Citation Nr: 21071183 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 15-14 939 DATE: November 30, 2021 ORDER New and material evidence having been received, reopening of the claim for service connection for lumbar degenerative arthritis is granted. REMANDED Service connection for lumbar degenerative arthritis is remanded. FINDINGS OF FACT 1. In an April 2010 rating decision, the RO denied service connection for lumbar degenerative arthritis. The Veteran was notified of the decision in April 2010. However, the Veteran did not file a Notice of Disagreement (NOD) within one year of notification of the decision. 2. Evidence submitted since the April 2010 rating decision was not previously of record and relates to unestablished facts necessary to substantiate the claim of service connection for lumbar degenerative arthritis. CONCLUSIONS OF LAW 1. The April 2010 rating decision that denied the claim of service connection for lumbar degenerative arthritis is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Evidence received since the April 2010 rating is new and material and sufficient to reopen the claim of service connection for lumbar degenerative arthritis. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1965 to April 1967. This case is before the Board of Veterans' Appeals (Board) on appeal from an April 2013 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that decision, the RO denied reopening of the previously denied claim for service connection for lumbar degenerative arthritis because the evidence submitted was not new and material. In May 2013, VA received the Veteran's NOD. In August 2015, the RO issued a Statement of the Case (SOC). In September 2015, VA received the Veteran's VA Form 9 appeal to the Board. In May 2018, the Board remanded the case for further development and adjudicative action. At the outset, the issue of service connection for posttraumatic stress disorder (PTSD) was previously on appeal. However, in a September 2021 rating decision, the RO granted service connection for PTSD and assigned an initial disability rating of 70 percent, effective July 21, 2009. As this constitutes a full grant of benefits sought on appeal, the issue of service connection for PTSD is no longer in appellate status. Furthermore, in a March 2012 statement, the Veteran contended that a purported denial of a claim for service connection for a low back disability by an August 1977 rating decision constituted clear and unmistakable error (CUE). As discussed in the "New and Material Evidence" section below, however, the August 1977 rating decision did discuss evidence of in-service low back treatment. In the March 2012 statement, the Veteran provided argument that the August 1977 rating decision contained error because allegedly pertinent records "were not used as evidence for my claim in 1977." As the Board does not currently have jurisdiction over this issue, it is referred to the Agency of Original Jurisdiction (AOJ or RO) for appropriate action. New and Material Evidence Whether new and material evidence has been received sufficient to reopen the previously denied claim of service connection for lumbar degenerative arthritis. After a decision becomes final, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. Material evidence, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence cannot be cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable probability of the substantiating the claim. 38 C.F.R. § 3.156(a). The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). Newly submitted evidence is generally presumed to be credible for the purposes of reopening a claim. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required for each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). The threshold for determining whether evidence raises a reasonable possibility of substantiating a claim is low. Id. at 117-18. In July 1977, VA received a formal claim for service connection for an abdominal hernia "and all other disabilities of record." In an August 1977 rating decision, the RO denied service connection for excision, patient urachus and a nervous condition only. However, the rating decision also addressed in-service evidence of low back symptoms and stated that the Veteran "had episodes of acute injuries without chronic residuals." In any case, the Veteran was notified of the decision August 1977 and did not submit an appeal or new and material evidence within one year of notification of the decision. Therefore, the August 1977 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.1103. In July 2009, VA received a claim for service connection for a low back disability. In an April 2010 rating decision, the RO denied service connection for lumbar degenerative arthritis (claimed as low back pain). Specifically, the RO concluded that the Veteran's low back problems predated service and had not been aggravated during service. Furthermore, the RO concluded that there was no evidence that the Veteran's lumbar degenerative arthritis had manifested to a compensable degree within one year of separation from service. The Veteran received notification of the decision in April 2010. However, he did not file an appeal or submit new and material evidence within one year of notification of the decision. Accordingly, the April 2010 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.1103. In January 2012, VA received a new claim for service connection for "L5 spondylosis." January 2012 Veteran's Supplemental Claim for Compensation. In a March 2012 rating decision, the RO denied reopening of the claim for service connection for lumbar degenerative arthritis (also claimed as L5 spondylosis) because new and material evidence had not been received. The Veteran received notification of the decision in March 2012. In March 2012, within one year notification of the March 2012 rating decision, VA received a correspondence indicating that the Veteran disagreed with the March 2012 rating decision. As such, the March 2012 correspondence constitutes an informal NOD with the March 2012 rating decision, rendering the decision non-final. In the March 2012 statement, as noted in the Introduction, the Veteran also alleged clear and unmistakable (CUE) evidence in the August 1977 rating decision with regard to the issue of service connection for a low back disability. Nonetheless, the RO interpreted the March 2012 correspondence as a new claim for benefits. In an April 2013 rating decision, the RO denied reopening of the claim for service connection for lumbar degenerative arthritis because new and material evidence had not been received. Given the above, the April 2010 rating decision is last final decision by the RO of record. The evidence of record at the time of the April 2010 rating decision included service treatment records (STRs), VA treatment records, and a February 2010 VA spine examination. The evidence received since the April 2010 rating decision includes additional VA treatment records, a May 2017 statement by the Veteran regarding the circumstances of his claimed in-service low back injury, and May and August 2021 VA examination reports. The evidence received after the April 2010 rating decision relates to unestablished facts necessary to substantiate the claim and is not cumulative or redundant. In this regard, this evidence, and in particular the May 2017 statement from the Veteran, relates to a theory of in-service onset rather than aggravation of a preexisting low back disability. Therefore, it is new and material and reopening of the previously denied claim for service connection for lumbar degenerative arthritis is warranted. REASONS FOR REMAND Entitlement to service connection for lumbar degenerative arthritis and L5 spondylosis. The Veteran asserts that he suffered a low back injury as a result of a personal assault during service. In this regard, he has stated that he was kicked in the back repeatedly in an assault by several superior officers during boot camp. See March 2021 Appellant brief. The Veteran has also stated that in-service duties including running during training exercises, stocking supplies, and a fall from a ladder put strain on his low back. See July 2009 Veteran statement. Initially, the Veteran's entrance examination provides no evidence of any lumbar spine disability present at entrance into service. See Service Treatment Records (STRs) dated February 1, 1965. However, on March 1, 1965, the Veteran was transferred to a 4012A medical holding company due to an apparent "deformity" of the lumbar spine. STRs dated March 1, 1965. During the period on appeal, the Veteran received an initial VA examination for his lumbar degenerative arthritis in July 2021. Furthermore, in addition to an opinion associated with the July 2021 VA examination, an August 2021 VA opinion is of record. The July 2021 examiner provided diagnoses of lumbosacral strain, thoracic kyphoscoliosis, and bilateral lumbar radiculopathy at the L5 vertebrae. Notably, the examiner did not conduct imaging studies for the Veteran's low back. However, a February 2016 MRI of the Veteran's lumbar spine revealed a diagnosis of lumbar degenerative arthritis. See VA MRI report dated February 26, 2016. A January 2011 MRI also noted degenerative lumbar spondylosis. See VA MRI report dated January 4, 2011. More recently, a June 2021 MRI report noted similar findings. See VA MRI report dated June 9, 2021. The July 2021 examiner concluded that the Veteran had a lumbar strain that preexisted service; however, the examiner did not state that the lumbar strain clearly and unmistakably preexisted service and was clearly and unmistakably not aggravated during service. As the July 2021 opinion failed to apply the correct legal standard, the RO sought an additional opinion for the Veteran's low back claim. In August 2021, the additional opinion was associated with the claims file. In pertinent part, the August 2021 examiner concluded that the Veteran's "condition of the lumbar spine" clearly and unmistakably preexisted service and was clearly and unmistakably not aggravated during service. The examiner cited numerous in- and post service treatment records in support of the opinion. As noted above, the Veteran has a current diagnosis of degenerative lumbar arthritis. This disability is separate and distinct from the lumbar strain noted during service. In this regard, a diagnosis of arthritis requires x-ray evidence. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Outside of a March 1965 x-ray that was "questionable" for L5 spondylosis, there is no conclusive evidence that the Veteran had a diagnosis of arthritis during, or prior to, service. A March 9, 1965 STR reveals that the Veteran complained of pain in the area of the lumbar spine, purportedly related to a "congenital deformity." Although an x-ray taken at that time revealed "questionable" L5 spondylosis, a subsequent x-ray taken on March 18, 1965 was negative for lumbar spine abnormalities. Ultimately, the Veteran was diagnosed with a chronic lumbar strain, without mention of any spinal deformity or degenerative changes, and returned for full duty. Following service, the first indication of treatment for a low back disability is a November 1982 VA treatment record indicating a diagnosis of "lumbar disc syndrome" at the L5 vertebrae. VA medical certificate dated November 4, 1982. As there is an indication of a low back injury during service, remand for an additional opinion regarding whether the Veteran's degenerative lumbar arthritis is related to the Veteran's claimed in-service low back injury is warranted. In remanding this matter, no finding is made, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination regarding the etiology of his lumbar degenerative arthritis. The claims file, including a copy of this Remand, must be made available to the examiner and the examiner must indicate that the claims file was reviewed in the examination report. The examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's diagnosed lumbar degenerative arthritis is related to service. Specifically, the examiner should note that the Veteran has a current diagnosis of lumbar degenerative arthritis. Moreover, it is stipulated that the diagnosis of lumbar degenerative arthritis did not exist prior to service. (Continued on the next page) Furthermore, the examiner's opinion should address the Veteran's report of injury to his low back due to repeated kicking during an assault in boot camp and due to in-service duties of running, stocking supplies as well as a fall from a ladder. Additionally, the examiner should consider the November 1982 VA medical certificate noting a diagnosis of lumbar disc syndrome. In providing the requested opinion, the clinician should consider the Veteran's reported injury and symptoms in service and thereafter, including the nature of his reported injury and the onset, progression and severity of his reported 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 disabilities, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Small, Attorney Advisor 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.