Citation Nr: 18152092 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-35 109 DATE: November 20, 2018 ORDER New and material evidence having been received; the claim of entitlement to service connection for residuals of a back injury, is reopened. Entitlement to service connection for residuals of a back injury is granted. REMANDED Entitlement to service connection for bilateral foot disabilities to include pes planus and eczema is remanded. FINDINGS OF FACT 1. In an August 1987 decision, service connection for residuals of a back injury was denied. The Veteran did not file a substantive appeal. As such, the August 1987 decision denying service connection for residuals of a back injury became final. 2. The additional evidence since submitted or otherwise obtained is not cumulative or redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for residuals of a back injury. 3. Resolving reasonable doubt in the Veteran’s favor, his lumbago is at least as likely as not related to the back injuries he suffered during service. CONCLUSIONS OF LAW 1. The August 1987 decision, which denied service connection for residuals of a back injury, became final. 38 U.S.C. §§ 7104 (2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence has been received to reopen the claim of service connection for residuals of a back injury. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for residuals of a back injury have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1972 to December 1973. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. VA’s Duties to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA’s duties to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. § 3.159 (2017). VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In an application to reopen based on new and material evidence, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and of the evidence and information that is necessary to establish entitlement to the underlying claims for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy this requirement, VA is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. In this case, the RO sent the Veteran a letter in June 2013 that complies with statutory notice requirements. Therein, the RO notified the Veteran of the evidence VA was responsible for obtaining and the evidence necessary to establish entitlement to the benefits sought including the types of evidence that would assist in this matter. Also, the RO notified the Veteran of the criteria for reopening a previously denied claim, the criteria for establishing service connection, and information concerning why his claim was previously denied. Thus, VA has satisfied the notification and duty-to-assist provisions of the law, and no further action pursuant to the VCAA need be undertaken on the Veteran’s behalf. The Veteran has not identified any other pertinent evidence that remains outstanding. Whether new and material evidence had been submitted to reopen claim of service connection for residuals of a back injury Pursuant to 38 U.S.C. § 7104 (b), a decision by the Board may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered. As well, a claim that has been denied in a final unappealed rating decision by the RO may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c). The exception to this rule is described under 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.” Therefore, once a rating decision has been issued, absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by VA. 38 U.S.C. §§ 5108, 7104(b); 38 C.F.R. § 3.156, 20.1105; see Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial). New evidence is defined as existing evidence not previously submitted to agency decision makers. 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 Board will generally presume the credibility of the evidence in determining whether evidence is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Significantly, however, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that 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 (2000). In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). 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 Board finds that new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for residuals of a back injury. The claim of entitlement to service connection for residuals of a back injury was previously denied in an August 1987 decision. The RO denied the Veteran’s claim because on previous VA examination no clinical evidence could be found of any back disability. The Veteran did not perfect an appeal and the August 1987 decision which denied service connection for residuals of a back injury became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). Subsequent to the August 1987 decision, the Veteran has submitted additional evidence and arguments that if presumed credible for purposes of reopening, show a possibility that his residuals of a back injury were caused or related to service. Specifically, medical treatment records received April 2014 note the Veteran suffers from lumbago. See Medical Treatment Records. Accordingly, this evidence is sufficient to reopen the previously-denied claim of entitlement to service connection for residuals of a back injury. See 38 C.F.R. § 3.156 (a). Entitlement to service connection for residuals of a back injury The Veteran contends he is entitled to service connection for residuals of a back injury. Service connection may be granted for disabilities resulting from disease or injury incurred or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Generally, service connection requires (1) evidence of current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) evidence of a nexus between the current disability and the in-service disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be more persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b) (2012). Here, resolving all reasonable doubt on behalf of the Veteran, it is as least as likely as not that the Veteran’s lumbago began during active duty service. The Veteran was diagnosed with lumbago in March 2014. Therefore, the first prong of service connection, a current disability, has been met. Additionally, service treatment records reflect the Veteran’s numerous complaints and treatment for low back pain during service after sustaining a fall. Thus, the evidence of record shows that the Veteran had an in-service occurrence, which meets the second prong of service connection. Finally, the last factor required for a grant of service connection is a nexus (link) between the Veteran’s in-service occurrence and his current disability, which is generally proven by medical opinion or in some cases competent lay evidence. In this instance, there is competent lay and medical evidence that establishes a link between the in-service occurrence and the current disability. Specifically, the Veteran’s service treatment records reflect numerous complaints of back pain during service and the Veteran has consistently complained of back pain during and since his discharge from service in December 1973. Post service medical records also reflect the Veteran complaints of back pain and a note from Dr. W. W. dated October 27, 1975, indicated that he has known and treated the Veteran from many years and had not treated the Veteran for back pain prior to September 1973 and the Veteran has complained of back pain since this time. The RO solicited a medical opinion as to the nature and etiology of the Veteran’s back injury in August 2013. The examiner noted that service treatment records reflected various complaints of back pain over a six-month period and each evaluation was determined to be a muscle strain and was treated as an acute episode. The examiner diagnosed the Veteran with scoliosis and probable facet arthropathy of the lumbar spine and indicated these conditions are more suggestive of chronic spine disability whereas his service treatment records refer to acute conditions of muscle spasms and not spinal issues. The examiner concluded that based on these findings it is less likely than not that the in-service treatment for acute backs spasms are related to the Veteran’s current scoliosis. The Board assigns no probative value to the examiner’s opinion as the examiner failed to review all relevant evidence of record, including service treatment that reflect the Veteran’s consistent complaints of back pain throughout the entire remaining year of the Veteran’s service. Moreover, the examiner failed to take into account the Veteran lay assertions which he is deemed competent to report his symptoms during and following service. Thus, the Board finds the Veteran, the Veteran’s family and friends and private physician statements are competent, credible, and probative as to whether the Veteran’s in-service occurrences are related to his current disability. Therefore, based on a detailed review of the evidence of record, resolving all doubt in the Veteran’s favor, the Board finds that service connection for residuals of a back injury is warranted. The benefit of the doubt rule has been considered in reaching this decision. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for bilateral foot disabilities to include pes planus and eczema is remanded. Here, the Veteran was afforded a VA examination for his flat feet in May 2013. The examiner opined that the Veteran’s bilateral flat feet were less likely than not incurred in or caused by service. The examiner based his rationale on the fact that the Veteran was assessed with low arches one month following enlistment and there were no other notes found to indicate any chronic, ongoing foot problems in service. The examiner also indicated the Veteran has minimal pes planus that likely predated service. The Board finds this opinion is inadequate for adjudication purposes. First, the examiner indicated that the Veteran’s pes planus likely predated service but failed to opine whether his pes planus was aggravated by service. Additionally, upon review of the medical evidence the Board notes the Veteran was indicated on enlistment as having moderate pes planus in August 1972 and service treatment records dated September 1972 also reflect the Veteran’s complaints of pain in his feet due to his pes planus. Post service treatment records also reflect the Veteran’s complaints of foot pain and relate this pain to the Veteran’s service. In regard to the Veteran’s eczema of the feet, the record consists of numerous lay statements from the Veteran and his family and friends indicating that he has suffered from this disability since service. The Veteran was not afforded a VA examination with respect to this claim. Based on the foregoing, the Board finds an opinion is needed to determine the etiology of the Veteran’s bilateral pes planus and eczema. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bilateral foot disabilities to include bilateral pes planus and eczema. The examiner must opine whether these disabilities are at least as likely as not related to an in-service injury, event, or disease. Whether the Veteran’s bilateral foot disabilities at least as likely as not (1) began during active service, (2) manifested within [presumptive period] after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. In regard to the Veteran’s bilateral pes planus, the examiner should discuss whether this disability clearly and unmistakably (undebatable) preexisted the Veteran’s service. If the examiner finds it did clearly and unmistakably preexist service, the examiner must opine whether it was clearly and unmistakably not aggravated by service. If the examiner finds that it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. Whether it was at least as likely as not aggravated (non-temporary increase in severity) by service and, if so, whether any increase in severity was clearly and unmistakably (undebatable) due to its natural progress. 2. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If any benefit sought remains denied a supplemental statement of the case (SSOC) must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, then return the appeal to the Board for appellate review, if otherwise in order. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD McDuffie, Kerstin