Citation Nr: 21064841 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 20-09 952 DATE: October 21, 2021 ORDER New and material evidence having been received, the previously denied claim of entitlement to service connection for a low back disorder is reopened. Service connection for a low back disorder is granted. FINDINGS OF FACT 1. In a final decision issued in October 2017, the Department of Veterans Affairs (VA) Regional Office (RO) denied the Veteran's claim of entitlement to service connection for a low back disorder. 2. Evidence added to the record since the final October 2017 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a low back disorder. 3. The Veteran has a current disorder of the low back which has been related to the Veteran's service-connected bilateral knee disabilities. CONCLUSIONS OF LAW 1. The October 2017 rating decision that denied service connection for a low back disorder is final. 38 U.S.C. § 7104; 38 C.F.R. §§ 20.1100(a), 20.1104. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a low back disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for a low back disorder have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1979 to December 1983. This matter comes before the Board on appeal from a January 2019 rating decision issued by the VA RO in North Little Rock, Arkansas which, in part, continued a previous denial of entitlement to service connection for a low back disorder. The Veteran disagreed with this decision and perfected this appeal. To the extent that the RO appears to have adjudicated the claim for service connection for a low back disorder on the merits, regardless of the RO's actions, the Board must still determine whether new and material evidence has been received. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Furthermore, as the RO has reopened the claim, no prejudice accrues to the Veteran, and the Board may proceed to adjudicate all claims on the merits. See generally Hickson v. Shinseki, 23 Vet. App. 394, 399 (2010). The Veteran testified at a virtual Board hearing in October 2021 before the undersigned Veterans Law Judge. General Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Calusa v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown , 7 Vet. App. 439, 448 (1995) (en banc). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Factual Background The Veteran contends that service connection is warranted for a low back disorder, either on a direct basis or as secondary to/aggravated by his service-connected bilateral knee disabilities. Service treatment records do show complaints of back pain in September 1981 but are negative for a chronic back disability. Post-service treatment records show complaints of upper back pain as early as January 2005 and complaints of low back pain as early as June 2013 (noting an onset a year and a half earlier). The Veteran submitted an initial claim for service connection for a low back disorder in October 2016. In connection with this claim, he submitted a March 2017 private magnetic resonance imaging (MRI) scan showing degenerative changes of the lumbar spine. While the claim was initially denied in an October 2017 rating decision, the Veteran sought to reopen the previously denied claim in September 2018. In connection with the September 2018 claim to reopen, the Veteran was afforded a VA spine examination in October 2018. Significantly, this examination shows a diagnosis of degenerative arthritis of the spine, noting an onset in March 2017 and the examiner opined that the claimed condition was less likely than not (less than 50 percent probability) proximately due to or the result of Veteran's service-connected left knee disability as the two conditions are not medically related. The examiner noted that the Veteran's low back disorder was a separate entity entirely from the service-connected condition left knee disability and unrelated to it and that the medical literature does not support a medical relationship. An addendum medical opinion was obtained in January 2019 addressing the direct aspect of the Veteran's claim. Significantly, the January 2019 medical opinion also found that the Veteran's low back disorder was not related to the Veteran's military service on a direct basis. Specifically, the examiner noted the in-service complaint of back pain in September 1981 but noted that this was related to spinal anesthesia after left knee arthroscopy and the records are further silent for a back condition until 2012. Back pain can occur acutely after spinal anesthesia, however back pain after a 31 year gap is separate and unrelated to spinal anesthesia. The examiner noted that the medical literature also does not support spinal anesthesia leading to spinal disc conditions as noted on the Veteran's MRI lumbar spine. Another medical opinion was obtained in January 2020 addressing the aggravation aspect of the Veteran's claim. Significantly, the January 2020 medical opinion also found that the Veteran's low back disorder was not related to the Veteran's military service on an aggravation basis. Specifically, the examiner noted that the medical evidence was not sufficient to support a determination of a baseline level of severity of the Veteran's back disorder. The Veteran's back history dates back to at least 2009, with surgery and a subsequent neural ablation documented. The knee conditions became progressive, leading to replacement remotely from the back. DJD (degenerative joint disease) of lumbar spine occurs in the majority of men over the age of 50. This number would increase dramatically for someone who has had a condition severe enough and long enough to warrant a surgical intervention and subsequent ablation. Therefore, it is less likely than not that the Veteran's DJD was aggravated beyond the natural course for such severe back issues. DJD was diagnosed at least as early as 2010 (imaging), if not previously diagnosed at time of surgery. The natural history of DJD of the spine is progressive and worsening. Also of record are VA and private treatment records dated through January 2021. Significantly, in a November 2018 VA treatment record the Veteran's treating physician wrote that the Veteran's chronic knee pain had contributed to a visibly altered gait, which had worsened his low back pain. 1. New and material evidence having been received, the previously denied claim of entitlement to service connection for a low back disorder is reopened. As above, the Veteran submitted an initial claim for service connection for a back disorder in October 2016. In an October 2017 rating decision, the RO denied service connection for a low back disorder, finding that there was no evidence of back problems during the Veteran's military service and there was no link between the Veteran's back disorder and his military service. The Veteran did not file a timely appeal or submit new and material evidence within a year of the rating decision as to the claims, thus, the October 2017 rating decision as to this claim became final. Generally, a claim which has been denied in an unappealed Agency of Original Jurisdiction (AOJ) decision is final and may not thereafter be reopened and allowed. 38 U.S.C.§ 7105 (c); 38 C.F.R. § 20.1100. One exception to this rule is that a previously denied claim may be reopened by submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R.§ 3.156. New and material evidence cannot 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 (a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low 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 ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. At the time of the October 2017 rating decision, evidence relevant to the claim included the Veteran's service treatment records as well as post-service VA treatment records dated through April 2017. Evidence received since the October 2017 rating decision includes the October 2018 VA spine examination report with accompanying medical opinions dated in January 2019 and January 2020 as well as VA and private treatment records dated through January 2021. This evidence raises a reasonable possibility of substantiating the claim as the evidence addresses the onset and etiology of his claimed low back disorder and his service-connected bilateral knee disabilities. Thus, the evidence is new and material, and the previously denied claim of entitlement to service connection claims for a low back disorder is reopened. 2. Service connection for a low back disorder is granted. Turning to the merits of the claim, the Board finds that the evidence of record is in favor of service connection for a low back disorder. As an initial matter, the Board finds that the Veteran has a current diagnosis of degenerative arthritis of the spine. Furthermore, there is medical evidence that such disability is related to the Veteran's military service. As above, the November 2018 VA treatment record shows that the Veteran's chronic knee pain had contributed to a visibly altered gait, which had worsened his low back pain. While the October 2018, January 2019, and January 2020 VA medical opinions found that the Veteran's low back disorder is not related to his military service on either a direct, secondary, and/or aggravation basis, these opinions do not consider the opinion concerning the Veteran's altered gait in the November 2018 VA treatment record. As such, the Board finds that these opinions are inadequate. Accordingly, in affording the Veteran the benefit of the doubt, the Board finds that the Veteran's low back disorder is related to the Veteran's military service. Therefore, service connection for a low back disorder is warranted. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board April Maddox, 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.