Citation Nr: 21000143 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 20-29 565 DATE: January 4, 2021 ORDER The petition to reopen the claim of entitlement to service connection for bladder dysfunction/incontinence, claimed as secondary to service connected intravertebral disc syndrome, lumbar spine, is granted. The petition to reopen the claim of entitlement to service connection for erectile dysfunction, claimed as secondary to service connected intravertebral disc syndrome, lumbar spine, is granted. The petition to reopen the claim of entitlement to service connection for bowel dysfunction, claimed as secondary to service connected intravertebral disc syndrome, lumbar spine, is granted. Service connection for bladder dysfunction/incontinence, claimed as secondary to service connected intravertebral disc syndrome, lumbar spine, is granted. Service connection for erectile dysfunction, claimed as secondary to service connected intravertebral disc syndrome, lumbar spine, is granted. Service connection for bowel dysfunction, claimed as secondary to service connected intravertebral disc syndrome, lumbar spine, is granted. REMANDED Service connection for bilateral foot condition, claimed as secondary to service connected intravertebral disc syndrome, lumbar spine, is remanded. FINDINGS OF FACT 1. A January 2015 rating decision denied service connection for bladder dysfunction, secondary to back injury; the Veteran was notified of the decision and did not file a notice of disagreement or submit new and material evidence within the following one-year appeal period. 2. Evidence submitted since the January 2015 rating decision pertaining to the issue of entitlement to service connection for bladder dysfunction/incontinence, secondary to back injury, includes evidence that is not cumulative and redundant of prior evidence and relates to an unestablished fact necessary to substantiate the claim. 3. A January 2015 rating decision denied service connection for erectile dysfunction, secondary to back injury; the Veteran was notified of the decision and did not file a notice of disagreement or submit new and material evidence within the following one-year appeal period. 4. Evidence submitted since the January 2015 rating decision pertaining to the issue of entitlement to service connection for erectile dysfunction, secondary to back injury, includes evidence that is not cumulative and redundant of prior evidence and relates to an unestablished fact necessary to substantiate the claim. 5. A January 2015 rating decision denied service connection for bowel dysfunction, claimed as secondary to back disability; the Veteran was notified of the decision and did not file a notice of disagreement or submit new and material evidence within the following one-year appeal period. 6. Evidence submitted since the January 2015 rating decision pertaining to the issue of entitlement to service connection for bowel dysfunction, secondary to back injury, includes evidence that is not cumulative and redundant of prior evidence and relates to an unestablished fact necessary to substantiate the claim. 7. The evidence is at least in equipoise that the Veteran's bladder dysfunction/incontinence is proximately due to his service-connected intravertebral disc syndrome, lumbar spine. 8. The evidence is at least in equipoise that the Veteran’s erectile dysfunction is proximately due to his service-connected intravertebral disc syndrome, lumbar spine. 9. The evidence is at least in equipoise that the Veteran’s bowel dysfunction is proximately due to his service-connected intravertebral disc syndrome, lumbar spine. CONCLUSIONS OF LAW 1. The January 2015 rating decision that denied the claim of entitlement to service connection for bladder dysfunction/incontinence, claimed as secondary to service connected intravertebral disc syndrome, lumbar spine, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. The criteria for reopening the claim of entitlement to service connection for bladder dysfunction/incontinence, claimed as secondary to service connected intravertebral disc syndrome, lumbar spine, have been satisfied. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104 (a), 3.156. 3. The January 2015 rating decision that denied the claim of entitlement to service connection for erectile dysfunction, claimed as secondary to service connected intravertebral disc syndrome, lumbar spine, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 4. The criteria for reopening the claim of entitlement to service connection for erectile dysfunction, claimed as secondary to service connected intravertebral disc syndrome, lumbar spine, have been satisfied. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104 (a), 3.156. 5. The January 2015 rating decision that denied the claim of entitlement to service connection for bowel dysfunction, claimed as secondary to service connected intravertebral disc syndrome, lumbar spine, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 6. The criteria for reopening the claim of entitlement to service connection for bowel dysfunction, claimed as secondary to service connected intravertebral disc syndrome, lumbar spine, have been satisfied. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104 (a), 3.156. 7. Resolving any doubt in the Veteran’s favor, the criteria for service connection for bladder dysfunction/incontinence, claimed as secondary to service connected intravertebral disc syndrome, lumbar spine, are been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 8. Resolving any doubt in the Veteran’s favor, the criteria for service connection for erectile dysfunction, claimed as secondary to service connected intravertebral disc syndrome, lumbar spine, have are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 9. Resolving any doubt in the Veteran’s favor, the criteria for service connection for bowel dysfunction, claimed as secondary to service connected intravertebral disc syndrome, lumbar spine, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1963 to August 1965. The relevant procedural history reveals that a January 2015 rating decision denied service connection for bladder dysfunction, bowel dysfunction and erectile dysfunction, each claimed as secondary to a back disability. The Veteran submitted a VA Form 21-526 EZ in August 2016 seeking service connection for each disability on appeal. A December 2016 rating decision denied service connection for a bilateral foot condition, secondary to a back disability. The rating decision confirmed and continued the prior denials of service connection for bladder dysfunction/incontinence, bowel dysfunction and erectile dysfunction, each secondary to a back disability. The rating decision stated that it did not reopen these claims, but in fact it did address the merits of the claims. In February 2017, the Veteran sought “reconsideration” of the December 2016 rating decision in a typed statement that was not on any VA form. An August 2017 rating decision observed that the Veteran submitted a new claim and a request to reopen a claim in August 2016, and a new claim in February 2017. The corresponding rating decision - code sheet indicated that it based its jurisdiction on the August 2016 claim. The rating decision held that new and material evidence had not been received for the four claims on appeal. A July 2020 statement of the case reopened each of the claims on appeal, and denied them on their merits. The Board finds that as the August 2017 rating decision was issued within one year of the December 2016 rating decision, and based its jurisdiction on the Veteran's August 2016 claim, the December 2016 rating decision did not become final. Thus, the January 2015 rating decision is the final denial of the claims for service connection for bladder dysfunction/incontinence, bowel dysfunction and erectile dysfunction, each secondary to back disability. The December 2016 denial of service connection for a bilateral foot condition did not become final, and thus this claim is before the Board on its merits. Service Connection 1. The petition to reopen the claim of entitlement to service connection for bladder dysfunction/incontinence, claimed as secondary to service connected intravertebral disc syndrome, lumbar spine, is granted. 2. The petition to reopen the claim of entitlement to service connection for erectile dysfunction, claimed as secondary to service connected intravertebral disc syndrome, lumbar spine, is granted. 3. The petition to reopen the claim of entitlement to service connection for bowel dysfunction, claimed as secondary to service connected intravertebral disc syndrome, lumbar spine, is granted. 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. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decisionmakers, while 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. 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. 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 United States Court of Appeals for Veterans Claims (Court) has held that the phrase “raises a reasonable possibility of establishing the claim” must be viewed as enabling rather than precluding reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade, supra. Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Regardless of whether the RO found new and material evidence to reopen a claim, the Board is not bound by such a determination and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Board will therefore undertake a de novo review of the new and material evidence determinations required to resolve the Veteran’s petitions to reopen service connection claims in this case. The Board finds that new and material evidence has been received to reopen the claims for service connection for bladder dysfunction/incontinence, erectile dysfunction and bowel dysfunction. As a preliminary matter, the Board finds that the claims have been previously denied by VA in a final decision. The January 2015 rating decision denied service connection for bladder dysfunction, erectile dysfunction and bowel dysfunction, claimed as secondary to a back disability. The rating decision explained that the Veteran's back condition was not related to service, so secondary service connection could not be granted. The January 2015 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Evidence of record at the time of the January 2015 rating decision included the Veteran's service treatment records, private medical records and VA treatment records. Following the January 2015 final rating decision, the Veteran submitted a claim for service connection for each of the claims in August 2016. The Board finds that new and material evidence has been presented sufficient to reopen the service connection claims. A June 2020 VA DBQ Medical Opinion provides that it is at least as likely as not that the Veteran's back condition/degenerative arthritis of the spine with intervertebral disc syndrome was incurred during active service. In light of this Medical Opinion, a July 2020 rating decision granted service connection for intervertebral disc syndrome, lumbar spine. The rating decision also granted service connection, as secondary to intervertebral disc syndrome, lumbar spine, for radiculopathy, left lower extremity, sciatic nerve; radiculopathy, left lower extremity, femoral nerve; radiculopathy, right lower extremity, sciatic nerve; and radiculopathy, right lower extremity, femoral nerve. The Board finds that this new medical evidence is notable in that it tends to support the Veteran’s assertion that his bladder dysfunction/incontinence, erectile dysfunction and bowel dysfunction are related to a service-connected disability. The Board finds that this new evidence of record meets the low threshold described by Court to enable reopening claims. See Shade, supra. Regardless of whether sufficient evidence to establish entitlement has been received at this time, the new evidence would, if true, combine with the prior evidence of record to tend to establish a previously unestablished element (an etiological link to a service-connected disability) in support of these claims. The Board finds that new and material evidence has been submitted on the issues of service connection for bladder dysfunction/incontinence, claimed as secondary to service connected intravertebral disc syndrome, lumbar spine; erectile dysfunction, claimed as secondary to service connected intravertebral disc syndrome, lumbar spine; and bowel dysfunction, claimed as secondary to service connected intravertebral disc syndrome, lumbar spine, following the prior final denial of the claims. Accordingly, the Board reopens the claims at this time. 4. Service connection for bladder dysfunction/incontinence, claimed as secondary to service connected intravertebral disc syndrome, lumbar spine, is granted. 5. Service connection for erectile dysfunction, claimed as secondary to service connected intravertebral disc syndrome, lumbar spine, is granted. 6. Service connection for bowel dysfunction, claimed as secondary to service connected intravertebral disc syndrome, lumbar spine, is granted. The Veteran contends that these disabilities are caused by his service-connected intervertebral disc syndrome, lumbar spine. He asserts that the evidence shows that he suffered from them decades before developing diabetes mellitus. Service connection may be granted, on a secondary basis, for a disability which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. The record contains a July 1980 private medical statement from Dr. Butler, a neurosurgeon, that the Veteran had undergone surgery several years earlier for back and leg pain. Dr. Butler stated that his review of the Veteran's urology records showed that the Veteran probably had some component of hypotonic bladder. Dr. Butler stated that this was clearly abnormal and was certainly consistent with findings on a myelogram and EMG of the Veteran's lumbar spine. Dr. Butler stated that the reports he had reviewed showed a severe degree of [lumbar] disability which had left the Veteran with significant bladder problems. A January 1995 medical record signed by 2 physicians noted that the Veteran had sought further evaluation in December 1994 due to worsening back pain along with “perceived problems of fecal urgency/incontinence.” The impression was failed back syndrome. It was noted an MRI showed disc disease and scar formation and a CT myelogram showed blockage at L4. The report noted “[t]he patient’s history and physical findings are consistent with this pathology.” A July 2006 private operative note for surgery of the lumbar spine noted that the Veteran reported “experiencing bowel or bladder symptomatology as well as impotence” and that “[s]urgery is undertaken today to arrest the progression of his neurogenic claudication and neurologic damage from his severe spinal stenosis.” A July 2007 private treatment record noted the Veteran had been diagnosed with diabetes approximately 2 years earlier. An October 2008 treatment record from Dr. G. concluded that the Veteran’s urinary hesitancy was “most likely neurogenic in nature.” In a statement associated with the record in September 2014 with a handwritten “1980” at the top, the Veteran stated that Dr. B. told him to not do any physical labor or sit for long periods (including car trips), due to increased direct pressure on the spine which made his symptoms (including bowel and bladder symptoms) so severe as to require bed rest. The Veteran reported that Dr. B. stated that these symptoms could lead to impotency and the bladder and bowel dysfunction and impotency would be permanent. However, a layman's account of what a physician purportedly said, filtered as it is through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute "medical" evidence. See Warren v. Brown, 6 Vet. App. 4,6 (1993). A June 2017 private medical treatment record signed by a Dr. Z. noted that the Veteran had both erectile dysfunction and incontinence “most likely due to spinal stenosis.” The physician explained that the Veteran had tried several medications and still had incontinence. In an October 2020 statement, the Veteran's wife, a nurse, stated that he had experienced trouble with erectile dysfunction many years before developing diabetes mellitus. She submitted a July 2007 private medical record in which a private endocrinologist relates that the Veteran was diagnosed with diabetes approximately two years earlier. She pointed out that in 1980 Dr. B. had noted that the Veteran had erectile dysfunction, incontinence and bowel issues. A June 2020 VA Back (Thoracolumbar Spine) Conditions DBQ relates that the Veteran had no bowel or bladder problems/pathologic reflexes related to a thoracolumbar spine condition. It provides results of a June 2015 MRI. A corresponding June 2020 VA DBQ Medical Opinion indicates that the Veteran's bladder dysfunction, bowel dysfunction and erectile dysfunction are “at least as likely as not” proximately due to the Veteran's service-connected intervertebral disc syndrome. However, a review of the rationale reveals that the examiner apparently completed the opinion section incorrectly, and actually believes that the claimed conditions are less likely than not related to the Veteran's service-connected intervertebral disc syndrome, lumbar spine. The examiner explained that a recent MRI showed no evidence of a sacral back condition which could affect the Veteran's bladder and bowel condition, and the Veteran's diabetes and neuropathy were the likely etiology of the Veteran's bladder and bowel incontinence which were of no relation to the Veteran's service-connected back condition. Similarly, a June 2020 VA Urinary Tract (Including Bladder and Urethra) Conditions DBQ provides a diagnosis of incontinence due to diabetic neuropathy, with the date of diagnosis being 2014. A June 2020 VA Male Reproductive System Conditions DBQ provides a diagnosis of erectile dysfunction, with the date of diagnosis being 2000. The DBQ relates that the etiology of the erectile dysfunction was diabetes mellitus, type II. The Board finds the evidence is at least in equipoise as to whether the Veteran’s current bladder dysfunction/incontinence, erectile dysfunction and bowel dysfunction are proximately due to by his service-connected intervertebral disc syndrome, lumbar spine. In reaching this conclusion, the Board finds that the private medical evidence reflecting that the claimed disabilities are due to the Veteran's service-connected intervertebral disc syndrome, lumbar spine, has great probative value. The Board has also considered the lay evidence. By contrast, the Board finds that the June 2020 DBQs linking the Veteran's incontinence and erectile dysfunction to diabetic neuropathy and diabetes mellitus, and the June 2020 VA DBQ Medical Opinion that the Veteran had no sacral back condition and his diabetes and neuropathy are the likely etiology of the claimed disabilities, are not entitled to probative weight. The private medical evidence reflects that the Veteran had symptoms of the claimed disabilities many years before developing diabetes mellitus. Thus, the June 2020 DBQs and DBQ Medical Opinion are based on an incorrect or incomplete medical history. Moreover, the Veteran is now service-connected, secondary to his service-connected intervertebral disc syndrome, lumbar spine, for radiculopathy, left lower extremity, sciatic nerve; radiculopathy, left lower extremity, femoral nerve; radiculopathy, right lower extremity, sciatic nerve; and radiculopathy, right lower extremity, femoral nerve. Accordingly, as the evidence shows that the Veteran’s current bladder dysfunction/incontinence, erectile dysfunction and bowel dysfunction are proximately due to his service-connected intervertebral disc syndrome, lumbar spine, secondary service connection for each of these disabilities is granted. 38 C.F.R. § 3.310. REASONS FOR REMAND Service connection for bilateral foot condition, claimed as secondary to service connected intravertebral disc syndrome, lumbar spine, is remanded. The Board remands this claim for an adequate VA medical opinion. The June 2020 VA DBQ Medical Opinion relates that the Veteran's service-connected intervertebral disc syndrome, lumbar spine, does not cause the Veteran's metatarsalgia, but fails to address whether the service-connected intervertebral disc syndrome, lumbar spine, aggravates the Veteran’s metatarsalgia. Accordingly, another VA medical opinion must be obtained. The requested VA medical opinion must also address whether the Veteran’s metatarsalgia is aggravated by the Veteran's now-service-connected radiculopathy, left lower extremity, sciatic nerve; radiculopathy, left lower extremity, femoral nerve; radiculopathy, right lower extremity, sciatic nerve; and radiculopathy, right lower extremity, femoral nerve. Since this claim is being remanded, the eFolder should be updated to include all outstanding VA treatment records. The matter is REMANDED for the following action: 1. Obtain and associate with the Veteran’s eFolder copies of all outstanding VA treatment records. 2. Obtain an addendum opinion from an appropriate clinician regarding whether it is at least as likely as not that: (a) the Veteran’s metatarsalgia is aggravated by (defined as any increase in disability) the Veteran’s service-connected intervertebral disc syndrome, lumbar spine or related/secondary disabilities; If aggravation is present, the clinician should indicate the approximate level of disability (baseline) before the onset of the aggravation. The clinician should provide a complete rationale for each opinion. 3.Confirm that the VA medical opinion provided comports with this remand, specifically that the standard for the secondary aggravation opinions is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If the VA medical opinion does not comport with the remand, another addendum medical opinion must be obtained. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If any benefit sought on appeal is not granted to the Veteran’s satisfaction, send the Veteran an SSOC. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Davitian, 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.