Citation Nr: 21002714 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 16-27 222 DATE: January 14, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for a back disability is reopened. Entitlement to service connection for a back disability, to include as secondary to service-connected right ankle disability, is granted. FINDINGS OF FACT 1. In a February 1996 rating decision, the Veteran’s claim of entitlement to service connection for a back disability was denied, and this denial was not appealed; evidence received since the February 1996 rating decision was not previously considered by agency decision makers; is neither cumulative or redundant of the evidence already of record; relates to unestablished facts; and raises a reasonable possibility of substantiating the Veteran’s claim for a back disability. 2. Resolving all doubt in the Veteran’s favor, his back disability was at least as likely as not caused by his service-connected right ankle disability. CONCLUSIONS OF LAW 1. The February 1996 rating decision, which denied service connection for a back disability, is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for a back disability. 38 U.S.C. § 5108; 38 C.F.R. § 3156. 3. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for a back disability, caused as secondary to service-connected right ankle disability, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1989 to July 1995. This appeal to the Board of Veteran’s Appeals (Board) arose from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office. This matter was last before the Board in November 2018 when it was remanded for further development. New and Material Evidence A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence is defined as existing evidence not previously submitted to the VA, and 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. Furthermore, in determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. New theories of entitlement are not a basis for reopening a claim, but if evidence supporting a new theory of entitlement constitutes new and material evidence, then VA must reopen the claim. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). Lay contentions to support new theories alone are not competent evidence, and cannot serve to support reopening of a claim. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Kahana v. Shinseki, 24 Vet. App. 428 (2011). In a February 1996 rating decision, VA denied the Veteran’s claim for service connection for a back disability as medical findings showed the Veteran did not have a current diagnosis of a spine condition. This decision was not appealed and is final. In 2011, the Veteran submitted another claim for a back condition, claiming it as secondary to his service-connected right ankle disability. Private medical records received as part of the Veteran’s 2011 claim show a diagnosis of lumbar degenerative disc disease and lumbar spondylosis. In addition, medical records from 2011 contain positive opinions regarding whether the Veteran’s back disability is related to his military service, including to his service-connected right ankle disability. The evidence referenced above was not received within the appeal period of the prior decision and is new as it was not previously before agency decision makers in February 1996. Moreover, it is salient to the Veteran’s new theory of entitlement regarding his back condition being related on a secondary basis to her service-connected right ankle disability. Thus, reopening the claim is warranted. Entitlement to service connection for a back disability Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires evidence showing: (1) the existence of a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In this case, the Veteran asserted that his back disability is related to his altered gait as a result of service-connected right ankle arthritis. Because the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board’s adjudication will consider only entitlement to secondary service connection. Thus, the question for the Board is whether the Veteran had a disability that was proximately due to or the result of, or was aggravated beyond its natural progress by, a service-connected disability. The record shows that the Veteran has a diagnosis of lumbar degenerative disc disease and lumbar spondylosis. Service treatment and post-service medical records show the Veteran had a right ankle sprain and recurring injury in service that led to service connection for post traumatic osteoarthritis of the right ankle. An October 2011 VA examination shows a positive nexus opinion, stating that the Veteran suffered a right ankle injury in service that required surgical intervention. The examiner explained that based on his/her clinical experience and medical literature, the Veteran’s impaired gait pattern with altered mechanics of his back due to his right ankle disability is more likely than not the cause of the back condition and disability. May 2015, February 2017, and February 2019 private medical opinions cited evidence throughout the record and also stated the Veteran’s lumbar condition was caused by his impaired gait and altered back mechanics due to his right ankle disability. The Veteran has also consistently and credibly reported that his right ankle disability affects his gait and increases his back pain. The Board notes that a March 2016 VA medical opinion provided a negative nexus; however, this opinion was deemed inadequate in the November 2018 Board remand as it did not address aggravation. An addendum opinion obtained in May 2019 repeated the same opinion from March 2016 and did not provide an opinion regarding the issue of aggravation per the November 2018 Board remand instructions. As such, the Board assigns minimal probative weight to the negative nexus opinions of record. The Board finds the October 2011 VA examination and subsequent private medical opinions of record that provide positive nexus opinions to be of substantial probative weight in this case. The VA examiner and private opinions of record were based on the examination of the Veteran and his back condition, a review of pertinent evidence of record, as well as the Veteran’s medical history and lay statements. In light of this, the Board finds there is sufficient evidence to show that the Veteran’s back disability is related on a secondary causation basis to his service-connected right ankle disability. As the evidence is at least in equipoise, the Board finds it appropriate to afford the Veteran the benefit of the doubt. Accordingly, service connection for a back disability as caused by the right ankle disability is granted. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Ariasaif, 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.