Citation Nr: 20006402 Decision Date: 01/27/20 Archive Date: 01/27/20 DOCKET NO. 13-34 616 DATE: January 27, 2020 ORDER Reopening of the issue of service connection for a low back disability is granted. Entitlement to service connection for a low back disability, diagnosed as lumbar spine degenerative arthritis, is granted. Entitlement to service connection for radiculopathy of the right lower extremity is granted. Entitlement to service connection for radiculopathy of the left lower extremity is granted. Entitlement to service connection for a left knee disability, diagnosed as degenerative joint disease, is granted. FINDINGS OF FACT 1. VA has received previously unconsidered evidence since a final April 1995 rating decision that denied service connection for a low back disability that relates to the basis for the prior denial and raises a reasonable possibility of substantiating the claim. 2. The Veteran’s current low back disability, diagnosed as lumbar spine degenerative arthritis, was at least as likely as not incurred in active service. 3. The radiculopathy affecting the Veteran’s bilateral lower extremities is at least as likely as not proximately due to his lumbar spine degenerative arthritis. 4. The Veteran’s left knee degenerative joint disease is at least as likely as not proximately due to his service-connected right knee disability. CONCLUSION OF LAW 1. The criteria for reopening the issue of service connection for a low back disability have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for a low back disability, diagnosed as lumbar spine degenerative arthritis, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 3. The criteria for service connection for radiculopathy of the right lower extremity have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 4. The criteria for service connection for radiculopathy of the left lower extremity have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 5. The criteria for service connection for a left knee disability, diagnosed as degenerative joint disease, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1975 to September 1992. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that denied service connection for a left knee disability and radiculopathy of the bilateral lower extremities, as well as reopening of the previously denied service connection claim for a low back disability. As noted on the first page of this decision, the Board finds the issue of service connection for a low back disability, to include whether new and material evidence has been received to reopen the claim, is encompassed in the scope of the present appeal. The Board acknowledges the Veteran failed to file a timely substantive appeal after the issuance of a February 2014 statement of the case regarding the issue of service connection for a low back disability; however, the Board finds this issue should have been addressed in the November 2013 statement of the case with the other issues on appeal, as noted by the Veteran in his December 2013 substantive appeal, since his statements in the appeal period of the April 2011 rating decision that were construed as a notice of disagreement clearly expressed disagreement with the denial of service connection for a low back disability. It appears the Agency of Original Jurisdiction (AOJ) simply overlooked the Veteran’s disagreement with the denial of service connection for a low back disability until he raised the issue again in his December 2013 substantive appeal. Further, the issue of service connection for a low back disability is inextricably intertwined with the issue of service connection for radiculopathy of the lower extremities. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Considering the circumstances, the Board finds it appropriate to waive the substantive appeal requirement regarding the issue of service connection for a low back disability in accordance with the holding in Percy v. Shinseki, 23 Vet. App. 37 (2009). 1. Reopening of the issue of service connection for a low back disability An April 1995 rating decision denied the Veteran’s initial service connection claim for a low back disability, finding the claim was not well grounded. VA did not receive a notice of disagreement or new evidence regarding the claim within one year of notice of the April 1995 rating decision; therefore, it is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence is defined as existing evidence not previously submitted to the VA, and material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Id. The Court of Appeals for Veterans Claims (Court) has held the phrase “raises a reasonable possibility of establishing the claim” must be viewed as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Court emphasized that 38 C.F.R. § 3.156 “does not require new and material evidence as to each previously unproven element of a claim.” Id. at 120. The Court further explained the provisions of 38 C.F.R. § 3.156(a) create a “low threshold” for finding new and material evidence that is favorable to the claimant. Id. The issue of whether a claim should be reopened is a jurisdictional matter the Board must consider before addressing the merits of the underlying claim; therefore, the Board must determine whether reopening is warranted regardless of the action of the Agency of Original Jurisdiction (AOJ). See Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). Here, the Board finds reopening of the issue of service connection for a low back disability is warranted. VA has received previously unconsidered evidence since the final April 1995 rating decision that denied service connection for a low back disability that relates to the basis for the prior denial and raises a reasonable possibility of substantiating the claim. This evidence includes a positive opinion from the Veteran’s treating physician, as well as positive opinions from a VA examiner. As a result, the Board grants reopening of the issue of service connection for a low back disability. 2. Entitlement to service connection for a low back disability Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The record reflects the Veteran has been diagnosed as having lumbar spine degenerative arthritis. Service treatment records show the Veteran was treated for back pain and muscle spams in service. The only issue that remains is whether there is a nexus between the in-service symptoms and the current disability. In October 2011, the Veteran submitted an opinion from his treating physician, L.K., M.D., who indicated the current disability is likely the result of the Veteran’s in-service symptoms. L.K., M.D., explained that the Veteran’s in-service symptoms were not likely idiopathic given his age at that time. The opinion provided by L.K., M.D., is also consistent with the opinion of a January 2014 VA examiner who was asked to address the theory of secondary service connection put forth by the Veteran. The January 2014 VA examiner explained it was unlikely the Veteran’s current low back disability is secondary to his service-connected right knee disability because the Veteran likely had degenerative changes of his lumbar spine prior to his retirement from the Air Force given his initial VA examination shortly after his separation from service confirmed significant degenerative changes, diagnosed as spondylosis at that time. The Board acknowledges the AOJ later requested clarification of the January 2014 VA examiner’s opinion, after which the January 2014 VA examiner explained that the Veteran’s right knee disability could have aggravated the degeneration of his lumbar spine degenerative arthritis, but she nevertheless maintained the Veteran likely had lumbar spine degenerative arthritis prior to his retirement from the Air Force. As a result, the Board finds the evidence is at least in relative equipoise as to the nexus element in the context of direct service connection. The Board recognizes the Veteran’s current claim was premised on a theory of secondary service connection, but it must consider all theories of entitlement raised by the record given the paternalistic nature of the VA adjudication system. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009). Resolving reasonable doubt in favor of the Veteran, the Board finds service connection for lumbar spine degenerative arthritis is warranted. 3. Entitlement to service connection for radiculopathy of the right lower extremity 4. Entitlement to service connection for radiculopathy of the left lower extremity The Veteran seeks service connection for radiculopathy of the bilateral lower extremities secondary to the claimed low back disability. As explained above, the Board finds service connection is warranted for lumbar spine degenerative arthritis. The Board notes associated neurological impairment is typically considered in the context of rating disease and injuries of the spine. See 38 C.F.R. § 4.71a, General Rating Formula for Disease and Injuries of the Spine, Note 1. Nevertheless, the Board will address secondary service connection for radiculopathy of the bilateral lower extremities for the purpose of continuity in the record. Service connection may be granted when a claimed disability is found to be proximately due to or the result of a service-connected disability, or when any increase in severity (aggravation) of a nonservice-connected disease or injury is found to be proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310. Here, all the probative evidence indicates the Veteran has radiculopathy of the bilateral lower extremities as a result of his lumbar spine degenerative arthritis. Thus, the record clearly supports a finding that the radiculopathy affecting the Veteran’s bilateral lower extremities is at least as likely as not proximately due to his lumbar spine degenerative arthritis, warranting service connection for radiculopathy as a component of the Veteran’s now service-connected low back disability. 5. Entitlement to service connection for a left knee disability The record reflects the Veteran has left knee degenerative joint disease. He claims his current left knee disability is secondary to his service-connected right knee disability. As previously noted, service connection may be granted when a claimed disability is found to be proximately due to or the result of a service-connected disability, or when any increase in severity (aggravation) of a nonservice-connected disease or injury is found to be proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310. The Board finds there is an approximate balance of positive and negative evidence regarding the issue of whether the claimed left knee disability is proximately due to the Veteran’s service-connected right knee disability. There are essentially two competing opinions in this regard. An April 2011 VA examiner determined the claimed left knee disability is less likely than not proximately due to the service-connected right knee disability, explaining left knee degenerative joint disease was not noted until 2008 at which time the Veteran was found to have a generalized arthritic process. Yet, the Veteran’s treating physician, L.N., M.D., explained the Veteran’s service-connected right knee likely contributed to the development of left knee degenerative joint due to several years of favoring the left knee. L.N., M.D., further explained the Veteran is required two wear two knee braces and is unable to walk more than a quarter mile, which is not consistent with the expected level of normal wear and tear given his age. The opinions of treating physician are typically given no more or less probative value than those of VA examiners when adjudicating service connection claims. Cf. Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) (rejecting the adoption of a treating physician rule in the context of claims for VA benefits). Thus, the evidence is in relative equipoise as to the material issue of whether the claimed left knee disability is proximately due to the Veteran’s service-connected right knee disability. Resolving reasonable doubt in favor the Veteran, the Board finds service connection for left knee degenerative joint disease is warranted. L. S. KYLE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Iannone, Attorney Advisor 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.