Citation Nr: 21070654 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 17-21 960 DATE: November 24, 2021 ORDER As new and material evidence has been submitted sufficient to reopen the previously denied claim for service connection for a lumbar spine disorder, the application to reopen this claim is granted. Service connection for bilateral plantar fasciitis as due to service-connected bilateral knee disorders is granted. Service connection for bilateral pes planus as due to service-connected bilateral knee disorders is granted. Service connection for a right ankle disorder as due to service-connected bilateral knee disorders is granted. Service connection for a left ankle disorder as due to service-connected bilateral knee disorders is granted. Service connection for a lumbar spine disorder as due to service-connected bilateral knee disorders is granted. FINDINGS OF FACT 1. In an unappealed September 2015 rating decision, the Veteran was denied service connection for a lumbar spine disorder. 2. Evidence received since the September 2015 decision relates to an unestablished fact necessary to substantiate the Veteran's claim for service connection for a lumbar spine disorder. 3. The evidence is at least in equipoise as to whether the Veteran's bilateral plantar fasciitis is etiologically related to his service-connected bilateral knee disorders. 4. The evidence is at least in equipoise as to whether the Veteran's bilateral pes planus is etiologically related to his service-connected bilateral knee disorders. 5. The evidence is at least in equipoise as to whether the Veteran's right ankle disorder is etiologically related to his service-connected bilateral knee disorders. 6. The evidence is at least in equipoise as to whether the Veteran's left ankle disorder is etiologically related to his service-connected bilateral knee disorders. 7. The evidence is at least in equipoise as to whether the Veteran's lumbar spine disorder is etiologically related to his service-connected bilateral knee disorders. CONCLUSIONS OF LAW 1. The September 2015 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 September 2015 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. 3. The criteria for service connection for bilateral plantar fasciitis have been met. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for bilateral pes planus have been met. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. The criteria for service connection for a right ankle disorder have been met. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 6. The criteria for service connection for a left ankle disorder have been met. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 7. The criteria for service connection for a lumbar spine disorder have been met. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1984 to May 1992. In July 2021, the Veteran was provided a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the record. At the hearing, the Veteran requested that the record be held open for 30 days for the submission of additional evidence. The Veteran's additional evidence was received in July 2021. The Board notes that the issue of entitlement to service connection for a left ankle disorder was previously denied as to direct service connection, only, in a January 2008 rating decision, and that decision is final. See 38 C.F.R. § 20.1100. The Veteran's current December 2015 claim, however, pertained to the theory of service connection for the left ankle as secondary to service-connected bilateral knee disorders. As the January 2008 rating decision did not address service connection for bilateral knee disorders on a secondary basis, new and material evidence is not needed to consider this alternative theory of entitlement. New and Material Evidence 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). 1. Whether new and material evidence has been received sufficient to reopen the previously denied claim for service connection for a lumbar spine disorder. The Veteran's claim for service connection for a lumbar spine disorder was denied initially in a September 2015 rating decision. No appeal was filed, and no evidence or new service records were received within one year of the September 2015 rating decision. Accordingly, the September 2015 rating decision became final. In January 2017, the Veteran submitted his current claim to reopen the previously denied issue of service connection for a lumbar spine disorder. The pertinent evidence of record at the time of the September 2015 rating decision included the Veteran's service treatment records (STRs), a September 2015 VA examination report, an August 2015 private nexus statement, and VA treatment records. The evidence received since that rating decision includes a March 2017 VA examination report, December 2017 private disability benefits questionnaire (DBQ), private medical evaluations, and July 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 claim for service connection for a lumbar spine disorder. Accordingly, the Veteran's claim for service connection for a lumbar spine disorder is reopened. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Service connection also may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). There are three requirements to establish service connection: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Secondary service connection is warranted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Briefly, the threshold legal requirements for a successful secondary service connection claim are: (1) evidence of a current disability for which secondary service connection is sought; (2) a disability for which service connection has been established; and (3) competent evidence of a nexus between the two. Although all of the evidence must be reviewed, only the most salient evidence must be discussed. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Persuasive or unpersuasive evidence must be identified, however, and reasons must be provided for rejecting favorable evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994), Wilson v. Derwinski, 2 Vet. App. 614 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Both medical and lay or non-medical evidence may be discounted in light of its inherent characteristics and relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). When there is an approximate balance of positive and negative evidence, the claimant must be afforded the benefit of the doubt. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. 1. Entitlement to service connection for bilateral plantar fasciitis, bilateral pes planus, and bilateral ankle disorders. The Veteran seeks entitlement to service connection for bilateral plantar fasciitis, bilateral pes planus, and bilateral ankle disorders, which he asserts are secondary to his service-connected bilateral knee disorders. See December 2015 Fully Developed Claim. The record reflects that the Veteran has current diagnoses for bilateral plantar fasciitis, bilateral pes planus, and arthritis of the bilateral ankles and he is service-connected for the bilateral knees. See August 2016 VA Examination reports. Accordingly, the first and second elements for secondary service connection are met. With respect to the final question of whether the Veteran's a bilateral plantar fasciitis, bilateral pes planus, and bilateral ankle disorders are related to his service-connected bilateral knee disorders, the Board finds the evidence of record reasonably establishes that a nexus exists. In pertinent part, from May 2015 to July 2021, the Veteran's private health care provider indicated that the Veteran's bilateral plantar fasciitis, bilateral pes planus, and bilateral ankle disorders were more likely than not caused by the Veteran's antalgic gait from the combination of his knee disorder and the daily Marine Corps training runs that he experienced in service while carrying 50 to 75 pound ruck sacks over tough terrain. The private health care provider noted that the Veteran had right knee surgery in 1987 and in the 1990s and walked with an antalgic gait. Consistent with the private medical provider's statements, the Veteran's October 2012 VA treatment records reflect that the Veteran's right knee caused a slight limp, instability, and lower extremity weakness. During that time, the Veteran indicated that his right knee problem had been chronic since service, he had knee surgery and his knee was never the same. In light of the foregoing, there is sufficient evidence to establish an etiological link between the Veteran's bilateral plantar fasciitis, bilateral pes planus, and bilateral ankle disorders and his service-connected bilateral knee disorders. The Board acknowledges the August 2016 VA negative nexus opinions regarding the Veteran's bilateral plantar fasciitis, bilateral pes planus, and bilateral ankle disorders. Significantly, however, these opinions only appear to address whether the Veteran's foot and ankle disorders were a progression of his knee arthritis. These opinions did not otherwise consider/discuss whether the Veteran's bilateral foot and ankle disorders developed as a result of his abnormal gait pattern caused by his bilateral knees. Accordingly, the Board affords these opinions very little to no probative value. The Board also acknowledges the September 2015 VA negative nexus opinion regarding the Veteran's left ankle disorder. This opinion, however, did not address whether the Veteran's left ankle disorder was etiologically related to his service-connected knee disorders. Accordingly, this opinion is also afforded very little to no probative value. In summary, the Board finds that the evidence is at least in equipoise as to whether entitlement to service connection for bilateral plantar fasciitis, bilateral pes planus, and bilateral ankle disorders, claimed as secondary to service-connected bilateral knee disorders, is warranted. Accordingly, entitlement to service connection for bilateral plantar fasciitis, bilateral pes planus, and bilateral ankle disorders as secondary to service-connected bilateral knee disorders is granted. 2. Entitlement to service connection for a lumbar spine disorder. The Veteran seeks entitlement to service connection for a lumbar spine disorder, and asserts that this disorder is secondary to his service-connected bilateral knee disorders. See December 2015 Fully Developed Claim. The record reflects that the Veteran has a current diagnosis for lumbar spine degenerative disc disease, and he is service-connected for the bilateral knees. See March 2017 VA Examination report. Accordingly, the first and second elements for secondary service connection are met. With respect to the final question of whether the Veteran's lumbar spine disorder is related to his service-connected bilateral knee disorders, the Board finds the evidence of record reasonably establishes that a nexus exists. In pertinent part, from August 2015 to July 2021, the Veteran's private health care provider indicated that the Veteran's lumbar spine disorder was more likely than not caused by the limp and poor posture from the Veteran's bilateral knee disorders. The private health care provider noted that the Veteran had right knee surgery in 1987 and in the 1990s and walked with an antalgic gait. Consistent with the private medical provider's statements, the Veteran's October 2012 VA treatment records reflect that the Veteran's right knee caused a slight limp and instability and he had right lower extremity weakness. During that time, the Veteran indicated that his right knee problem had been chronic since service, he had knee surgery and his knee was never the same. In light of the foregoing, there is sufficient evidence to establish an etiological link between the Veteran's lumbar spine disorder and his service-connected bilateral knee disorders. The Board acknowledges that, in March 2017, a VA examiner opined that the Veteran's lumbar spine disorder was not caused by his knee condition. This opinion, however, was conclusory and was not supported by an explanation or rationale. As such, this opinion regarding causation in a secondary service connection claim is not probative. It is noted, however, that the March 2017 VA examiner also opined that the Veteran's lumbar spine disorder was more likely than not aggravated by his right knee disability. The examiner explained that the right knee pain resulted in an antalgic gait pattern, which would affect posture and exacerbate the Veteran's lumbar spine pain resulting in his primary condition. This opinion is consistent with and supports the private health care provider's findings noted above. The Board also acknowledges the September 2015 VA negative nexus opinion regarding the Veteran's lumbar spine disorder. This opinion did not otherwise consider or discuss whether the Veteran's lumbar spine disorder developed as a result of the Veteran's abnormal gait pattern caused by his bilateral knees. Accordingly, the Board affords this opinion very little to no probative value. (Continued on the next page) In summary, the Board finds that the evidence is at least in equipoise as to whether the criteria for secondary service connection are met. Accordingly, entitlement to service connection for a lumbar spine disorders as secondary to service-connected bilateral knee disorders is warranted. 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.