Citation Nr: 19106982 Decision Date: 01/29/19 Archive Date: 01/29/19 DOCKET NO. 16-45 644 DATE: January 29, 2019 ORDER New and material evidence having been received, the claim of entitlement to service connection for lumbar spine degenerative disc disease and degenerative joint disease is reopened. To that extent only, the appeal is granted. REMANDED Entitlement to service connection for lumbar spine degenerative disc disease and degenerative joint disease is remanded. Entitlement to service connection for hiatal hernia and esophagus spasm, claimed as acid reflux, is remanded. FINDINGS OF FACT 1. The Veteran’s claim of entitlement to service connection for lumbosacral pain was previously denied by a March 1989 rating decision because there was no evidence of a current disability. The Veteran did not perfect an appeal. Therefore, that rating decision became final. 2. The evidence received subsequent to the March 1989 final denial of the claim for service connection for lumbosacral pain is new, and is also material because it raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW As new and material evidence has been received, the criteria to reopen the claim for service connection for lumbar spine degenerative disc disease and degenerative joint disease have been met. 38 U.S.C. §§ 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served with the United States Air Force from June 1968 to July 1988. 1. New and Material Evidence The Board is required to determine whether new and material evidence has been received before it can reopen a claim and readjudicate service connection or other issues on the merits. See Barnett v. Brown, 83 F.3d 1380, 1383-1384 (Fed. Cir. 1996). In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing 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. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence must be both new and material; if the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312 (1999). If the Board determines that the evidence submitted is new and material, it must reopen the case and evaluate the Veteran’s claim in light of all the evidence. Justus, 3 Vet. App. at 512. The RO originally denied service connection for lumbar back pain in March 1989, finding that the Veteran did not have any pathology for a current diagnosis. The Veteran did not perfect an appeal, nor did he submit new and material evidence within 1 year of the decision, and therefore the rating decision became final. See 38 C.F.R. §§ 3.156(b), 20.1103. In the April 2016 rating decision on appeal, the RO reopened the claim for service connection for a lumbar spine degenerative disc disease and degenerative joint disease disability, but denied the claim because the evidence of record did not show that the disability was incurred in or aggravated by military service. The Board is required to address the issue of new and material evidence in the first instance. If the Board determines that new and material evidence has not been received, the adjudication of the claim ends, and further analysis is neither required nor permitted. Any decision that the AOJ may have made with regard to a new and material claim is not binding on the Board. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The Board notes that the claim for service connection was originally denied because there was no evidence of a lumbar spine disability. New evidence received subsequent to the March 1989 rating decision includes a VA examination diagnosing the Veteran with lumbar spine degenerative disc disease and degenerative joint disease. See March 2016 VA Examination. Given the March 2016 diagnosis, the Board finds that the new evidence received since the March 1989 rating decision is material to reopen a claim of service connection for a lumbar spine condition. When considered with the previous evidence of record, the new evidence relates to an unestablished fact necessary to substantiate the claim. Accordingly, the Board finds that new and material evidence sufficient to reopen the Veteran’s claim of service connection for lumbar spine degenerative disc disease and degenerative joint disease has been received, and the claim is reopened. See 38 C.F.R. § 3.156. REASONS FOR REMAND 1. Entitlement to service connection for lumbar spine degenerative disc disease and degenerative joint disease is remanded. The Veteran contends that his lumbar spine degenerative disc disease and degenerative joint disease disability is related to his active duty service. Service treatment records show that in July 1973, the Veteran was treated for mild lumbosacral spasm. An April 1979 x-ray of the back was reported as negative. During a September 1988 VA examination within 2 months after separation from service, the Veteran reported that he suffered lumbosacral back pain for years. See September 1988 VA Examination. The September 1988 VA examiner diagnosed the Veteran with chronic lumbosacral sprain. In March 2016, the Veteran was provided a VA examination in conjunction with his current claim. The March 2016 examiner diagnosed the Veteran with degenerative disc disease and degenerative joint disease of the lumbar spine. In finding that the Veteran’s current diagnoses were unrelated to active service, the March 2016 examiner specifically noted that degenerative changes occur between the ages of forty and sixty, and cited a temporal gap of more than 35 years between the Veteran’s initial injury and the current diagnostic x-ray findings. The examiner explained that the back strains that occurred in 1973 and 1979 were not severe enough to result in the development of the subsequent degenerative disc disease and arthritis. The examiner also stated that the treated low back complaints during service were considered to have been acute, transient conditions that were treated appropriately and resolved without residuals. When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board finds the March 2016 opinion inadequate because the examiner failed to consider or address the September 1988 VA examination that noted the Veteran’s complaints of chronic back symptoms within three months of separation from service. In light of the foregoing, a remand is required in order to address the nature and etiology of the Veteran’s lumbar spine degenerative disc disease and degenerative joint disease disability. 2. Entitlement to service connection for hiatal hernia and esophagus spasm, claimed as acid reflux, is remanded. The Veteran seeks service connection for hiatal hernia and esophagus spasm, as secondary to medications taken for the Veteran's service-connected left knee disability. Under 38 C.F.R. § 3.310 (a), service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease on injury. Establishing service connection on a secondary basis requires evidence sufficient to show 1) that a current disability exists and 2) that the current disability was either a) proximately caused by or b) proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 438, 448 (1995) (en banc). In this case, the Veteran has diagnoses of hiatal hernia and esophagus spasm. The Veteran has been service-connected for left knee pain since August 1988. The Veteran has claimed that his hiatal hernia and esophagus spasm disability is a result of medications he takes for his service-connected left knee disability. In March 2016, a VA examination was performed to assess the existence and etiology of the Veteran's hiatal hernia and esophagus spasm disability. The VA opinion of record only addressed causation and did not address whether the Veteran's disability was aggravated by medications taken to treat his left knee pain. The Board determines that this opinion did not adequately address the question of etiology. Furthermore, during the March 2016 VA examination, the Veteran reported the onset of his reflux symptoms as around the time of his discharge. The VA examiner stated that the Veteran reported that his symptoms occurred several years after separation from service. The Board additionally finds the examination insufficient for service connection purposes because it contains an internal inconsistency regarding the onset of the Veteran’s symptoms, and was based, in part, on an inaccurate factual premise. As discussed previously, when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination is adequate. Barr, 21 Vet. App. at 311. Here, in light of the inadequate opinion, the Board finds a new examination is warranted. Consequently, the Board determines that a remand of the appeal is necessary so that an additional VA opinion as to the etiology of the Veteran’s hiatal hernia and esophagus spasm disability may be obtained. The matter is REMANDED for the following actions: 1. Identify and obtain any pertinent, outstanding VA and private treatment records not already of record in the claims file. 2. Obtain an addendum opinion from an appropriate clinician as to the nature and etiology of his lumbar spine degenerative disc disease and degenerative joint disease disability. The examiner should state a medical opinion as to whether it is at least as likely as not (i.e., whether there is a 50 percent or better probability) that the Veteran’s lumbar spine degenerative disc disease and degenerative joint disease disability originated during active service or is otherwise etiologically related to active service. In offering any opinion, the examiner must consider the full record, to include the lay statements regarding in-service incurrence, and the opinion should reflect such consideration. The examiner must consider the Veteran’s diagnosis of chronic lumbosacral sprain on his September 1988 VA examination. 3. Obtain an addendum opinion from an appropriate clinician as to the nature and etiology of the Veteran’s hiatal hernia and esophagus spasm disability. All pertinent evidence of record must be made available to and reviewed by the examiner, and any indicated tests and studies should be performed. Based on the review of the record and examination of the Veteran, the examiner should state a medical opinion as to whether it is at least as likely as not (i.e., whether there is a 50 percent or better probability) that the Veteran's hiatal hernia and esophagus spasm disability originated during active service or is otherwise etiologically related to active service, to include in-service activities, events, or injuries described by the Veteran, and to include the onset of acid reflux symptoms. If the answer to the above is negative, the examiner should state a medical opinion as to whether it is at least as likely as not (i.e., whether there is a 50 percent or better probability) that the Veteran's hiatal hernia and esophagus spasm disability was worsened by his service-connected left knee disability, or medication for such disability. If the examiner believes that the hiatal hernia and esophagus spasm disability was worsened by either the service-connected disability, or the medication taken to treat the service-connected disability, he or she should attempt to identify the baseline level of disability that existed prior to the onset of aggravation. The rationale for each opinion expressed must also be provided. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Muzzammel, Associate Counsel