Citation Nr: 20022477 Decision Date: 04/01/20 Archive Date: 04/01/20 DOCKET NO. 16-61 590 DATE: April 1, 2020 ORDER 1. The application to reopen the claim for service connection for degenerative disc disease of the lumbar spine, status post-laminectomy and diskectomy, (lumbar spine disability) is granted. REMANDED 2. Entitlement to service connection for a lumbar spine disability is remanded. FINDINGS OF FACT 1. In a January 2016 rating decision, the claim for service connection for a lumbar spine disability was reopened but denied on the merits. The Veteran was notified of that decision and his right to appeal. The Veteran did not appeal the claim and it became final. 2. Evidence submitted since the January 2016 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for a lumbar spine disability. CONCLUSION OF LAW The January 2016 rating decision reopening and denying the claim for service connection for a lumbar spine disability on the merits is final. New and material evidence has been received to reopen the claim for service connection for a lumbar spine disability. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.156(a), 20.1103 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1990 to December 1999 and from July 2004 to July 2006. 1. Whether new and material evidence has been received to reopen the claim for service connection for a lumbar spine disability Prior unappealed decisions of the RO are final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. The Board does not have jurisdiction to consider a claim that has become final before it determines that new and material evidence has been presented, irrespective of what the regional office may have determined with respect to new and material evidence. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). If, however, new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. Manio v. Derwinski, 1 Vet. App. 145 (1991). 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 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. Id. New and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof; the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117–20 (2010). The Veteran’s claim for service connection for lumbar spine disability was initially considered and denied by the RO in a January 2007 rating decision, which was confirmed by a September 2007 rating decision. The Veteran was notified of the September 2007 rating decision and of his appellate rights. The Veteran filed a notice of disagreement in July 2008, and a statement of the case (SOC) was issued in October 2008. The Veteran did not complete submit a substantive appeal or a VA Form 9, Appeal to the Board. As such, the Veteran did not perfect his appeal of this issue, and the September 2007 rating decision ultimately became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In June 2015, the Veteran requested to reopen his claim for service connection for a lumbar spine disability, and a January 2016 rating decision reopened the claim but ultimately denied the claim on the merits. In March 2016, the Veteran filed a formal claim to reopen the issue of entitlement to service connection for a lumbar spine disability. The August 2016 rating decision again reopened the claim but denied entitlement to service connection for a lumbar spine disability on the merits. The RO denied service connection for a lumbar spine disability in January 2016, as the Veteran’s service treatment records (STRs) did not document an in-service injury to the Veteran’s lumbar spine during his first period of active service from 1990 to 1999, and the evidence did not show that the Veteran’s lumbar spine disability, which pre-existed his second period of service from 2004 to 2006, was permanently aggravated during the second period of service. The January 2016 rating decision is final. Since the January 2016 rating decision, the Veteran has provided a private medical examination report with a medical opinion, completed by Dr. Higginbotham in March 2016. Dr. Higginbotham provided an opinion that the wear and tear of the Veteran’s military aviation service more likely than not contributed to the eventual development of degenerative joint disease in his lumbar spine and the herniated discs resulting in two surgeries. The Board finds this evidence is new and material as it relates to one of the reasons for the January 2016 denial of service connection for a lumbar spine disability and raises a reasonable possibility of substantiating the Veteran’s claim for service connection for a lumbar spine disability. Accordingly, the claim is reopened. REASONS FOR REMAND 2. Entitlement to service connection for a lumbar spine disability Regrettably, the Board finds a remand is necessary to reconcile the various medical opinions in the Veteran’s claims file and fully address the Veteran’s contentions as to his disability. Initially, the Board notes that the Veteran testified at his July 2019 hearing that he first went to see a doctor in regard to pain in his lumbar spine 21 months after leaving active duty in 1999. The pain was, at that time, severe enough to warrant surgery for a herniated disc, which was completed in November 2001. The Veteran contends that this injury was the result of his time in service as a pilot. The Veteran asserted that it was well known that the specific helicopter he flew in service, the CH46E, caused back pain. He has submitted a statement from a fellow service member and two articles to support that opinion. The Veteran had been provided two VA examinations, and neither VA examiner referenced these documents when providing opinions as to the Veteran’s claim. The Veteran testified that he did not complain about his back pain because it was just something as an officer and a pilot that you were expected to endure unless it got too bad. The Veteran also testified that, though the November 2001 surgery was immediately effective in relieving his pain, he continued to fly and reentered active duty in July 2004, after receiving a waiver due to the previous diskectomy. The Veteran testified that during that period of active service, he began to experience additional pain in his spine and that when the pain was bad, he removed himself from the flight list until the pain subsided. Then, within a month after discharge in 2006, the Veteran was weeding, felt something strange in his spine, and ultimately ended up having another diskectomy in November 2006, as he had herniated his disc again on the other side. As such, the Veteran asserts that his second period of service permanently aggravated the lumbar spine disability. The Veteran was provided an initial VA examination in May 2007. This VA examiner did not provide an opinion as to whether or it was at least as likely as not that the Veteran’s lumbar spine disability was related to his initial period of active service or whether the lumbar spine was aggravated beyond the natural progression during the Veteran’s second period of service. In February 2015, the Veteran submitted a private medical opinion provided by Dr. Gregory J. Biernacki, which opined that the Veteran injured his spine during his second period of service from July 2004 to July 2006 and that the injury developed into degenerative disc disease of the lumbar spine causing his second diskectomy within months after the Veteran’s discharge from service. The Board finds this opinion is inadequate because, as the Veteran’s lumbar spine disability was clearly documented on the entrance examination for the Veteran’s second period of service, the Veteran is not presumed sound at the entrance to his second period of service. Thus, the question is not whether the Veteran’s disability was at least as likely as not caused by that period of service, but whether or not the disability was aggravated beyond its natural progression by that period of service. In March 2016, the Veteran submitted another private opinion, completed by Dr. Ronald S. Higginbotham. Dr. Higginbotham opined that the Veteran’s military career was directly responsible for the onset of his lumbar spine disability, as the Veteran spent many years and hours flying the CH45E helicopter, including time spent flying at night and in combat with the additional weight of armor and night vision goggles on the Veteran’s body and head. Dr. Higginbotham opined that the Veteran’s initial period of active service from 1990 to 1999 likely caused the Veteran to develop a herniated disc, resulting in the November 2001 diskectomy, as it is well known that aviation duties, especially those related to this particular helicopter, stress the spine and accelerate degenerative joint disease. Furthermore, Dr. Higginbotham also opined that the Veteran did not have any other significant injury in his claims file that would accelerate the degenerative joint disease other than a non-military cause. The Board finds this opinion is inadequate as it did not address the Veteran’s service treatment records (STRs), specifically those from the Veteran’s first period of active service from 1990 to 1999 that do not document reports of pain or injury to the Veteran’s lumbar spine. Finally, two VA medical opinions were provided in May 2016 and June 2016. In the May 2016 medical opinion, the examiner opined that the initial injury was likely caused by running, which is what treatment records document the Veteran was doing when he herniated his disc, and not the Veteran’s first period of service from December 1990 to December 1999. However, this opinion did not address the Veteran’s contention that his disability was brought on by injury to his spine caused by flying a helicopter in service and the two articles the Veteran had submitted to support this contention. The May 2016 examiner opined that the Veteran’s lumbar spine disability was permanently aggravated by the Veteran’s second period of active duty because the Veteran herniated his disc in August 2006, just one month after his discharge from his second period of service, noting that the opinion by Dr. Higginbotham was sufficiently persuasive in light of the degenerative joint disease that was recently noted on a recent MRI. However, this opinion was adjusted in June 2016 because the VA examiner found that the current degenerative joint disease was secondary to the degenerative disc disease, which (degenerative disc disease) is not a chronic disability, and thus, it did not matter whether or not the Veteran’s second herniated disc occurred within one month of discharge from active service. However, this opinion also does not address whether the Veteran’s initial herniated disc in 2001 was at least as likely as not caused by the Veteran’s initial period of active service. As none of the opinions in the Veteran’s claims file fully address the Veteran’s contentions, nor does any examination fully assess the correct questions given the Veteran’s history of service, the Board finds an addendum opinion is necessary. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician. If the clinician finds that an examination is warranted, an examination should be scheduled. The examiner is informed of the following facts: • The Veteran served on active duty from December 1990 to December 1999 and again from July 2004 to July 2006. • The Veteran believes he developed a lumbar spine disability during his first period of service from December 1990 to December 1999, as he had to undergo surgery on his lumbar spine in November 2001. • The Veteran also believes that the pre-existing lumbar spine disability that was documented at the time he entered service in July 2004 was aggravated during his second period of service that ended in July 2006. • The Veteran was a pilot for the Marine Corps while on active duty and in the reserves and was also a pilot in his civilian job. • An August 1991 Report of Medical Examination shows that clinical evaluation of the spine was normal. See VBMS entry with document type, “STR – Medical – Photocopy,” receipt date 07/09/2015, with #2 in the Subject line, at p. 8 (item #38) (the abnormal finding relates to item #39, which addresses marks and scars). • An August 1991 Report of Medical History shows that the Veteran denied a history of recurrent back pain. See VBMS entry with document type, “STR – Medical – Photocopy,” receipt date 07/09/2015, with #2 in the Subject line, at p. 10 (item #11, bottom of second column). • A July 1992 Report of Medical Examination shows that clinical evaluation of the spine was normal. See VBMS entry with document type, “STR – Medical – Photocopy,” receipt date 07/09/2015, with #3 in the Subject line, at p. 71 (item #38). • A June 1995 Report of Medical Examination shows that clinical evaluation of the spine was normal. See VBMS entry with document type, “STR – Medical – Photocopy,” receipt date 07/09/2015, with #3 in the Subject line, at p. 63 (item #38). • A June 1995 Report of Medical History shows that the Veteran denied a history of recurrent back pain. See VBMS entry with document type, “STR – Medical – Photocopy,” receipt date 07/09/2015, with #3 in the Subject line, at p. 65 (item #11, bottom of second column). • A June 1998 Report of Medical Examination shows that clinical evaluation of the spine was normal. See VBMS entry with document type, “STR – Medical – Photocopy,” receipt date 07/09/2015, with #3 in the Subject line, at p. 59 (item #38). • A June 1998 Report of Medical History shows that the Veteran denied a history of recurrent back pain. See VBMS entry with document type, “STR – Medical – Photocopy,” receipt date 07/09/2015, with #3 in the Subject line, at p. 61 (item #11, bottom of second column). • A September 1999 Report of Medical Examination (performed 3 months before discharge from first period of service) shows that clinical evaluation of the spine was normal. See VBMS entry with document type, “STR – Medical – Photocopy,” receipt date 07/09/2015, with #3 in the Subject line, at p. 53 (item #38). • A September 1999 Report of Medical History shows that the Veteran denied a history of recurrent back pain. See VBMS entry with document type, “STR – Medical – Photocopy,” receipt date 07/09/2015, with #3 in the Subject line, at p. 55 (item #11, bottom of second column). • A July 2000 Report of Medical Examination (performed approximately 7 months following December 1999 service discharge) shows that clinical evaluation of the spine was normal. See VBMS entry with document type, “STR – Medical – Photocopy,” receipt date 07/09/2015, with #3 in the Subject line, at p. 49 (item #38). • A July 2000 Report of Medical History shows that the Veteran denied a history of recurrent back pain. See VBMS entry with document type, “STR – Medical – Photocopy,” receipt date 07/09/2015, with #3 in the Subject line, at p. 51 (item #11, bottom of second column). • An August 2004 “Aeromedical Summary” shows that when addressing the Veteran’s medical history, it was noted that the Veteran “began experiencing left sided back pain with radiation into the left posterior leg/calf and dorsum of left foot in Sept[ember]. 2001. No h[istory] of trauma.” It shows that the Veteran tried conservative treatment with NSAIDS and physical therapy without resolution. An October 2001 MRI showed small left posterolateral disc herniation at L5-S1 with compression of the S1 nerve root. It documented that the Veteran had undergone a left L5-S1 laminotomy and diskectomy on November 28, 2001. See VBMS entry with document type, “STR,” (not STR – Medical) receipt date 06/18/2015, at p. 108. • An October 2001 private medical record shows that the examiner documented that the Veteran reported that one month ago while running, he began to feel an aching discomfort in the left buttock, which began radiating into the posterior thigh and posterior calf. The Veteran stated that the pain was become progressively more frequent over the last month. The examiner noted that an October 2001 MRI showed disc desiccation present at L5-S1 with a left posterolateral disc herniation compressing the left S1 nerve. See VBMS entry with document type, “Medical Treatment Record – Non-Government Facility,” receipt date 06/19/2015 at pp. 10-11. • The November 28, 2001 Operative Report shows that the Veteran was diagnosed with herniated lumbar disk L5-S1 on the left. The Veteran underwent a Left L5-S1 laminotomy and diskectomy at that time. See VBMS entry with document type, “Medical Treatment Record – Non-Government Facility,” receipt date 06/19/2015, at pp. 5-6. • A January 2002 medical record shows that the Veteran was seen six weeks out of the lumbar laminotomy and the nurse practitioner noted that the Veteran had been doing back exercises regularly and had returned to flight duty. She also noted that the Veteran had complete resolution of his prior leg pain and had only mild stiffness in the left buttock and posterior thigh on occasion. She wrote the Veteran had not noticed any weakness in his legs. She performed a physical examination and found that the Veteran had recovered “nicely following lumbar laminotomy and diskectomy” and was “certainly cleared for flight duty at this time.” See VBMS entry with document type, “Medical Treatment Record – Non-Government Facility,” receipt date 07/30/2007, at p. 5. • A June 2004 Report of Medical Examination performed one month prior to the Veteran’s second period of active duty shows that clinical evaluation of the spine was abnormal. The examiner wrote in the “Notes” section to the right of the clinical evaluation that as to the spine, the Veteran had a diskectomy on the left in 2001. The examiner wrote, “No evidence of functional impairment, strait leg raise – WNL, Back Exam – WNL, Duck walk – WNL, Can touch toes with no pain, sensory exam/motion exam.” See VBMS entry with document type, “STR,” receipt date 06/18/2015, at p. 116. • In the August 2004 Aeromedical Summary, it shows that the Marine Corps was seeking a waiver for the Veteran for the lumbar spine surgery. The history of back pain with radiation into the left leg/calf was documented. It was noted that the Veteran had “immediate resolution” of his symptoms after the November 2001 surgery and returned to work, which included flying (the Veteran is a pilot in his civilian job). It was documented that, “At this time, [the Veteran] is pain free, on no medication, demonstrates full flexibility, tolerates sitting and is able to perform toe-walking, heel walking, and one[-]legged squats.” Clinical findings at that time related to the lumbar spine are documented on the following page. See VBMS entry with document type, “STR,” receipt date 06/18/2015, at pp. 112-13. • In a February 2005 Post-Deployment Health Assessment, the Veteran documented that from August 2004 to March 2005, he was in Iraq. When asked if he had any of “these symptoms” during the deployment, which included “Back pain,” the Veteran checked no. He also denied having any medical problems that developed during this deployment. See VBMS entry with document type, “STR,” receipt date 06/18/2015, at pp. 91-92 (item #6), 94 (item #2). • In a March 2006 Post-Deployment Health Assessment, the Veteran documented that he had been in Kuwait beginning in September 2005. When asked if he had any of “these symptoms” during the deployment, which included “Back pain,” the Veteran checked yes. See VBMS entry with document type, “STR,” receipt date 06/18/2015, at pp. 95-96. • In a June 2006 Report of Medical History, the Veteran reported a positive history of recurrent back pain or any back problem. See VBMS entry with document type, “STR,” receipt date 06/18/2015, at p. 98 (item #12.c.). • In a July 2006 Report of Medical Assessment completed at service discharge from the Veteran’s second period of active duty, when he was asked if he had suffered from any injury or illness while on active duty for which he did not seek medical care, the Veteran responded yes, and wrote it was lower back pain. See VBMS entry with document type, “STR,” receipt date 06/18/2015, at p. 100 (item #13). • In an October 17, 2006, private medical record, the Veteran documented he had back pain that was shooting down his leg, which pain level he rated as a 10. When asked how long he had had this pain, he wrote, “4 weeks.” See VBMS entry with document type, “Medical Treatment Record – Non-Government Facility,” receipt date 07/30/2007, at p. 17. • An October 17, 2006 letter from Dr. James Lesnick to the Veteran’s primary physician, Dr. John Ball, shows that the Veteran had been seen by Dr. Lesnick to evaluate him for the onset of severe right buttock and posterior leg pain. Dr. Lesnick wrote, “As you know, he is a 38-year-old pilot who while working in the yard weeding in August [2006] developed some back discomfort followed by pain radiating from the right buttock into the posterior thigh, posterior calf and dorsum of the foot to the great toe.” Dr. Lesnick noted that the Veteran had undergone L5-S1 diskectomy on the left in November 2011 with “excellent results.” Dr. Lesnick documented clinical findings and concluded that the Veteran gave a description of pain in the right leg that “could be S1 or L5 in character.” He thought that the Veteran possibly had a herniated disc at L5-S1 with a rostral fragment compression the L5 root against the pedicle. See VBMS entry with document type, “Medical Treatment Record – Non-Government Facility,” receipt date 07/30/2007, at p. 18. • October 18, 2006 MRI of the lumbar spine showed postoperative changes at L5-S1. The radiologist wrote that there appeared to be a right-sided disc protrusion at this level causing mass effect upon the right S1 nerve root. The radiologist noted that this did not have the typical appearance of enhancing scar. The radiologist documented that there was mild bilateral foraminal stenosis at L5-S1. See VBMS entry with document type, “STR,” receipt date 06/18/2015, at pp. 102-103. • An October 20, 2006 private medical record from Dr. Lesnick shows that he had reviewed the October 2006 MRI, which showed a herniated disc to the right at L5-S1 and that the previously-operated L5-S1 left appeared unremarkable. He noted that the L5 root appeared to be normal in foramen. See VBMS entry with document type, “Medical Treatment Record – Non-Government Facility,” receipt date 07/30/2007, at p. 21. • Records from later in October 2006 from Dr. Lesnick show that the Veteran continued to experience pain and wanted to undergo surgery. See VBMS entry with document type, “Medical Treatment Record – Non-Government Facility,” receipt date 07/30/2007, at pp. 22, 24. • In November 2006, the Veteran underwent a right L5-S1 laminotomy, foraminotomy, and diskectomy. See VBMS entry with document type, “STR,” receipt date 06/18/2015, at p. 105. • The Veteran has submitted an article entitled, “Back Pain in the Navy Rotary Wing Community” to support his claim that the back pain he experienced is due to his duties as a pilot. See VBMS entry “Correspondence,” receipt date 05/29/2007. • The examiner’s review of the record is NOT restricted to the evidence listed above. This list is provided in an effort to assist the examiner in locating potentially relevant evidence. The examiner is asked to provide the following opinions: (a) Is it at least as likely as not that the Veteran’s 2001 herniated disc and subsequent November 2001 diskectomy related to the Veteran’s initial period of active service that was from December 1990 to December 1999 or is due to an in-service injury, event, or disease, including the Veteran’s contention that his many flight hours logged in a CH46E helicopter that included hours wearing significant weight from army and night vision goggles? Upon what facts and medical principles do you base the opinion? (b) If the answer to (a) is negative, is it at least as likely as not that the lumbar spine disability, which was noted on entrance into his second period of service in July 2004, was at least as likely as not aggravated (non-temporary increase in severity) by the Veteran’s second period of service from July 2004 to July 2006? Upon what facts and medical principles do you base the opinion? (c) If the Veteran’s lumbar spine disability was aggravated during his second period of service from July 2004 to July 2006, was the increase in severity clearly due to its natural progress? Upon what facts and medical principles do you base the opinion? The examiner is asked to provide a rationale for each opinion given, including providing the medical principles and evidence relied upon for each opinion. If the examiner is unable to provide an opinion without resorting to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Keninger, 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.