Citation Nr: 21067920 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 16-53 269A DATE: November 8, 2021 ORDER As new and material has been received sufficient to reopen the previously denied claim for service connection for a lumbar spine disorder, the application to reopen this claim is granted. REMANDED Entitlement to service connection for a lumbar spine disorder is remanded. Entitlement to service connection for a right ankle disorder is remanded. FINDINGS OF FACT 1. In an unappealed July 1970 rating decision, the Veteran was denied service connection for a lumbar spine disorder. A subsequently unappealed March 2003 rating decision continued the denial. 2. Evidence received since the March 2003 decision relates to an unestablished fact necessary to substantiate the Veteran's claim for service connection for a lumbar spine disorder. CONCLUSIONS OF LAW 1. The March 2003 rating decision that denied service connection for a lumbar spine disorder is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. Evidence received since the March 2003 rating decision is new and material and serves to reopen the Veteran's claim of entitlement to service connection for a lumbar spine disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1968 to August 1969. In November 2021, the Veteran was provided a hearing before the undersigned Veterans Law Judge (VLJ). 1. Whether new and material evidence has been received sufficient to reopen the previously denied claim for service connection for a lumbar spine disorder. Generally, a claim that has been denied in an unappealed Regional Office (RO) decision or an unappealed Board of Veterans' Appeals (Board) decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception is that 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 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). The Board has jurisdictional responsibility to determine on its own whether there is new and material evidence to properly reopen a service-connection claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)); see also Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996). The submission of "new and material" evidence is a jurisdictional prerequisite to the Board's review on the merits of a previously-denied claim. 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). The Veteran's claim for service connection for a lumbar spine disorder was denied initially in a July 1970 rating decision. No appeal was filed, and no evidence or new service records were received within one year of the July 1970 rating decision. Accordingly, the July 1970 rating decision became final. The March 2003 rating decision continued the denial for service connection for a lumbar spine disorder. No appeal was filed, and no evidence or new service records were received within one year of the March 2003 rating decision and it became final. The March 2003 rating decision is the most recent final denial regarding the claim for service connection for a lumbar spine disorder. In December 2013, the Veteran submitted his current claim for service connection for a lumbar spine disorder. Such claim has been construed as a request to reopen the previously denied claim for a lumbar spine disorder. The pertinent evidence of record at the time of the March 2003 rating decision included the Veteran's service treatment records (STRs). The evidence received since that rating decision includes a June 2014 VA examination report, VA treatment records, and November 2021 Board hearing testimony. This evidence is new because it was not previously associated with the claims file. This evidence also relates to unestablished facts necessary to substantiate the Veteran's claims for service connection for a lumbar spine disorder. Accordingly, the Veteran's claim for service connection for a lumbar spine disorder is reopened. REASONS FOR REMAND 1. Entitlement to service connection for lumbar spine and right ankle disorders are remanded. In June 2014, the Veteran underwent a VA examination to evaluate the etiology of his lumbar spine and right ankle disorders. The same VA examiner evaluated the Veteran for both disorders. The examiner diagnosed the Veteran with right ankle strain and degenerative arthritis of the lumbar spine and generally rendered a negative nexus opinion. The examiner stated that there was no evidence of osteomyelitis on X-ray of the right ankle in June 2014 and the claims were not supported by the current available medical literature. Thereafter, in August 2016, the Veteran was provided another VA medical opinion regarding his right ankle to address both direct and secondary service connection. The examiner again rendered negative nexus opinions. The examiner explained that the Veteran's in-service symptoms were regarding the skin of the right foot and only affected the soft tissue and there was no basis to connect a soft tissue condition with a joint problem. The examiner explained further that the Veteran's cellulitis condition in service was an acute occurrence that healed and there were no residuals. In spite of the opinions rendered above, the Board finds that the current evidence of record is insufficient to adequately adjudicate the Veteran's claims for service connection for the lumbar spine and right ankle. In pertinent part, although the June 2014 VA examiner rendered a nexus opinion, no substantive rationale was provided beyond a generic reference to unidentified medical literature. The Board emphasizes that a reference to medical literature alone, without a discussion of the specific facts as to causation or etiology does not provide competent evidence sufficient to support a medical nexus opinion. See Libertine v. Brown, 9 Vet. App. 521, 523 (1996). As such, the June 2014 VA examination is insufficient for rating purposes. The Board also finds the August 2016 VA examination insufficient for rating purposes because the examiner failed to consider and discuss relevant positive nexus evidence from September 1987 that suggests the Veteran's right ankle problems may have developed as a result of scar tissue status post-surgical drainage for cellulitis. Accordingly, remand is warranted for new VA examinations to evaluate the etiology of the Veteran's lumbar spine and right ankle disorders. The matters are REMANDED for the following actions: 1. Obtain a VA examination from an appropriate examiner to determine the nature and etiology of the Veteran's lumbar spine disorder. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All indicated tests should be accomplished and all clinical findings reported in detail. The examiner must opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's lumbar spine disorder had its onset in, or is otherwise related to, his active duty service. In rendering the above opinion, the examiner must consider and discuss the Veteran's April 1970 statement that he developed back trouble after falling from a windowsill and his November 2021 Board hearing testimony that he has had constant back pain since service and has tried various treatment methods, to include horse liniment, physical therapy, acupuncture, and a back brace. The examiner is advised that the Veteran is competent to report his symptoms or history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions should be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. Obtain a VA examination from an appropriate examiner to determine the nature and etiology of the Veteran's right ankle disorder. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All indicated tests should be accomplished and all clinical findings reported in detail. a) The examiner must provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's right ankle disorder had its onset in, or is otherwise related to, his active duty service, to include his in-service right foot cellulitis surgery. b) The examiner must provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's current right ankle disorder is a progression of his already service-connected right foot cellulitis. c) If the answer to paragraph (b) is negative, the examiner must provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's right ankle disorder was caused or aggravated by his service-connected right foot cellulitis. Aggravation in this context is defined as any increase in disability. In rendering the above opinions, the examiner must consider and discuss the Veteran's November 2021 Board hearing testimony and the September 1987 private physician statements that suggest the Veteran's right ankle disorder may have developed from the Veteran's in-service cellulitis and surgical drainage. The examiner is advised that the Veteran is competent to report his symptoms or history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions should be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Metzner, Paul 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.