Citation Nr: 21000711 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 18-45 909 DATE: January 6, 2021 ORDER New and material evidence having been presented to reopen a claim of entitlement to service connection for a back disability, and to that extent only, the claim is granted. New and material evidence having been presented to reopen a claim of entitlement to service connection for a left shoulder disability, and to that extent only, the claim is granted. REMANDED Entitlement to service connection for a back disability, to include as secondary to service-connected bilateral knee disability is remanded. Entitlement to service connection for a left shoulder disability, to include as secondary to service-connected bilateral knee disability is remanded. Entitlement to service connection for a sciatic disability of the left lower extremity is remanded. Entitlement to service connection for a sciatic disability of the right lower extremity is remanded. FINDINGS OF FACT An unappealed December 2006 rating decision denied service connection for both back and left shoulder disabilities. Since that decision, the Veteran has provided new and material evidence regarding the possible etiology of the claimed disabilities. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen a claim for service connection for a back disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. New and material evidence has been received to reopen a claim for service connection for a left shoulder disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from July 1961 to July 1981. 1. New and material evidence having been presented to reopen a claim of entitlement to service connection for a back disability, and to that extent only, the claim. 2. New and material evidence having been presented to reopen a claim of entitlement to service connection for a left shoulder disability, and to that extent only, the claim. 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. §§ 7104, 7105. However, if 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. 38 U.S.C. § 5108. 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). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In determining whether that threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA’s duty to obtain a VA examination. Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Regarding both the Veteran’s claims for service connection for a back disability and a left shoulder disability, a December 2006 rating decision denied service connection based on the lack of finding of an etiological relationship between either condition and the Veteran’s service-connected disabilities, namely the knees. The Veteran was notified of that decision and of his appellate rights. He did not submit any correspondence expressing disagreement with the RO decision within one year. 38 C.F.R. §§ 20.200, 20.201. In addition, no new and material evidence was received within one year. 38 C.F.R. § 3.156(b). Accordingly, the December 2006 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In July 2016, the Veteran filed a claim to reopen the previously denied claims for service connection for a back disability and a left shoulder disability. A December 2016 and July 2017 rating decisions denied the claims, again finding that there was no evidence of any etiological nexus between any current disabilities and his other service-connected disabilities. The Veteran filed a timely Notice of Disagreement (NOD) and substantive appeal (VA Form 9) and the claims are before the Board. The Board finds that a review of all of the evidence of record, to specifically include that submitted or acquired after the last/final denial of service connection does show evidence that can be considered both new and material, as to warrant reopening the claims. The Board notes that for a previously and finally denied claim to be reopened, the pending evidence meet both requirements of being new and material. 38 C.F.R. § 3.156(a). Here, the newly acquired evidence of record, include VA and private medical records, VA examinations, and statements/testimony, by the Veteran and his wife. The Board finds such evidence, to especially include the Veteran’s hearing testimony, to be considered both new, as it was not a part of the record prior to the previous decision, and material, as it does show a reasonable possibility of substantiating any previously undetermined fact. Specifically, the Veteran, unlike his previous claim, notes that that both his left shoulder condition and his back condition had been aggravated by his service-connected bilateral knee conditions, which has become worse in the past few years. As noted explicitly in the Veteran’s hearing testimony before the undersigned, the Veteran expressed that his increased reliance on assistive devices, to include a constant need of a cane/walker, has increased the severity of both his back and left shoulder pain and symptoms. The Board notes that such evidence, to specifically include the increased severity of his knee disabilities, developed after the last final denial in 2006, where there was no indication of the need for assistive devices, is considered new and material. Consequently, as the Veteran has advanced a new theory to entitlement, and as there is additional evidence to support the increased severity of his service-connected knee disabilities, the Board must find that new and material evidence sufficient to reopen both the Veteran’s claims for service connection has been submitted, and the claims must be reopened. 38 C.F.R. § 3.156. REASONS FOR REMAND 1. Entitlement to service connection for a back disability, to include as secondary to service-connected bilateral knee disability is remanded. With regard to the claim for service connection for a back disability, the Board finds that the most recently obtained VA examination and nexus opinion in January 2017 is inadequate, and remand is required to obtain additional opinion for the VA to fulfill the duty to assist the Veteran. The Board notes that the VA’s statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). When the medical evidence is inadequate, as it is here, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). The Board finds that the January 2017 VA examination fails in providing an adequate rationale with regards to addressing both secondary causation and aggravation. Specifically, the examiner’s opinion seems to mainly focus on both direct and secondary causation, noting that the Veteran’s condition is most likely hereditary and not due to any aspect of his service or his knee disabilities. To this end, the opinion seems to just past over, hastily, any discussion of secondary aggravation, especially with regards to the Veteran’s explicit claim of the increased in the severity of the Veteran’s knee disabilities, to include the use of the cane, aggravating his claim back symptoms. The Board finds that the VA examiner’s failure to explicitly discuss any rationale regarding secondary aggravation, to render such opinion to be inadequate. The Board finds that the same is found to again be true with regards to the February 2017 addendum opinion by the same examiner. In this regard, the addendum again mainly focused on providing additional findings and rationale regarding direct and secondary causation and provided no additional findings or rationale regarding secondary aggravation. Consequently, such addendum is also considered to be inadequate. As such, remand is required for the VA to fulfill its duty to the Veteran. 2. Entitlement to service connection for a left shoulder disability, to include as secondary to service-connected bilateral knee disability is remanded. Likewise, with regard to the claim for service connection for a left shoulder disability, the Board finds that the most recently obtained VA examination and nexus opinion in November 2016 to be inadequate, and remand is required to obtain additional opinion for the VA to fulfill the duty to assist the Veteran. Here, like the examination and opinion for the Veteran’s back, the VA examiner failed to even address secondary aggravation, rending the VA opinion inadequate. Also similar to the VA examination for the back, the VA examiner here, also failed to explicitly speak to the Veteran’s explicit assertion that the severe increased in the Veteran’s bilateral knee disabilities, to include the use to a cane, has significantly aggravated the Veteran’s left shoulder disability, by virtue of the use of the cane putting additional pressure on his shoulders. The Board finds that the failure of the VA examiner to address secondary aggravate renders such opinion inadequate for appellate review, and remand is required for further development to include acquiring an addendum opinion. 3. Entitlement to service connection for a sciatic disability of the left lower extremity is remanded. 4. Entitlement to service connection for a sciatic disability of the right lower extremity is remanded. The Veteran claims service connection for the left and right lower extremity disability of the sciatic nerve. The Board notes that such claim is directly related to the Veteran’s claim for a back disability. During his testimony before the undersigned, the Veteran explicitly noted that his back disability has recently increased causing pain to shoot down his bilateral lower extremities from his back. While the Board acknowledge that the most recent January 2017 VA examination for the back showed no radiculopathy, the Board notes that four years has passed since that examination, and the Veteran has explicitly noted that such symptoms has begun during the claims period. Therefore, the Board finds that claim is inextricably intertwined with the claim for service connection for a back disability. Where a claim is inextricably intertwined with another claim, the claims must be adjudicated together. Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, further consideration of the claim for the bilateral lower extremities must also be remanded. The matters are REMANDED for the following action: 1. Obtain all VA treatment medical records not already of record. 2. After obtaining appropriate authorization, obtain any private treatment records identified by the Veteran that are not already of record. 3. Then, schedule the Veteran for a VA examination for service connection for a back disability. The examiner must review the claims file and should note that review in the report. All testing deemed necessary should be performed. A complete rationale for all opinions should be provided in the examination report. The examiner is asked to provide opinions regarding the nature and etiology of the claimed back disability, to include a current diagnosis. The examiner should opine for each disability found, whether it is at least as likely as not (50 percent or greater probability) that the back disability was incurred in service or are the result of any incident in service. Additionally, for each disability, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the disability is due to or the result of any service-connected disabilities or any medications taken for service-connected disabilities, to specifically include the service-connected knee disabilities. For each disability the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the disability has been aggravated (permanently worsened beyond the natural progress of the disorder) by service-connected disabilities or any medications taken for service-connected disabilities, to specifically include the service-connected knee disabilities. The examiner should reconcile his/her opinion with previous opinions and should discuss prior diagnoses, and must explicitly discuss lay assertions from the Veteran, who was a corpsman during service. 4. Then, schedule the Veteran for a VA examination for service connection for a left shoulder disability. The examiner must review the claims file and should note that review in the report. All testing deemed necessary should be performed. A complete rationale for all opinions should be provided in the examination report. The examiner is asked to provide opinions regarding the nature and etiology of the claimed left shoulder disability, to include a current diagnosis. The examiner should opine for each disability found, whether it is at least as likely as not (50 percent or greater probability) that any left shoulder disability was incurred in service or are the result of any incident in service. Additionally, for each disability, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the disability is due to or the result of any service-connected disabilities or any medications taken for service-connected disabilities, to specifically include the service-connected knee disabilities. For each disability the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the disability has been aggravated (permanently worsened beyond the natural progress of the disorder) by service-connected disabilities or any medications taken for service-connected disabilities, to specifically include the service-connected knee disabilities. The examiner should reconcile his/her opinion with previous opinions and should discuss prior diagnoses, and must explicitly discuss lay assertions from the Veteran, who was a corpsman during service. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ziheng Zhu, 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.