Citation Nr: 20021963 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 14-33 576 DATE: March 30, 2020 ORDER New and material evidence has been received to reopen a claim of entitlement to service connection for arthritis of the spine. New and material evidence has been received to reopen a claim of entitlement to service connection for back spasms. New and material evidence has been received to reopen a claim of entitlement to service connection for arthritis of the shoulders. Entitlement to service connection for peripheral neuropathy of the lower extremities (left and right), including as secondary to diabetes, is granted. REMANDED Entitlement to service connection for arthritis of the spine is remanded. Entitlement to service connection for shoulder arthritis is remanded. Entitlement to service connection for flat feet is remanded. Entitlement to service connection for back spasms is remanded. Entitlement to service connection for a metal plate in the cervical spine is remanded. FINDINGS OF FACT 1. The Veteran’s claims for service connection for arthritis of the spine, back spasms, and shoulder arthritis were previously considered and denied in a May 2009 rating decision; he did not perfect an appeal to the Board of that earlier decision and documentation constituting new and material evidence was not actually or constructively received within the one-year appeal period. 2. Additional evidence received since that May 2009 rating decision, however, is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate these claims for service connection for arthritis of the spine, back spasms, and shoulder arthritis, and raises a reasonable possibility of substantiating these claims. 3. The peripheral neuropathy of the Veteran’s lower extremities is as likely as not a complication of his service-connected diabetes mellitus. CONCLUSIONS OF LAW 1. The May 2009 rating decision earlier considering and denying service connection for arthritis of the spine, back spasms, and shoulder arthritis is final and binding based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.201, 20.302, 20.1103. 2. But there is new and material evidence since that decision to reopen these claims for service connection for arthritis of the spine, back spasms, and shoulder arthritis. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria are met for entitlement to service connection for diabetic peripheral neuropathy of the lower extremities since secondary to the service-connected diabetes mellitus. 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 from October 1967 to October 1969. This appeal is before the Board of Veterans’ Appeals (Board) on appeal from February and October 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). Concerning his claim for service connection for peripheral neuropathy of his lower extremities, the Veteran testified in support of this claim during a hearing before the undersigned Veterans Law Judge (VLJ) in October 2016. A transcript of the hearing is of record. Concerning all other claims on appeal, the Board sees that, in his September 2014 Substantive Appeal to the Board, on VA Form 9, the Veteran requested a hearing before the Board. But in subsequent written correspondence received in December 2018, through his representative, the Veteran withdrew his hearing request. 38 C.F.R. §§ 20.702(e), 20.704(e). New and Material Evidence New and material evidence has been received to reopen the claims of entitlement to service connection for arthritis of the spine, back spasms, and shoulder arthritis These claims were originally considered and denied in a May 2009 rating decision. The RO duly notified the Veteran of that decision and of his appellate rights. In response, he initiated but did not complete (“perfect”) an appeal of that decision to the Board and documentation constituting new and material evidence was not constructively or actually received within the appeal period. Consequently, that May 2009 rating decision became final and binding based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.201, 20.302, 20.1103. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. A claim on which there is a final decision, however, may be reopened if new and material evidence is submitted. 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. 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. When determining whether a claim should be reopened, the credibility of the newly submitted evidence is to be presumed – unless inherently incredible or beyond the competence of the person making the assertion. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). The May 2009 rating decision denied the claims for service connection for spinal arthritis, back spasms, and shoulder arthritis based on a finding that there was no then current confirmation the Veteran has these claimed disabilities, much less because of his military service. Concerning the claim for spinal arthritis, evidence added to the record since that May 2009 final and binding denial of this claim includes new medical records, specifically, a September 2019 chest X-ray confirming there are degenerative changes (i.e., arthritis) in the Veteran’s spine. This evidence is new in that it was not previously of record and it is not cumulative or redundant of the evidence of record at the time of the May 2009 rating decision. This additional evidence also is material in that it relates to an unestablished fact necessary to substantiate the claim for service connection for spinal arthritis and raises a reasonable possibility of substantiating this claim since it at least confirms he has this claimed disease.   In this regard, the Board is mindful of the "low threshold" for reopening a previously denied claim. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). In Shade, the Court clarified that, when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id., at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. In other words, the Court indicated that the post-Veterans Claims Assistance Act (VCAA) version of 38 C.F.R. § 3.156(a) establishes a "low threshold" for reopening a claim, one that does not require that a claimant submit a medical opinion to reopen a claim. Rather, if there is newly submitted evidence of current disability that, in connection with the prior evidence, raises a reasonable possibility of substantiating the claim, and the element of a nexus could be established by providing a VA examination, the claim may be reopened. This then triggers VA's duty to assist in providing the claimant a VA examination. Similarly, as for the claim for back spasms, evidence added to the record since the May 2009 final and binding denial of this claim includes new medical records showing the Veteran has been continuously prescribed medication for back spasms, and that in October 2018 a VA doctor related the Veteran’s back pain to his muscle spasms and indicated they were neuropathic in nature. This additional evidence also is material in that it relates to an unestablished fact necessary to substantiate the claim for service connection for back spasms and raises a reasonable possibility of substantiating the claim because, again, there at least is now confirmation the Veteran has this claimed condition.   Lastly, regarding the Veteran’s claim for service connection for shoulder arthritis, evidence added to the record since the May 2009 final and binding denial of this claim includes new medical records showing recurring complaints of shoulder pain. This additional evidence is also material in that it relates to an unestablished fact necessary to substantiate this claim for service connection for shoulder arthritis and raises a reasonable possibility of substantiating this claim because it is conceivable the Veteran’s persistent complaints of shoulder pain may be due to arthritis in his shoulders. This is yet to be determined, but there now at least is suggestion of him having this claimed disability. Since the evidence concerning these claims is both new and material, these claims for service connection for arthritis of the spine, back spasms, and shoulder arthritis are reopened. Rather than immediately readjudicating these claims on their underlying merits, however, the Board is first remanding them to the agency of original jurisdiction (AOJ) for necessary further development. Service Connection Entitlement to service connection for peripheral neuropathy of the lower extremities (so left and right), including as secondary to diabetes The Veteran contends that the peripheral neuropathy of his lower extremities onset during his service so is directly attributable to his service. However, after reviewing the medical and other relevant evidence of record, the Board finds that the peripheral neuropathy of his lower extremities is as likely as not a complication of his already determined to be service-connected diabetes. Direct service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was directly incurred in the line of duty during active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to prove direct service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of a relevant injury or disease, and (3) a nexus, or link, between the current disability and the disease or injury in service. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection also is permissible on a secondary basis, however, for disability determined to be proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b); Allen v. Brown, 7 Vet. App. 439, 448 (1995). Here, a September 2013 VA treatment record shows that an examining doctor noted “[the Veteran’s] peripheral nerve symptoms could be due to Agent Orange exposure or his low back issues or a combination of both.” So, based on that record, it was uncertain whether the Veteran had diabetic peripheral neuropathy or, instead and concurrently, sciatic radiculopathy. In October 2016, the Veteran had a hearing before this judge of the Board and testified that his peripheral neuropathy had incepted prior to his diagnosis of diabetes, specifically, during his time in service. However, he also testified that, while he experienced numbness and tingling in his lower extremities during service, he did not seek medical attention for it and, therefore, there was no diagnosis during his service. He then testified that he was diagnosed with peripheral neuropathy in the 1990s and diabetes in 2015, but when asked when he was diagnosed with diabetes he responded, “90, in 2005, like 2015.” Additionally, he testified that he was never actually tested for diabetes until 2015. Ultimately, then, this does not clearly show that his peripheral neuropathy definitively predated his diabetes. The report of his subsequent November 2016 VA examination clarifies the Veteran has diabetic peripheral neuropathy of his lower extremities. By specifically diagnosing diabetic peripheral neuropathy, the examiner attributed the Veteran’s bilateral lower extremity peripheral neuropathy specifically to his diabetes. In other words, the peripheral neuropathy is a complication of the diabetes. The Veteran since has been awarded service connection for his diabetes. Thus, his bilateral lower extremity peripheral neuropathy is a secondary complication, therefore, like the diabetes, attributable to his military service. Accordingly, after resolving all reasonable doubt concerning this in his favor, the Board finds that service connection is warranted for the peripheral neuropathy of the Veteran’s lower extremities since secondary to his already service-connected diabetes. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS FOR REMAND Entitlement to service connection for arthritis of the spine and shoulders is remanded. A preliminary review of the medical evidence of record reveals a December 1996 private Workers Compensation Injury Report detailing an on-the-job injury the Veteran sustained while working a civilian job. This was an injury sustained some 27 years after his separation from the military. However, the report, authored by a private doctor, includes a medical history relating to the Veteran’s workers compensation claim. During the interview and examination, the Veteran reported having low back pain that had onset in 1994 and left shoulder pain that had onset around 1993. The evaluating doctor further noted that the Veteran had “underlying degenerative arthritis in his left shoulder, low back, and right index finger.” The Veteran’s VA treatment records continue to include complaints of low back pain, and a February 2016 VA treatment record includes a diagnosis of “degenerative disc/arthritic disease” and “DDD [degenerative disc disease] of ls [lumbar spine].”   Concerning his claim for shoulder arthritis, the Veteran’s VA treatment records continue to show his complaints of shoulder pain. As such, medical comment is warranted to determine whether his current spinal arthritis and shoulder pain are etiologically related to his degenerative arthritis in his spine and left shoulder that predated his 1996 workers compensation injury, and if they are related to his military service. Entitlement to service connection for flat feet (pes planus) is remanded. The Veteran contends that he has pes planus, or flat feet, owing to his active duty service. A January 2012 VA treatment record shows the Veteran presented to a VA podiatry clinic complaining of bunion pain. After examination, the doctor’s impression was that the Veteran had pes planus. However, at a November 2012 VA podiatry consultation, the podiatrist did not observe any pes planus or symptoms thereof. Finally, during a more recent October 2018 VA podiatry consultation, the podiatrist observed the Veteran had “pes planus deformities”, bilaterally, but did not actually diagnose pes planus or attribute it to the Veteran’s military service. Hence, medical comment is needed to assist in making these important determinations. Entitlement to service connection for back spasms is remanded. The Veteran asserts that his back spasms are related to his military service. As already discussed, evidence associated with this claim since the May 2009 prior denial includes VA treatment records showing the Veteran has been prescribed medicine for his muscle spasms. An October 2018 VA treatment record states that the Veteran’s back pain is musculoskeletal and “neuropathic in nature.” As a result of this decision, he is now service connected for diabetic peripheral neuropathy of his lower extremities.   As such, further medical comment is needed to determine whether the Veteran’s spasms, which occur in his lower back, are in actuality a symptom of the peripheral neuropathy of his lower extremities or a separate disability, instead, referable to his low back. Entitlement to service connection for a metal plate in the cervical spine is remanded. The Veteran contends that the metal plate in his cervical spine is the result of a disability attributable to his military service. This claim previously was denied because the Veteran had no then current diagnosis. However, a review of the record shows that a December 2018 radiograph shows a metal plate in his cervical spine. Additionally, a March 2019 VA neurosurgery treatment record affirms he had a cervical C3-T1 posterior instrumented fusion procedure and a cervical spine laminectomy, a procedure to alleviate spinal nerve pressure. This March 2019 neurosurgery treatment record also provided a post-operative diagnosis of cervical spondylosis. While the Veteran has not made a specific contention as to any event, injury, or disease’s incurrence during his service that may have necessitated the eventual metal plate being put in his cervical spine, he has contended multiple times that this necessity is the result of his military service. As no VA compensation examiner has opined on the origins of the underlying condition necessitating insertion of the metal plate in the Veteran’s cervical spine, this comment is being obtained before deciding this claim on appeal.   Accordingly, these matters are REMANDED for the following actions: 1. If relevant and outstanding, obtain the Veteran’s VA treatment records for the period from December 2019 to the present. To this end contact the Veteran and afford him the opportunity to identify or submit any pertinent evidence in support of his claim for flat feet, to include records of any private treatment. Based on his response, attempt to procure copies of all records which have not been obtained from identified treatment sources. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. After receiving all additional records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any spinal arthritis. The examiner must opine on whether it is at least as likely as not the spinal arthritis is related to an injury, event, or disease during the Veteran’s service. *In making this determination, the examiner is asked to address the December 1996 Workers’ Compensation Injury Report noting the Veteran had underlying degenerative arthritis in his lumbar spine. 3. Also schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any shoulder arthritis. The examiner must opine on whether it is at least as likely as not the shoulder arthritis is related to an in-service injury, event, or disease. *To assist in making this determination, the examiner is asked to specifically address the December 1996 Workers’ Compensation Injury Report indicating the Veteran had pre-existing degenerative arthritis in his left shoulder. 4. As well, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any pes planus. The examiner must opine on whether it is at least as likely as not the Veteran’s pes planus is related to an in-service injury, event, or disease, including when considering the circumstances of his service. 5. Still yet, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any back spasms. The examiner is asked to opine on whether it is at least as likely as not the back spasms being claimed are related to an in-service injury, event, or disease. *To assist in making this determination, the examiner is asked to opine on the relationship, if any, between the Veteran’s low back muscle spasms and his now service-connected diabetic peripheral neuropathy of his lower extremities versus any low back issue he may have. In other words, are these spasms caused by radiculopathy/sciatic neuropathy referable to his low back versus a complication of his diabetes in the way of diabetic peripheral neuropathy or due to something else entirely?   If the Veteran’s back muscle spasms are found to be a stand-alone disability, the examiner is asked to opine on whether it is at least as likely as not these spasms are: (1) proximately due to service-connected disability, or (2) aggravated by service-connected disability. 6. Lastly, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any disability necessitating the implantation of the metal plate in his cervical spine. The examiner is asked to indicate whether it is at least as likely as not the insertion of this metal plate is related to an in-service injury, event, or disease, including the conditions of the Veteran’s service. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Pak 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.