Citation Nr: 20047048 Decision Date: 07/14/20 Archive Date: 07/14/20 DOCKET NO. 17-05 128 DATE: July 14, 2020 ORDER New and material evidence having been received, the claim of service connection for a lumbar spine disorder is reopened; to this limited extent, the appeal is granted. REMANDED Service connection for a lumbar spine disorder as secondary to service-connected bilateral pes planus. Service connection for a psychiatric disorder as secondary to service-connected bilateral pes planus.   REASONS AND BASES FOR DECISION The Veteran served on active duty for training (ACDUTRA) from September 1972 to March 1973. The case is on appeal from November 2009 and February 2015 rating decisions. In July 2020, the Veteran testified at a Board hearing. Whether new and material evidence has been received to reopen a claim of service connection for a lumbar spine disorder. By a June 2006 rating decision, the RO denied reopening a claim of service connection for a lumbar spine disorder. The Veteran was notified of the decision by letter later that month, which was mailed to the then current mailing address of record. Thereafter, nothing further regarding the claim was received until the present claim to reopen in September 2009. The Board notes that VAMC Reports of Hospitalization in August 2006 and January 2007 pertain to chest pain/ supraventricular tachycardia, and thus, do not constitute new and material evidence with respect to service connection for a lumbar spine disorder. In addition, VA treatment records associated with the file in September 2008 noting back pain are not within one year of the June 2006 rating decision. No new evidence or notice of disagreement (NOD) was received by VA within one year of the issuance of the June 2006 rating decision. As the Veteran did not appeal the decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Another claim was filed in October 2008. After the claim was denied in the November 2009 rating decision and the Veteran submitted a timely NOD, a statement of the case (SOC) was issued in November 2011. The Board notes that the Veteran asserts he did not receive the November 2011 SOC. See July 2020 Board hearing testimony. There is a presumption of administrative regularity that public officials have properly discharged their official duties. See Ashley v. Derwinski, 2 Vet. App. 62 (1992). Although the November 2011 SOC was not returned as undeliverable, a December 2011 VA Medical Center (VAMC) Report of Hospitalization reflects that the Veteran’s address had changed. Based on a finding that VA used an incorrect address for the November 2011 SOC, the Veteran was not apprised of his right to appeal the November 2009 rating decision. Thus, the November 2009 rating decision was not final and the claim was still pending. The Board finds the November 2016 substantive appeal received following the issuance of the November 2016 SOC addressing the claim to reopen service connection for a lumbar spine disorder is timely. As such, the November 2009 rating decision is on appeal for this claim. The Board finds that new and material evidence has been submitted so that the previously denied claim of service connection for a lumbar spine disorder is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). See also September 2015 private medical records; July 2020 Board hearing testimony. REASONS FOR REMAND 1. Service connection for a lumbar spine disorder as secondary to service-connected bilateral pes planus. The Veteran seeks service connection for a lumbar spine disorder. He maintains that his back disorder is secondary to his service-connected bilateral pes planus noted to result in poor posture and balance. See July 2020 submission. The Veteran was afforded a VA back examination in December 2014. The examiner stated that the degenerative process in the Veteran’s lumbar spine was more than likely due to age rather than his service-connected bilateral pes planus. However, the examiner did not opine as to whether the Veteran’s lumbar spine condition was aggravated by his service-connected bilateral pes planus and this theory has been raised. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that findings of “not due to,” “not caused by,” and “not related to” a service-connected disability are insufficient to address the question of aggravation under § 3.310(b)). As such, the opinion is not completely adequate. Thus, a new VA examination is warranted. In addition, the record reflects that the Veteran received Social Security Administration (SSA) disability benefits. See September 2015 private evaluation. These records are potentially relevant to the appeal. See 38 C.F.R. § 3.159(c)(2); Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). As such, on remand, SSA records should be obtained and associated with the claims file. 2. Service connection for a psychiatric disorder as secondary to service-connected bilateral pes planus. The Veteran seeks service connection for a psychiatric disorder. In a July 2020 submission, he stated that his service-connected bilateral pes planus caused him to resign from his job, which in turn led to depression. A September 2015 private psychological evaluation reflects major depressive disorder, and foot pain was noted to contribute to the Veteran’s psychiatric issues. The Board finds the evidence currently meets the low threshold for obtaining a VA examination as to this claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In light of the remand, updated VA treatment records should be obtained. The matters are REMANDED for the following action: 1. Obtain VA treatment records since February 2018. 2. Obtain from SSA the records pertinent to the Veteran’s claims as well as the medical records relied upon concerning any determination. If the records are not available, the Veteran should be notified of such. 3. Schedule the Veteran for an examination (or telehealth interview, records request, etc. if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of a lumbar spine condition. The claims file must be made available to and reviewed by the clinician. Any indicated studies should be performed, and all findings should be reported in detail. The clinician should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that a lumbar spine disorder is caused by or aggravated by service-connected bilateral pes planus. Aggravation is an increase in severity beyond the natural progress of the disease. For any aggravation found, the clinician should state, to the extent possible, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. Rationale for all opinions expressed should be provided. If the clinician is unable to provide the requested opinions without resort to speculation, it must be so stated, and he or she must provide the reasons why an opinion would require speculation. 4. Schedule the Veteran for an examination (or telehealth interview, records request, etc. if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of a psychiatric disorder, to include major depressive disorder. The claims file must be made available to and reviewed by the clinician. Any indicated studies should be performed, and all findings should be reported in detail. The clinician should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that a psychiatric disorder is caused by or aggravated by service-connected bilateral pes planus. Aggravation is an increase in severity beyond the natural progress of the disease. For any aggravation found, the clinician should state, to the extent possible, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. Rationale for any opinion expressed should be provided. If the clinician is unable to provide the requested opinion without resort to speculation, it must be so stated, and he or she must provide the reasons why an opinion would require speculation. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Taylor 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.