Citation Nr: 18141619 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 15-01 714 DATE: October 11, 2018 ORDER The petition to reopen the claim for entitlement to service connection for degenerative disc disease (DDD) and degenerative joint disease (DJD) of the lumbar spine (lumbar spine disability) is granted. REMANDED Entitlement to service connection for a lumbar spine disability to include DDD and DJD, is remanded. FINDINGS OF FACT 1. In October 2006, a rating decision denied the claim of entitlement to service connection for back strain. 2. The Veteran did not perfect his appeal of the October 2006 decision, and it became final. 3. Evidence received since the October 2006 rating decision relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for lumbar spine disability. CONCLUSIONS OF LAW 1. The October 2006, rating decision which denied the claim of entitlement to service connection for back strain became final. 38 U.S.C. §7105 (2012); 38 C.F.R. § 20.302 (2017). 2. The additional evidence received since the October 2006, rating decision is new and material, and the claim of entitlement to service connection for a lumbar spine disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from March 1979 to March 1999. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). New and material To reopen a previously and finally-disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. 38 U.S.C. § 7104(b). In considering whether to reopen a claim, VA must assume the credibility of the aforementioned evidence which supports the Veteran’s claim as required by Justus v. Principi, 3 Vet. App. 510, 513 (1992) ([i]n 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.). 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). In Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the Court of Appeals for Veterans Claims (Court) held that, when evaluating the materiality of newly submitted evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should focus on whether the evidence, taken together, could at least trigger the duty to assist. 1. The petition to reopen the claim of entitlement to service connection for a lumbar spine disability is granted. The Veteran’s claim of entitlement to service connection for a low back disability was originally denied in an October 12, 2006 RO decision. The Veteran did not appeal the denial, so the decision became final. See 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. The Veteran submitted a new claim of entitlement to service connection for a lumbar spine disability in June 2012. The RO denied the claim in October 2006 because there was no permanent or residual or chronic back disability subject to service connection that was shown by the service medical records or demonstrated by evidence following service. While it is not clear whether this denial was based on a lack of current disability or lack of nexus, the evidence received since this decision substantiates both elements. At the time of the October 2006 denial, the evidence of record included the Veteran’s service treatment records (STRs), VA medical records, and a military personnel record. Since this October 2006 denial, the Veteran has undergone a VA examination in May 2013 which confirmed the diagnosis of DDD and DJD with radiculopathy in his lumbar spine. Additionally, the Veteran has submitted testimony at his June 21, 2018 hearing stating that he did not have back injuries before service or after service. Instead, he stated, his current back injuries are due to an incident that occurred during service. Also, later in June 2018, the Veteran submitted a positive nexus opinion for his back indicating that his back disability is at least as likely as not related to his active duty service. The Board finds that the May 2013 VA examination is new evidence that substantiates the unestablished element of a current disability for service connection purposes. Additionally, the Veteran’s testimony at his June 2018 hearing and the June 2018 positive nexus opinion are new evidence that substantiates the unestablished nexus between the Veteran’s current lumbar spine disability and his active duty service. Accordingly, the petition to reopen the claim of entitlement to service connection for a lumbar spine disability is granted. REASONS FOR REMAND 2. Entitlement to service connection for a lumbar spine disability, to include DDD and DJD, is remanded. As discussed above, a May 2013 VA examination established that the Veteran has a current disability of DDD and DJD of the lumbar spine. There is also substantial evidence that the Veteran had problems with his back during service, including complaints of back pain while he was stationed at Osan Air Force Base in March 1990. The Veteran reports that his lumbar spine injury stems from an incident that occurred on Osan Air Force Base. However, the two medical opinions of record are inadequate, so the Board cannot render a decision on the claim. Accordingly, a remand is required for an adequate nexus opinion. At his May 14, 2013, VA examination for his spine, the VA examiner opined that it is less likely than not that a medical nexus could be established between the Veteran’s back/lumbar spine disability and his in-service back pain. He rationalized that there was a lack of medical evidence of ongoing back complaints, diagnosis, and treatment from separation [from service] to the 2012-time frame. He also reasoned that the Veteran was required to do a lot of heaving lifting at the job he worked at from separation to 2012. The Board finds this VA opinion is inadequate because the rationale does not address the Veteran’s extensive complaints during service regarding his back. Nor does it address the Veteran’s contentions that he injured his back during an incident while stationed at Osan Air Force Base. Instead, the VA opinion relies on the absence of medical evidence from separation to 2012. Yet, the claims record includes evidence that the Veteran reported issues with his back after he left service but before 2012. A July 28, 2004, progress note indicates the Veteran had a medical history of back pain. Additionally, the record includes entries from January 2008 reporting that the Veteran had episodes of back discomfort. While the record suggests back pain may be a symptom of coronary artery disease, the VA opinion is also inadequate because it relies on a lack of continuity of back problems before 2012, but it does not address the probative medical evidence that shows the Veteran had a history of post-service back pain prior to 2012. The Veteran’s representative submitted a nexus opinion dated June 20, 2018, regarding the Veteran’s back. The opinion stated that it is 50 percent as likely as not that the Veteran’s current disability of degenerative disc disease/degenerative joint disease is due to “the injury sustained while serving.” The VA examiner relied on the Veteran’s history of military service and injury to his back during his service. This opinion, too, is inadequate. It does not include any rationale to support the opinion. As such, the record does not contain an adequate etiology opinion, so a remand for an addendum opinion is required. The matter is REMANDED for the following action: 1. The record suggests that all of the medical records associated with the Veteran’s tour at Osan Air Force Base have not been associated with the claims record. Please obtain and update all VA medical records and private medical records, and ensure all of the Veteran’s STRs and military personnel records have been associated with the file to the extent possible. 2. After completing directive (1), obtain an addendum opinion from a VA examiner other than the examiner who conducted the May 2013 examination, to determine the nature and etiology of the Veteran’s lower back condition. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The addendum opinion must include a notation that this record review took place. It is within the discretion of the examiner as to whether a new examination is necessary to provide an adequate opinion. After the record review and examination of the Veteran, if deemed necessary by the examiner, the VA examiner is asked to respond to the following inquiry: a. Is it at least as likely as not that the current lumbar spine disability is related to the Veteran's active duty service? While making his or her determination, the examiner should address the Veteran’s numerous complaints regarding his back during service and the post-service records regarding back pain. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Wade, Associate Counsel