Citation Nr: 18155961 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-61 668 DATE: December 6, 2018 ORDER New and material evidence having been received, the appeal to reopen the claim for service connection for a back disorder is granted. REMANDED Entitlement to service connection for a back disorder, to include as secondary to the service-connected right knee disability, is remanded. FINDINGS OF FACT 1. In a May 2010 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for a back disorder; a timely notice of disagreement was not filed, and no new and material evidence was received within one year of the May 2010 rating decision. 2. Evidence received since the May 2010 final rating decision is not cumulative, and pertains to the basis of a prior final denial of service connection for a back disorder (no current disability), so raises a reasonable possibility of substantiating the claim for service connection for a back disorder. CONCLUSIONS OF LAW 1. The May 2010 rating decision, which denied service connection for a back disorder, became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2018). 2. The criteria for reopening service connection for a back disorder have been met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2003 to May 2007. This matter comes to the Board of Veterans’ Appeals (Board) from a March 2016 rating decision by the Department of Veterans Affairs VA Regional Office (RO) in Nashville, Tennessee. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA’s duties to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018). In this case, the Board is reopening service connection for a back disorder, which constitutes a full grant of the benefit sought on appeal with respect to this issue. As there remains no aspect of this issue to be further substantiated, there is no further VCAA duty to notify or assist, or to explain compliance with VCAA duties to notify and assist. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Reopening service connection for a back disorder The Veteran seeks to reopen his previously denied claim for service connection for a back disorder. Generally, a claim that has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c), (d)(3); 38 C.F.R. § 20.1103. If “new and material” evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). “[N]ew evidence” means evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial. 38 C.F.R. § 3.156(a). Materiality has two components, first, that the new evidence pertains to the reason(s) for the prior final denial, and second, that the new evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For purposes of reopening a claim, the credibility of newly-submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). In a May 2010 rating decision, the AOJ denied the claim for service connection for a back disorder on the grounds that there was no clinical diagnosis of a back condition, no chronic condition was shown to have occurred in service, and there was no evidence that a back condition is secondary to the service-connected right knee disability. The Veteran did not file a timely notice of disagreement and no new and material evidence was received within one year of the May 2010 rating decision; therefore, the May 2010 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(b), 20.1103. Consequently, the Board will consider evidence received since the May 2010 rating decision. The Board finds that there is a sufficient evidentiary basis to reopen service connection for a back disorder. The new evidence includes a September 2015 VA treatment record, which shows a diagnosis lumbar spine arthritis. The Board finds that this evidence is new in that it has not previously been received, and is not cumulative or redundant of evidence previously of record. The Board also finds this evidence to be material because it addresses previously unestablished elements of a current back disability. Therefore, the Board finds the newly-received evidence to be both new and material to reopen service connection for a back disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The claim for service connection for a back disorder is, therefore, reopened. REASONS FOR REMAND Service connection for a back disorder The Veteran seeks service connection for a back disorder. He asserts that he was treated for back symptoms while on active duty, and claims that the current back disorder is related to the service-connected right knee disability. See, e.g., March 2016 notice of disagreement. The record reflects that the Veteran has been diagnosed with lumbar spine arthritis, and that he is service connected for a right knee disability. Service treatment records show that in February 2005, the Veteran complained of a two-week history of low back pain, and was assessed with thoracic pain/strain. A June 2005 service treatment record noted multiple superficial abrasions to the back due to a motorcycle accident. There was no diagnosis of a back disorder, and x-rays were noted as normal. The Veteran underwent a VA examination in February 2016. The VA examiner noted the September 2015 x-ray diagnosis of lumbar spine arthritis, and opined that the lumbar spine disability is less likely than not due to or the result of the Veteran’s service-connected right knee disability. The VA examiner explained that there is not enough medical evidence present at that time to answer the question of the relationship between the lumbar spine disability and the service-connected right knee disability without resort to mere speculation. Because the February 2016 VA opinion was speculative in nature, the AOJ obtained an addendum opinion in December 2016. The VA examiner opined that the claimed back condition was less likely than not proximately due or the result of the service-connected right knee disability. However, the VA examiner did not provide an opinion as to whether the right knee disability aggravated (worsened in severity beyond a normal progression) the back disability, nor did the examiner provide an opinion as to whether the current back disability is related to in-service back complaints. Accordingly, the Board finds that remand for an addendum VA opinion is necessary in order to help determine the etiology of the Veteran’s back disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). The Veteran submitted a January 2017 opinion by M.K., D.C., who opined that the right knee service-related injury the Veteran received in 2005 is directly related to his present low back condition. However, it is unclear if the private examiner intended to opine that the service-connected right knee disability caused or aggravated the back disability, or vice versa. Upon remand, the AOJ should contact the Veteran and provide him the opportunity to submit clarification from M.K., D.C., (or another health professional) with regard to the January 2017 medical opinion letter. See Savage v. Shinseki, 24 Vet. App. 259 (2011) (citing 38 C.F.R. §§ 4.2, 19.9(a) (2016) to indicate that return of a private medical report to obtain clarifying information may be appropriate). The matter is REMANDED for the following action: 1. Return the case file to the VA examiner who provided the February 2016 opinion for an addendum opinion regarding the etiology of the current back disability. The relevant documents in the record should be made available to the examiner, who should indicate on the examination report that he/she has reviewed the documents. Examination of the Veteran is not required unless the examiner determines that an examination is necessary to provide a reliable opinion. If an examination is required, a detailed history of relevant symptoms should be obtained from the Veteran. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The VA examiner is requested to provide the following opinions: Is it at least as likely as not (i.e., probability of 50 percent or more) that the current back disability was incurred in service or is otherwise related to service, to include in-service back complaints in February 2005 and June 2005? Is it as likely as not (i.e., probability of 50 percent or more) that the service-connected right knee disability aggravated (that is, worsened in severity beyond normal progression) the Veteran’s back disability? If it is the examiner’s opinion that there is aggravation, the examiner should identify the baseline level of severity of the back disability prior to onset of worsening, or by the earliest medical evidence created at any time between onset of worsening and receipt of medical evidence establishing the current level of severity 2. Contact the Veteran and representative and afford them the opportunity to submit any clarification to the January 2017 private medical opinion by M.K., D.C., with respect to the etiology of the current back disability. Specifically, clarification is sought with respect to whether it is the private clinician’s opinion that the service-connected right knee disability caused or aggravated the back disability, or vice versa. Moreover, a rationale for all opinions and a discussion of the facts and medical principles involved should be provided. 3. After completing the above, and any other development deemed necessary, readjudicate the claim for service connection for a back disorder. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC) and an adequate opportunity to respond. Thereafter, return the matter to the Board for further adjudication, if otherwise in order. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Ragheb, Counsel