Citation Nr: 18160047 Decision Date: 12/21/18 Archive Date: 12/20/18 DOCKET NO. 16-45 260 DATE: December 21, 2018 ORDER New and material evidence having been received, the appeal to reopen a claim of entitlement to service connection for spinal stenosis with disc bulge is granted. Entitlement to service connection for shin splints is denied. REFERRED The issue of entitlement to a total disability rating due to individual unemployability (TDIU) was denied by the RO and not appealed by the Veteran. However, in May 2015, he submitted medical evidence indicating that he is unable to work. The Board construes this evidence as a new claim for benefits and refers it to the RO for appropriate action. REMANDED Entitlement to service connection for a back disability, to include spinal stenosis with disc bulge and degenerative arthritis, status post fusion. Entitlement to service connection for a nerve condition of the lower extremities, to include bilateral foot drop, radiculopathy and polyneuropathy, including as due to a back disability. FINDINGS OF FACT 1. A September 2010 rating decision denied entitlement to service connection for spinal stenosis with disc bulge; no appeal was taken from that determination and new and material evidence was not received within the one-year appeal period. 2. A November 2012 rating decision continued to deny entitlement to service connection for spinal stenosis with disc bulge; no appeal was taken from that determination and new and material evidence was not received within the one-year appeal period. 3. Since the November 2012 rating decision, new and material evidence has been received to reopen the claim of entitlement to service connection for spinal stenosis with disc bulge. 4. The preponderance of the evidence is against finding that the Veteran ever had shin splints during the appeal period. CONCLUSIONS OF LAW 1. The November 2012 rating decision is final as it pertains to the claim of entitlement to service connection for spinal stenosis with disc bulge. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received since the November 2012 rating decision to reopen the claim of entitlement to service connection for spinal stenosis with disc bulge. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for shin splints are not met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Army from February 1979 to August 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA). The Board notes that the Veteran filed a claim for “joint pain” in the April 2013 application for disability compensation from which these matters arise. The March 2014 VA examination revealed degenerative arthritis and limitation of motion in the left ankle. However, in June 2014, the Veteran clarified that he was only seeking compensation for painful joints in the back and left knee. Therefore, the issue was not adjudicated by the agency of original jurisdiction (AOJ). If the Veteran now wishes to seek service connection for the left ankle limitation of motion with degenerative arthritis, he must file a new claim. New and Material Evidence The Veteran seeks to reopen a claim of entitlement to service connection for spinal stenosis with disc bulge. A September 2010 rating decision denied service connection for spinal stenosis with disc bulge because there was no evidence of an in-service injury and no evidence of a nexus between the condition and service. Notice of the determination was issued to the Veteran, but no appeal was taken from that determination, and new and material evidence was not received within the one-year appeal period. Therefore, the September 2010 rating decision became final. 38 U.S.C. § 7105. In February 2012, the Veteran petitioned to reopen the claim, and a November 2012 rating decision continued to deny the claim. The AOJ found that there was still no evidence of an in-service injury or nexus. Therefore, the November 2012 rating decision became final. Id. The Veteran again petitioned to reopen the claim in April 2013. Although the AOJ reopened the claim, the Board must conduct a de novo review of whether new and material evidence has been submitted to reopen the claims. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and further analysis is neither required nor permitted. Id. at 1384. If new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA’s duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The law is interpreted in favor of enabling reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Evidence is material where it is relevant and probative of the issues at hand and where there is a reasonable possibility that, when viewed in the context of all the evidence, both new and old, it would change the outcome. Id.; Evans v. Brown, 9 Vet. App. 273, 283 (1996). New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial. 38 C.F.R. § 3.156(a). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade, 24 Vet. App. at 120. For purposes of reopening a claim, newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The focus is not exclusively on whether the evidence remedies the principal reason for denial in the last prior final decision, but on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 118. Thus, evidence is new and 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. The Board agrees that new and material evidence has been received to reopen the previously denied claim for service connection for spinal stenosis with disc bulge. The evidence submitted since the November 2012 rating decision includes new lay statements and new medical evidence. Among the new lay statements, the Veteran asserted that he fell in the mess hall during service and has had continuous back pain since the injury. The prior final decision did not find any evidence of an in-service injury; given the Justus presumption, the Veteran’s lay statement is material to establishing the in-service element of service connection. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (holding that to establish service connection, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service). Additionally, the new medical evidence includes a March 2014 VA examination report containing a positive nexus opinion linking the Veteran’s back condition to his in-service fall. Since the prior final decision found no evidence of a nexus between the Veteran’s condition and service, the medical opinion is material toward establishing the nexus element. Id. Since new and material evidence has been received, the appeal to reopen the claim of entitlement to service connection for spinal stenosis with disc bulge is granted. Service Connection The Veteran seeks service connection for shin splints. Service connection may be granted if there is a disability resulting from personal injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish service connection, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden, 381 F.3d at 1167. Whether these requirements are met is based on analysis of all the evidence of record and an assessment of its credibility and probative weight. 38 C.F.R. § 3.303(a); Baldwin v. West, 13 Vet. App. 1 (1999). The Board may consider many factors when assessing the credibility and weight of lay evidence, including statements made during treatment, self-interest or bias, internal consistency, and consistency with other evidence. Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996) (per curiam); Pond v. West, 12 Vet. App. 341, 345 (1999); Madden v. Gober, 125 F.3d 1477, 1480-81 (1997). The Board may also weigh the absence of contemporaneous medical evidence as a factor, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); see also Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom., Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board may take into consideration the passage of a lengthy period in which the Veteran did not complain of the disorder at issue); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff’d sub nom., Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (finding that the definition of evidence encompasses “negative evidence” which tends to disprove the existence of an alleged fact). Ultimately, it is the appellant’s burden “to present and support a claim for benefits under laws administered by the Secretary.” See 38 U.S.C. § 5107(a). The Veteran contends that he began having shin splints during service and that the shin splints have continued since service. Shin splints is not a chronic disease under section 3.309(a); therefore, the chronic diseases presumption does not apply. His service treatment records show that he was seen once for “shin splints” on May 3, 1983, but a diagnosis was not made. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current disability of shin splints and has not had one at any time during the pendency of the claim or in proximity to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). In October 2014, a VA orthopedist reviewed the Veteran’s claims file and medical records and did not find any evidence to indicate that the Veteran continued to have shin splints, other than when seen in May 1983. Indeed, the remainder of the Veteran’s service treatment records are silent for any further complaints or treatment of “shin splints” or references to the episode in May 1983. Also, his separation examination of the lower extremities was normal. Despite treatment since the early 2000s, VA and private treatment records do not contain complaints or a diagnosis of shin splints. See Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (finding that the definition of evidence encompasses “negative evidence” which tends to disprove the existence of an alleged fact). The October 2014 VA orthopedist determined that, while the Veteran reported subjective symptoms of left leg pain and left tibial pain with weakness and numbness in December 2008 and following, he does not have a diagnosis of shin splints, but rather radiculopathy from his back condition. The orthopedist stated that the definition of shin splints is tibial pain caused by stress of overworking muscles, tendons and bone tissue. The orthopedist explained that the Veteran has in no way been involved in any activities regarding running or physical stress to his legs because of his debilitating back condition. Therefore, the orthopedist concluded that the Veteran does not currently have shin splints. While another VA examiner stated in March 2014 that the Veteran has shin splints, the diagnosis appears to be based on the Veteran’s self-reported medical history, which is inconsistent with VA and private treatment records that do not show complaints or a diagnosis of shin splints. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993); see also October 2014 VA Medical Opinion (orthopedist stating that the March 2014 examiner, a family nurse practitioner, did not provide an adequate medical history or reasons for finding that the Veteran had shin splints). Consequently, the Board gives more probative weight to the October 2014 VA orthopedist’s findings. Without a current disability, there can be no entitlement to compensation. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). While the Veteran believes he has a current disability of shin splints, he has not shown that he possesses the medical education and knowledge to distinguish between radiculopathy and shin splints or otherwise provide a competent diagnosis of shin splints. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. For these reasons, the claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for a back disability, to include spinal stenosis with disc bulge and degenerative arthritis, status post fusion. This appeal stems from the Veteran’s petition to reopen the November 2012 rating decision denying service connection for spinal stenosis with disc bulge. The medical evidence shows that his back condition includes other diagnoses such as lumbosacral strain, degenerative arthritis, spinal stenosis, spondylosis, scoliosis, and intervertebral disc syndrome. To this end, the scope of the Veteran’s claim includes any back condition reasonably encompassed by his reported symptomatology. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). As a result, his claim has been recharacterized as shown above. This claim must be remanded for an addendum medical opinion. The Veteran’s service treatment records show that he was seen on September 13, 1983, for pain in his coccyx after falling in the mess hall “some years ago.” An x-ray of the coccyx and sacrum was performed and described as normal; however, the radiology report notes a “slight deviation of the tip of the coccyx towards the right.” An earlier service treatment record dated November 20, 1979, shows the Veteran fell in the mess hall while carrying a knife and cut his right hand. Although the October 2014 orthopedist was very thorough in his review and analysis of the evidence, he did not address whether the slight deviation of the tip of the coccyx was evidence of an injury or condition related to the November 1979 fall. Therefore, a remand is necessary to obtain an addendum opinion addressing whether the slight deviation of the tip of the coccyx noted on the September 1983 x-ray report is of clinical significance and whether any of the Veteran’s current back conditions are related to the same. 2. Entitlement to service connection for a nerve condition of the lower extremities, to include bilateral foot drop, radiculopathy and polyneuropathy, including as due to a back disability. This issue is remanded for further development and adjudication. The record shows that the Veteran filed a claim for “nerve damage,” but the AOJ only considered whether service connection was due for left foot drop. While this limitation appears to have been based on the Veteran’s report of nerve damage in his left leg during a telephone conversation with the VA, the Veteran also stated in the conversation that the nerve damage started in his back and stemmed from a fall during service. See Report of General Information (Oct. 10, 2014). In this regard, the record contains diagnoses of bilateral foot drop, radiculopathy and polyneuropathy linked to the Veteran’s back condition. Therefore, the AOJ erred in limiting his consideration of the claim to left foot drop. As a result, remand is necessary for due process and to obtain the necessary examination(s) and medical opinion(s). Furthermore, this claim must be remanded because it is inextricably intertwined with the remanded claim of service connection for a back disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). To more accurately represent the Veteran’s intent and conditions reasonably encompassed by his claim, this claim has been recharacterized. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician, preferably the October 2014 VA orthopedist, regarding the Veteran’s back disability. The clinician should address (a) whether the “slight deviation of the tip of the coccyx” noted on the September 1983 x-ray report is evidence of an in-service disease or injury related to the November 1979 fall in the mess hall, and (b) whether it is at least as likely as not that any current back disorder is related to the September 1983 x-ray finding. If relevant, the clinician should consider the Veteran’s occupational history and duties, as self-reported to the Social Security Administration (SSA) for disability compensation purposes. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any nerve condition of the lower extremities, to include bilateral foot drop, radiculopathy, and polyneuropathy. The examiner must opine as to (a) whether any nerve condition is at least as likely as not related to an in-service injury, event, or disease, including the November 1979 fall in the mess hall, and (b) whether any nerve condition is at least as likely as not proximately due to his back condition. 3. The issues on appeal should be readjudicated and if they are not resolved to the Veteran’s satisfaction, a supplemental statement of the case should be issued to him and his representative, and they should be allowed the requisite opportunity to respond. Then, the case should be returned to the Board for further appellate action. K. M. SCHAEFER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Kutrolli, Associate Counsel