Citation Nr: 18155417 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 09-40 154 DATE: December 4, 2018 ORDER Entitlement to service connection for spondylolisthesis (also claimed as back condition), is reopened. Entitlement to service connection for degenerative arthritis of the spine (“low back disability”), as secondary to service-connected arthritis of the bilateral hips, is denied. REMANDED Entitlement to service connection for spondylolisthesis (also claimed as back condition), is remanded. FINDINGS OF FACT 1. In a final decision dated September 1994, the AOJ denied the Veteran’s claim for entitlement to service connection for spondylolisthesis. 2. Evidence received since the September 1994 rating decision regarding spondylolisthesis is not cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim, does relate to an unestablished fact necessary to substantiate the claim, and does raise a reasonable possibility of substantiating the claim. 3. The preponderance of the evidence is against a finding for service connection of degenerative arthritis of the spine, as secondary to service-connected arthritis of the bilateral hips. CONCLUSIONS OF LAW 1. New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for spondylolisthesis (also claimed as back condition). 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for degenerative arthritis of the spine, as secondary to service-connected arthritis of the bilateral hips have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1970 to March 1974, February 1977 to August 1983, and September 1983 to April 1993. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida. These matters were previously before the Board in June 2016 and February 2018, both of which were remanded for further development. The Board notes that there has been substantial compliance with its February 2018 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). New and Material Evidence Entitlement to service connection for spondylolisthesis (also claimed as back condition), is reopened. In general, RO decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.200. An exception to this rule is 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. The Board must consider the question of whether new and material evidence has been received to adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). If the Board finds that no such evidence has been offered, then the Board’s analysis must end, and what was previously determined by the RO in that regard becomes irrelevant. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). For VA purposes, “new” evidence is existing evidence not previously submitted to agency decision makers; and “material” evidence is 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 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 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). However, lay assertions of medical causation cannot serve as the predicate to reopen a claim under 38 U.S.C. § 5108. See Moray v. Brown, 5 Vet. App. 211, 214 (1993). The Veteran was originally denied service connection for spondylolisthesis in a September 1994 rating decision, which he did not appeal. Therefore, it is a final decision. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. Subsequently, the Veteran has made several requests for his claim to be reopened, two of which were denied in the September 1997 and March 1998 rating decisions. The September 2014 rating decision, which granted the Veteran’s claim to reopen, represents the most recent decision regarding the issue of entitlement to service connection for spondylolisthesis (also claimed as back condition). The evidence of record at the time of the September 1994 rating decision included the Veteran’s service medical records and a VA examination, dated in February 1994. In its decision, the RO found that the Veteran’s diagnosis of spondylolisthesis was a constitutional development condition, and as such, may not be service connected. Since then, the VA subsequently received additional medical records, VA and private, that document the complaints, diagnosis, and treatment of spondylolisthesis and back pain, from October 1996 to September 2017; several VA examinations, dated August 1997, July 2014, and April 2018, that provide opinions regarding the nature and onset of the Veteran’s spondylolisthesis, as well as, nexus opinions regarding the causal relationship of the Veteran’s back condition and his military service; and statements by the Veteran and the Veteran’s representative. The Board must consider the old and new evidence of record, as a whole, in addressing whether reopening of the claim should be allowed. The Board is mindful of the low threshold for reopening a previously denied claim. See Shade v. Shinseki, 24 Vet. App. 110. 118 (2010). Therefore, the Board finds that some of the additional evidence of record is both new and material, as it raises a reasonable possibility of substantiating the claim for entitlement to service connection for spondylolisthesis. Accordingly, reopening of the claim is granted. Service Connection Entitlement to service connection for degenerative arthritis of the spine, as secondary to service-connected arthritis of the bilateral hips. Service connection may be granted on a secondary basis for a condition that is not directly caused by the Veteran’s service. 38 C.F.R. § 3.310. In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities, and (2) the condition said to be proximately due to the service-connected disability or disabilities. Buckley v. West, 12 Vet. App. 76, 84 (1998). In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition. See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310(b). The Veteran was service-connected for arthritis of the bilateral hips in a January 1994 rating decision. In a July 2014 C&P examination, the Veteran was diagnosed with degenerative arthritis of the spine. Subsequently, in a January 2018 brief, the Veteran’s representative raised the claim of service connection for the Veteran’s degenerative arthritis of the spine, as secondary to the Veteran’s service-connected arthritis of the bilateral hip. In a February 2018 Board decision, the claim was remanded for an additional opinion that specifically addresses the issue of aggravation of the Veteran’s current low back disability from his service-connected arthritis of the bilateral hips. Subsequently in April 2018, VA provided a medical opinion addendum. The examiner opined that it was less likely than not that the Veteran’s low back disability is proximately due to or aggravated by the service-connected arthritis in the bilateral hips. The examiner’s rationale was that there is no clinical correlation/nexus between bilateral hip arthritis and the Veteran’s diagnosed lumbar spondylosis and degenerative joint disease; as one does not cause the other, or vice-versa. Furthermore, the examiner stated that the Veteran had generalized osteoarthritis in 1997, affecting his cervical spine, both shoulders, both hips and lumbar spine. The examiner discussed that current evidence-based medical literature reports that osteoarthritis results from a complex interplay of multiple factors, including joint integrity, genetics, natural age, obesity, local inflammation, mechanical forces and cellular and biochemical processes; as for majority of patients, osteoarthritis is linked to one or more factors, such as aging, occupation, trauma, and repetitive small insults over time. See C&P Exam, April 2018. The Board notes that this medical opinion addendum is the only competent and credible evidence of record regarding the Veteran’s secondary service connection claim; and the Veteran has not submitted any other competent and credible evidence, medical evidence or otherwise, that would support his claim. Therefore, the Board accords great probative weight to the April 2018 medical opinion addendum, as such considered all the pertinent evidence, based on an accurate medical history, and provides an explanation that contains clear conclusions and supporting date. Nieves v. Rodriguez, 22 Vet. App. 295 (2008). Accordingly, the claim for service connection for the Veteran’s low back disability, as secondary to his service-connected arthritis of the bilateral hips, is denied. The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C. § 5107 and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND Entitlement to service connection for spondylolisthesis (also claimed as back condition), is remanded. The Veteran contends that his current diagnosis of spondylolisthesis was caused by his military service. The February 1970 entrance examination, January 1977 re-enlistment examination, and the November 1992 retirement examination all reflect reports of a normal spine and musculoskeletal system. Service treatment records (STRs) reflect complaints of back pain starting in 1983; and subsequently, a diagnosis and treatments of spondylolisthesis was given, which resulted from a fall that occurred in service in 1985. Post-service VA treatment records also document the Veteran’s complaints and treatment of his spondylolisthesis; and throughout the appeals process, the Veteran’s lay statements have been consistent, in that the onset of his back condition was during active service and has continued thus far. The Veteran was provided VA examinations in August 1997 and July 2014. In the August 1997 examination, the examiner diagnosed the Veteran with marked degenerative changes involving the lumbar spine with moderately severe spondylolisthesis; however, the examiner did not provide a nexus opinion. In the July 2014 examination, the examiner diagnosed the Veteran with lumbar spine spondylolisthesis and degenerative arthritis of the spine. The examiner opined that it was less likely than not that the Veteran’s condition incurred in or was caused by the claimed in-service injury. The examiner’s rationale was that the Veteran’s spondylolisthesis is a congenital acquired condition and not associated with service injuries. Private treatment records (ranging from November 2007 to April 2014) reflect noted back pain, and diagnosis and treatment of grade 2 spondylolisthesis at L5-S1. Within those records, a physician, Dr. Chandler, stated that there is an appearance of lytic spondylolisthesis, which is “not a congenital condition, but is an acquired developmental condition usually showing up in the 1st or 2nd decades of life.” See Letter from Andrews Orthopaedic Sports Medicine Center, dated December 2011. Generally, congenital or developmental defects are not considered to be diseases or injuries within the meaning of VA laws governing the award of service connection for diseases and injuries related to service. 38 C.F.R. § 3.303. Service connection is only possible for a congenital defect if there is evidence of an additional disability due to aggravation during service of the congenital defect by superimposed disease or injury. VAOPGCPREC 82-90 (July 18, 1990). The Board notes that, to date, the Veteran has not been provided a VA examination addressing whether the Veteran’s spondylolisthesis increased, as a result of active service; or is otherwise related to a superimposed disease or injury during service that caused an additional disability to the congenital defect and/or developmental condition. Consequently, the Board finds that a remand for such examination is necessary. The matters are REMANDED for the following action: 1. Request the Veteran to identify all medical providers (VA and private) from whom he has received treatment for his back disability, and obtain any outstanding records and associate them with the Veteran’s claims file. 2. After associating all newly acquired records with the claims file, schedule the Veteran for an examination by an appropriate clinician to address the nature and etiology of the Veteran’s back disability, including his diagnosed spondylolisthesis. The claims file, including a copy of this remand, must be made available to the examiner in conjunction with the examination, and the examiner should note review of the record in the examination report. 3. The examiner is requested to identify which, if any, diagnosed back disability is considered a congenital disease or defect. Please note: Under VA law, a defect differs from a disease in that the former is considered “more or less stationary in nature,” while the latter is “capable of improving or deteriorating.” See VAOPGCPREC 82-90. The examiner should specifically address the diagnosis of spondylolisthesis; and specifically address the Letter from Dr. Chandler, dated December 2011, stating that the Veteran’s lytic spondylolisthesis is not a congenital condition. 4. If any back disability is a congenital defect, the examiner should provide an opinion as to whether there were any superimposed disease or injury in service (to include the noted back injury in the STRs) that resulted in an additional disability? If so, identify such additional disability. 5. If any back disability is a congenital disease, the examiner should provide an opinion as to whether the disease increased in severity and/or was aggravated (beyond the normal progress of the disease) during or due to the Veteran’s military service, to include the noted back injury in the STRs. 6. Any opinion should include a detailed rationale. The examiner should consider the entire claims file, and discuss the Veteran’s lay statements regarding the nature and onset of symptoms. The examiner is advised that the Veteran is competent to report symptoms, and that his reports must be considered in formulating the requested opinion. 7. If the examiner is unable to offer the requested opinion(s), it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resorting to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the   inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Hodges, Associate Counsel