Citation Nr: 18149469 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 15-04 263A DATE: November 9, 2018 ORDER New and material evidence having been received, the claim for entitlement to service connection for lumbar spine degenerative disc disease is reopened. Service connection for lumbar spine degenerative disc disease is granted. REMANDED Entitlement to an initial rating in excess of 10 percent for non-obstructive coronary artery disease is remanded. FINDINGS OF FACT 1. In a January 2005 rating decision, the regional office (RO) denied the Veteran’s service-connection claim for lumbar spine degenerative disc disease. The Veteran did not appeal, nor did he submit new and material evidence within one year of this determination. 2. Since the January 2005 rating decision denying the Veteran’s claim for lumbar spine degenerative disc disease, new evidence has been associated with the record that raises a reasonable possibility of substantiating the claim. 3. The evidence of record favors a finding that lumbar spine degenerative disc disease is proximately due to the Veteran’s service-connected plantar warts disability. CONCLUSIONS OF LAW 1. The RO’s January 2005 denial of the claim for service connection for lumbar spine degenerative disc disease is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. As additional evidence received since the RO’s January 2005 denial is new and material evidence, the criteria for reopening the claim for service connection for lumbar spine degenerative disc disease are met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for lumbar spine degenerative disc disease have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1963 to November 1984. He testified before the undersigned at an August 2018 videoconference hearing. Initially, the Board notes that, subsequent to the issuance of the March 2017 statement of the case addressing lumbar spine degenerative disc disease, additional evidence was added to the record, to include a private opinion directly relevant to the issue on appeal. The Veteran waived initial agency of original jurisdiction (AOJ) consideration of this newly received evidence in an August 2018 letter. 38 C.F.R. § 20.1304(c). Therefore, the Board may properly consider such newly received evidence. New and Material Evidence VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the claimant. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). For applications to reopen filed after August 29, 2001, as in this case, 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). 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 United States Court of Appeals for Veterans Claims (Court) has held that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The RO denied the Veteran’s service-connection claim for lumbar spine degenerative disc disease in a January 2005 rating decision. The Veteran did not submit any new and material evidence or a notice of disagreement within a year of that decision. Thus, the January 2005 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. Evidence received since the January 2005 rating decision denying service connection for lumbar spine degenerative disc disease includes, in pertinent part, a positive nexus opinion from Dr. R.M. as to the Veteran’s lumbar spine disability. The opinion sets forth a medical rationale as to why the Veteran’s lumbar spine degenerative disc disease is more likely than not related to the Veteran’s service-connected plantar warts disability. Such additional evidence is new, material, relates to the open question of nexus, and therefore serves to reopen the claim. Service Connection Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). To prevail on a claim for secondary service connection, the record must show (1) current disability, (2) a service-connected disability, and (3) medical nexus evidence establishing a connection between the current and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran has a diagnosis of lumbar spine degenerative disc disease. He has been awarded service connection for plantar warts on his foot. Thus, the key issue in this case is whether there is medical evidence establishing a link between the current disability and service-connected disability. The Board finds that such a link has been established. In this regard, at a June 1992 VA examination, an examiner noted that the Veteran’s service-connected plantar warts caused a mildly left antalgic gait. In a statement submitted in connection with his original claim for service connection for a lumbar spine disability, the Veteran indicated that his painful plantar warts caused him to modify his gait, which put strain on his back and legs. See August 2004 Statement in Support of Claim. The Veteran submitted a private medical opinion from Dr. R.M., a licensed chiropractor, in September 2018. Dr. R.M. reviewed the Veteran’s service treatment records and noted various instances of treatment for back pain, to include treatment for back pain and muscle spasms in October 1976, February 1978, and January 1982, as well as treatment for plantar warts, for which the Veteran was first treated in May 1966 and which has continued to the present. Post-service, Dr. R.M. noted a documented instance of the Veteran hurting his back in 1997 and subsequently being seen for low back pain in December 1997. He listed subsequent low back treatment that continued through the years. Ultimately, it was Dr. R.M.’s opinion that it was as likely as not that the Veteran’s back pain was related both to the Veteran’s instances of back pain in service as well as his service-connected plantar warts. As for the relationship to the Veteran’s plantar warts, Dr. R.M. explained that the warts (which started in service) created a gait disturbance which more likely than not caused the Veteran’s back issues, and thus, it was his opinion that the Veteran’s back condition was at least as likely as not related to his having to change his gait due to his intractable plantar warts. The Board acknowledges that the RO has previously denied the Veteran’s claim, in part, on the basis that there is evidence in the Veteran’s claims file that he injured his back in 1997, post-service, and that his low back injuries stem from that injury, rather than from any incident of service. However, insofar as the Veteran was noted to have an antalgic gait as early as 1992, and that Dr. R.M. has related the Veteran’s lumbar spine disability to the Veteran’s service-connected plantar warts disability, the Board finds that the criteria for secondary service connection have been satisfied. There are no medical opinions that are contrary to the findings of Dr. R.M. Accordingly, in light of the Veteran’s credible lay statements that the pain in his back stems from having to compensate for his plantar warts, the medical treatment records showing consistent complaints of back pain as related to the pain in his feet, and the opinion of Dr. R.M., the Board finds that the Veteran’s lumbar spine degenerative disc disease has been medically linked to his service-connected plantar warts. Service connection for lumbar spine degenerative disc disease is granted on a secondary basis. REASONS FOR REMAND When an increase in the level of a disability is at issue, the primary concern is the present level of the disability. Francisco v. Brown, 7 Vet. App. 5 (1994). The Veteran’s most recent examination to assess the nature and severity of his service-connected non-obstructive coronary artery disease was in October 2012. However, his lay statements, to include sworn testimony offered at an August 2018 Board hearing, suggest that his heart condition may have worsened. When available evidence is too old for an adequate evaluation of the Veteran’s current condition, VA’s duty to assist includes providing a new examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). The matter is REMANDED for the following action: 1. Arrange for an appropriate VA examination to determine the current nature and severity of the Veteran’s service-connected non-obstructive coronary artery disease. All indicated tests and studies should be conducted, to include, as feasible, an electrocardiogram, echocardiogram, and/or chest X-ray. The electronic record must be made available for review of the Veteran’s pertinent medical history. The examiner should take a history from the Veteran as to the progression of his heart disability(ies). (a) The examiner should describe all symptoms associated with the Veteran’s service-connected non-obstructive coronary artery disease, as well as the severity of each symptom. The examiner should assess the workload of METs and left ventricular ejection fraction. (b) To the extent possible, the examiner should describe in detail which symptoms are attributable to the Veteran’s service-connected non-obstructive coronary artery disease, and which symptoms are attributable to his non-service connected non-ischemic cardiomyopathy, with automatic implantable cardiac defibrillator. If this information cannot be provided, please explain why this is so. 2. After completion of the above and any other development deemed warranted, readjudicate the claim on appeal. To the extent this clam is denied, in whole or in part, the AOJ should issue a Supplemental Statement of the Case. After the Veteran is given an opportunity to respond, the case should be returned to the Board. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Polly Johnson, Associate Counsel