Citation Nr: 20009732 Decision Date: 02/05/20 Archive Date: 02/05/20 DOCKET NO. 14-23 656 DATE: February 5, 2020 ORDER The application to reopen the claim for service connection for lumbosacral strain is granted. Entitlement to service connection for lumbar spine internal disc derangement, previously claimed as lumbosacral strain, is granted. REMANDED Entitlement to service connection for residuals from stress fracture to left tibia is remanded. Entitlement to service connection for residuals from stress fracture to right tibia is remanded. Entitlement to service connection for residuals from stress fracture to right ankle is remanded. Entitlement to service connection for residuals from stress fracture to left ankle is remanded. Entitlement to service connection for residuals from stress fracture to left cortical third and fourth metatarsal is remanded. Entitlement to an initial rating in excess of 30 percent for service-connected claw foot with metatarsalgia, hallux valgus, hammer toes, and degenerative joint disease of the bilateral feet (bilateral feet conditions) is remanded. Entitlement to a rating in excess of 20 percent for service-connected residuals of stress fracture of the right proximal femur with right hip flexor strain is remanded. Entitlement to a rating in excess of 20 percent for service-connected residuals of stress fracture to the left proximal femur with left hip flexor strain is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In a December 2001 final rating decision, the VA regional office (RO) denied service connection for lumbosacral strain. 2. The evidence received since the December 2001 rating decision regarding service connection for lumbosacral strain is not cumulative or redundant and raises a reasonable possibility of substantiating the Veteran’s claim. 3. The Veteran’s currently diagnosed lumbar spine internal disc derangement, previously claimed as lumbosacral strain, is etiologically related to his service-connected conditions. CONCLUSIONS OF LAW 1. New and material evidence having been submitted, the service connection claim for lumbosacral strain is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for lumbar spine internal disc derangement, as secondary to service-connected conditions, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from January 1996 to January 1997. The Veteran requested a hearing before the Board of Veterans’ Appeals, which was scheduled for October 28, 2019. A subsequent September 2019 correspondence from the Veteran’s representative waived the Veteran’s request for a hearing. The Board notes that the Veteran was originally service-connected for residuals from stress fractures to his bilateral calcaneal, right fourth metatarsal and left third metatarsal. See March 2014 Rating Decision – Codesheet. In March 2014, the RO issued a rating decision that granted service connection for bilateral feet conditions as a progression of the Veteran’s residuals from stress fractures of the bilateral calcaneal and third metatarsals, effective May 25, 2013. New and Material Evidence Claim The application to reopen to the claim for service connection for lumbosacral strain is granted. The Veteran’s claim for service connection for lumbosacral strain was denied in a December 2001 rating decision. The RO determined the evidence failed to show the Veteran’s lumbosacral strain was related to his service-connected conditions. The Veteran did not timely appeal this decision nor was new and material evidence received within the appeal period. Therefore, the December 2001 decision became final. Once a decision becomes final, VA will only reopen it and decide it on the merits if new and material evidence is submitted. Evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is 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). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). In April 2009, the RO denied the Veteran’s petition to reopen his claim for service connection for a lumbosacral strain, finding no new and material evidence. The Veteran submitted an independent medical opinion in June 2009, and the RO reopened the claim in May 2010. However, the RO ultimately denied the Veteran’s claim, finding a lack of causal relationship between the Veteran’s lumbosacral strain and his service-connected conditions. Despite this, the Board has the responsibility of adjudicating the issue of whether new and material evidence has been submitted in the first instance. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The evidence received since the time of the RO’s December 2001 rating decision includes the June 2009 private initial consultation and opinion, in which the Veteran’s private physician opined that that his lumbar spine disability was likely related to his service. This evidence was not before adjudicators when the Veteran’s claim was last finally denied, and it is not cumulative or redundant of the evidence of record at the time of the last decision. The new evidence relates to unestablished facts necessary to substantiate the claim for service connection for lumbosacral strain and raises a reasonable possibility of substantiating the claim. Accordingly, the claim is reopened. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When the preponderance of the evidence is against the claim, the claim must be denied. Id. The Veteran contends his lumbar spine disability is secondary to his service-connected conditions. See February 2009 Statement. Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. The Veteran is currently diagnosed with lumbar spine internal disc derangement at L5-S1 segment with facet arthropathy and probable discogenic pain. See May 2009 Medical Treatment Record – Non-Government Facility, p. 3. The remaining question is whether there is a medical nexus between the Veteran’s currently diagnosed lumbar spine internal disc derangement and his service-connected conditions. To that end, the Veteran submitted a June 2009 opinion from a private physician, who linked the Veteran’s lumbar spine internal disc derangement with his service-connected disabilities, to specifically include “the severity of the [Veteran’s’ proximal femur and calcaneal injuries with confirmed stress fractures,” based on the clinical evaluation and a detailed review of the Veteran’s clinical history. The Board finds this opinion highly probative. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In April 2010, the Veteran underwent a VA examination. The April 2010 VA examiner rendered a negative nexus opinion based on the absence of low back complaints during service and failed to consider the Veteran’s competent report of low back pain during service. The April 2010 VA examiner also failed to specifically address whether the current low back disability was aggravated by any of the Veteran’s service-connected disabilities. Given these deficiencies, the Board assigns minimal probative weight to the April 2010 opinion. The Veteran appeared for another VA examination with the same examiner in December 2012. The examiner found no significant radiographic abnormality with the Veteran’s back and opined that there was no direct, indirect, secondary or aggravation issues as the bone scan showed no current lumbar spine disability. In doing so, that examiner failed to consider the Veteran’s competent reports regarding functional impairments based on lumbar spine pain during the appeal period. See Saunders v. Wilkie, 886 F.3d 1356 (2018). After careful consideration, the Board finds that the June 2009 opinion, based on adequate consideration of all pertinent evidence of record, is the most probative medical evidence of record. Service connection for lumbar spine internal disc derangement is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The issues of entitlement to service connection for residuals from stress fracture to the left tibia and right tibia, stress fracture to the right ankle and left ankle, and stress fracture to the left cortical third and fourth metatarsal are remanded. The Veteran contends that he has residuals from stress fractures to his left and right tibia, bilateral ankles, and left cortical third and fourth metatarsals, that are causally related to his active service. He underwent a VA examination for joints in April 2010 and December 2012, in which he reported pain in the entire circumference of his ankles, hips, knees, low back, buttocks, thighs, and heels of his feet. While neither VA examiner was able to provide diagnoses for the claimed disabilities, they did not consider whether the Veteran’s pain from the claimed joint symptoms reached the level of a functional impairment for earning capacity. Saunders, 886 F.3d at 1356. A remand is necessary for a new VA examination to determine whether the Veteran’s claimed vertigo symptoms at any point during the appeal period reach the level of a functional impairment for earning capacity. If so, the examiner should address whether the pain was due to his service and/or secondary to his service-connected disabilities. The issues of entitlement to an initial rating in excess of 30 percent for service-connected bilateral feet conditions, a rating in excess of 20 percent for service-connected residuals of stress fracture of the right proximal femur with right hip flexor strain, a rating in excess of 20 percent for service-connected residuals of stress fracture to the left proximal femur with left hip flexor strain, and TDIU are remanded. The Board notes that the Veteran filed a timely notice of disagreement (NOD) to the March 2014 rating decision that granted service connection for bilateral feet conditions, continued the Veteran’s 20 percent ratings for his service-connected residuals from stress fractures to bilateral proximal femur with bilateral hip flexor strain, and denied the Veteran’s claim for a TDIU. However, he has not been provided with a statement of the case (SOC) as to these issues; therefore, the issues must be remanded to provide the Veteran with due process. See Manlincon v. West, 12 Vet. App. 238, 240 (1999). The matters are REMANDED for the following action: 1. Assist the Veteran in associating with the claims folder any relevant outstanding treatment records. 2. Schedule the Veteran for VA examinations with the appropriate medical examiner(s) to determine the nature and etiology of his residuals from stress fractures of the left and right tibia, bilateral ankles, and left cortical third and fourth metatarsals. The claims folder must be made available to the examiner for review in connection with the examination. Any indicated studies should be performed, including x-rays. A detailed history concerning the Veteran’s left tibia, bilateral ankles, and left cortical third and fourth metatarsals should be obtained from him. Based on review of the record and examination of the Veteran, the examiner should respond to the following: (a.) Is it at least as likely as not (i.e., at least a 50 percent probability) that the Veteran’s residuals from stress fracture to left and right tibia had its onset in or is related to service? (b.) Is it at least as likely as not (i.e., at least a 50 percent probability) that the Veteran’s residuals from stress fracture to bilateral ankles had its onset in or is related to service? (c.) Is it at least as likely as not (i.e., at least a 50 percent probability) that the Veteran’s residuals from stress fracture to left cortical third and fourth metatarsals had its onset in or is related to service? In light of Saunders, 886 F.3d 1356 (2018), the examiner should acknowledge that pain alone can serve as a functional impairment and therefore qualify as a disability. As a result, if there is no diagnosis of a disability manifested by residuals from stress fractures to the Veteran’s left tibia, bilateral ankles, and left cortical third and fourth metatarsals, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that each of those conditions result in any functional impairment of earning capacity, i.e., a disability for VA purposes? The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions, including, but not limited to the Veteran’s STRs and lay statements concerning the pain he experienced with his bilateral ankles and left foot, the stress fractures to his left tibia left third metatarsal during service. The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. (Continued on the next page) 3. Provide the Veteran with a statement of the case for the issues of entitlement to an initial rating in excess of 30 percent for service-connected bilateral feet conditions, entitlement to a rating in excess of 20 percent for service-connected residuals of stress fracture of the right proximal femur with right hip flexor strain, entitlement to a rating in excess of 20 percent for service-connected residuals of stress fracture to the left proximal femur with left hip flexor strain, and entitlement to a TDIU are remanded. The issues should not be certified or returned to the Board unless a timely substantive appeal is received. S. Kim Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. L. Park, 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.