Citation Nr: 19129366 Decision Date: 04/16/19 Archive Date: 04/15/19 DOCKET NO. 02-11 056 DATE: April 16, 2019 ORDER New and material evidence was received, and the previously denied claim of entitlement to service connection for a low back disability is reopened. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a right knee disability is remanded. FINDING OF FACT 1. The February 2012 Board decision denied the Veteran’s claim for entitlement to service connection for a low back disability. 2. The Veteran appealed the February 2012 Board decision, and in May 2013, the United States Court of Appeals for Veterans Claims (CAVC) issued a memorandum decision affirming the Board’s denial of service connection for a low back disability. 3. The February 2012 Board decision became final. 4. Evidence received since the February 2012 final Board decision, is new and material as it relates to an unestablished fact necessary and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for a low back disability. CONCLUSION OF LAW 1. The February 2012 Board decision which denied the Veteran’s claims of service connection for a low back disability is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2000). 2. Evidence received since the final February 2012 Board decision in connection with the Veteran’s claim for entitlement to service connection for a low back disability is new and material, and the claim is reopened. 38 U.S.C. 5108 (2012); 38 C.F.R. 3.156, 3.159 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service in the U.S. Army from August 1976 to August 1979, and from October 1982 to February 1985. Remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2018). 1. Whether new and material evidence was received to reopen the previously denied claim for entitlement to service connection for a low back disability Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Knightly v. Brown, 6 Vet. App. 2000 (1994). Thus, a final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. 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 United States Court of Appeals for Veterans Claims (CAVC) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The CAVC further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran contends that his low back disability is caused by an in-service motor vehicle accident during his second period of service. At the outset, the Board notes that this claim was most recently denied in a February 2012 Board decision which the Veteran was notified of in a letter dated March 30, 2012. The Veteran appealed this decision to the CAVC, and in a May 2013 decision they affirmed the Board’s denial, and the Board’s February 2012 decision became final. 38 C.F.R. § 20.1100 (2000). The previous claim was denied on the basis that there was no nexus to service. Subsequent to that final decision, the Veteran submitted an additional private treatment record in October 2015 with an etiological opinion, amongst other treatment records added to the claims file. As this evidence is clearly new and material to the basis for the prior final denial, the claim may now be reopened on that basis and reviewed on the merits. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS FOR REMAND 1. Entitlement to service connection for a low back disability is remanded. The Board sought an advisory medical opinion from an orthopedist in a July 2017 Veterans Health Administration letter. No response regarding the Veteran’s low back disability was provided in the September 2017 medical opinion. The Board received an additional medical opinion in February 2018, which also excluded an opinion regarding the Veteran’s low back disability. Accordingly, the Veteran should be afforded a VA examination in connection with this claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A (d)(1); 38 C.F.R. § 3.159(c)(4) (holding, in relevant part, that in order to trigger VA’s duty to provide an examination or obtain an opinion, there must be insufficient evidence to decide the case); see also 38 C.F.R. § 3.159(c)(4). 2. Entitlement to service connection for a right knee disability is remanded. Similar to the Veteran’s contentions regarding the origin of his low back disability, the Veteran alleges that his right knee disability is the result of the in-service motor vehicle accident during his first period of service, which he re-injured in a motor vehicle accident in the fall of 1984 during his second period of service. The Veteran, through his representative submitted a March 2019 brief seeking relief in the form of a remand to allow the Veteran an adequate medical examination in compliance with previous Board remands, and to also consider the lay testimony of record. Specifically, the brief alleges that the most recent September 2017 and February 2018 medical opinions were inadequate, largely due to the examiners’ reliance on the lack of contemporaneous medical evidence during service to support opining a negative nexus opinion and the lack of corresponding rationale. Additionally, the 2017 examiner disregarded the lay evidence of record due to it being solicited in violation of the Board finding the Veteran to be credible regarding the onset of his right knee disability. For similar reasoning the Veteran argues that the February 2018 opinion is also inadequate. The Board concurs. Accordingly, once VA undertakes a duty to provide a medical examination, due process requires an adequate medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Consequently, a remand is necessary for another examination. The examiner should provide adequate rationale for any opinion rendered. The matters are REMANDED for the following action: 1. Afford the Veteran a VA orthopedic examination to assess the nature and etiology of his claimed low back and right knee disabilities. The examiner should address whether it is at least as likely as not (50 percent or greater probability) that any right knee disability diagnosed in the record to include arthritis, gouty arthritis and/or residuals of a meniscus tear, began in service, was caused by service, or is otherwise related to either of the Veteran’s two periods of active service, including two motor vehicle accidents. Additionally, the examiner should address whether it is at least as likely as not (50 percent or greater possibility) that any low back disorder diagnosed in the record, began in service, was caused by service, or is otherwise related to the Veteran’s two periods of active service, including two motor vehicle accidents. In so doing, the examiner is requested to discuss any agreement or disagreement with the August 2015 chiropractor opinion which stated that, while the Veteran’s back pain was not caused directly from his motor vehicle accident, it is more likely than not that the Veteran developed low back pain as a result of the functional limitations caused by the accident during his second period of service. In addressing this question, please recognize the fact that there are no service treatment records to review regarding the Veteran’s first period of service; but note that the Veteran is competent to describe an accident and any symptoms related to an injury. In this regard, the Veteran has been found credible by the Board regarding his complaints of knee pain in and following service. Thus, due consideration should be given to the lay testimony provided from the Veteran and other individuals regarding the origin and progression of his right knee condition. See February 2009 Buddy Statement, noting that the Veteran was unable to play basketball because of his knee pain. See also May 2016 Veteran’s Statement in Support of Claim and May 2016 Buddy Statement. While the Veteran has been found to be credible regarding his knee pain, the Board notes inconsistencies in the Veteran’s testimony regarding the origin of his back pain. He denied back pain upon his separation from his second period of service. Thus, the examiner should discuss whether there is any medical reason to accept or reject the Veteran’s report of a chronic back disability since service. Please address whether any diagnosed degenerative processes in either the right knee or low back can be attributed to any of the Veteran’s periods of service, to include military duties and the reported injuries, including whether or not the Veteran’s low back condition could be the result of his functional limitations caused by both of the motor vehicle accidents in service. If, and only if, the examiner finds that the right knee disorder is related to service, please provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current disability of the low back has been caused or aggravated beyond the normal progress of the disorder by the right knee disability, including any functional limitations like an altered gait. (Continued on the next page)   The examiner is reminded that the lack of contemporaneous medical evidence during service is not to be used to support a negative nexus opinion, particularly as the majority of the Veteran’s service treatment records from his first period of service are unavailable for review at not fault of his own. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.L. Reid, Associate Counsel