Citation Nr: 18145615 Decision Date: 10/30/18 Archive Date: 10/29/18 DOCKET NO. 18-30 911 DATE: October 30, 2018 ORDER The application to reopen the claim of service connection for back disability is granted. Entitlement to service connection for major depressive disorder, secondary to service-connected left ankle status post old healed avulsion chip fractures, is granted. REMANDED Entitlement to service connection for back disability, to include as secondary to service-connected left ankle status post old healed avulsion chip fractures, is remanded. FINDINGS OF FACT 1. The Veteran’s claim of service connection for back disability was originally denied in an October 2014 rating decision on the basis that there was no medical evidence of any such disability that was related to service; the Veteran did not appeal this decision within one year of its issuance and new and material evidence was not received within that year. 2. Evidence received since the October 2014 agency of original jurisdiction (AOJ) decision includes information that was not previously considered and which relates to unestablished facts necessary to substantiate the claim of service connection for back disability, the absence of which was the basis of the previous denial. 3. The Veteran’s major depressive disorder is proximately due to his service-connected left ankle status post old healed avulsion chip fractures. CONCLUSIONS OF LAW 1. The AOJ’s October 2014 rating decision that denied the claim of service connection for back disability is final. 38 U.S.C. § 7105 (a),(d)(3); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 19.32, 20.200, 20.302, 20.1103. 2. The evidence received since the October 2014 AOJ decision is new and material and sufficient to reopen the claim of service connection for back disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. The criteria for secondary service connection for major depressive disorder are met. 38 U.S.C. § 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1980 to May 1987. These matters come before the Board of Veterans’ Appeals (Board) from a November 2017 rating decision. As a final preliminary matter, the Board notes that the AOJ adjudicated the back issue on appeal on a de novo basis. As explained in more detail below, a claim of service connection for back disability was denied by way of a final October 2014 rating decision. Hence, the Board must initially determine whether new and material evidence has been submitted with regard to the claim of service connection for back disability. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Only where the Board concludes that new and material evidence has been received does it have jurisdiction to consider the merits of this claim. Hickson v. West, 11 Vet. App. 374, 377 (1998). Accordingly, the Board has included the issue of whether new and material evidence has been received to reopen the claim of service connection for back disability. I. Application to Reopen Generally, an AOJ decision denying a claim which has become final may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (d)(3). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as 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 newly presented evidence is presumed to be credible for purposes of determining whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of determining whether new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The application to reopen the claim of service connection for back disability The AOJ initially denied the Veteran’s claim of service connection for back disability by way of an October 2014 rating decision on the basis that there was no medical evidence of any such disability that was related to service. Specifically, the AOJ explained that there was no evidence of any diagnosed back disability and that there was no evidence of any complaints, treatment, or diagnosis for back disability in the Veteran’s service treatment records. The Veteran was notified of the AOJ’s October 2014 decision, he did not appeal the decision within one year of its issuance, and new and material evidence was not received within that year. Therefore, the October 2014 decision became final. See 38 U.S.C. § 7105 (d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. The pertinent new evidence received since the October 2014 denial includes an August 2017 medical opinion from a physician and the report of an October 2017 VA back examination. This additional evidence includes a diagnosis of degenerative arthritis of the spine and a medical opinion that the Veteran’s service-connected left ankle disability likely caused, contributed to, or aggravated his back disability. Hence, the additional evidence pertains to elements of the claim that were previously found to be lacking and raises a reasonable possibility of substantiating the claim by indicating that the Veteran has current back disability and that this disability may be associated with his service-connected left ankle disability. The evidence is, therefore, new and material, and the claim of service connection for back disability is reopened. II. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also provided for disability which is proximately due to, the result of, or aggravated by service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection for major depressive disorder, secondary to service-connected left ankle status post old healed avulsion chip fractures The Veteran contends that he has current psychiatric disability associated with his service-connected left ankle disability. The Board finds, for the following reasons, that he has been diagnosed as having major depressive disorder and that this disability is proximately due to his service-connected left ankle disability. An August 2017 psychiatric examination report from H. Jabbour, M.D. shows the Veteran has a current diagnosis of major depressive disorder. The Veteran reported during the August 2017 examination, in pertinent part, that he had experienced worsening left ankle problems in the years since service, that he was unable to participate in activities he had once enjoyed or perform activities around the house due to limitations caused by his left ankle disability, and that he was depressed by the impact that his left ankle disability had on his life. Dr. Jabbour diagnosed the Veteran as having major depressive disorder and opined that based upon the course and type of his symptoms it was “at least as likely as not (50 or greater probability”) that the Veteran’s chronic pain in his ankle and back has contributed to his depressive disorder.” Although Dr. Jabbour did not provide any specific detailed rationale for his August 2017 opinion, the opinion was nonetheless based upon an examination of the Veteran and consideration of his reported history. Reading the August 2017 examination report as a whole and in the context of the evidence of record, it supports the Veteran’s contention that his current psychiatric disability is, at least in part, proximately due to his service-connected left ankle disability. The opinion is therefore entitled to some probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Notably, there is no medical opinion contrary to the August 2017 opinion that the Veteran’s major depressive disorder is caused by his service-connected left ankle disability. For the foregoing reasons, the Board finds that the preponderance of the evidence supports a finding that the Veteran’s diagnosed major depressive disorder is, at least in part, proximately due to his service-connected left ankle status post old healed avulsion chip fractures. Hence, entitlement to service connection for major depressive disorder, secondary to service-connected left ankle status post old healed avulsion chip fractures, is granted. 38 U.S.C. §§ 1131, 5107 (b); 38 C.F.R. §§ 3.102, 3.310. REASONS FOR REMAND Entitlement to service connection for back disability, to include as secondary to service-connected left ankle status post old healed avulsion chip fractures, is remanded. The Veteran contends that he has current back disability associated with his service-connected left ankle disability. A VA back examination was conducted in October 2017, which diagnosed degenerative arthritis of the spine. In May 2018, a VA physician reviewed the Veteran’s claims file and opined that his back disability was not likely proximately due to or the result of his service-connected left ankle disability. The examiner reasoned that the Veteran experienced the same limitation of motion in the left ankle as the right ankle and that there was no evidence of any longstanding abnormal gait that would cause one weight-bearing joint to cause back problems. The May 2018 opinion is insufficient because although the physician explained that there was no evidence of any abnormal gait caused by the Veteran’s left ankle disability, the physician did not comment on the significance, if any, of the fact that the report of a June 2017 VA ankle examination reveals that there was evidence of ankle pain with weight-bearing, that the left ankle disability resulted in disturbance of locomotion, and that the Veteran regularly used an ankle brace to assist with locomotion. Moreover, the May 2018 opinion does not address whether the Veteran’s claimed back disability is aggravated by his service-connected left ankle disability. The Board acknowledges that the Veteran submitted an August 2017 opinion from a private physician that it was likely that his service-connected left ankle disability “caused, contributed to, or aggravated his current back conditions.” This opinion, however, is not accompanied by any explanation or rationale and the physician did not specify the baseline of back disability prior to aggravation, and the permanent, measurable increase in disability resulting from the aggravation. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for back disability because no VA examiner has provided an adequate opinion as to the etiology of the Veteran’s claimed back disability. Hence, an appropriate medical opinion should be obtained upon remand. The matter is REMANDED for the following action: 1. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for back disability, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of his treatment for back disability from any sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 2. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, obtain an addendum opinion from an appropriate clinician regarding whether any back disability experienced by the Veteran since approximately September 2017 at least as likely as not (1) began during active service; (2) manifested within one year after discharge from service (in the case of any currently diagnosed arthritis); (3) is related to an in-service injury, event, or disease, including the Veteran’s reported recurrent back pain as documented on a March 1987 report of medical history completed for purposes of separation from service; (4) is proximately due to service-connected left ankle status post old healed avulsion chip fractures; or (5) is aggravated beyond its natural progression by service-connected left ankle status post old healed avulsion chip fractures. The clinician must provide reasons for each opinion given. In this regard, the clinician should acknowledge and comment on the significance, if any, of the evidence of left ankle pain with weight-bearing, disturbance of locomotion caused by left ankle disability, and the regular use of an ankle brace to assist with locomotion (as documented in the report of the June 2017 VA ankle examination). ERIC S. LEBOFF Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Elwood, Counsel