Citation Nr: 18144862 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 15-27 864 DATE: October 25, 2018 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for a back disability. Entitlement to secondary service connection for lumbar strain is granted. FINDINGS OF FACT 1. A November 2004 rating decision denied service connection for a back condition. The Veteran withdrew his appeal of this decision prior to Board adjudication. 2. Evidence received more than one year since the November 2004 rating decision is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the Veteran’s claim for entitlement to service connection for a back disability. 3. The Veteran’s lumbar strain is proximately due to his service-connected bilateral knee disabilities. CONCLUSIONS OF LAW 1. The November 2004 rating decision denying the claim of entitlement to service connection for a back disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.201, 20.204, 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a back disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to secondary service connection for lumbar strain are met. 38 U.S.C. § 1131; 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from June 1975 to June 1976. This matter comes before the Board of Veterans Appeals (Board) on appeal from a February 2014 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). 1. New and material evidence has been received to reopen the claim of entitlement to service connection for a back disability. The Veteran was originally denied secondary service connection for a back disability in a November 2004 rating decision due to lack of a nexus between his back and knee disabilities. The Veteran perfected an appeal of that decision. However, prior to issuance of a decision by the Board, the Veteran withdrew all pending appeals in a statement received November 2007, thereby withdrawing his prior NOD and substantive appeal in regard to the November 2004 rating decision. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. Generally, a decision of the RO that is not timely appealed (or in this case, has been appealed but such appeal was withdrawn prior to issuance of a Board decision) becomes final and binding in the absence of clear and unmistakable error (CUE). Here, the Veteran generally asserts that VA committed CUE in the November 2004 rating decision. Specifically, he states that the October 2004 VA examiner erred in stating that he had severe back problems that could have been the result of a childhood injury, and had that been the case he never would have been cleared to enter into active duty. October 2013 Statement. On his July 2015 VA Form 9, he states that VA’s decision was the product of CUE without any specificity. Critically, allegations of CUE on the basis that the previous adjudicator improperly weighed and evaluated the evidence or the Secretary failed to fulfill the duty to assist do not constitute CUE. Fugo v. Brown, 6 Vet. App. 40, 44 (1993). Here, the RO applied the known facts to the law in effect at the time of the November 2004 rating decision. In sum, an outcome-determinative error has not been demonstrated; hence the Board cannot find CUE in the November 2004 rating decision that did not grant service connection for a back disability. Thus, the Veteran’s motion for revision of the November 2004 decision on the basis of CUE is denied, and that decision is final. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as 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). Evidence received more than one year since the final November 2004 rating decision includes favorable nexus opinions from C.L., D.O. and the October 2013 VA contract examiner. This evidence is new, as it was not considered in the prior denial. It is also material, because it is not cumulative or duplicative of evidence previously considered and it raises a reasonable possibility of substantiating the claim. As such, the Veteran has presented new and material evidence to reopen the previously denied claim of entitlement to service connection for a low back disability. 2. Entitlement to secondary service connection for lumbar strain is granted. The Veteran asserts that his current back disability is the result of an altered gait caused by his service-connected knee conditions. See March 2014 NOD; see also the October 2013 contract medical examination. Service connection may be established on a secondary basis for a disability which is proximately due to or aggravated by a service-connected disability. 38 C.F.R. § 3.310. Establishing secondary service connection requires (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran has a current diagnosis of lumbar strain. See October 2013 contract medical examination. He is also service-connected for right and left knee disabilities. Accordingly, the first two elements of secondary service connection are met. Regarding the final element, nexus, against the claim is the opinion of the October 2004 VA examiner, who opined that based on the severity of the Veteran’s pain and loss of range of motion, his current back condition was not likely related to his knee condition. A VA physician assistant also rendered an unfavorable opinion in December 2013, noting that there was no “authoritative orthopedic literature” to demonstrate that altered gait could result in a lumbar spine condition. However, both opinions are inadequate, as neither examiner addressed the possibility of secondary service connection based on aggravation. 38 U.S.C. 1131; 38 C.F.R. 3.310; El-Amin v. Shinseki, 26 Vet. App. 136 (2013). In favor of the claim is a November 2006 statement from C.O, D.O., indicating that the Veteran’s back disability, which has been progressively worsened since she first treated him in 2001, developed from his chronic knee pain. Additionally, an October 2013 VA contract examiner concludes that it is at least as likely as not that the Veteran’s current back disability is the result of his service-connected bilateral knee condition, based on the Veteran’s competent and credible reports of walking with an altered gait due to his knee problems at that time. See also October 2010 VA treatment record noting gait difficulty due to knee pain; December 2012 and January 2013 VA treatment records noting an antalgic and weak gait. Together, these favorable opinions establish the final nexus element of secondary service connection, and the benefit sought on appeal is granted. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G.Rouse, Associate Counsel