Citation Nr: 21072831 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 17-24 183 DATE: December 6, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for a low back disorder, is reopened. To this limited extent only, the appeal of this issue is granted. REMANDED Entitlement to service connection for a low back disorder is remanded. Entitlement to an initial compensable rating for herpes is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to May 21, 2021, is remanded. FINDINGS OF FACT 1. The Veteran's claim of service connection for a low back disorder was first denied in a March 1996 rating decision that was not appealed and no further evidence relevant to the Veteran's service connection claim was submitted for a period of one year following notification of the March 1996 rating decision. 2. The Veteran's claim of service connection for a low back disorder was subsequently denied again in a June 1998 rating decision that was not appealed and no further evidence relevant to the Veteran's service connection claim was submitted for a period of one year following notification of the June 1998 rating decision. 3. Evidence relevant to the low back disorder claim was submitted since the June 1998 rating decision; was not previously considered by agency decision makers; is neither cumulative nor redundant of the evidence already of record; relates to unestablished facts; and raises a reasonable possibility of substantiating the Veteran's claim for service connection for a low back disorder. CONCLUSION OF LAW New and material evidence has been received since the June 1998 rating decision denial became final; the criteria for reopening the previously denied claim for a low back disorder are met. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1985 to August 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a hearing in June 2021. A transcript is of record. In June 2021, the Veteran filed a claim for TDIU. The Veteran reported all of his service-connected disabilities prevent him from securing or following substantially gainful employment. In a September 2021 rating decision, the agency of original jurisdiction (AOJ) determined that entitlement to TDIU was moot because the Veteran received a combined 100 percent disability rating, effective May 21, 2021. The AOJ further noted that no potential entitlement to an earlier effective date for TDIU is warranted based on the record. However, the Veteran's claim for an initial compensable rating for his service-connected herpes originates from a January 2015 rating decision; his June 2021 TDIU application indicated all of his service-connected disabilities prevent him from securing and maintaining substantially gainful employment; and there is evidence the Veteran was unemployed prior to May 21, 2021. Resolving reasonable doubt in favor of the Veteran, the issue of entitlement to a TDIU prior to May 21, 2021 is not moot and is part and parcel of his claim seeking entitlement to an initial compensable rating for his service-connected herpes. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). New and Material Evidence If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, or new and material evidence is received during the appeal period after the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. A Board decision becomes final the date it is issued, which is the date stamped on the face of the decision. 38 U.S.C. § 511; 38 C.F.R. § 20.1100. VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). The threshold is low and does not require new and material evidence regarding each element of the claim that had not been proved in the prior final decision. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New evidence is defined as existing 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 Veteran filed his initial claim of service connection for a low back disorder in February 1996. The AOJ denied service connection for that claim in a March 1996 rating decision because the Veteran failed to appear for an examination. The Veteran did not appeal that decision, and did not submit new evidence within the one-year appeal period. The Veteran submitted correspondence in July 1997 requesting the AOJ reopen the March 1996 rating decision. The AOJ denied the Veteran's claim for service connection for a low back disorder in a June 1998 rating decision because service records did not contain complaints of back problems. In June 1998, VA associated VA generated medical records with the Veteran's claim file, within one year of the June 1998 rating decision that denied service connection for a low back disability; however, the records exclusively pertain to treatment of a sleeping disorder and are not relevant to the back claim. The Veteran did not appeal the June 1998 rating decision and did not submit new evidence within the one-year period. As such, the June 1998 rating decision became final. In January 2015, the Veteran requested the AOJ reopen the June 1998 rating decision. VA provided the Veteran a thoracolumbar spine examination in June 2015 and subsequently denied the Veteran's claim in the June 2015 rating decision that is on appeal. Reopening for the issue of service connection for a low back disorder is warranted. VA provided the Veteran an examination in June 2015 that addressed the etiology of the Veteran's low back condition. Since this evidence relates to the basis for the prior denial and raises a reasonable possibility of substantiating the Veteran's claim, the criteria for reopening the claim for a low back disability are met. REASONS FOR REMAND 1. Entitlement to service connection for a low back disorder is remanded. The Veteran contends his current low back disorder began while serving on active duty. Specifically, the Veteran contends he was standing near a parked car, which was hit by a drunk driver and the parked car then hit him. In the alternative, the Veteran contends his service-connected cervical spine disability caused or aggravated his low back injury. VA provided the Veteran an examination in June 2015 to determine the nature and etiology of his low back disorder. The June 2015 medical opinion is inadequate to adjudicate the Veteran's claim. The June 2015 examiner provided a negative nexus opinion, in part, because the Veteran's medical records to not contain documentation of treatment for a motor vehicle accident or evidence of an acute or chronic back condition in service. The AOJ requested an addendum opinion because the Veteran provided evidence of treatment for the in-service motor vehicle accident. The June 2015 examiner provided a subsequent addendum opinion in September 2017 and again provided a negative nexus opinion, in part, because there is no objective medical evidence that the 1988 motor vehicle accident caused a chronic or disabling back condition during active duty or shortly thereafter. The Veteran testified at the June 2021 hearing that he experienced pain upon impact from the parked car, his back has hurt since, and the pain has increased since the initial accident. The examiner appears to have impermissibly dismissed the Veteran's reports of continuous low back pain solely because these complaints were not documented in medical treatment records. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (that reports of symptomatology are not supported by contemporaneous clinical evidence does not render them inherently not credible). The June 2015 examiner also indicated the Veteran's low back disorder is more likely caused by a post military occupational back injury and obesity. Although the Veteran testified at the June 2021 hearing he did not suffer a post-military fall while working, he did report to the June 2015 examiner that he fell from a ladder in 2002 while working at an automotive shop and he injured his back in May 2014 while standing up. Nonetheless, the June 2015 examiner did not provide sufficient supporting rationale to explain why the Veteran's low back pain is more likely due to post military factors, such as a fall or an injury standing up, as opposed to the in-service motor vehicle accident. This is particularly relevant because prior VA examiners attributed both the Veteran's service-connected right knee and cervical spine disabilities to the in-service motor vehicle accident. Therefore, this opinion is inadequate, and a remand is necessary to obtain a new opinion that provides a reasoned rationale in support of its conclusion. See Barr v. Nicholson, 21 Vet. App. 303, 311; see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (probative value of a medical opinion is derived from it being factually accurate, fully articulated, and soundly reasoned). A remand is also appropriate to obtain an opinion concerning whether obesity is an "intermediate step" between the Veteran's service-connected major depressive disorder or right knee joint osteoarthritis with MCL knee sprain and his low back disorder. The Board observes that obesity is not considered a disease for purposes of VA benefits. See VAOPGCPREC 1-2017 (holding the "longstanding policy of [VA], that obesity per se is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131 and therefore may not be service connected on a direct basis, is consistent with title 38, United States Code" and "[o]besity per se is not a 'disability' for purposes of 38 C.F.R. § 3.310 "). However, obesity may be an "intermediate step" between a service-connected disability and a current disability that may be connected on a secondary basis (1) if a previously service-connected disability caused him to become obese; (2) that obesity was a substantial factor in causing secondary disability; and (3) the secondary disability would not have occurred but for the obesity. See VAOPGCPREC 1-2017. Moreover, obesity may be an intermediate step between a claimed condition and a service-connected disability when this theory is reasonably raised by the record. A non-exhaustive list of six considerations that could give rise to a reasonably raised theory of secondary service connection with obesity as an intermediate step, include (1) mobility limitations or reduced physical activity as a result of a service-connected physical disability; (2) reduced physical activity or inability to follow a course of exercise or diet as a result of service-connected mental disability; (3) side effects of medication where the medication is prescribed for a service-connected disability; (4) treatise evidence suggesting a connection between all or some combination of obesity, service-connected disability, and the claimed condition; (5) lay statements by a veteran attributing weight gain or obesity to the service-connected disability; and (6) statements by treating physicians or medical examiners attributing weight gain or obesity to the service-connected disability. See Garner v. Tran, 33 Vet. App. 241, 248 (2021) ("there is some evidence in the record which draws an association or suggests a relationship between the veteran's obesity, or weight gain resulting in obesity, and a service-connected condition"). Here, the record establishes the Veteran is obese; an April 2021 VA examiner reported the Veteran's service-connected right knee disability limits the Veteran's ability to walk, stand, walk up and down stairs, and limits his ability to exercise; a June 2021 VA examiner reported the Veteran's service-connected major depressive disorder (MDD) causes him physical limitations; and the June 2015 VA examiner attributed the Veteran's low back pain, in part, to obesity. Based on the above, a new examination and opinion is necessary to address whether the Veteran's obesity is an intermediate step between his service connected MDD or right knee disability and his low back disorder. As noted above, the Veteran contends his service-connected cervical spine disability caused or aggravated his low back disability. The Veteran testified at the June 2021 hearing his low back pain is related to pain he experiences in his neck and a July 2021 VA examiner reported the Veteran's cervical spine disability results in muscle spasms that cause an abnormal gait or abnormal spinal contour. Although the Veteran is not competent to diagnose a relationship between his cervical spine disability and his low back pain, he is competent to discuss symptoms of back pain. The Veteran's testimony and the July 2021 VA examination trigger VA's duty to provide the Veteran an examination to determine if the Veteran' service-connected cervical spine disability caused or aggravated his low back disability. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Lastly, VA's duty to assist requires reasonable efforts to ensure all relevant treatment records have been obtained and associated with the claims file. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). At the June 2021 hearing, the Veteran testified he went to physical therapy after active duty to treat his low back pain. He also reported to the June 2015 examiner that he sought chiropractic treatment for his low back disorder. However, private physical therapy and chiropractic treatment records are not associated with the claims file and there is no indication VA has attempted to obtain them. VA must attempt to obtain the records as they may be relevant to the Veteran's claim. Id. 2. Entitlement to an initial compensable rating for herpes is remanded. The Veteran testified at the June 2021 hearing that his herpes symptoms have worsened since his most recent examination, which he believed occurred in June 2015; however, VA provided the Veteran a skin disabilities examination in July 2021. VA also associated additional VA treatment records with the Veteran's claim file. The AOJ has not provided a supplemental statement of the case (SSOC) addressing the July 2021 VA examination or the VA medical records. The Veteran has not provided a waiver of initial AOJ review of the records nor did he submit the previously unconsidered treatment records and VA examination, so they are not covered by the presumptive waiver provisions applicable to legacy appeals, which were previously codified at 38 U.S.C. § 7105(e). As a result, the issues on appeal must be remanded to the AOJ for initial consideration of the newly obtained evidence to ensure the Veteran is afforded due process. See 38 C.F.R. § 19.37(b); see also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F. 3d 1339 (Fed. Cir. 2003). 3. Entitlement to a TDIU prior to May 21, 2021 is remanded. The issue of entitlement to a TDIU, prior to May 21, 2021, is intertwined with the claims remanded above and is also remanded at this time. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any physical therapy or chiropractic treatment provider and for any other medical care provider or medical facility which may have records related to the Veteran's low back disorder treatment. Make two requests for the authorized records from any medical care provider or facility identified unless it is clear after the first request that a second request would be futile 2. Obtain an opinion from an appropriate clinician addressing the etiology of the Veteran's low back disorder. If the examiner determines that an additional in-person examination is required, one should be scheduled. Please note, if the examiner deems it reasonable, an alternate format such as a telehealth interview is acceptable. The Veteran should not be scheduled for an additional examination unless deemed necessary by the selected clinician. Following review of the claims file and, if indicated, examination of the Veteran, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the low back disability began in or is otherwise caused by the Veteran's active service, to include the in-service motor vehicle accident. If the selected clinician determines the Veteran's low back disability is not directly related to his active-duty service, to include the motor vehicle accident, then the clinician must provide an opinion addressing whether the Veteran's low back disability is at least as likely as not (50 percent probability or greater) proximately due to, or aggravated by, his service-connected cervical spine disability. This opinion must expressly consider the July 2021 VA examiner's report that the Veteran's cervical spine disability results in muscle spasms that cause an abnormal gait or abnormal spinal contour. If the selected clinician determines that the Veteran's low back disability is neither directly related to his active-duty service nor secondary to his service-connected cervical spine disability, the clinician must also provide an opinion as to whether the Veteran's service-connected right knee disability and/or major depressive disorder caused him to become obese or aggravated his obesity. If the examiner determines the Veteran's obesity is the result of one or more service-connected disabilities or has been aggravated by one or more service-connected disabilities, he or she must provide an opinion as to whether or not the obesity caused or aggravated by the service-connected disability or disabilities was a substantial factor in causing the Veteran's low back disorder. If the examiner determines both that obesity was caused or aggravated by a service-connected disability or disabilities and that the low back disorder was caused by the obesity, he or she must provide an opinion as to whether or not the claimed condition would not have occurred but for the obesity caused by the service-connected disability or disabilities. The secondary service connection and obesity opinions must address both causation and aggravation to be deemed adequate. The examiner must be advised aggravation means an increase in the severity of the underlying disability beyond its natural progression. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. If the examiner finds the Veteran's low back disorder is due to post-service factors, such as a post-service fall, rather than military service, the examiner must explain why the low back disorder would be MORE likely due to some other post-service factor rather than the Veteran's active-duty service, including his motor vehicle accident. The explanation for why the back disability would be more likely due to some other post-service factor must discuss the Veteran's specific circumstances. The clinician is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the clinician rejects the Veteran's reports, he or she must provide a reason for doing so. The fact that his report of symptoms is not corroborated by contemporaneous medical treatment records is not, by itself, a sufficient reason to reject the Veteran's report of injury and symptoms capable of lay observation. (Continued on the next page) All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 3. Readjudicate the issue of an initial compensable rating for herpes based on all the evidence of record, to include, but not limited to, the July 2021 Skin Diseases Disability Benefits Questionnaire associated with the claims file in July 2021 and all VA generated treatment records, taking any development action deemed necessary after review of such evidence. If any benefit sought on appeal remains denied, issue a SSOC and return the Veteran's case to the Board, if otherwise in order. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zachery S.C. Luce, 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.