Citation Nr: 20005871 Decision Date: 01/24/20 Archive Date: 01/23/20 DOCKET NO. 14-16 882 DATE: January 24, 2020 ORDER The petition to reopen the previously denied claim for entitlement to service connection for lumbar discogenic disc degeneration is granted. Entitlement to service connection for lumbar discogenic degeneration is denied. FINDINGS OF FACT 1. The claim for service connection for lumbar discogenic degeneration was denied in an April 2008 unappealed decision; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. 2. The Veteran’s lumbar discogenic disc degeneration was not incurred in service; did not manifest within the first-year post-service and is not secondarily related to a service-connected disability. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for lumbar discogenic degeneration. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The Veteran’s lumbar disc degeneration was not incurred in or aggravated by active military service; may not be presumed to have been incurred in service and is not related to a service-connected disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1986 to March 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2018, the Board remanded the matter for further development, to include obtaining a medical opinion. The Board finds that there has been substantial compliance with its remand directives. The petition to reopen the previously denied claim for entitlement to service connection for lumbar discogenic disc degeneration Generally, a claim which 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 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. New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156 (a). 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. The credibility of this evidence must be presumed, albeit just for the limited purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran’s claim for entitlement to service connection for lumbar discogenic degeneration has been denied several times. See February 1988, December 1980, December 1998, and April 2008 rating decisions. The most recent final denial was in April 2008. In the April 2008 rating decision, the RO denied the Veteran’s claim to reopen his previously denied claim for entitlement to service connection for lumbar discogenic degeneration due to the lack of submission of new and material evidence. The previous denials were based on the finding that there was no evidence of a back condition during service. The Veteran was notified of his appellate rights. A notice of disagreement was not received within the subsequent one-year period, nor was any new and material evidence received during that time period. Therefore, the April 2008 rating decision is final. Since the last final decision, the Veteran submitted a claim in October 2011 contending that his back disability was secondarily related to his service-connected ankle disability. See October 2011 VA Form 21-526EZ. A new theory of causation for the same disease or injury that was the subject of a previously denied claim cannot be the basis of the new claim; however, if new and material evidence is submitted supporting the new theory of causation, the claim must be reopened. See Boggs v. Peake, 520 F.3d 1330 (2008). The Veteran did not submit any supporting evidence in support of his new theory. However, in April 2012, the RO afforded the Veteran a VA examination to address the etiology of the Veteran’s back disability, in effect reopening the issue without making a specific finding that it was reopened. In regard to the duty to assist, the Board observes that with respect to a previously denied claim, until a claim is reopened, VA does not have a duty to provide a medical examination or obtain a medical opinion. See 38 C.F.R. § 3.159 (c)(1). The United States Court of Appeals for Veterans (Court) has firmly held VA’s duty to assist, to include providing an adequate examination, does not attach until new and material evidence sufficient to reopen the claim has been submitted. See Paralyzed Veterans of Am. v. Sec’y of Veterans Affairs, 345 F.3d 1334, 1342-43 (Fed. Cir. 2003); see also Woehlaert v. Nicholson, supra. As noted above, the Veteran had not submitted new and material evidence to reopen his claim and therefore was not entitled to a VA examination. However, as the RO has already in effect reopened the claim and obtained a medical opinion regarding the etiology, of the Veteran’s back disability, the Board will consider the new evidence on the merits. See Percy v. Shinseki, 23 Vet. App. 37 (2009)(holding that VA waived any objections as to the content of the appeal by treating the issue as on appeal). In effect, the Board will consider the medical evidence associated with the foregoing medical opinion as the requisite new and material evidence to reopen the claim since it needs to be considered to make a fair decision on the claim regardless of its conclusion. Essentially, the actions of the RO and these actions would amount to nothing more than harmless error since the Veteran has been placed in a better adjudicative position than he would otherwise. It is noted that service treatment records were associated with the Veteran’s electronic claims folder in October 2105. As these are duplicate copies of service treatment records which were already of record, 38 C.F.R. § 3.156 (c) is not applicable to his claim. Accordingly, the Veteran’s claim for service connection for lumbar discogenic degeneration is reopened. Entitlement to service connection for lumbar discogenic degeneration The Veteran contends that he is entitled to service connection for a low back disability as secondary to his service-connected left fibular talar ligament. See October 2011 VA Form 21-526EZ. For the reasons explained below, the Board finds that entitlement to service connection is not warranted. In order to obtain service connection under 38 U.S.C. §§ 1110, 1131 and 38 C.F.R. § 3.303 (a) a Veteran must satisfy a three element test: (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 - the so- called ‘nexus’ requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Service connection on a presumptive basis is also warranted for chronic diseases such as arthritis which manifest during the first-year post-service or on a secondary basis if there is evidence that the disability was caused or aggravated by a service-connected disability. 38 C.F.R. §§ 3.307, 3.309, 3.310. An October 1986 service treatment record indicates that the Veteran complained of back pain and soreness which was assessed as being secondary to the spinal tap he underwent related to suspicion of meningitis. No other back complaints were noted in service. No back disabilities or complaints were noted at separation. The Veteran denied any recurrent back pain on his 1986 Report of Medical History. Post service, the Veteran complained of back pain in September 1990 and in January 1991. A December 2011 VA treatment note indicates that the Veteran reported a history of chronic lower back pain without radiation which started after a fall during basic training in 1986. He reported that the pain has remained the same quality since it began. The Veteran was afforded a VA examination in April 2012 where the examiner opined that it was less likely than not that the Veteran’s back disability was caused by his service-connected ankle disability. The examiner reasoned, “Patient’s actual gait has not caused actual lumbar derangement of discogenic disease or lumbar pain. Actual lumbar conditions are most likely due to aging and/or work related.” The examiner did not address the theory of secondary service connection based on aggravation. In February 2018, the Board remanded the matter to obtain an opinion regarding aggravation. In a March 2019 medical opinion, the clinician opined that it was less likely than not that the Veteran’s back disability was caused by service or a service-connected disability. The clinician reasoned that service treatment records were silent for a back disability during service or 1 year post service. Lumbar disc disease is a chronic condition that tends to progressively worsen over time with natural aging process and/or due to repetitive trauma . . . It is worth mentioning that current lumbar condition was diagnosed by imaging study, several years after active duty service . . . Actual left knee and ankle service-connected conditions are not related pathophysiologically or anatomically to actual lumbar condition . . . There is no evidence on medical literature to support any etiology that link aggravation of lumbar degenerative disc disease due to left knee patellofemoral pain syndrome and left fibular talar ligament tendinitis. The Board finds the April 2012 VA examiner’s opinion probative. A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The examiner opined against a nexus between the Veteran’s back disability and service or his service-connected disabilities. It is clear that the Veteran believes that a nexus exists. Such a lay belief sometimes is sufficient. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). It indeed is error to suggest that lay evidence can never be enough to establish that there is a nexus between a claimed condition and service. See Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). However, the causal relationship between back pain and degenerative arthritis of the spine is a complex medical issue for which the Veteran is not qualified to offer an opinion. Thus, while the Board has considered the Veteran’s statements, it finds the VA examination opinion to outweigh them. (Continued on next page.) The Board further finds that presumptive service connection is not warranted because the evidence does not show that he has a diagnosis of arthritis becoming manifest to a degree of 10 percent of more within one year from the date of separation. The Veteran was not diagnosed with degenerative disc disease for many years post service. Although he has complained of continuous chronic back pain, he denied any back pain at separation and medical evidence does not corroborate back pain beginning until 1990 – 4 years post service. In conclusion, the preponderance of the evidence is against the Veteran’s claim; therefore, the benefit of the doubt provision does not apply. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Baskerville 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.