Citation Nr: 18141468 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 16-02 056 DATE: October 10, 2018 ORDER New and material evidence having been submitted, the claim for entitlement to service connection for a low back disability, to include as secondary to a service-connected disability, is reopened. Entitlement to service connection for a low back disability as secondary to a service-connected left leg disability is granted. FINDINGS OF FACT 1. A January 2014 Department of Veterans Affairs (VA) Regional Office (RO) rating decision denied the Veteran’s claim of service connection for a low back disability finding that new and material had not been submitted to reopen a previously disallowed claim; the Veteran was notified of the decision and apprised of his right to appeal, but did not appeal in a timely fashion or submit new and material evidence within one year of the notice of decision. 2. Evidence received since the January 2014 rating decision is neither cumulative nor repetitive of facts that were previously considered, and raises the possibility of substantiating the claim. 3. Resolving the benefit of the doubt in the Veteran’s favor, his current low back disability was as least as likely as not caused by his service-connected left leg disability. CONCLUSIONS OF LAW 1. The January 2014 rating decision denying service connection for a low back disability is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 3.105 (2017). 2. The criteria for reopening the claim of service connection for a low back disability have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The criteria for entitlement to service connection for a low back disability on a secondary basis have been met. 38 U.S.C. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service with the U.S. Army from June 1976 to January 1980. This matter comes to the Board of Veterans Appeals (Board) on appeal from January 2014 and July 2015 rating decisions from the Department of Veterans Affairs (VA) regional office (RO) in Winston-Salem, North Carolina. New and Material Evidence The Veteran’s claim for entitlement to service connection for a low back disability was initially denied by the Winston-Salem RO in an unappealed February 2009 rating decision. Subsequent unappealed rating decisions rendered in July 2009 and September 2012 continued the denial of service connection for a low back disability. In January 2014, the RO issued another rating decision finding that new and material evidence had not been submitted to reopen the previously disallowed claim for service connection for a back disability. A review of the evidence of record reveals that the Veteran filed a notice of disagreement in February 2015. See February 2015 Notice of Disagreement (reflecting that the Veteran wrote in part, “[p]lease accept this Notice of Disagreement despite the fact that it is a few days beyond the one-year period”). The RO subsequently sent the Veteran a notification letter indicating that the Veteran’s February 2015 Notice of Disagreement could not be accepted as it was not submitted within one year of the January 2014 rating decision. See April 2015 Notification Letter (VA Form 20-8993, VA Form 21-0290). As the Veteran did not perfect a timely appeal of the January 2014 rating decision, it is final and is the most recent final denial of the claim. The Veteran filed to reopen his claim for entitlement to service connection for a low back disability in May 2015. In support of his petition to reopen the previous denial, the Veteran submitted new medical evidence, including a private medical opinion that his current low back disability was caused by his already service-connected left leg disability. See June 2015 Beacon Prosthetics & Orthotics Patient Note; see also August 2015 Atlantic Neurosurgical & Spine Specialists Neurosurgical Consultation. Prior to making a determination with respect to the Veteran’s claim of service connection, the Board must first determine whether new and material evidence has been submitted sufficient to reopen the claim. A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence is defined as 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). The Board is aware that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Moreover, the Court of Appeals for Veterans Claims explained this standard is intended to be a low threshold. Id. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Following a review of the evidentiary record, the Board finds that evidence submitted by the Veteran since the date of the January 2014 rating decision constitutes “new” evidence, as it was not available at the time of the issuance of that rating decision. Moreover, the Board finds that this new evidence is material, as it reflects that that Veteran’s current low back disability is connected to his already service-connected left leg disability. Therefore, the Board finds there is sufficient evidence to reopen the previously-denied claim for entitlement to service connection for a low back disability. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §1131; 38 C.F.R. § 3.303(a). In addition, disorders diagnosed after discharge may also still be service-connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires competent evidence showing: (1) the existence of a present disability; (2) 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 “nexus” requirement. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). There is no categorical rule that medical evidence is required when the determinative issue is either medical etiology or a medical nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Therefore, the Board will assess the competence and credibility of lay statements as well. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In adjudicating claims for VA benefits, the burden of proof only requires an approximate balance of the evidence for and against a claim. 38 U.S.C. 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1991). This low standard of proof is unique to the VA adjudicatory process, and the nation, in recognition of our debt to our veterans, has taken upon itself the risk of error in awarding such benefits. Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (citing Gilbert, 1 Vet. App. at 54). Service connection may also be granted for a disability that is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id.; Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury. To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). 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. § 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). In this vein, the Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value. The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See, e.g., Struck v. Brown, 9 Vet. App. 145, 152 (1996); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). Entitlement to service connection for a low back disability to include as secondary to a service-connected disability The Veteran asserts that his low back disability is secondarily related to his active service. Specifically, he maintains that this disability was caused by a leg length discrepancy resulting from his already service-connected left leg fracture. A review of the case file reveals that in August 2011 the Veteran was diagnosed with anterior spondylosis; he was later diagnosed with multilevel lumbar spondylosis in August 2015. See, e.g., March 2015 Jacksonville CBOC Non-VA Note (referring to an August 2011 MRI of the Veteran’s lumbar spine diagnosing him with prolific anterior spondylosis at L2-L3, L3-L4, and L4-L5); August 2015 Atlantic Neurosurgical & Spine Specialists Neurologic Consultation (diagnosing the Veteran as having multilevel lumbar spondylosis as well as central canal stenosis at L4-L5). Thus, the first required element of service connection, a current disability, is fulfilled. With respect to secondary service connection, as noted previously, the record must reflect 1) evidence of a current disability, 2) evidence of a service-connected disability, and 3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin, 11 Vet. App. at 512; Reiber, 7 Vet. App. at 516-17. In a March 1980 rating decision, Veteran was granted entitlement to service connection for a left tibia and fibula mid-shaft fracture, effective January 22, 1980, which the Veteran asserts caused his current low back disability. Accordingly, the second required element for secondary service connection, evidence of a service connected disability, has also been satisfied. Regarding the third element of secondary service connection, medical nexus, the record contains conflicting medical opinions regarding the link between the Veteran’s current low back disability and his service-connected left leg disability. A VA examiner previously opined in December 2015 that the Veteran’s low back disability was not as least as likely as not related to his service-connected left leg condition. See December 2015 VA Back Conditions Disability Benefits Questionnaire (DBQ). In arriving at this conclusion, the examiner cited the to the fact that no leg length discrepancy was noted in the Veteran’s service treatment records, and that the Veteran did not have a leg length discrepancy previously documented in an examination. Id. The examiner also noted that while leg length discrepancies are known to be associated with lower back pain, the Veteran also had been diagnosed with degenerative disk disease, which can also cause lower back pain. Id. However, the Veteran supplied contrasting medical evidence, including a private medical opinion, linking his current lower back disability to his service-connected left leg disability. See, e.g., July 2015 Beacon Prosthetics and Orthotics Patient Note (diagnosing the Veteran with a left leg length discrepancy of 1.25 inches, and opining that his lower back pain was a result of not treating the left leg for the height difference); August 2015 Atlantic Neurological & Spine Specialists Neurosurgical Consultation (diagnosing the Veteran with multilevel lumbar spondylosis and acknowledging that the Veteran had a left leg discrepancy that can also aggravate back pain). The Veteran also submitted a letter from his treating VA physician opining that the Veteran has a condition call a lower leg discrepancy, with the left leg being 1.25 inches shorter than his right leg. See July 2015 Jacksonville VA Medical Center (VAMC) Correspondence. The Veteran’s physician noted that the Veteran’s legs had only been recently measured and the discrepancy had been noted, and that walking for a long time without correcting this problem caused the Veteran to limp. Id. She further noted that this limp translated to “unequal forces and pressure…and also translated onto his lower back, contributing to his lower back pain.” Id. Subsequent medical opinions were generated in the process of the RO’s development of the Veteran’s claim, including a VA medical opinion regarding the nature and etiology of Veteran’s left leg length discrepancy. See January 2016 Compensation and Pension Examination Report. The examiner opined that the Veteran’s left leg discrepancy was as least as likely as not proximately due to his left leg fracture. Id. She further explained that “one of the side effects of the mid-shaft tibial fibula fractures is although the fracture heals well, there can be complication of the shortening of the leg, because of the bone break.” Id. She then indicated, “Based on the provider who actually wrote the letter stating that the leg length discrepancy was from the fracture and that they saw the leg itself…I would agree. This is also consistent with medical literature and scientific review.” Id. The RO next obtained a medical opinion regarding the Veteran’s lower back disability and his left leg length discrepancy. See January 2016 Medical Opinion DBQ. The examiner opined that the Veteran’s lower back pain was aggravated beyond its natural progression by his left leg length discrepancy, citing to the abnormal load place on the back by a significant leg length discrepancy. Id. In an attempt to reconcile the conflicting VA medical opinions, RO then obtained another medical opinion that same month, in which a third examiner opined that the Veteran’s actual left leg discrepancy was only 1 centimeter, and that was not enough to cause any effect on his lower back. See January 2016 Compensation and Pension Examination Report. The examiner went on to clarify that “any difference less than one inch is not considered enough to cause gait abnormalities sufficient to produce problems in the back.” Id. The RO then requested that the examiner clarify her determination that the Veteran’s left leg discrepancy was 1 centimeter, as opposed to 1.25 inches as previously determined in 2015 by both the Veteran’s VA and private doctors. See January 2016 Report of General Information (VA Form 27-0820). The third examiner clarified that the Veteran’s left leg length discrepancy was measured as one centimeter in an October 2015 Knee and Lower Leg DBQ, and that measurement was more accurate because it was conducted by “measuring from the anterior superior iliac spine to the internal malleolus of the tibia.” Id. Certain elements of the multiple positive and negative medical opinions in this case are probative. Both sets of evidence have respective strengths and weaknesses. In such situations, the benefit of the doubt is resolved in the Veteran’s favor. In determining whether compensation 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; 38 C.F.R. § 3.102. Accordingly, given the evidence of a current lower back disability and a service-connected disability, and resolving the benefit of the doubt in the Veteran’s favor with respect to the medical evidence of a nexus between the Veteran’s currently diagnosed lower back disability and his already-service connected left leg disability, the Board finds that his current lower back disability is at least as likely as not related to his already-service connected left leg disability. 38 C.F.R. §§ 3.303(a); Holton, 557 F.3d at 1366; Shedden, 381 F.3d at 1166-67.   Therefore, the Board finds that service connection for the Veteran’s lower back disability as secondary to his already service-connected left leg disability is warranted. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Raj, Associate Counsel