Citation Nr: 21068553 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 19-29 599 DATE: November 10, 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 February 2016, the Board of Veterans' Appeals (Board) denied the Veteran's claim of entitlement to service connection for a low back disorder. 2. Evidence added to the record since the final February 2016 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 military service, to include his service-connected right knee disability. CONCLUSIONS OF LAW 1. The February 2016 Board decision that denied service connection for a low back disorder is final. 38 U.S.C. § 7104; 38 C.F.R. §§ 20.1100 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. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1974 to June 1994. This matter comes before the Board on appeal from a July 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (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. §§ 1110, 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 right knee disability. Service treatment records show that the Veteran was evaluated for low back pain for two weeks in February 1989 with a diagnosis of mechanical low back pain. He complained of back pain again in April 1989, but this was noted to be probable viral syndrome. Upon separation examination in December 1993, the Veteran reportedly had a normal spine and in a December 1993 report of medical history, the Veteran specifically denied "recurrent back pain." The Veteran submitted an initial claim for service connection for a back injury (pain when lifting) in July 1994. While the claim was initially denied in an August 1994 rating decision, the Veteran sought to reopen the previously denied claim in December 2010. The claim was again denied in October 2012 but, after appealing this decision to the Board, the Veteran was afforded a VA spine examination in September 2015. Significantly, the examiner found that the Veteran did not currently have, not had he ever been diagnosed with a thoracolumbar spine (back) condition. The examiner also opined that it was less likely than not (less than 50 percent probability) that the Veteran's claimed back disorder was caused by the claimed in-service injury, event, or illness. The examiner noted the in-service complaints of back pain but also noted that such was not a substitute for a diagnosis. In February 2016, the Board denied the Veteran's appeal concerning the back claim on the basis of no current back disability. In August 2016, the Veteran again sought to reopen the previously denied claim of entitlement to service connection for a back disorder. In connection with this claim, the Veteran submitted a May 2016 private X-ray of the lumbar spine showing moderate degenerative changes. The Veteran was afforded a VA spine examination in November 2016. Significantly, the examiner diagnosed degenerative arthritis and disc disease of the lumbar spine, noting an onset in 2016. The examiner also opined that the claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected right knee disability. As rationale for this opinion, the examiner noted that there was no objective evidence of a nexus between the currently diagnosed back condition and the right knee condition as the Veteran reported that both conditions began in service and the knee condition did not precede the back condition. As such, by rating decision dated in December 2016, the RO continued the previous denial of service connection for a low back disorder, both on a direct and secondary basis. In September 2017, the Veteran again sought to reopen the previously denied claim of entitlement to service connection for a back disorder. In connection with this claim, the Veteran submitted a September 2017 statement from Dr. S.M.B., wherein the physician noted that x-rays have demonstrated degenerative arthritis of the right knee, right hip, and lower back and opined that the Veteran's right knee, right hip, and lower spine conditions are more likely than not related to his previous service-connected injuries to his right knee. The Veteran was afforded a VA spine examination in October 2017. Significantly, the examiner diagnosed degenerative arthritis of the lumbar spine, noting an onset in October 2017. The examiner also opined that the claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected right knee disability as medical literature does not support arthritis in one joint causing arthritis in another joint. As such, by rating decision dated in November 2017, the RO continued the previous denial of service connection for a low back disorder. The Veteran disagreed with this decision but was never issued a statement of the case. In May 2018, the Veteran again sought to reopen the previously denied claim of entitlement to service connection for a back disorder. In connection with this claim, the Veteran submitted a March 2018 statement from Dr. W.S.M., wherein the physician opined that it was more likely than not that the Veteran's original injury at Fort Benning Georgia is the traumatic clinical nidus of all the issues related to not only his back but his right knee and right hip. It is almost 100 percent certain that these degenerative changes that affect the above listed body parts will continue to progress and require ongoing medical attention for the remainder of his life. By rating decision dated in July 2018, the RO continued the previous denial of service connection for a low back disorder. The Veteran disagreed with this decision and perfected an appeal. Also of record are VA and private treatment records dated through February 2020. These records show continued treatment for the Veteran's low back disorder. 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 injury (pain when lifting) in July 1994 and this claim has been denied on several occasions. Significantly, in February 2016, the Board denied service connection for a low back disorder, finding that there was no evidence of a current low back disorder. This decision is final. Generally, a claim which has been denied in an unappealed Board decision or 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 February 2016 Board decision, evidence relevant to the claim included the Veteran's service treatment records, post-service VA and private treatment records dated through September 2015, as well as the findings and medical opinions of a September 2015 VA examiner. Evidence received since the February 2016 Board decision includes the November 2017 VA spine examination report with accompanying medical opinion as well as the September 2017 and March 2018 private medical opinions submitted by the Veteran. This evidence raises a reasonable possibility of substantiating the claim as the evidence addresses the nature and etiology of his claimed low back disorder. 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 September 2017 private medical opinion shows that the Veteran's low back disorder is related to the Veteran's service-connected right knee disorder and the March 2018 private medical opinion shows that the Veteran's low back disorder is related to the Veteran's military service on both a direct and secondary basis. While the September 2015, November 2016, and October 2017 VA medical opinions found that the Veteran's low back disorder is not related to his military service on either a direct and/or secondary basis, these opinions do not consider the September 2017/March 2018 private medical opinions and also do not consider whether the Veteran's low back disorder is aggravated by his service-connected right knee disorder. 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.