Citation Nr: 21068615 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 16-45 422 DATE: November 10, 2021 ORDER The application to reopen the claim for service connection for a lower back condition is granted. REMANDED The issue of entitlement to a rating in excess of 10 percent for a right hip disability is remanded. The issue of entitlement to service connection for a left hip condition is remanded. The issue of entitlement to service connection for a lower back condition is remanded. FINDINGS OF FACT 1. An August 2013 rating decision denied the Veteran's claim of entitlement to service connection on a direct basis for a lower back condition and the Veteran was notified that month. 2. The Veteran did not appeal that decision, and new and material evidence was not added to the record within a year of the decision. Accordingly, that decision became final as of August 2014. 3. The Veteran filed a supplemental claim for entitlement to service connection for a lower back condition secondary to his already service-connected right hip disability. Thus, a Department of Veterans Affairs (VA) Regional Office (RO) did not make a new and material evidence determination to reopen the lower back claim. Instead, the RO treated the claim as a new one and denied service connection for a lower back condition secondary to the service-connected right hip disability in a January 2015 rating decision. 4. Evidence received since both the August 2013 and January 2015 rating decisions is new and material to the lower back condition claim and raises a reasonable possibility of substantiating the Veteran's claim. CONCLUSIONS OF LAW 1. The August 2013 rating decision that denied entitlement to service connection for a lower back condition is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1103. 2. The criteria to reopen the Veteran's claim for service connection for a lower back condition are met. 38 U.S.C. §§ 5103A, 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1968 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). There was a June 2021 Board hearing before the undersigned Veterans Law Judge (VLJ) and the transcript is of record. 1. The application to reopen the claim for entitlement to service connection for a lower back condition If a claim for entitlement to service connection has been previously denied and that submission is final, the claim can be reopened and reconsidered only if new and material evidence is presented. 38 U.S.C. § 5108. The preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1, 4 (1995), affd, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). Evidence is considered "new" when it was not previously submitted to agency decision makers. 38 C.F.R. § 3.156. It is considered "material" when the evidence, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. 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. Id.; Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The credibility of newly submitted evidence is presumed when determining whether a claim should be reopened. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Evidence that is merely cumulative of other evidence in the record cannot be new and material even if the evidence was not previously presented to the Board. See Maxon v. West, 12 Vet. App. 453, 459 (1999). In an August 2013 rating decision, the RO denied entitlement to service connection on a direct basis for a lower back condition because the Veteran's service treatment records did not contain complaints or treatment for the same. The Veteran did not file a notice of disagreement or submit new and material within one year, and the rating decision became final. 38 C.F.R. § 20.1103. The Veteran filed a supplemental claim for entitlement to service connection for a lower back condition secondary to his already service-connected right hip disability in July 2014. Because he had previously been denied service connection on a direct basis, the RO did not make a new and material evidence determination to reopen the lower back claim. Instead, the RO treated the claim as a new one and denied service connection for a lower back condition secondary to the service-connected right hip disability in a January 2015 rating decision. Subsequent to both the August 2013 and January 2015 rating decisions, additional evidence has been associated with the record. Specifically, a private physician letter which attributed the Veteran's current lower back condition to the rigors of his active-duty service was included in the record. See 9/15/2016 Medical Treatment Record-Non-Government Facility. The evidence is new because it was not previously submitted and material because it related to the previously unestablished fact that the rigors of service, when combined with the Veteran's preexisting pelvic discrepancy, could exacerbate lumbar spondylosis, cause facet syndrome, and result in the Veteran's ongoing lower back pain. Because the requirements of 38 C.F.R. § 3.156(a) are met, the claim of entitlement to service connection for a lower back condition is henceforth reopened. REASONS FOR REMAND If the VA orders an examination, then it must conduct a "thorough and contemporaneous medical examination." Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). All medical examinations ordered by the VA must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) ("[O]nce the Secretary undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided."). A medical opinion is adequate "where it is based on consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'" Stefl v.Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Similarly, this thorough examination must consider prior medical examinations and treatment. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). An adequate medical opinion does not contain only data and conclusions, "but also a reasoned medical explanation connecting the two." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Finally, 38 C.F.R. § 4.2 requires that if an examination report does not contain sufficient detail, "it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2; see Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing Board's duty to return inadequate examination report); Hicks v. Brown, 8 Vet. App. 417, 421 (1995) (inadequate medical evaluation frustrates judicial review). 1. The issue of entitlement to a rating in excess of 10 percent for a right hip disability is remanded. VA also has a duty to provide a contemporaneous examination when the evidence indicates the current rating may be incorrect, including when the veteran states the condition has worsened since the last VA examination. Snuffer v. Gober, 10 Vet. App. 400 (1997). Here, during the Board hearing, the Veteran stated that his right hip disability has worsened since his 2015 VA examination. See 6/24/2021 Hearing Transcript. Therefore, remand to obtain a contemporaneous examination is needed. 2. The issue of entitlement to service connection for a left hip condition is remanded. With respect to the claim of entitlement to service connection for a left hip condition, the Veteran was afforded one VA examination. That examiner opined that degenerative joint disease of the right hip does not cause necrosis of the femur head as experienced by the Veteran in his left hip. See 1/19/2015 CAPRI. However, the opinion was inadequate for VA purposes because it did not describe the disability in detail sufficient to enable the Board to make an adequate determination. Furthermore, the opinion was conclusory, failing to provide a reasoned medical explanation for why degenerative joint disease of the right hip would not cause necrosis of the femur head in the left hip. Thus, remand is warranted to obtain an adequate VA opinion. Moreover, the Board is required to consider all theories of entitlement to service connection raised by the evidence, and medical opinions must consider all the relevant evidence of record, including lay statements. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). In the instant case, the Veteran attributed his left hip condition to both the rigors of his active-duty service and his already service-connected right hip disability. However, the examiner did not opine upon whether the left hip condition was caused or aggravated by active-duty service or was aggravated by the service-connected right hip disability. Thus, for that reason as well, remand is necessary. 3. The issue of entitlement to service connection for a lower back condition is remanded. For the same reasons given above regarding service connection for a left hip condition, remand for a lower back condition is needed. One VA examination was conducted in furtherance of the Veteran's claim of entitlement to service connection for a lower back condition. That examiner opined that degenerative joint disease of the lower back was not caused by degenerative joint disease of the spine. See 1/19/2015. Instead, the examiner attributed the degenerative joint disease of the Veteran's spine to age. As was the circumstance in regard to the left hip condition, the examiner failed to describe the disability in detail sufficient to enable the Board to make an adequate determination and did not provide a reasoned medical explanation for why degenerative joint disease of the right hip would not cause degenerative joint disease of the spine. Additionally, the examiner did not opine upon whether the lower back condition was caused or aggravated by active-duty service or was aggravated by the service-connected right hip disability. Therefore, remand for an adequate opinion is warranted. The Board notes the opinion provided by the Veteran's private physician which attributed his lower back condition to the rigors of active-duty service. See 9/15/2016 Medical Treatment Record-Non-Government Facility. However, due to the speculative nature of the opinion, it too is inadequate for VA purposes. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Contact the Veteran and request that he identify any outstanding VA or private treatment records related to his claim. After obtaining the necessary authorization forms from the Veteran, obtain any pertinent records, and associate them with the claims file. Any negative response should be in writing and associated with the claims file. After associating all outstanding VA and private treatment records with the claims file: 2. Schedule the Veteran for a VA examination with an appropriate VA medical examiner to assess the current nature and severity of his right hip disability. Range of motion should be reported, including whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination or other symptoms resulting in functional loss. (a.) Based upon a review of the medical records, lay statements submitted in support of the claim, and/or statements elicited from the Veteran during the examination, state whether the Veteran experiences flare-ups of his service-connected right hip disability, and how he characterizes the additional functional loss during a flare. (b.) If the Veteran describes experiencing flare-ups, identify the: i. frequency; ii. duration; iii. precipitating factors; and iv. alleviating factors. (c.) Describe any neurological abnormalities associated with the right hip disability. (d.) Describe any other functional impairment separate and apart from limitation of range of motion. 3. Schedule the Veteran for a VA examination with an appropriate VA medical examiner to assess the current nature and severity of his left hip disability and issue a medical opinion regarding the Veteran's claim of service connection for a left hip disability. The entire claims file, including a copy of this Remand, must be made available to, and must be reviewed by, the examiner providing the opinion. Thereafter, the examiner should address the following: (a.) Please identify any current disability of the left hip. "Current" is defined as any condition identified since the filing of the claim in July 2014 to the present. "Disability" includes any diagnosable conditions as well as pain or symptoms that are not diagnosable but, nonetheless, cause functional impairment. (b.) For each disability identified in part (a.), please state whether it is at least as likely as not (50 percent probability or more) that the Veteran's current left hip disabilities were incurred in, caused by, aggravated by, or related to service. (c.) For each disability identified in part (a.), please state whether it is at least as likely as not (50 percent probability or more) that the Veteran's current left hip disabilities were proximately caused by his service-connected right hip disability. (d.) For each disability identified in part (a.), please state whether it is at least as likely as not (50 percent probability or more) that the Veteran's current left hip disabilities were aggravated (worsened beyond natural progression) by his service-connected right hip disability. The examiner should consider medical and lay evidence dated both prior to and since the filing of the claim in July 2014. The examiner must provide a complete rationale for any opinion rendered. If the examiner cannot provide an opinion without resort to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information or evidence, the limits of medical knowledge, etc.) 4. Schedule the Veteran for a VA examination with an appropriate VA medical examiner to assess the current nature and severity of his lower back disability and issue a medical opinion regarding the Veteran's claim of service connection for a lower back disability. The entire claims file, including a copy of this Remand, must be made available to, and must be reviewed by, the examiner providing the opinion. Thereafter, the examiner should address the following: (a.) Please identify any current disability of the lower back. "Current" is defined as any condition identified since the filing of the claim in July 2014 to the present. "Disability" includes any diagnosable conditions as well as pain or symptoms that are not diagnosable but, nonetheless, cause functional impairment. (b.) For each disability identified in part (a.), please state whether it is at least as likely as not (50 percent probability or more) that the Veteran's current lower back disabilities were incurred in, caused by, aggravated by, or related to service. (c.) For each disability identified in part (a.), please state whether it is at least as likely as not (50 percent probability or more) that the Veteran's current lower back disabilities were proximately caused by his service-connected right hip disability. (d.) For each disability identified in part (a.), please state whether it is at least as likely as not (50 percent probability or more) that the Veteran's current lower back disabilities were aggravated (worsened beyond natural progression) by his service-connected right hip disability. The examiner should consider medical and lay evidence dated both prior to and since the filing of the claim in July 2014, including Veteran statements that his lower back pain began in service and has continued since. The examiner must provide a complete rationale for any opinion rendered. If the examiner cannot provide an opinion without resort to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information or evidence, the limits of medical knowledge, etc.). S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sloley, Associate 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.