Citation Nr: 1808804 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 14-19 605 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a low back disability. 2. Entitlement to service connection for a low back disability to include as secondary to a left ankle disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Mays, Associate Counsel INTRODUCTION The Veteran served in the U.S. Army from October 1970 to April 1972. He also served in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from an October 2011 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery Alabama. A video conference hearing on this matter was held before the Board in May 2017. At the hearing, the Veteran indicated that he seeks entitlement to service connection for degenerative disc disease of the lumbar spine claimed as a back condition, to include as secondary to his service-connected left ankle disability. The Board notes that the scope of a claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1(2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). Given the foregoing, the Veteran's claim has been recharacterized as reflected on the title page. The Veteran submitted evidence during the hearing. Under the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, such evidence is subject to initial review by the Board unless the Veteran requests in writing that the agency of original jurisdiction (AOJ) initially review such evidence. See 38 U.S.C. § 7105 (e)(1), (2) (2012). This applies in cases where a substantive appeal is received after February 2, 2013. In this instance, the substantive appeal was received in May 2014. At the hearing, in May 2017, the Veteran indicated that he would be submitting additional medical evidence and that he waives RO consideration of the evidence. The Board is thus able to consider the additional evidence in the first instance. See 38 C.F.R. § 19.38 (b)(3), 20.1304(c) (2017). The issue of a total disability rating based on individual unemployability, due to service-connected disability (TDIU) was raised at the hearing. However, the Veteran has not filed a formal claim in this regard. Therefore, the matter is not before the Board. Effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 186 (Sept. 25, 2014). The RO is hereby advised that the Veteran has articulated an intent to file a claim for these disabilities, and should take appropriate action. The issue of entitlement to service connection for a low back disability is being remanded and is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An unappealed July 1973 rating decision denied entitlement to service connection for a low back condition. 2. As the Veteran did not appeal the July 1973 rating decision, and did not present new evidence in that time, the decision became final. 3. A September 1994 rating decision denied the request to reopen the claim of entitlement to service connection for a low back condition. 4. The evidence received with respect to a low back disability since the July 1973 rating decision, includes new and material evidence that relates to an unestablished fact necessary to substantiate the claim for service connection. CONCLUSIONS OF LAW 1. The July 1973 rating decision is final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.200, 20.201, 20.302, 20.1103 (2017). 2. New and material evidence has been received to reopen the claim for service connection for a low back disability. 38 U.S.C. §§ 5108 , 7104; 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION New and Material Evidence Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception is that 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. New evidence is defined as evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with the 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 regulation does not require new and material evidence as to each previously unproven element of a claim and creates a low threshold for reopening claims. 38 C.F.R. § 3.156(a) (2017); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of new evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The Veteran was originally denied service connection for his back in a rating decision dated in July 1973. The RO reasoned that the Veteran's service treatment records (STRs) indicated that the Veteran had a back complaint in 1970; however, it was undiagnosed with no residuals. The Veteran did not appeal this decision within one year, nor did he submit any new evidence within that time. As a result the RO's decision became final. 38 C.F.R. §§ 3.160(d), 20.302, 20.1100, 20.1104 (2017); 38 C.F.R. § 3.156(b). Subsequently, the Veteran submitted a request to reopen his previously denied claim and in a September 1994 rating decision, the RO declined to reopen the claim. The RO determined that the available record showed continued complaints regarding the Veteran's back condition. It stated that the evidence was not shown to be related to his active or National Guard service and was cumulative. The Veteran submitted another claim to reopen, which was denied in October 2011. Since the last final denial in 1994, the Veteran submitted additional evidence including a VA examination from October 2011, wherein he was diagnosed with degenerative disc disease of lumbar spine. The examiner also noted that the Veteran had had lumbar back surgery in 1978. Evidence of surgery and a diagnosis of his back disability is new and was not a part of the last final denial of the claim. Hence, the Board finds that the evidence is new. It also finds that this evidence is material because it addresses whether the Veteran has a disability, which was one of the reasons that it was previously denied. Given that this evidence addresses an unestablished fact previously denied, the Board finds that the Veteran's claim is reopened. To this extent the appeal is granted. ORDER New material evidence has been received to reopen a previously denied claim for a low back condition. REMAND While the Board regrets the further delay, the Veteran's claim must be remanded to ensure that all due process requirements have been satisfied. The Veteran was afforded a VA examination for his lumbar spine disability in October 2011. Once VA undertakes the effort to provide an examination, it must provide an adequate examination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In the VA opinion, the examiner concluded that the Veteran's claimed back disability was "less likely than not ... incurred in or caused by the claimed in-service injury, event, or illness." See VA Compensation and Pension (C&P) examination, October 2011. The examiner noted that the Veteran previously had two lumbar spine surgeries, one in 1978 and the other in 1988. His left ankle disability was sustained in 1979. Therefore, since the lumbar spine disorder predated his ankle injury, the examiner concluded that the Veteran's spine disability was not caused by or the result of the service-connected left ankle disability. Id. In reaching this conclusion, the examiner does not utilize the appropriate standard inasmuch as he does not offer an opinion as to whether or not the Veteran's service-connected ankle aggravates the Veteran's lumbar back disability. See Allen v. Brown 7 Vet. App. 439 (1995) (en banc); 38 C.F.R § 3.310. As such the examination is inadequate and a new examination is required. Accordingly, the case is REMANDED for the following action: 1. Obtain all VA treatment records for the Veteran dated from August 2017 to the present. 2. After the foregoing development has been completed, the October 2011 examiner should provide an addendum opinion. If the examiner is unavailable, the information should be requested from another examiner. The examiner should offer an opinion as to whether or not it is at least as likely (a 50 percent or greater probability) the Veteran's lumbar spine disability: (a) had it onset in, or is otherwise related to service in the Army or Army National Guard, if no, then (b) is related to or caused by a service connected disability, or (c) was aggravated by the Veteran's service-connected left ankle disability. In doing so, the examiner should consider the fact that the Veteran's left leg is 3/4 inch shorter than his right due to surgery for his left ankle condition. Aggravation is defined as a worsening beyond the natural progression of the disability. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against. A complete well-reasoned rationale must be provided for any opinion offered. 3. Review the examination report to ensure that it is in complete compliance with the directives of this remand. Implement corrective procedures if necessary. Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs