Citation Nr: 21069982 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 12-02 723 DATE: November 22, 2021 ORDER New and material evidence having been received, the claim of service connection for a low back disability is reopened. REMANDED The issue of entitlement to service connection for a low back disability is remanded. The issue of entitlement to service connection for a bilateral lower extremity neurologic disability, to include as secondary to a low back disability, is remanded The issue of entitlement to service connection for a sinus disability is remanded FINDINGS OF FACT 1. In a June 2007 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) determined that new and material evidence sufficient to reopen a previously denied claim for service connection for a low back disability had not been submitted; the Veteran withdrew his appeal as to that decision and it therefore became final. 2. Since the June 2007 final rating decision, evidence has been associated with the claims file that is not duplicative or cumulative of evidence previously of record, relates to unestablished facts necessary to substantiate the claim for service connection for a low back disability, and, when presumed credible, raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The June 2007 rating decision, in which the RO denied declined to reopen a previously denied claim for service connection for a low back disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.1103. 2. As evidence received since the June 2007 rating decision is new and material, the criteria for reopening the claim for service connection for a low back disability have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from February 1965 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2010 and September 2011 rating decisions The procedural history of this case is a lengthy one that involves multiple actions by the Board and an appeal to and remand from, the United Stated Court of Appeals for Veterans Claims (Court). As the procedural history has been detailed at length in the prior actions in the appeal, it will only be repeated herein as necessary to explain the state of the issues currently before the Board. Upon remand from the Court in August 2020, by way of the Court's granting of a Joint Motion for Remand (Joint Motion), the Board, in March 2021, remanded the issue of whether new and material evidence had been received to reopen a previously denied claim for service connection for a low back disability, as well as the issues of entitlement to service connection for a bilateral lower extremity neurologic disability and for a sinus disability. Specifically, the Board determined that compliance with the terms of the parties' Joint Motion required the Board to remand issue of whether new and material evidence had been received to reopen a previously denied claim for service connection for a low back disability for the agency of original jurisdiction (AOJ) to adjudicate the matter in the first instance, and to remand the issue of entitlement to service connection for a sinus disability for the AOJ to obtain an addendum medical opinion. Upon remand from the Board, the AOJ issued a rating decision in September 2021 in which it determined that new and material evidence sufficient to reopen a previously denied claim for service connection for a low back disability had been received. The AOJ thus reopened the matter and denied that claim on the merits. That same month, the AOJ issued a supplemental statement of the case it which it continued to deny service connection for a low back disability, a bilateral lower extremity neurologic disability, and a sinus disability. Those matters were thereafter returned to the Board for further appellate consideration. Regarding the claim for service connection for a low back disability, as discussed below, the Board must first decide whether new and material evidence to reopen the previously denied claim for such has been received. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Given the favorable disposition, below, on the request to reopen, the Board has characterized the appeal as encompassing both the request to reopen and the underlying service connection claim, as set forth above. Request to Reopen As discussed in the Board's prior action in this appeal, the record reflects that the claim was last finally denied via rating decision dated in June 2007. Specifically, in that decision the RO determined that new and material sufficient to reopen a previously denied claim for service connection for a low back disability had not been presented. Although the Veteran had initially filed a notice of disagreement as to the June 2007 rating decision, the Veteran withdrew his appeal as to that claim in July 2007. Accordingly, the June 2007 rating decision therefore became final as to the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Thus, as a result of the finality of the June 2007 rating decision, the Veteran's claim for service connection for a low back disability may now be considered on the merits only if new and material evidence has been received since the time of the last final denial. 38 U.S.C. §§ 5108, 7104; Evans v. Brown, 9 Vet. App. 273 (1996); Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); 38 C.F.R. § 3.156. Section 3.156(a) of title 38, Code of Federal Regulations provides the following definitions of new and material evidence: New evidence means existing evidence not previously submitted to agency decisionmakers. 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 making the determination of materiality, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). To determine whether new and material evidence has in fact been submitted, the Board first must compare the evidence submitted since the previous final denial with evidence previously of record. If the newly submitted evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not merely cumulative of other evidence that was then of record, it will be considered new evidence under 38 C.F.R. § 3.156(a). If the evidence is in fact new, the Board will then consider whether it is also material. In this regard, the Board notes that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. See id. at 118, 124 (Lance, J. concurring). Since the claim was last finally denied, the Veteran was afforded a VA back examination in April 2021 that addressed the likelihood that the Veteran had a low back disability that was at least as likely as not related to service. The Board finds that the examination report is new in that it was not previously before VA adjudicators, and is not cumulative or duplicative of other evidence. The evidence is also material, in that it is relevant to the question of the whether the Veteran has a low back disability that is attributable to service. As such, this evidence is new and material within the meaning of 38 C.F.R. § 3.156(a). Under these circumstances, the Board concludes, as did the AOJ, that the criteria for reopening the previously denied claim for service connection for a low back disability are met. REASONS FOR REMAND With regard to the reopened claim for service connection for a low back disability, as noted above, the Veteran was afforded a VA back examination in connection with that claim in April 2021. A review of that examination report shows that the Veteran was diagnosed with degenerative arthritis, intervertebral disc syndrome, and bilateral lower extremity radiculopathy. In August 2021, the VA examiner provided a medical nexus opinion, opining that the Veteran's diagnosed conditions were less likely than not incurred in or caused by the low back pain during service. As rationale for that opinion, the examiner noted that a history of back pain in 1965 was indicated at the time of the Veteran's September 1968 discharge examination. The examiner stated that there was no other evidence of, or complaints related to, a back condition during service and no indication of any back problems post-service until 28 years after service when the Veteran sustained an on-the-job back injury. The examiner opined, therefore, that the Veteran current back condition is more likely due to the on-the-job injury than to his military service. The Board notes that when the VA Secretary provides the claimant with a VA medical examination or otherwise obtains a medical opinion, he must ensure that the examination provided or opinion obtained is adequate for purposes of the determination being made. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A VA medical examination or opinion is adequate if it is "thorough and contemporaneous," considers the veteran's prior medical examinations and treatment, and "describes the disability . . . 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)). Indeed, a "medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). In the instant case, the Veteran has asserted that while in service, in April 1966, he injured his back while bowling. In a VA Form 9 received in February 2021, he stated that his pain at the time of the in-service injury was severe and that when he was seen by a doctor, he was not given an x-ray; rather, he was simply instructed to rest. The Veteran reported that his back problems continued after the incident, noting that he complained of back time at the time of his discharge examination. He also indicated that "sometime" after being discharged, he sought treatment at the Beaumont VA outpatient clinic. Regarding his post-service on-the-job injury, the Veteran reported that he ruptured a disc and was informed by a doctor at that time that the earlier injury could have been responsible for the ruptured disc. The Veteran's service treatment records show that in April 1966, the Veteran presented with complaints of back pain after bowling two days prior. At that time, he was diagnosed with a muscle strain. At the time of his September 1968 discharge examination, the Veteran reported recurrent back pain. The evidence then shows that the Veteran underwent a lumbar laminectomy in September 1996 after sustaining a herniated disc on the job in 1996. Also of record, however, are several buddy statements, to include ones form the Veteran's brother and niece who reported that the Veteran complained of back pain after service and could no longer engage in activities like he used to before service. Notably, the VA examiner did not comment on this evidence. Rather, the examiner simply concluded that the Veteran's current back disabilities are not related to service simply because of the intervening on-the-job injury in 1996. Accordingly, as the examiner's rationale does not take into consideration the specifics of the Veteran's in-service injury, to include the Veteran's assertion that a doctor informed him at the time of his post-service injury that the service injury contributed to the herniated disc, nor does it consider the Veteran's lay statements or the buddy statements with regard to the continuity of symptoms post service, the Board cannot conclude that it is adequate to rely upon in this case. See Miller v. Wilkie, 32 Vet. App. 249, 258 (2020) (stating that "[t]he examiner must address the veteran's lay statements to provide the Board with an adequate medical opinion); Nieves-Rodriguez, 22 Vet. App. 295, at 304 ("most of the probative value of a medical opinion comes from its reasoning"). Accordingly, the Board finds that the claim for service connection for a low back disability must be remanded for the AOJ to obtain a new etiology opinion. See Barr, supra; 38 C.F.R. § 3.159(c)(4). Regarding the Veteran's claim for service connection for a bilateral lower extremity neurologic disability, the Board notes that an August 2015 VA examiner diagnosed the Veteran with bilateral lower extremity sciatica and stated that the sciatica was likely related to the Veteran's chronic low back condition. As such, the Board finds that the claim of service connection for a bilateral lower extremity neurologic disability is inextricably intertwined with the claim for service connection for a low back disability and must therefore be remanded as well. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). As to the Veteran's claim for service connection for a sinus disability, in a May 2019 decision, the Board denied the Veteran's claim for such. The Veteran thereafter appealed that denial to the Court and in August 2020, the Court granted the parties' Joint Motion to vacate the Board's May 2019 denial of service connection for a sinus disability. Specifically, the parties agreed that the report of an August 2015 VA examination, relied upon by the Board to deny service connection for a sinus disability, was not adequate because the August 2015 VA examiner did not address a March 1965 service treatment record showing that the Veteran had reported a cough for over a week. The parties agreed that the examiner's failure to address this evidence undermined the rationale provided for the negative nexus opinion. In order to comply with the terms of the parties' Joint Motion the Board, in March 2021, remanded the issue of entitlement to service connection for a sinus disability for the AOJ to obtain an addendum medical opinion. Specifically, the Board directed that a VA clinician was to offer an opinion as to whether it is at least as likely as not that the Veteran's sinus disability, to include allergic rhinitis, is causally related to the Veteran's active service, with attention paid to the instances of in-service treatment for upper respiratory infections, sore throat, and cough in March 1965, January 1966, October 1967, and September 1968. On remand from the Board, the Veteran was afforded a VA sinus examination in April 2021. A review of the examination report shows that the examiner diagnosed the Veteran with sinusitis. The examiner then opined that it is less likely than not that the Veteran has a sinus condition that was incurred in, or is otherwise caused by, service. As rationale for that opinion, the examiner noted that the Veteran was seen in 1966 and 1967 for complaints of symptoms suggestive of an upper respiratory infection. The examiner then stated that there was no other evidence of symptoms of sinusitis under 2012, approximately 44 years after separation from service, at which time the Veteran was noted as having a history of allergic rhinitis. Unfortunately, the Board cannot conclude that the April 2021 VA examiner's opinion report is adequate to rely upon in this case as the examiner makes no mention of the March 1965 service treatment record showing that the Veteran had reported a cough for over a week. As noted above, and as agreed to by the parties in their Joint Motion, it was the failure to mention this specific piece of evidence that rendered the prior VA examiner's negative nexus opinion inadequate to rely upon for adjudication purposes. As the April 2021 opinion reports suffers from the same deficiency, the Board has no choice but to again remand the matter for another addendum opinion, as set forth before. See Barr, supra; Stegall v. West, 11 Vet. App. 268, 270 (1998). The Board also notes that the April 2021 VA examiner gave no consideration to the Veteran's specific theory of the case. In the instant case, the Veteran has asserted his belief that his current sinus and respiratory problems are due to exposure to jet fumes and plumbing chemicals in service. As part of the opinion to be obtained on remand, the opining clinician must give consideration to this theory, to include a discussion of why such exposures would or would not have contributed, even in part, to the development of the Veteran's current sinus conditions. The matters are REMANDED for the following action: Arrange to obtain addendum opinions from appropriate clinicians concerning the Veteran's diagnosed low back and sinus disabilities, based on claims file review (if possible). Only arrange for the Veteran to undergo one or more VA examinations, by appropriate clinicians, if deemed necessary in the judgment of the individuals designated to provide the addendum opinions The contents of the entire, electronic claims file, to include a complete copy of this remand, must be made available to each designated clinician, and each addendum opinion/examination report should include discussion of the Veteran's documented medical history and assertions. Upon review of the claims file (and any examination of the Veteran, if deemed necessary), the designated clinicians should render the following opinions: Low Back Disability: With respect to the low back disabilities diagnosed by the April 2021 VA examiners, the clinician should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the disability had its onset during service, or is otherwise the result of disease or injury incurred in or aggravated by the Veteran's military service. In rendering the opinion, the clinician must address the Veteran's specific theory of the case, which is that he injured his back while bowling in service, which injury eventually contributed to a herniated disc on the job in 1996. The clinician must consider the Veteran's statement that he was told by a doctor at the time of the post-service on-the-job injury that his prior service injury contributed to the herniated disc. If the clinician disagrees with this assessment, he/she must provide specific reasons for such disagreement. In providing the opinion, the clinician must consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his injury and subsequent symptoms align with how the current disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? Sinus Disability: With respect to diagnosed sinus conditions, diagnosed as allergic rhinitis and sinusitis by VA examiners in August 2015 and April 2021, the clinician should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the disability had its onset during service or is otherwise is the result of disease or injury incurred in or aggravated by the Veteran's military service. (Continued on the next page) In rendering the opinion, the clinician must address the Veteran's specific theory of the case, which is that his sinus problems are attributable to in-service exposure to jet fuels and plumbing chemicals. The clinician must discuss the evidence showing in-service treatment for upper respiratory infections, sore throat, and cough in March 1965, January 1966, October 1967, and September 1968, which discussion should include a statement as to why these instance of treatment in service do or do not support a finding of service connection in this case. Each treatment entry must be addressed. Complete, clearly stated rationale for the conclusions reached must be provided. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Neilson, 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.