Citation Nr: 21000111 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 17-50 352A DATE: January 4, 2021 ORDER The claim for entitlement to service connection for lumbar degenerative disc disease, lumbar spondylosis, status post lumbar fusion with residuals is reopened. The claim for entitlement to service connection for left lower extremity radiculopathy is reopened. The claim for entitlement to service connection for right lower extremity radiculopathy is reopened. Entitlement to service connection for lumbar degenerative disc disease, lumbar spondylosis, status post lumbar fusion with residuals is granted. Entitlement to service connection for cervical degenerative disc disease is granted. Entitlement to service connection for left lower extremity radiculopathy as secondary to lumbar degenerative disc disease, lumbar spondylosis, status post lumbar fusion with residuals is granted. Entitlement to service connection for right lower extremity radiculopathy as secondary to lumbar degenerative disc disease, lumbar spondylosis, status post lumbar fusion with residuals is granted. REMANDED Entitlement to service connection for left shoulder rotator cuff condition is remanded. Entitlement to service connection for right shoulder rotator cuff condition is remanded. Entitlement to service connection for right wrist degenerative arthritis is remanded. FINDINGS OF FACT 1. A January 2008 rating decision denied the claim of entitlement to service connection for a back condition and bilateral leg condition. The Veteran did not complete a substantive appeal; the decision is now final. 2. Some of the evidence received since the January 2008 rating decision was not previously submitted, relates to an unestablished fact necessary to substantiate the claims, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claims for service connection for a back condition and bilateral leg condition. 3. Resolving reasonable doubt in the Veteran’s favor, his lumbar degenerative disc disease, lumbar spondylosis, status post lumbar fusion with residuals is at least as likely as not related to falling down a ladder during active service. 4. Resolving reasonable doubt in the Veteran’s favor, his cervical degenerative disc disease is at least as likely as not related to diving into shallow water during active service. 5. The medical evidence shows the Veteran has left lower extremity radiculopathy and right lower extremity radiculopathy secondary to the low back disability. CONCLUSIONS OF LAW 1. A January 2008 rating decision that denied the claim of entitlement to service connection for a back condition and bilateral leg condition is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Evidence received since the January 2008 rating decision is new and material, and the Veteran’s claims for service connection for a back condition and bilateral leg condition are reopened.  38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for lumbar degenerative disc disease, lumbar spondylosis, status post lumbar fusion with residuals have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to service connection for cervical degenerative disc disease have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for entitlement to service connection for left lower extremity radiculopathy as secondary to lumbar degenerative disc disease, lumbar spondylosis, status post lumbar fusion with residuals have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for entitlement to service connection for right lower extremity radiculopathy as secondary to lumbar degenerative disc disease, lumbar spondylosis, status post lumbar fusion with residuals have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1964 to November 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision. The Veteran was afforded a hearing before the undersigned Veterans Law Judge in August 2020. New and Material Evidence A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of decision. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2018). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 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. 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). 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for lumbar degenerative disc disease, lumbar spondylosis, status post lumbar fusion with residuals The issue of entitlement to service connection for a lumbar degenerative disc disease (originally claimed as a back condition) was originally denied in a January 2008 rating decision because the evidence did not show the Veteran’s diagnoses were linked to his military service. The Veteran did not initiate an appeal of this denial, and it became final. Since the January 2008 rating decision, the Veteran was afforded a VA examination for back conditions, submitted private treatment records, lay statements, and a private back examination and opinion. The Veteran was also afforded a Board hearing. This evidence is new in that it was not of record at the time of the January 2008 rating decision. At the August 2020 Board hearing, the Veteran relates that he fell and injured his back during service. In his lay statement, the Veteran reports the same in-service injury. The Board finds this evidence is not material because it is redundant of the evidence at record at the time of the January 2008 rating decision. The Veteran’s STRs from November 1965 note the Veteran fell down a ladder in the engine room. The VA and private examinations provide nexus opinions regarding whether the Veteran’s back condition is due to his active service. The private treatment records show the Veteran’s ongoing complaint and treatment for back pain after service. 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). The Board finds this evidence material as it relates to whether or not a nexus exists which raises a reasonable possibility of substantiating the claim. As a result, the Board determines that the claim for entitlement to service connection for lumbar degenerative disc disease is reopened. The underlying service connection claim will be addressed below. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for left lower extremity radiculopathy 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for right lower extremity radiculopathy The issues of entitlement to service connection for left lower extremity radiculopathy and right lower extremity radiculopathy (originally claimed as bilateral leg condition) were originally denied in a January 2008 rating decision because the evidence did not show the Veteran was service connected for a low back condition. The Veteran did not initiate an appeal of these denials, and they became final. Since the January 2008 rating decision, the Veteran was afforded a VA examination for back conditions and submitted private treatment records. The Veteran was also afforded a Board hearing. This evidence is new in that it was not of record at the time of the January 2008 rating decision. At the August 2020 Board hearing, the Veteran relates that his bilateral lower extremity radiculopathy is secondary to his low back condition. The Board finds this evidence is not material because it is redundant of the evidence at record at the time of the January 2008 rating decision. The January 2016 VA examination provides diagnoses for radiculopathy. The private treatment records show the Veteran’s ongoing complaint and treatment for leg pain after service. 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). The Board finds this evidence material as it relates to whether or not diagnoses for radiculopathy exist, which raises a reasonable possibility of substantiating the claims. As a result, the Board determines that the claims for entitlement to service connection for lumbar degenerative disc disease and radiculopathy bilateral lower extremities are reopened. The underlying service connection claims will be addressed below. Service Connection 4. Entitlement to service connection for lumbar degenerative disc disease, lumbar spondylosis, status post lumbar fusion with residuals The Veteran contends that his lumbar degenerative disc disease, lumbar spondylosis, status post lumbar fusion with residuals (lumbar conditions) is due to a fall in an engine room while on active service. The Board concludes that the Veteran has a current disability that is related to a fall in an engine room while in service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The January 2016 VA examination shows the Veteran has current diagnoses of lumbar degenerative disc disease, lumbar spondylosis, status post lumbar fusion with residuals. The Veteran’s STRs show that he fell down a ladder into an engine room in November 1965 and had a provisional diagnosis of bruised back. Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. In the January 2016 VA examination, the examiner found the Veteran’s lumbar conditions were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that while the Veteran reported back pain after the fall in November 1965, documentation after the fall shows pain in the chest/rib region. The Veteran stated that his low back pain continued after service and caused him to retire from firefighting twenty years after leaving service. However, on the Veteran’s report of medical history in October 1973, the Veteran stated he had no recurrent back pain. The examiner found there are no records of reported pain or treatment for low back pain during service in the following twenty years after leaving service. The examiner related that imaging shows congenital stenosis and significant degenerative pathology. The Veteran submitted a June 2018 private medical opinion by Dr. D.W. who found the Veteran’s lumbar conditions are directly attributable to his initial in-service injury, which was a competent producing mechanism for the cause of the progressive lumbar spine pathology the Veteran has subsequently undergone. The examiner reasoned that when the Veteran fell and landed on his back, he sustained significant musculoskeletal pathology to his lumbar spine which progressed in nature over the course of the next forty years. This eventually resulted in the Veteran undergoing complex spinal surgery. The Veteran previously had lumbar epidural blocks performed in the late 1960s following his initial low back injury. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current lumbar conditions are related to service. Both examiners reviewed the Veteran’s file, medical history, and supported the opinion with a rationale. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for lumbar degenerative disc disease, lumbar spondylosis, status post lumbar fusion with residuals is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 5. Entitlement to service connection for cervical degenerative disc disease The Veteran contends that his cervical degenerative disc disease (cervical condition) is due to an incident during active service in which the Veteran dove into shallow water off the fantail of a ship and injured his neck. The Board concludes that the Veteran has a current disability that is related to a dive into shallow water while in service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The January 2016 VA examination shows the Veteran has a current diagnosis of cervical degenerative disc disease. The Veteran’s STRs show that the Veteran dove into shallow water and struck his head on the sandy bottom in June 1967. The Veteran complained of stiffness of the neck. Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. The January 2016 VA examiner found it less likely than not that the Veteran’s cervical condition was incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran stated his neck pain began in 1967 after diving into shallow water which is confirmed in the Veteran’s records. The Veteran then reported that the neck stiffness he now experiences began in the 1980s. Cervical imaging shows significant degenerative pathology which may be age related. The examiner opined it is unlikely that the injury in 1967 resolved and then did not cause significant symptoms until the 1980s, especially given the Veteran was working as a fireman. The Veteran submitted a June 2018 private medical opinion by Dr. D.W. who found the Veteran’s cervical condition is directly attributable to his initial in-service related injury, which is a competent producing mechanism for the cause of the progressive cervical spine pathology which the Veteran has subsequently undergone. The examiner reasoned that the Veteran’s injury from jumping into shallow water and striking his head and neck on the sand caused a chronic cervical strain and strain pattern as well as facet joint syndrome and a posttraumatic degenerative disc disease of the cervical spine. For this, the Veteran would eventually undergo radiofrequency ablation therapy. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current cervical condition is related to service. Both examiners reviewed the Veteran’s file, medical history, and supported the opinion with a rationale. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for cervical degenerative disc disease is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 6. Entitlement to service connection for left lower extremity radiculopathy, to include as secondary to lumbar degenerative disc disease, lumbar spondylosis 7. Entitlement to service connection for right lower extremity radiculopathy, to include as secondary to lumbar degenerative disc disease, lumbar spondylosis The Veteran contends that his right lower extremity radiculopathy and left lower extremity radiculopathy, are secondary to his lumbar conditions. See Transcript of August 2020 Board Hearing at 4. In this decision, the Board has granted service connection for lumbar degenerative disc disease, lumbar spondylosis. The January 2016 VA examination notes the Veteran has a diagnosis of bilateral lumbar radiculopathy. Accordingly, service connection for left lower extremity radiculopathy and right lower extremity radiculopathy as secondary to lumbar degenerative disc disease, lumbar spondylosis, status post lumbar fusion with residuals is warranted. REASONS FOR REMAND 1. Entitlement to service connection for left shoulder rotator cuff condition, to include as secondary to lumbar degenerative disc disease, lumbar spondylosis is remanded. 2. Entitlement to service connection for right shoulder rotator cuff condition, to include as secondary to lumbar degenerative disc disease, lumbar spondylosis is remanded. The Veteran contends that his left shoulder rotator cuff condition and right shoulder rotator cuff condition are secondary to his lumbar conditions. See Transcript of August 2020 Board Hearing at 4. In this decision, the Board has granted service connection for lumbar degenerative disc disease, lumbar spondylosis. A February 1978 private treatment record notes the Veteran has a left shoulder strain. A June 1985 private treatment record shows the Veteran has a right shoulder cuff tear. The Board cannot make a fully-informed decision on the issues of service connection for left shoulder rotator cuff condition and right shoulder rotator cuff condition because no VA examiner has opined whether the Veteran’s left shoulder rotator cuff condition and right shoulder rotator cuff condition are proximately due to or aggravated by his lumbar degenerative disc disease, lumbar spondylosis. 3. Entitlement to service connection for right wrist degenerative arthritis, to include as secondary to lumbar degenerative disc disease, lumbar spondylosis is remanded. The Veteran contends that his right wrist degenerative arthritis is secondary to his lumbar conditions. See Transcript of August 2020 Board Hearing at 4. In this decision, the Board has granted service connection for lumbar degenerative disc disease, lumbar spondylosis. A September 2005 VA treatment record shows the Veteran has a diagnosis of degenerative joint diease of the wrist. The Board cannot make a fully-informed decision on the issue of service connection for right wrist degenerative arthritis because no VA examiner has opined whether the Veteran’s right wrist disability is proximately due to or aggravated by his service-connected lumbar degenerative disc disease, lumbar spondylosis. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any shoulder conditions. The entire file must be made available to the examiner designated to examine the appellant, and the report of examination should include discussion of the Veteran’s documented history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner must opine whether any shoulder disability is at least as likely as not (1) proximately due to the Veteran’s service-connected lumbar degenerative disc disease, lumbar spondylosis, status post lumbar fusion with residuals or (2) aggravated beyond its natural progression by service-connected lumbar degenerative disc disease, lumbar spondylosis, status post lumbar fusion with residuals. The examiner is requested to provide a clear rationale and explain in detail the underlying reasoning for any opinions expressed. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any wrist condition. The entire file must be made available to the examiner designated to examine the appellant, and the report of examination should include discussion of the Veteran’s documented history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner must opine whether the Veteran’s wrist disability is at least as likely as not (1) proximately due to the Veteran’s service-connected lumbar degenerative disc disease, lumbar spondylosis, status post lumbar fusion with residuals or (2) aggravated beyond its natural progression by service-connected lumbar degenerative disc disease, lumbar spondylosis, status post lumbar fusion with residuals. The examiner is requested to provide a clear rationale and explain in detail the underlying reasoning for any opinions expressed. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexia E. Palacios-Peters, 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.