Citation Nr: 21061714 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 18-33 953 DATE: October 5, 2021 ORDER New and material evidence having been received, the petition to reopen the claim of entitlement to service connection for a lumbar strain with degenerative arthritis is granted. REMANDED Entitlement to a compensable rating for dry eye syndrome is remanded. Entitlement to service connection for a lumbar spine disorder is remanded. FINDINGS OF FACT 1. An unappealed December 2014 rating decision denied the petition to reopen the previously denied claim of entitlement to service connection for a lumbar strain with degenerative arthritis based on a finding that new and material evidence had not been presented to reopen the claim for entitlement to service connection and based on a finding that the persistent disability was not present in service and was not otherwise etiologically related to his active service; the claim for service connection was previously denied in a March 2014 rating decision. 2. The evidence associated with the claims file subsequent to the December 2014 rating decision is not cumulative nor redundant of the evidence previously of record, and relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a lumbar strain with degenerative arthritis. CONCLUSION OF LAW The December 2014 rating decision denying the claim for service connection for a lumbar strain with degenerative arthritis is final; new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a lumbar strain with degenerative arthritis. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1978 to November 1982. These matters come to the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) St. Paul, Minnesota. Jurisdiction of this appeal is currently with the RO in Atlanta, Georgia. The Veteran testified at a virtual video conference hearing before the undersigned Veterans Law Judge of the Board in May 2021. A transcript of the hearing has been associated with the claims file. Claim to Reopen Lumbar Strain with Degenerative Arthritis As a threshold matter, the Board must determine whether new and material evidence has been submitted to reopen a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial) A rating decision becomes final when it has not been appealed within the prescribed time period and when no additional material evidence was received within a year of the decision; the decision is not subject to revision on the same factual basis. 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In order to reopen a claim, there must be added to the record "new and material evidence." 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 neither be cumulative or 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. The law provides that new and material evidence necessary to reopen previously and finally disallowed claims must be secured or presented since the time that the claims were finally disallowed on any basis, not only since the time the claims were last disallowed on the merits. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). 38 C.F.R. § 3.156(a), which defines new and material evidence, requires that evidence raise a reasonable possibility of substantiating the claim in order to be considered "new and material," and defines material evidence as evidence, that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. The Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA will resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's claim for service connection for a lumbar strain with degenerative arthritis was originally denied in a March 2014 rating decision based on a finding that the evidence failed to establish a nexus between his lumbar spine disorder and any disease or injury during active service. Evidence considered in this rating decision included the Veteran's service treatment records, service personnel records, correspondence, and a February 2014 VA examination. The Veteran was notified of the decision, but did not file a formal notice of disagreement or submit new and material evidence during the appellate period. Rather, the Veteran submitted a June 2014 VA Form 21-526EZ, Fully Developed Claim seeking entitlement to service connection for a lumbar spine disorder. Therefore, the March 2014 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Veteran's petition to reopen his previously denied claim for entitlement to service connection for a lumbar strain with degenerative arthritis was denied in a December 2014 rating decision based on a finding that new and material evidence had not been received. Additionally, the RO determined that, although service treatment records reflect complaints, treatment, or a diagnosis similar to the disorder claimed, there was no persistent disability present in service and a nexus between his currently diagnosed disorder and service was not established. Additional evidence considered in this rating decision included the Veteran's June 2014 claim, post-service treatment records, and correspondence. The Veteran was notified of the decision but did not file a formal notice of disagreement or submit new and material evidence during the appellate period. Rather, the Veteran submitted an August 2015 VA Form 21-526EZ, Fully Developed Claim seeking entitlement to service connection for a lumbar spine disorder. Therefore, the December 2014 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. With regard to the March 2014 and December 2014 rating decisions, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no relevant evidence pertaining to the Veteran's claim for service connection was received prior to the expiration of the appeal period stemming from the March 2014 and December 2014 rating decisions. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Moreover, no additional relevant service records (warranting reconsideration of the claim) have been received at any time. See 38 C.F.R. § 3.156(c). The Veteran filed the instant petition to reopen his claim for entitlement to service connection for lumbar spine disorder, which was received by VA in August 2015. The pertinent evidence that has been received since the December 2014 rating decision includes continuing post-service treatment records, an October 2017 VA etiology opinion and Board hearing testimony. Presuming the credibility of the Veteran's sworn testimony before the Board, the Board finds that the evidence is new and material. In this regard, it has not been previously considered by VA and it raises a reasonable possibility of substantiating the claim of entitlement to service connection for a lumbar spine disorder. The claim for service connection for a lumbar spine disorder was previously denied because there was no evidence showing that the lumbar spine disorder was etiologically related to active service. However, the Veteran testified that during his service, he injured his low back and has experienced intermittent and ongoing pain since. Specifically, the Veteran testified that he lifted or twisted his back and caused pain pursuant to his military occupational specialty (MOS) as a heavy equipment operator. Accordingly, reopening of the claim of entitlement to service connection for a lumbar spine disorder is warranted. REASONS FOR REMAND 1. Increased Rating Dry Eye Syndrome The Veteran was most recently afforded an examination for his dry eye syndrome in October 2017. At his May 2021 Board hearing, it was indicated that the Veteran's dry eye syndrome had worsened since his most recent VA examination. As the above evidence indicates a possible worsening of that the Veteran's dry eye syndrome since his last VA examination, an additional examination should be afforded to gauge the current level of severity of his disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). 2. Service Connection Lumbar Spine Disorder The Veteran seeks entitlement to service connection for a lumbar spine disorder. As noted above, the Veteran testified at his Board hearing that he lifted or twisted his back and caused pain pursuant to his MOS as a heavy equipment operator. The Veteran was afforded a VA examination in February 2014. At that time, the examiner opined the Veteran's lumbar spine disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In this regard, the examiner noted that the rationale was in the medical records. Specifically, the examiner noted that the service treatment records showed the Veteran's lumbar spine disorder was episodic, indicating acute and transitory symptoms and found a 33 year gap between the Veteran's last service treatment record from 1981 and the 2014 VA examination. The examiner further noted that military examinations were normal, to include the Veteran's separation examination, and therefore the medical evidence did not establish a longitudinal trend. However, this examiner appeared to rely solely on the lack of medical treatment as evidence in support of this opinion. See Smith v. Derwinski, 2 Vet. App. 137, 140 (1992); see also Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007). This opinion is therefore inadequate to decide this claim. The Veteran was afforded a VA examination in October 2017. At that time, the examiner opined that the claimed lumbar spine disorder was less likely than not incurred in or caused by the claimed in-service injury event, or illness. In this regard, the examiner found that, while the Veteran sustained an injury to his lumbar spine during active service, there was no documentation of record that there was continued care and treatment of the initial back injury, that there was a 35 year gap and therefore, the examiner was unable to confirm the Veteran's lumbar spine injury was related to his in-service injury without resorting to mere speculation. In a February 2018 VA addendum opinion, the examiner opined that the Veteran's lumbar spine disorder was not related to his active service nor caused by the treatment found on active duty. In this regard, the examiner noted the Veteran's complaints of, and treatment for, back pain during active service, as well as post-service treatment records. Based on that history, the examiner found a medical nexus had not been established for the etiology of the degenerative changes of the lumbar spine noted in 1993 to the acute back strain during active service. The February 2018 VA examiner noted there was no history of trauma during active service to account for the currently diagnosed lumbar spine disorder because acute muscle strain would have no bearing on degenerative changes of the lumbar spine. However, this examiner failed to provide supporting rationale for the conclusions reached. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). This opinion is therefore inadequate to decide this claim. Based on the foregoing, the Board finds that a VA addendum opinion must be obtained to determine the nature and etiology of the Veteran's claimed lumbar spine disorder. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected dry eye syndrome. The record, to include a copy of this Remand, should be made available to the examiner, and all indicated tests should be conducted. The examiner should identify the nature and severity of all current manifestations of the Veteran's service-connected dry eye syndrome. The examiner should specifically address and determine whether the Veteran's dry eye syndrome manifests in incapacitating episodes and/or epiphora. A rationale for any opinion offered should be provided. 3. Following the receipt of outstanding records, schedule the Veteran for a VA examination to determine the nature and etiology of his claimed lumbar spine disorder. A copy of this remand must be provided to the examiner in conjunction with the examination. The need for further in-person physical examination is left to the discretion of the examiner. The examiner must respond to the following question: Is it at least as likely as not (50 percent or greater probability) that the Veteran's lumbar spine disorder, is of service onset or otherwise related to his military service, to include the lifting and twisting injury he sustained to his back as well as in-service physical activity? The examiner should also note the significance, if any, of the Veteran's September 1979 lower back strain. The examiner must address the Veteran's complaints of, and treatment for, lumbar spine pain during active service, and the Veteran's lay statements regarding the onset and continuity of his symptoms. The examiner must reconcile any conflicting medical evidence of record. The examiner is reminded that the lack of documented medical evidence in service, while probative, cannot serve as the sole basis for a negative finding. A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. A rationale should be provided for any opinion offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.