Citation Nr: 18153899 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-51 288 DATE: November 28, 2018 ORDER The application to reopen the claim of entitlement to service connection for a lumbar spine disorder is granted. REMANDED Entitlement to service connection for a lumbar spine disorder, to include as secondary to the service-connected right and left knee disabilities, is remanded. Entitlement to an increased rating in excess of 10 percent for degenerative joint disease of the right knee is remanded. Entitlement to an increased rating in excess of 10 percent for degenerative joint disease of the left knee is remanded. FINDINGS OF FACT 1. In an unappealed May 2012 rating decision, the RO reopened the claim, but denied the claim for service connection for a lumbar spine disability on the merits. 2. Evidence received since the May 2012 rating decision is new and material and raises a reasonable possibility of substantiating the claim of entitlement to service connection for the lumbar spine disorder. CONCLUSIONS OF LAW 1. The May 2012 rating decision, which denied reopening the claim for service connection for a lumbar spine disorder, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence has been received since the last denial of service connection for a lumbar spine disorder and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1978 to June 1983. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2017, the Veteran testified regarding this matter at a Video Conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. New and Material -Laws and Analysis The Veteran was initially denied service connection for a lumbar spine disability in August 1999 because there was no indication that the Veteran’s disorder was related to service. The Veteran was notified of the August 1999 rating decision, but did not appeal the decision. As such, the August 1999 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103 The Veteran subsequently sought to reopen the claim, and in a May 2012 rating decision, the RO reopened the claim, but denied the claim based on a lack of a nexus between the Veteran’s lumbar spine disorder and service. The Veteran was notified of the May 2012 rating decision, but did not appeal the decision. As such, the May 2012 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A claim will be reopened in the event that new and material evidence is presented. 38 U.S.C. § 5108. Because the May 2012 rating decision was the last final disallowance, the Board must review all of the evidence submitted since that rating decision to determine whether the Veteran’s claims for service connection should be reopened and re-adjudicated on a de novo basis. Evans v. Brown, 9 Vet. App. 273 (1996). With regard to petitions to reopen previously and finally disallowed claims, the Board must conduct a two-part analysis. First, the Board must determine whether the evidence presented or secured since the prior final disallowance of the claim is “new and material.” Second, if the Board determines that the evidence is “new and material,” it must reopen the claim and evaluate the merits of the claim in view of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Section 3.156(a) provides as follows: A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means 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) (2017). 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). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id at 118. In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence received subsequent to the May 2012 rating decision includes, in pertinent part, the April 2017 Board hearing transcript. At that time, the Veteran indicated that his lumbar spine disorder was either caused or aggravated by his right and left knee disabilities. Specifically, the Veteran indicated that, as a result of his limitations surrounding his knees, he was unable to properly lift heavy objects at work, thus resulting in additional injury to his spine. Notably, the Veteran reported working for an airline as a baggage handler, which required him to lift up to 50 pounds. The Board finds that this evidence is new and material within the meaning of applicable law and regulations. In this regard, the Veteran’s testimony is new, as such evidence was not of record prior to the issuance of the May 2012 rating decision. Moreover, the evidence is material, as it relates to the unestablished element of a relationship between the Veteran’s spine disorder and his service-connected bilateral knee disability. As such, the lumbar spine claim is reopened.   REASONS FOR REMAND Lumbar Spine The Veteran was afforded a VA spine examination and a medical opinion was rendered in May 2012; however, the examiner did not address whether the Veteran’s lumbar spine disorder was either caused or aggravated by the service-connected right and left knee disabilities, as asserted by the Veteran. As such, a remand for a new medical opinion is required. Right and Left Knee Disabilities The Veteran was last afforded a VA knee examination in August 2015 for compensation purposes. During the April 2017 Board hearing, the Veteran testified that his bilateral knee disabilities had worsened since the VA examination in 2015. Moreover, numerous VA treatment records have been received since the most recent October 2016 Statement of the Case without waiver of consideration by the Agency of Original Jurisdiction. See Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165. The matters are REMANDED for the following actions: 1. Obtain updated VA treatment records from June 2018 to the present and associate them with the electronic claims file. 2. Then, schedule the Veteran for a VA thoracolumbar examination. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. After reviewing the file, obtaining a complete history from the Veteran, conducting a physical examination, and any other testing deemed necessary, the examiner should render the following opinions: (a) List all current diagnosis pertaining to the Veteran’s thoracolumbar spine. (b) For each diagnosis, state whether it at least as likely as not that (i.e., a probability of 50 percent or greater) that the Veteran’s currently diagnosed thoracolumbar spine disorder is either caused or aggravated by his service-connected knee disabilities. The examiner must provide a complete rationale for any opinion expressed. 3. Schedule the Veteran for a VA examination to determine the current severity of his service-connected right and left knee disabilities. (a)All indicated tests and studies must be completed, to include testing for pain on active and passive motion, and in weightbearing and non-weightbearing. (b)The examiner must address functional impairment, if any, during flare-ups or when the knee is used repeatedly. The range of motion lost during a period of flare-up or over-use must be indicated in degrees. If the examination occurs when a flare-up is not being experienced, or at a time without repeated use over a period of time, the examiner must ascertain adequate information, such as frequency, duration, characteristics, severity, or functional loss regarding the Veteran’s flares by alternative means and estimate the Veteran’s functional loss due to flares or repeated use based on all the evidence of record. 4.Then, readjudicate the claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Casadei, Counsel