Citation Nr: 21071556 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 12-33 156 DATE: November 30, 2021 ORDER The claim for entitlement to service connection for a lower back condition is reopened. REMANDED Entitlement to service connection for a lower back condition is remanded. Entitlement to service connection for erectile disfunction (ED) is remanded. FINDINGS OF FACT 1. A May 1999 rating decision denied reopening the Veteran's claim of entitlement to service connection for a lower back condition. The Veteran received notice of the decision, did not appeal this decision, and new and material evidence was not received within one year after it was issued. 2. Additional evidence received since the May 1999 rating decision is new to the record, related to an unestablished fact necessary to substantiate the merits of the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a lower back condition. CONCLUSIONS OF LAW 1. The May 1999 rating decision denying reopening the claim for service connection for a lower back condition is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 19.52, 20.1103. 2. The criteria to reopen the claim of service connection for a lower back condition based on the receipt of new and material evidence have been met. 38 C.F.R. §§ 3.156, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1965 to July 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2010 and October 2015 rating decisions issued by a Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). Claims to Reopen Where service connection for a disability has been denied in a final decision, a subsequent claim of service connection for that disability may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 C.F.R. § 3.156(a). New evidence means evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the 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. See 38 C.F.R. § 3.156(a). 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). Whether new and material evidence has been presented sufficient to reopen entitlement to service connection for a lower back condition. The Veteran's claim of entitlement to service connection for a lower back condition was originally denied in a December 1968 rating decision. It was again denied in an August 1982 rating decision on the basis that the back condition was not incurred in or aggravated by service and was diagnosed too remote from service to be considered service connected. The claim was again denied based on a finding of no new and material evidence in May 1999. This rating decision noted the current lower back disability was a result of a post-service injury and there was no relationship to service found. The evidence of record at the time of the May 1999 rating decision included the Veteran's service treatment records (STRs), private treatment records, and statements from Dr. E.L.W. The Veteran did not file a notice of disagreement or submit additional relevant evidence within a year of this rating decision. Therefore, this rating decision is final. 38 C.F.R. § 20.1103. The Veteran submitted a claim for service connection for a lower back condition in July 2015. While the AOJ did not adjudicate whether new and material evidence was present, the Board finds that this is necessary as the claim was previously denied. The record contains a November 2020 VA opinion where the box is checked stating that the Veteran's low back condition is at least as likely as not incurred in or caused by the claim in service injury, event, or illness. This evidence is new, relates to an unestablished fact (a nexus to service) and shows a reasonable probability of substantiating the claim for service connection for a lower back condition. Therefore, the claim of entitlement to service connection for a lower back condition is reopened. REASONS FOR REMAND 1. Entitlement to service connection for a lower back condition is remanded. The Veteran contends that he suffered an injury to his back in service and that he has had continuous pain since then. See November 2015 Notice of Disagreement. His STRs confirm treatment for a back injury in 1966. A VA medical examination and opinion was obtained in August 2015. While the examiner diagnosed the Veteran with degenerative arthritis of the spine and intervertebral disc syndrome, he found the Veteran's back condition was more likely than not caused by a post service fall in 1981 which caused a herniated disc, requiring surgery. The examiner failed to address the Veteran's assertion of continuity of symptomatology for his back pain following his in-service injury. The Board remanded this appeal in September 2019 for a new VA opinion to address this lay statement. The Veteran attended a VA examination in November 2020. The examiner checked the box indicating that the Veteran's claimed condition was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. However, in the rationale, the examiner stated that the Veteran's herniated disc and IVDS are less likely than not to have been incurred during service. The examiner further stated that a post-service injury in 1981 was the likely event causing the Veteran's back pain. This opinion is internally inconsistent, and therefore clarification is required. In addition, the examiner did not address the Veteran's assertion of continuity of symptomatology for his back pain following his in-service injury, as directed in the September 2019 remand. As such, an additional opinion is required. See Stegall v. West, 11 Vet. App. 268 (1998). Additionally, in the November 2021 appellate brief, the Veteran's representative stated that the Board should consider whether the back condition is secondary to the Veteran's service-connected knee and ankle disabilities. No secondary service connection opinion has previously been obtained. As such, remand is required for a secondary service connection opinion. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). 2. Entitlement to service connection for ED is remanded. The Veteran contends that his ED is secondary to his service connected heart condition, diabetes mellitus, and posttraumatic stress disorder (PTSD), to include the medications he is taking for his PTSD. The VA obtained a July 2021 secondary service connection opinion addressing both causation and aggravation of ED by diabetes mellitus. However, the July 2021 secondary service connection opinion only addressed whether ED was proximately due to the service-connected heart disability; it did not address whether ED was at least as likely as not aggravated by the service-connected heart disability. In addition, the April 2012 secondary service connection opinion only addressed whether the Veteran's ED was attributable to service-connected PTSD; it did not address whether ED was at least as likely as not aggravated by PTSD, to include any medications he is taking for his PTSD. Therefore, these opinions are inadequate and new VA opinions are required. See El Amin v. Shinseki, 26 Vet. App. 136, 140-141 (2013); Barr v. Nicholson, 21 Vet. App. 303 (2007). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from a VA examiner regarding the nature and etiology of the Veteran's lower back condition. The claims file, including a copy of this Remand, must be made available to the examiner for review. The decision for an in-person examination of the Veteran is left to the discretion of the examiner. Following a review of the record, the examiner is asked to provide a response to the following (each opinion must be supported by rationale): (a.) Is the Veteran's lower back condition at least as likely as not (a 50 percent or greater probability) related to service? The examiner must address the Veteran's November 2015 assertion of continuity of symptomatology for his back pain following his in-service injury. (b.) Is the Veteran's lower back condition at least as likely as not caused by his service-connected bilateral knee disabilities? (c.) Is the Veteran's lower back condition at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his service-connected bilateral knee disabilities? (d.) Is the Veteran's lower back condition at least as likely as not caused by his service-connected bilateral ankle disabilities? (e.) Is the Veteran's lower back condition at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his service-connected bilateral ankle disabilities? A detailed explanation is required to support the opinion. A complete and thorough rationale must be provided for any opinions expressed with consideration given to all evidence of record. If the examiner is unable to offer the opinion requested, he or she must explain in detail why that is the case. If the inability to opine is due to the fact that the examiner lacks the expertise to render such an opinion, or due to the fact that some additional testing or information is needed, and possibly available, that would permit such an opinion, the examiner should clearly and specifically state so, and, if applicable, the examiner should also state precisely what additional testing or information is needed in order to render the requested opinion. 2. Obtain an addendum opinion from a VA examiner regarding the nature and etiology of the Veteran's ED. The claims file, including a copy of this Remand, must be made available to the examiner for review. The decision for an in-person examination of the Veteran is left to the discretion of the examiner. Following a review of the record, the examiner is asked to provide a response to the following (each opinion must be supported by rationale): (a.) Is the Veteran's ED at least as likely as not (a 50 percent or greater probability) caused by his service-connected heart disability? (b.) Is the Veteran's ED at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his service-connected heart disability? (c.) Is the Veteran's ED at least as likely as not caused by his service-connected PTSD, to include any medications taken for PTSD? (d.) Is the Veteran's ED at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his service-connected PTSD, to include any medications taken for PTSD? A detailed explanation is required to support the opinion. A complete and thorough rationale must be provided for any opinions expressed with consideration given to all evidence of record. If the examiner is unable to offer the opinion requested, he or she must explain in detail why that is the case. If the inability to opine is due to the fact that the examiner lacks the expertise to render such an opinion, or due to the fact that some additional testing or information is needed, and possibly available, that would permit such an opinion, the examiner should clearly and specifically state so, and, if applicable, the examiner should also state precisely what additional testing or information is needed in order to render the requested opinion. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Patrick, 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.