Citation Nr: 18159867 Decision Date: 12/21/18 Archive Date: 12/20/18 DOCKET NO. 17-12 270 DATE: December 21, 2018 ORDER The Veteran’s petition to reopen his claim of entitlement to service connection for a lumbar spine disability is granted. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. FINDINGS OF FACT 1. An April 2004 rating decision denied service connection for a lumbar spine disability; the Veteran did not perfect an appeal. 2. Evidence submitted since the April 2004 rating decision, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the Veteran’s lumbar spine claim, and therefore raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The April 2004 rating decision which denied service connection for a lumbar spine disability is final. 38 U.S.C. § 7105. 2. New and material evidence has been received since the April 2004 rating decision and the claim of entitlement to service connection for a lumbar spine disability is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Marine Corps from October 1983 to May 2004. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office. The Veteran’s petition to reopen his claim of entitlement to service connection for a lumbar spine disability is granted. In general, VA rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.302. However, pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. In such a case, the claim is reopened and the former disposition of that case is reviewed de novo and readjudicated. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.302, 20.1103. Here, the April 2004 lumbar spine decision became final because the Veteran did not submit a timely appeal or additional evidence in support of his claim prior to the expiration of the appeal period. New evidence is defined as evidence not previously submitted to agency decisionmakers. 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. See 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. Since the time of the April 2004 rating decision the Veteran has received a diagnosis of degenerative disc disease with minimal bulging. Additionally, the Veteran has raised theories of entitlement to service connection on a secondary basis due to his service-connected left ankle and service-connected bilateral plantar fasciitis, the latter of which was assigned an effective date of March 15, 2012 in an August 2012 rating decision. This evidence was not previously considered at the time of the April 2004 rating decision, which denied service-connected due to insufficient evidence of a low back disability, and raises a reasonable probability of substantiating the claim. Accordingly, the Board finds that reopening of the Veteran’s claim of entitlement to service connection for a lumbar spine disability is warranted. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS FOR REMAND 1. Entitlement to service connection for a lumbar spine disability to include as secondary to service-connected left ankle and bilateral plantar fasciitis is remanded. The Veteran has asserted entitlement to service connection for a lumbar spine disability on both a direct and secondary basis, as outlined above. In support of his claim, in February 2017 the Veteran stated that he has experienced noticeable constant sciatic pain from his back to his leg over the course of his active duty service and after retirement. He also indicated in a February 2013 lay statement that he placed undue stress on his lumbar spine due to shifting his body weight to compensate for the pain and discomfort caused by his bilateral plantar fasciitis and left ankle disability. VA examinations were provided in August 2012 and May 2015 addressing direct and secondary service-connection. However, the May 2015 VA etiology opinion addressing secondary service connection is inadequate because the examiner did not address the aggravation prong of secondary service connection, and the examiner did not address the Veteran’s bilateral plantar fasciitis at all. Accordingly, remand for an addendum opinion that addresses the theories of secondary service connection due to left ankle disability and bilateral plantar fasciitis, including aggravation, is warranted. As the Veteran is currently receiving treatment for his back from VA treatment providers, any outstanding relevant treatment records should be procured. The matter is REMANDED for the following action: 1. Obtain any outstanding relevant VA treatment records and associate those records with the claims file. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s lumbar spine is at least as likely as not: (a.) proximately due to service-connected left ankle disability or bilateral plantar fasciitis disability; or (b.) aggravated beyond its natural progression by service-connected left ankle disability or bilateral plantar fasciitis disability. In addressing each prong of secondary service connection, the examiner should address the Veteran’s lay contentions to include the February 2013 and February 2017 lay contentions outlined above. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state so and provide a rationale for this conclusion, including an explanation of whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion. Laura E. Collins Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Marcella Coyne, Associate Counsel