Citation Nr: 18151681 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 16-39 952 DATE: November 20, 2018 ORDER The application to reopen the claim of service connection for lumbosacral degenerative disc disease associated with impairment of the right thigh is granted. REMANDED Entitlement to service connection for lumbosacral degenerative disc disease associated with impairment of the right thigh is remanded. FINDING OF FACT 1. In an August 2009 rating decision, the RO denied the claim of service connection for lumbosacral degenerative disc disease associated with right hip bursitis. The Veteran did not timely appeal this decision nor did she submit new and material evidence within the one-year period. 2. Evidence received since the August 2009 rating decision, i.e., a medical article linking limping to back pain, relates to a previously unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The August 2009 rating decision that denied service connection for lumbosacral degenerative disc disease associated with impairment of the right thigh is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.1103 (2017). 2. Evidence received since the August 2009 rating decision is new and material and the claim of service connection for lumbosacral degenerative disc disease associated with impairment of the right thigh is reopened. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1996 to October 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Because of the Board’s favorable finding below and remand of the issue of service connection, a discussion of the Veteran’s contentions with respect to the duty to assist is not necessary at this time. 1. The application to reopen the claim of service connection for lumbosacral degenerative disc disease associated with impairment of the right thigh. The RO denied the Veteran’s claim of service connection for lumbosacral degenerative disc disease associated with impairment of the right hip bursitis in an August 2009 rating decision, finding that it did not begin in service, it was not caused by service, and is not secondary to a service-connected disability. The Veteran was provided notice of this decision and her appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2017). The Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. 38 U.S.C. § 7104(b) (2012); King v. Shinseki, 23 Vet. App. 464 (2010). However, the finality of a previously disallowed claim can be overcome by the submission of new and material evidence. See 38 U.S.C. § 5108 (2012). New evidence means existing evidence not previously submitted to agency decision makers. Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2017). The evidence received since the August 2009 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156 (2017). For example, a medical article linking limping to back pain was associated with the claims file in November 2012. This new evidence addresses a reason for the previous denial; that is, a nexus to a service-connected disability, and raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits REASONS FOR REMAND 1. Entitlement to service connection for lumbosacral degenerative disc disease associated with impairment of the right thigh is remanded. The Board cannot make a fully-informed decision on the issue of service connecction for lumbosacral degenerative disc disease associated with impairment of the right thigh because no VA examiner has opined whether the Veteran’s right hip disorder distorted her gait, and if so, that aggravated her lumbar spine disorder. The medical article submitted by the Veteran does not address this specific Veteran’s case. The January 2009 VA treatment opinion indicates that hip pain is related to back pain, not the other way around. Furthermore, it does not provide a rationale. Therefore, there is insufficient evidence to grant the claim at present. The matter is REMANDED for the following action: 1. Provide the Veteran’s claims file to an appropriate clinician to provide opinions as to the etiology of the Veteran’s back disability. The claims file and a copy of this remand must be provided to the clinician. A new examination is only required if deemed necessary by the clinician. The clinician must provide opinions as to the following: a. Whether the Veteran’s lumbar spine disabilities (e.g. degenerative disc disease, stenosis, spondylosis and levoscoliosis) at least as likely as not began during active service, are related to an incident of active service, or (if arthritis is diagnosed) manifest to a compensable degree within one year of separation from service. b. Whether the Veteran’s lumbar spine disabilities (e.g. degenerative disc disease, stenosis, spondylosis and levoscoliosis) are at least as likely as not proximately due to the service-connected right hip disability, including by any antalgic gait resulting from the right hip disability. c. Whether the Veteran’s lumbar spine disabilities (e.g. degenerative disc disease, stenosis, spondylosis and levoscoliosis) are at least as likely as not aggravated by the service-connected right hip disability, including by any antalgic gait resulting from the right hip disability. The clinician must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. If upon completion of the above action any benefit sought on appeal remains denied, the case should be returned to the Board after compliance with appellate procedure. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Rocktashel, Counsel