Citation Nr: 20022464 Decision Date: 03/31/20 Archive Date: 03/31/20 DOCKET NO. 16-28 355 DATE: March 31, 2020 ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for degenerative disc disease (DDD) of the lumbar spine. 2. Entitlement to service connection for degenerative disc disease (DDD) of the lumbar spine. 3. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure. ORDER New and material evidence to reopen the claim for entitlement to service connection for degenerative disc disease (DDD) of the lumbar spine has been received; to this limited extent, the claim is granted. REMANDED Entitlement to service connection for degenerative disc disease (DDD) of the lumbar spine is remanded. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure is remanded. FINDINGS OF FACT 1. In a March 2011 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for a degenerative disc disease of the lumbar spine. 2. The evidence received since the March 2011 rating decision regarding the Veteran’s claim for entitlement to service connection for degenerative disc disease of the lumbar spine is new and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The March 2011 rating decision denying entitlement to service connection for degenerative disc disease of the lumbar spine is final. 38 U.S.C. § § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received, thus, the claim of entitlement to service connection for a degenerative disc disease of the lumbar spine is reopened. 38 U.S.C. § §§ 5108, 7105(c); 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from January 1966 to January 1969. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2011 and June 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran’s claims file. By way of background, the Veteran’s claim for entitlement to DDD of the lumbar spine was denied in a rating decision from March 2011. The Veteran filed a timely notice of disagreement (NOD) one month later and was issued a statement of the case (SOC) in December 2013. The time period for filing a VA Form 9 lapsed, and thus the Veteran’s claim became final as of March 2011. The Veteran refiled a claim for his service connection for a back disability in July 2014. A rating decision from October 2014 found that the evidence submitted by the Veteran was not new and material, and the RO denied reopening the claim. The Veteran filed a timely NOD with the October 2014 rating decision, and he was issued an SOC in June 2016. The Veteran filed a VA Form 9 and was issued a supplemental SOC in March 2019 which denied reopening the claim again. Regardless of the AOJ’s actions, the Board must make its own determinations as to whether new and material evidence has been received to reopen the claim. That is, the Board has jurisdictional responsibility to consider whether claims should be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As it relates to the Veteran’s claim of entitlement to service connection for diabetes mellitus, type II (DM), the Veteran’s claim was denied in June 2015. That rating decision indicated that the Veteran had not submitted new and material evidence, and thus denied reopening his claim. The Board notes that the June 2015 denial was the initial denial for entitlement to service connection for diabetes mellitus, and as such, the claim was not previously finally decided. The Veteran filed a timely NOD that same month and was issued an SOC in May 2017. The Veteran filed a timely Form 9, and a supplemental SOC clarified that the Veteran’s claim for service connection for DM was not final. As a result, the Board need not make a determination of whether or not new and material evidence has been received for his diabetes mellitus claim. The Board also notes that each of the Veteran’s claims for entitlement to service connection were certified to the Board on March 18, 2019. The Veteran’s claims file contains a VA Form 10-182 for opting into the Appeals Modernization System, which was signed March 20, 2019, and received by VA the same day. As the Veteran’s claim has already been certified to the Board, the VA Form 10-182 has no bearing on the current claims, and the Veteran’s claims will be processed under the Legacy System. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for degenerative disc disease (DDD) of the lumbar spine. Applicable law provides that a claim which is the subject of a prior final decision may be reopened upon presentation of new and material evidence. See 38 C.F.R. § 3.156. The Board is required to address new and material claims in the first instance. The Board has the jurisdiction to address a new and material issue and to reach the underlying de novo claims. If the Board determines that new and material evidence has not been received, the adjudication of the particular claim ends, and further analysis is neither required nor permitted. Any decision that the AOJ may have made with regard to a new and material claim is irrelevant. Barnett, 83 F.3d at 1383. Thus, the Board will proceed in the following decision to adjudicate new and material issues in the first instance. New evidence is defined as existing evidence not previously submitted to 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. 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, 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 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. Id. at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 284 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). Turning to the evidence presented, the Veteran testified before the undersigned in February 2020. As it relates to the Veteran’s attempt to reopen his claim, he testified that his current low back disability stems from service, and that he has experienced pain since his separation. The Veteran testified that he carried “a lot of ammo on my track … and I picked up all that ammo and hurt my back.” The Veteran stated that he was not able to see medical staff for his back injury because “a Vietnam War [was] going on that I was trying to get out my duty.” The Veteran also testified that he has had continuous back pain since his injuries in service, and that those injuries are documented on his separation exam. The Veteran’s Representative has also argued during the February 2020 hearing that the Veteran’s claims file does not contain all of the relevant evidence, such as that available at various VA medical centers around Texas. During the hearing, the Veteran testified that he was being treated by the VA since approximately 1970, but the Representative argued that current records are only available from the mid-2010s. The Board is reminded that for the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). As noted, the Veteran’s previous claim of entitlement to service connection for a low back disability was denied because there was no evidence that the Veteran’s current back disability was related to his service. Considering that the credibility of the Veteran’s testimony is to be presumed, and that that the Veteran has provided testimony as to a more complete description of his in-service back injury, as well as his receiving of consistent VAMC medical service since his separation from service, the testimony provided speaks to a potential etiological link. Therefore, the submitted evidence is new, insofar as it was not previously submitted to the VA. The Veteran’s testimony is also material, in that it goes to unestablished facts necessary to substantiate the claim. 38 C.F.R. § 3.156 (a). For these reasons, the claims for entitlement to service connection for DDD of the lumbar spine will be reopened. 38 C.F.R. § 3.156(a), see Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), see further Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Thus, the appeal has been reopened, and the Veteran’s claim now turns to the question of entitlement to service connection for DDD of the lumbar spine on the merits. REASONS FOR REMAND The Board finds that additional evidentiary development is required before the claims on appeal are adjudicated. 1. Entitlement to service connection for degenerative disc disease (DDD) of the lumbar spine is remanded. The Veteran is claiming that his DDD of the lumbar spine is related to service. To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence 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. 38 C.F.R. § 3.303(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). To begin, the Veteran has a current diagnosis of DDD of the lumbar spine. A private medical consultation from October 2005 indicates that the Veteran was assessed to have “chronic low back pain with mild degenerative disc disease,” as well as “deconditioning with loss of lumbar range of motion.” A report from June 2007 indicates that the Veteran was “positive for arthralgias, back pain.” A VA examination from November 2010 confirmed the diagnosis of DDD of the lumbar spine. As such, the first criteria for entitlement to service connection has been met. 38 C.F.R. § 3.303(a). Turning to the second criteria, the Veteran has consistently reported that his back pain is due to an injury incurred while on active duty. The Veteran’s Form 9 from June 2016 states that his DDD, “lumbar spine is related to my military service,” and that as an infantryman during that time it was frowned upon and you were chastised for seeking medical treatment, so I was unable to get a medical waiver. When my unit would go to the fields, the training was too strenuous for me. Correspondence from August 2010, and the Veteran’s NOD from April 2011 makes a similar argument, that the Veteran’s back disability is related to his military service. As indicated above, the Veteran testified before the undersigned at a Board Hearing in February 2020. The Veteran testified that he was the “person that carries track, and on my track, I carried ammo and a lot of ammo on my track.” On one occasion he was lifting ammo and bending down and “picked up all that ammo and hurt my back.” The Veteran testified that he did not want to seek medical attention at the time. The Veteran later testified that each of these ammo tracks was “about 75 pounds,” and that he would regularly have to lift and/or move up to twelve different ammo tracks for each assignment. Again, the Board notes that during the hearing the Veteran testified to seeking medical attention at a VAMC since his separation from service, but the Veteran’s Representative has argued that these records have not yet been associated with the claims file. The Veteran is competent to report on that which he has experienced, to include his symptoms of back pain, as well his duties in service. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). The Board also notes that the Veteran’s DD-214 confirms that his Military Occupational Specialty (MOS) was as an infantryman. The Veteran’s service treatment records contain a complaint of back pain from August 1967. The record states that there was “no injury noted to cause pain,” but the Board acknowledges that the Veteran testified that he did not want to complain about his assigned duties. The Board further notes that the Veteran’s entrance exam has no mention of a back disability, however his separation exam notes “exaggerated curve (lordosis), lumbar spine.” In consideration of the above, the Veteran has provided testimony which points to an in-service back injury. His MOS has been confirmed, and the Veteran’s treatment records contain notes of an in-service back injury. As such, the Veteran has met the second criteria for entitlement to service connection. 38 C.F.R. § 3.303(a). Turning to the final criteria, the Veteran’s claims file contains two etiological opinions. The first opinion is from a private provider, Dr. S.K., from June 2011. The opinion states that the Veteran has a long history of severe and chronic lumbar pain and spondylosis. He states that he was initially injury while he was in the military back in 1968 from loading ammunition and has documentation where he was seen with the diagnosis lumbar sprain. He states his pain never resolved from that time. The private opinion also mentions an instance where the Veteran was working and was injured on the job “when a wooden fence fell on him.” The Board notes that while this opinion appears to liken the Veteran’s back pain to his in-service injury, a clear opinion is not actually rendered. The private opinion also offers evidence that is contrary to a positive nexus: the wooden fence falling on the Veteran. Regardless, the opinion seems to rely exclusively on the statements provided by the Veteran, and there is no indication that the Veteran’s claims file was reviewed. The Veteran’s claims file also contains an opinion provided by a VA examiner from November 2010. The examiner confirmed the Veteran’s diagnosis and denied the etiology for the Veteran’s back pain. The examiner stated that while in the service the Veterans trained his back lifting ammo, was treated and had no further complaints or treatment for his back … the Veteran’s most recent MRI shows mild DDD which is not related to injury, but more likely than not is related to changes due to age, and is not related to a muscle strain in 1968. Therefore, the Veteran’s current back condition is not caused by or a result of the complaints of back pain in service. The examiner also mentioned the work-related back injury regarding the wooden fence but did not attribute it to his current diagnosis. The Board finds that each opinion is inadequate for determining the Veteran’s claim of entitlement to service connection. The Private opinion relies exclusively on statements provided by the Veteran, and there is no indication that the Veteran’s claims file was reviewed. More importantly, the etiological opinion is not clear, and does not actually say that the Veteran’s current back disability is at least as likely as not related to his service. The VA examination is also inadequate, as there is no indication that the examiner considered any statements from the Veteran. The examiner cites the 1968 injury as a muscle strain, but makes no mention of the Veteran’s separation exam, which indicated a lumbar issue. Regardless, the Veteran’s Representative has argued that the Veteran has continuously sought treatment from various VAMCs around Texas, and that these reports have not yet been associated with the claims file. As a result, the Board finds that each examiner may not have had the full medical picture of how the Veteran’s DDD of the lumbar spine may have developed over time. When VA provides a medical examination, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311-312 (2007), see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (“The Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusions submitted in the medical opinion”). Therefore, in consideration of VA’s duty to assist, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim for an entitlement to service connection so that he is afforded every possible consideration. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. A VA medical examination and medical opinion are required by VA’s duty to assist the Veteran in developing evidence to substantiate his claim to service connection. The RO is also to perform an exhaustive search for the Veteran’s VAMC treatment records for the time period since his separation from service. These records must be associated with the claims file prior to the Veteran being scheduled for a VA examination. Finally, the Board notes that the Veteran’s separation exam notes that the Veteran had “exaggerated curve (lordosis), lumbar spine.” Lordosis is a type of spinal curve in which the normal inward curve of the lower back is exaggerated. While the Board notes that lordosis can be developed over time due to health problems, it may also be an injury which pre-existed the Veteran’s service, despite not being noted on his entrance examination. As a rule, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. §§ 1111; 38 C.F.R. § 3.304 (b). This is known as the presumption of soundness. Assuming the presumption of soundness has attached, the burden then shifts to the VA to rebut the presumption of soundness. To rebut the presumption of soundness, the VA must show that (1) the condition clearly and unmistakably existed prior to service; and (2) the condition clearly and unmistakably was not aggravated during service. Wagner v. Principi, 370 F.3d 1089, 1092 (Fed. Cir. 2004). Therefore, to ensure that the Veteran’s claim is considered under every possible theory of entitlement to service connection, on remand, the VA examiner is asked to provide an opinion regarding the spine lordosis. 2. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure is remanded. The Veteran has offered two arguments regarding his claim of entitlement to service connection for diabetes mellitus, type II (DM). First, the Veteran testified in February 2020 that he was diagnosed with DM within a year of separating from service. He testified that he sought treatment by various VAMCs in Texas since 1970, but that “the hospital lost [the records] or something, I don’t know.” The Veteran further testified that his claims file should have records from the 1970s-2010, and that his treatment for diabetes is between “Dallas, Fort Worth, Houston, all over … my records have probably been through all” of them. Second, the Veteran’s Representative has argued that the Veteran was stationed in Fort Gordon, where he was exposed to Agent Orange being stored. He argued that the VA has “conceded that exposure was and in George, Fort Gordon … they were storing Agent Orange over there in – located in trainee Air 47.” The Veteran’s Representative argued that he has additional evidence about the storage of such herbicide containers and will upload that to the Veteran’s claims file. The Board notes that that evidence has not yet been uploaded. Certain chronic diseases may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time following discharge from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease to a degree of 10 percent or more at any time after service, except for chloracne and acute and subacute peripheral neuropathy which must be manifested within a year of the last exposure to an herbicide agent during service, the Veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. § 3.307, 3.309(e). The fact that a Veteran cannot establish entitlement to service connection on a presumptive basis does not preclude him from establishing entitlement on a direct incurrence or other basis. See 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.304 (d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As it relates to each of the arguments offered by the Veteran and his Representative, the Board notes that additional evidentiary development is required. The RO must perform an exhaustive search for VAMC records within the Texas VA system, as these records may indicate that the onset of the Veteran’s DM was within a year of his separation from service. Following that search, and if necessary, the RO is to contact the Veteran’s Representative and ask them to upload any additional evidence regarding herbicide exposure that occurred while the Veteran was stationed at Fort Gordon. If the RO deems it further necessary, the RO should contact the Joint Services Records Research Center (JSRRC), and request that they confirm any potential exposure that the Veteran may have had while stationed at Fort Gordon, where agent orange is said to have been stored. The Veteran should understand that VA’s duty to assist is not always a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Rather, the Veteran must cooperate in obtaining the evidence necessary to adjudicate the Veteran’s claim. This can include assisting the RO to locate which Texas VAMC the Veteran believes his records are located in. If the Veteran does not cooperate in the development of his claim, it may result in adverse action. See 38 C.F.R. § 3.158 (“where evidence requested... is not furnished within 1 year after the date of request, the claim will be considered abandoned.”); see also Wood at 193 (1991). The matters are REMANDED for the following action: 1. Conduct an exhaustive search for the Veteran’s VAMC treatment records from his separation from service to approximately 2010. This can include any Texas VAMC facility, so efforts to reach out to the Veteran for additional information should be conducted as necessary. Associate any evidence obtained with the claims file. The record must reflect that such a search took place. Then, make appropriate efforts to obtain and associate with the claims file any further private or VA medical records identified and authorized for release by the Veteran. 2. After the search for records is conducted, schedule the Veteran for a VA medical examination with an appropriate physician in regard to his claim of entitlement to service connection for DDD of the lumbar spine. The entire claims file should be made available for the clinician to review, and the report should reflect that such review was accomplished. The examiner is asked to offer an opinion as to the following: (a.) Opine as to whether it is clear and unmistakable (obvious, manifest, and undebatable) that the Veteran had spinal lordosis which pre-existed active service. Please provide a complete explanation for the opinion. (b.) If so, the examiner must state whether it is clear and unmistakable (obvious, manifest, and undebatable) that the pre-existing spinal lordosis WAS NOT aggravated (i.e., permanently worsened) during service; or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase in severity was due to the natural progress of the disorder. (c.) If the Veteran’s current back disability is found to have not been clearly and unmistakably associated with a pre-existing congenital disorder as noted above, opine as to whether is it at least as likely as not (50 percent or greater) that the Veteran’s confirmed DDD of the lumbar spine was caused by a disease or injury in service? In providing the above opinions, the examiner should consider the lay statements of the Veteran, his February 2020 testimony, his confirmed in-service injury and his separation exam, which included a finding of “exaggerated curve (lordosis), lumbar spine.” The examiner is also asked to consider the previous VA examiner’s opinion, as well as the private opinion from June 2011. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required or the examiner does not have the needed knowledge or training). Jones v Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. 3. Following the completion of Step 1, the RO should determine if additional development is necessary for the Veteran’s claim of entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure. Additional development is necessary if the found Texas VAMC records do not reveal that the Veteran was diagnosed with diabetes mellitus, type II within one year of his separation from service. (a.) Such additional development should include, but is not limited to, reaching out to the Veteran’s Representative to upload additional evidence of herbicide exposure to the Veteran’s claims file, as well as contacting the JSRRC to make a determination as to whether it is at least as likely as not that the Veteran was exposed to Agent Orange while he was stationed at Fort Gordon, Georgia. 4. After ensuring that any other appropriate development of the claim is complete, readjudicate both of the Veteran’s claims. If any benefit on appeal remains denied, issue a supplemental statement of the case (SSOC) to the Veteran and his Representative, and allow an appropriate time for response. Thereafter, the case should be returned to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Mulrain, 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.