Citation Nr: 19154705 Decision Date: 07/16/19 Archive Date: 07/15/19 DOCKET NO. 16-29 474 DATE: July 16, 2019 ORDER The request to reopen the previously denied claim of entitlement to service connection for lower back pain is granted. REMANDED Entitlement to service connection for DDD thoracolumbar strain as secondary to right and left knee strain is remanded. Entitlement to an evaluation in excess of 10 percent for right knee strain is remanded. Entitlement to an evaluation in excess of 10 percent for left knee strain is remanded. Entitlement to an evaluation in excess of 50 percent prior to November 30, 2017, and in excess of 70 percent from November 30, 2017, for major depressive disorder (MDD), bipolar mixed, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. In an unappealed March 2008 rating decision, the RO confirmed the denial of service connection for lower back pain. 2. The evidence received since the March 2008 rating decision relates to an unestablished fact and raises a reasonable possibility of substantiating the claim of entitlement to service connection for DDD thoracolumbar strain. CONCLUSIONS OF LAW 1. The March 2008 rating decision which denied service connection for lower back pain is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The criteria for reopening the claim for service connection for DDD thoracolumbar strain are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 2002 to September 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a June 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a notice of disagreement (NOD) in July 2013 and a statement of the case (SOC) was issued in June 2016. The Veteran perfected his appeal by filing a VA Form-9 in June 2016 and elected to appear before the Board for an optional hearing. In February 2019, the Veteran appeared before the undersigned Veterans’ Law Judge for a Board hearing and a transcript of the hearing has been associated with the claims file. New and Material Evidence In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7104; 38 C.F.R. § 20.1103. 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. 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. Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). 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). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is a low one. Consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate any element of the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). However, a new theory of entitlement does not automatically reopen a previously denied claim. See Bingham v. Nicholson, 421 F.3d 1346, 1348-49 (2005); see also Boggs v. Peake, 520 F.3d 1330, 1336 (Fed. Cir. 2008) (new theory of causation for same disease or injury that was subject of previously denied claim cannot be basis of new claim). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is generally presumed, unless it is inherently false or untrue or, if in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for lower back pain In December 2006, the Veteran filed a claim for entitlement to service connection for lower back pain which the RO denied in a July 2007 decision on the basis that there was no documentation in the service treatment records regarding a back condition, and there was no evidence providing a current diagnosis, or a link to military service. The Veteran did not appeal that decision, nor did VA receive any new and material evidence within one year of that rating decision. The July 2007 rating decision therefore became final. In October 2007, the Veteran requested to reopen his claim for entitlement to service connection for lower back pain which the RO denied in a March 2008 decision on the basis that there was no documentation in the service treatment records regarding a back condition, and that there was no evidence providing a current diagnosis, or a link to military service. The Veteran was notified of this decision and his appellate rights, but did not appeal that decision, nor did VA receive any new and material evidence within one year of that rating decision. The March 2008 rating decision therefore became final. Relevant evidence of record at the time of the RO’s March 2008 rating decision included the Veteran’s service treatment records and post-service VA treatment records. In October 2012, the Veteran filed a claim for entitlement to service connection for lower back pain as secondary to his service-connected bilateral knee disabilities. The evidence received since March 2008 includes a January 2013 VA back conditions examination showing a diagnosis for mild DDD. The evidence obtained since the last final denial is new and material because it bears directly on the missing diagnosis element and provides the Veteran an avenue to establish service connection for his lower back pain. The Board must presume the credibility of all newly submitted evidence for the purpose of determining if such evidence is new and material evidence sufficient to reopen the claim. Fortuck v. Principi, 17 Vet. App. 173, 179 (2003). Accordingly, the claim for entitlement to service connection for lower back pain is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND 1. Entitlement to service connection for DDD thoracolumbar strain as secondary to right and left knee strain The Veteran contends that he suffers from DDD thoracolumbar strain that is secondary to his service-connected right and left knee strain. The Veteran was provided with a VA back conditions examination in January 2013 where the VA examiner opined that the Veteran’s back condition was less likely than not proximately due to the Veteran’s bilateral knee conditions. The Board finds that as the January 2013 VA examiner did not provide an opinion regarding aggravation, the matter must be remanded for an addendum medical opinion. 2. Entitlement to a rating in excess of 10 percent for right knee strain and left knee strain While the Veteran was provided with a VA knee examination in January 2013, the Board finds that the examination does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examination does not contain passive range of motion measurements or pain on weight-bearing testing. 3. Entitlement to an evaluation in excess of 50 percent prior to November 30, 2017, and in excess of 70 percent from November 30, 2017, for MDD, bipolar mixed The Board notes that the Veteran was provided with a SOC in June 2016. Since that time, a January 2018 VA mental disorders examination and records from the Social Security Administrative have been added to the claims file. The Board may not consider additional evidence not previously reviewed by the Agency of Original Jurisdiction (AOJ), unless a waiver of initial AOJ review is obtained from the Veteran. Disabled American Veterans, et. al. v. Secretary of Veterans Affairs, 327 F. 3d 1339 (Fed. Cir. 2003). The Veteran has not submitted a waiver of AOJ consideration of this relevant evidence, and the AOJ has not issued a Supplemental Statement of the Case (SSOC) which considers the new evidence. Therefore, the appeal must be remanded for the issuance of an SSOC. 4. Entitlement to a TDIU At the February 2019 Board hearing, the Veteran testified that his service-connected bilateral knee strain and MDD, bipolar mixed, prevent him from securing or following any substantially gainful occupation. Accordingly, the Board finds that the issue of entitlement to a TDIU has been raised by the record and has therefore been added to the appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453, 54 (2009). As the issue of entitlement to a TDIU is inextricably intertwined with the service connection and increased rating claims on appeal, it must also be remanded. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any private treatment records related to his lower back condition. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain any outstanding records of VA medical treatment (generated after the last treatment notes of record). 3. Arrange for an appropriate health care provider to review the Veteran’s claims file and provide an opinion on whether is at least as likely as not (50 percent probability or greater) that the Veteran’s DDD thoracolumbar strain is aggravated beyond by his right or left knee strain? Aggravation means an increase in disability – any additional impairment of earning capacity – of the nonservice-connected disability. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the diagnosed disability prior to aggravation by the service-connected disability. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. 4. Schedule the Veteran for an examination of the current severity of his right knee strain and left knee strain. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s knees alone and discuss the effect of the Veteran’s right and left knee strain on any occupational functioning. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. 5. Readjudicate the claims on appeal upon consideration of the additional medical records submitted after the June 2016 SOC. Send the Veteran and his representative an SSOC that addresses the remaining issues on appeal. The Veteran and his representative should be given an appropriate time to respond before the appeal is returned to the Board for further appellate consideration. M. Donohue Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Morrad, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.