteran's electronic claims file should be made available to the examiner for review in connection with the opinion. If the VA examination determines another VA examination is necessary, one should be scheduled. The VA examiner should provide an opinion addressing the following: Whether it is at least as likely as not (50 percent probability or more) that the Veteran's asthma, was incurred in or aggravated during service, to include due to a specific exposure event (i.e. oil well fires) experienced by the Veteran during service in Southwest Asia. The examiner should discuss the Veteran's lay statements regarding the history and chronicity of symptomatology, to include the Veteran's reports that his breathing problems began during service and have intensified since. S/HE SHOULD OUTLINE THAT HISTORY IN HIS REPORT. THE EXAMINER IS ADVISED THAT THE VETERAN IS COMPETENT TO REPORT HIS SYMPTOMS AND HISTORY, AND SUCH REPORTS MUST BE SPECIFICALLY ACKNOWLEDGED AND CONSIDERED IN FORMULATING ANY OPINIONS. If the examiner rejects the Veteran's reports of symptomatology, a reason for doing so must be provided. The examiner must provide a clear rationale for all opinions provided. If any opinion cannot be provided without resort to speculation, the examiner must state this and explain why. 2. When the development requested has been completed, the case should be readjudicated by the AOJ. If any benefit sought is not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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. §§ 5109B, 7112 (West 2012). ______________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs