Citation Nr: 18151788 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 14-24 428A DATE: November 20, 2018 ORDER New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for back disability. REMANDED Entitlement to service connection for a back disability, to include as secondary to service-connected bilateral traumatic arthritis of the knees, is remanded. FINDINGS OF FACT 1. An August 1973 rating decision denied service connection for a back condition; the Veteran did not appeal that decision, and new and material evidence was not received within one-year notice of its issuance. 2. Evidence received more than one year of the August 1973 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, to include as secondary to service-connected bilateral traumatic arthritis of the knees disability. CONCLUSIONS OF LAW 1. The August 1973 rating decision that denied the claim of entitlement to service connection for a back disability is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The criteria to reopen the claim of entitlement to service connection for a back disability are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from January 1972 to March 1973. This matter comes before the Board of Veterans’ Appeals (Board) from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In this regard, although the Veteran did not submit a notice of disagreement within one year of November 2009 rating decision, he did provide new relevant private treatment records within one year of its issuance. Accordingly, the November 2009 rating decision is not final and is the decision on appeal in this case. 38 C.F.R. § 3.156(b); see also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242 (2010). In March 2018, the Veteran testified before the undersigned Veterans Law Judge. 1. New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for back disability. A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, or new and material evidence is received during the appeal period after the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. 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; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 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). In August 1973, a rating decision denied service connection for the Veteran’s back disability. The Veteran was informed of that decision, he did not appeal the decision, as to the denial of service connection for a back disability, and new and material evidence was not received within one year of the decision. Thus, the August 1973 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a), Evidence received more than one year since the August 1973 rating decision constitutes new and material evidence, to include updated VA treatment records, VA examination reports, private treatment records and opinions, as well as the Veteran’s May 2018 Board hearing testimony. This evidence is new as it was not previously considered by the RO. The evidence is also material, as 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 back disability, to include as secondary to service-connected bilateral traumatic arthritis of the knees. See Shade v. Shinseki, 24 Vet. App. 110 (2010); 38 C.F.R. § 3.156(b). REASONS FOR REMAND 2. Entitlement to service connection for a back disability, to include as secondary to service-connected bilateral traumatic arthritis of the knees disability, is remanded. The Veteran’s treating physician, Dr. J.L., provided a favorable opinion that the Veteran’s back condition aggravated his bilateral knee condition. However, Dr. J.L. provided no rationale for his opinion and as such the opinion is inadequate. See Stelf v. Nicholson, 21 Vet. App. 120 (2007). In October 2009, a VA examiner opined that the Veteran’s low back pain did not relate to his service-connected bilateral knee condition. The October 2009 VA examiner’s conclusory opinion provided no rationale, other than to say the Veteran’s previous back injuries did not involve his knees, as such, it is an inadequate opinion. See Stelf, supra. A November 2010 VA examiner opined that the Veteran’s low back problems were due to his work injuries and found that “knee problems do not cause this sort of back problem.” However, the examiner does not provide a sufficient rationale for whether repetitive inaccurate squatting, kneeling and lifting due to the Veteran’s bilateral knee injuries caused or aggravated the Veteran’s back injury. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). Therefore, the November 2010 VA opinion is also inadequate. See Stelf, supra. In June 2011, Dr. A.R. opined that the Veteran’s knee condition “could” adversely affect his lumbar spine and add to his symptoms. See June 2011 Dr. A.R. Correspondence. In addition, Dr. T.T. opined that the Veteran’s service-connected knee injuries “may well have” made squatting and kneeling difficult and painful and the Veteran “may well have” avoided proper use of lifting practices due to his service-connected knee injuries. See March 2015 Dr. T.T. Correspondence. These opinions, which employ speculative language, are also inadequate. Accordingly, a new examination is warranted on remand. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Any outstanding VA and private treatment records should also be secured. The matter is REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With necessary assistance from the Veteran, obtain any outstanding relevant treatment records, to include from Drs. T.T. and A.R. 3. Then schedule the Veteran for an examination to determine the nature and etiology of any current back disability. The claims file, including a copy of this remand, must be provided to the examiner in conjunction with the requested opinion. All indicated tests and studies should be conducted, and all findings reported in detail. After reviewing the claims file, eliciting a history directly from the Veteran and conducting a thorough examination, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed back disability: (a) had its onset during service or is otherwise related to service; (b) is proximately due to his service-connected bilateral traumatic arthritis of the knees, to include as the result of repetitive improper squatting, kneeling and lifting due to the Veteran’s bilateral knee injuries; or (c) has been aggravated (worsened beyond the normal course of the disease) by his service-connected bilateral traumatic arthritis of the knees, to include as the result of repetitive improper squatting, kneeling and lifting due to the Veteran’s bilateral knee injuries. In addressing these questions, please review and discuss the following within your findings: (1) Dr. J.L.’s medical records dealing with the Veteran’s work back injuries and his opinion on causation and/or aggravation by the Veteran’s service-connected knees disability; (2) the November 2010 VA examiner’s opinion regarding whether the Veteran’s service-connected bilateral traumatic arthritis of the knees disability can cause herniated disks with degenerative joint disease and radiculopathy; and (3) Dr. A.R. and Dr. T.T.’s medical correspondences, regarding the Veteran’s improper lifting practices, in avoidance of knee pain, causing or aggravating the Veteran’s back disability. Also, please provide separate opinions for questions (b) and (c). A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resorting to speculation, it is essential that the examiner explain why an opinion cannot be provided (e.g., the limits of the examiner’s knowledge, the limits of medical knowledge in general; or if there is additional evidence that would allow for an opinion on this matter). S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Victoria L. Stephens, Associate Counsel