Citation Nr: 21064653 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 18-24 880 DATE: October 21, 2021 ORDER New and material evidence has been received to reopen the claim for entitlement to service connection for a back disorder. REMANDED Entitlement to service connection for cervical spine disorder is remanded. Entitlement to service connection for back disorder is remanded. Entitlement to service connection for left shoulder disorder is remanded. Entitlement to a rating in excess of 10 percent for a right knee disability is remanded. Entitlement to a rating in excess of 10 percent for a left knee disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. A September 2011 rating decision denied service connection for a back disorder. The Veteran did not perfect an appeal of that rating decision and new and material evidence was not received within one year of its issuance. 2. Evidence received more than one year since the September 2011 rating decision is neither cumulative nor redundant of evidence at the time of the prior decision and raises a reasonable possibility of substantiating the Veteran's claim for entitlement to service connection for a back disorder. CONCLUSIONS OF LAW 1. The September 2011 rating decision in which the RO denied the claim of entitlement to service connection for a back disorder is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The previously denied service connection claim for a back disorder is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1977 to January 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2014 and June 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned in February 2021. Although the cervical spine disorder claim has been certified to the Board as "whether new and material evidence has been submitted to reopen a previously denied claim," the Board finds new and material evidence is not required. In this regard, the RO denied the Veteran's initial claim for entitlement service connection for a neck disorder, claimed as a pinched nerve in the neck in a July 2014 rating decision based on no evidence that the condition was incurred during service. In January 2015, prior to the expiration of the one-year appeal period, the Veteran filed a supplemental claim requesting that his claim be reopened to consider secondary service connection. A new and material May 2015 VA examination was conducted within one year of the July 2014 rating decision. Subsequently, in a May 2015 rating decision, the RO confirmed and continued the denial of service connection for a neck disorder for lack of in-service incurrence of a disease or injury and nexus, to include as secondary to his knee disability. New evidence, specifically a September 2015 Medical Center Report of Hospitalization regarding cervical stenosis was received within one year from the May 2015 rating decision. Lang v. Wilkie, 971 F.3d 1348, (Fed. Cir. 2020). Therefore, the July 2014 rating decision did not become final and has remained pending since the December 2013 claim. See 38 C.F.R. § 3.156(b). 1. New and material evidence has been received to reopen the claim for entitlement to service connection for a back disorder. The RO denied the Veteran's service connection claim for a back disorder in a September 2011 rating decision, and this rating decision was accompanied by a contemporaneous notification to the Veteran of his right to appeal the decision. The RO denied service connection for a back disorder, finding that there was no nexus between the Veteran's back disorder and his service-connected bilateral knee disability. The Veteran initiated an appeal of this denial, but after the issuance of the May 2013 Statement of the Case, the Veteran did not perfect a substantive appeal of this claim and new and material evidence was not received within the remainder of the appeal period. Thus, the September 2011 rating decision became final. 38 U.S.C. § 7105(c); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. On March 3, 2014, VA received a claim of entitlement to service connection for a back disorder. In a July 2014 rating decision, the claim was denied. The Veteran did not appeal that decision nor submit any new and material evidence within one year following notice. Ordinarily, this would mean that the July 2014 rating decision is a final and binding determination based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104 (a), 3.160(d), 20.1103. However, new evidence, specifically a November 2014 Medical Center Report of Hospitalization regarding lumbar stenosis was received within one year from the July 2014 rating decision. The hospitalization report was generated by VA and is relevant to the Veteran's claim. Lang v. Wilkie, 971 F.3d 1348, (Fed. Cir. 2020). Therefore, the July 2014 rating decision did not become final and has remained pending since the March 2014 claim. See 38 C.F.R. § 3.156(b). A final denial of a service connection claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is defined as 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). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decision-makers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. Evidence received more than one year since the final September 2011 rating decision constitutes new and material evidence as to the Veteran's service connection claim for a back disorder. Specifically, in February 2021, the Veteran testified that his treating physician, Dr. C. informed him that his low back disorder is secondary to an altered gait caused by his service-connected bilateral knee disability. The Veteran's statements must be presumed credible for the purpose of reopening his claim. See Justus v. Principi, 3 Vet. App. 510, 512 (1992) (holding that evidence is presumed credible for the limited purpose of determining its materiality). This evidence is new, as it was not previously considered by the RO. The evidence is also material, as it is not cumulative or duplicative of evidence previously considered and it raises a reasonable possibility of substantiating the claim. As such, the Veteran has presented new and material evidence to reopen the previously denied claim of entitlement to service connection for a back disorder and the claim is reopened. REASONS FOR REMAND 2. Entitlement to service connection for a cervical spine disorder is remanded. The Veteran asserts that his current cervical spine (neck) disorder is due to in-service injury or in the alternative is caused by his service-connected bilateral knee disability. The Veteran was afforded a VA examination in May 2015, which included a diagnosis of degenerative arthritis of the cervical spine. In declining to opine as to the etiology of the neck disorder as it would require speculation, the examiner noted that there was no record of chronicity or recurrence of neck problems in the service treatment records (STRs). However, the Board notes complaints of neck pain in December 1977 (following a car accident), January 1979 (intermittent neck pain of three days duration, noting the December 1977 car accident), and March 1979 (neck stiffness). The Board finds the May 2015 VA examination to be inadequate because the examiner based his negative nexus opinion on the lack of documentation of chronicity of care for residuals related to the in-service complaints without addressing the Veteran's lay statements describing his difficulties since the in-service complaints or the multiple documented in-service complaints. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). As such, an addendum opinion is required on remand. Regarding secondary service connection, the May 2015 VA examiner opined that it is less likely than not that the Veteran's bilateral knee disability "would have any relation to his present neck problems." The Board finds this opinion to be insufficient, as the examiner did not provide adequate rationale, particularly in regard to an altered gait theory, and did not address the issue of secondary service connection based on aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 414 (2013). Accordingly, the Board finds that remand is warranted for an addendum opinion that more fully addresses the Veteran's circumstances and allegations secondary to his bilateral knee disability. 3. Entitlement to service connection for a back disorder is remanded. The Veteran asserts that his current back disorder is due to in-service injury or in the alternative is caused by his service-connected bilateral knee disability. The Veteran was afforded a VA examination in August 2011, which included a diagnosis of lumbar spine degenerative joint disease. In providing a negative opinion, the examiner opined that there were no in-service complaints of low back pain. However, a review of the Veteran's STRs reveals complaints of low back pain in June 1978 and March 1979. As such, an addendum opinion is required on remand. Reonal v. Brown, 5 Vet. App. 458, 460 (1993) (holding that medical opinions based on inaccurate factual premise have no probative value). Regarding secondary service connection, the August 2011 VA examiner opined that the Veteran's knee pain and altered gait may contribute to a lumbar spine problem. The Board finds this opinion to be inadequate to establish causal nexus in this case as it is well established that medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006). On remand, the VA examiner should address the August 2011 medical opinion. 4. Entitlement to service connection for a left shoulder disorder is remanded. The Veteran asserts that his left shoulder disorder is secondary to his cervical spine disorder. The Veteran testified that his cervical spine disorder included left upper extremity neurological pain that worsened following his cervical spine surgery. Thus, the Veteran's claim for service connection for a left shoulder disorder is inextricably intertwined with the issue of entitlement to service connection for a cervical spine disorder, which is remanded for further development. Therefore, a final decision on the issue of entitlement to service connection for a left shoulder disorder cannot be rendered at this time. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The duty to obtain a VA examination is triggered on remand, only if service connection is awarded for a cervical spine disorder. 5. Entitlement to a rating in excess of 10 for a right knee disability is remanded. 6. Entitlement to a rating in excess of 10 percent for a left knee disability is remanded. The most recent adjudication of these claims was in the February 2018 Statement of the Case (SOC). Subsequently, a relevant VA examination report was associated with the record in March 2021, after the Veteran's Board hearing. However, the agency of original jurisdiction did not readjudicate the Veteran's claim with consideration of such relevant evidence in a SSOC. As this evidence is not duplicative of evidence previously received and is relevant to the issues on appeal, the Veteran's claim must be remanded to the AOJ for consideration of such additional evidence and issuance of a SSOC. See 38 C.F.R. § 19.31. Notably, the Veteran has not waived initial RO consideration of such evidence in accord with 38 C.F.R. § 20.1304(c). Furthermore, the March 2021 VA examination report does not comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) (the examiner should "estimate the functional loss that would occur during flares."). The VA examination report relates that the Veteran denied flare-ups but also reflects that he essentially identified and described flare-ups while discussing his current symptoms, to include aggravated knee pain when he wakes up in the morning and sitting in a small space, such as a car for an extended period of time. See also February 2021 Board Hearing at 3; April 2017 and February 2018 VA examination reports. Thus, an addendum opinion is needed on remand that includes a Sharp-complaint retrospective opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 7. Entitlement to a TDIU is remanded. The issue of entitlement to TDIU has been raised by the record and is part and parcel of the increased rating claim on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Consideration of this issue must be deferred pending the above-requested development on inextricably intertwined issues. See Harris, supra. Any outstanding treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain all outstanding private treatment records, to include from Dr. C.. If any records are unavailable, notify the Veteran pursuant to 38 C.F.R. § 3.159(e). 3. Then obtain an addendum opinion regarding the etiology of the Veteran's back and neck disorder. No additional examination of the Veteran is necessary, unless the reviewing examiner deems otherwise. Following a review of the claims file, the examiner should address the following: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran's back and neck disorders had their onset in or are otherwise related to service? In addressing this question please discuss: (1) the service treatment record reflecting complaints of neck pain in December 1977 (following a car accident), January 1979 (intermittent neck pain of three days duration, noting the December 1977 car accident), and March 1979 (neck stiffness); (2) the service treatment record reflecting complaints of back pain in June 1978 and March 1979 (resolving bronchitis); (3) the Veteran's testimony as to neck pain since his December 1977 motor vehicle accident; and (4) his reports of back and neck pain since service that has continued to the present. In addressing this question, the examiner must assume items 3-4 as true, even despite the absence of "objective documentation." (b) Please state whether a nexus between the Veteran's lumbar spine degenerative joint disease and degenerative arthritis of the cervical spine with right upper extremity radiculopathy (see September 2011 and May 2015 VA examination reports) and service medically consistent with items (1)-(4) above. (c) For each diagnosed cervical spine and back disorder, please also opine as to whether it is at least as likely as not (50 percent or greater probability) such disorder is (1) is proximately due to or (2) aggravated (worsened) by his service-connected bilateral knee disability, to include based on an altered gait. The examiner must address the August 2011 VA examiner's opinion that the Veteran's knee pain and altered gait may contribute to a lumbar spine disorder. See also February 2021 Board Hearing at 18-20. In addressing secondary service connection, please note that the service-connected bilateral knee disability need not be diagnosed or service-connected at the time the neck and/or back disorder is incurred to establish secondary service connection, and reliance on this fact will render any secondary opinion inadequate. (d) If and only if a cervical spine disorder is attributed to service or a service-connected disability: (1) Identify all left shoulder diagnoses present, to include left subacromial bursitis secondary to impingement syndrome. If no diagnosis is rendered and only pain is identified, the examiner must indicate whether the Veteran's reported pain causes any functional impairment. (2) For each diagnosed left shoulder disorder or functional impairment identified, please opine as to whether it is at least as likely as not (50 percent or greater probability) such disorder is (1) is proximately due to or (2) aggravated (worsened) by his cervical spine disorder, to include surgeries to treat such disorder. In addressing secondary service connection, please note that the service-connected cervical spine disability need not be diagnosed or service-connected at the time the left shoulder disorder is incurred to establish secondary service connection, and reliance on this fact will render any secondary opinion inadequate. A complete rationale shall be given for all opinions and conclusions expressed. If unable to opine without resorting to speculation, please provide a rationale for that conclusion. 4. Then obtain an addendum opinion addressing the severity of the Veteran's bilateral knee disability during a flare-up. No additional examination is necessary, unless the examiner determines otherwise. The examiner is asked to address the following: Considering the Veteran's reported history, his February 2021 Board Hearing testimony at 3-10, April 2017, February 2018, and March 2021 VA examination reports, please also provide an opinion describing functional impairment of the Veteran's right and left knee due to flare-ups, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. A complete rationale shall be given for all opinions and conclusions expressed. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Forde, 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.