Citation Nr: 21073288 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 17-22 041 DATE: December 8, 2021 ORDER New and material evidence having been received, the claim of service connection for a lumbar spine disability is reopened. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a left hip disability is remanded. FINDINGS OF FACT 1. In a final August 2012 rating decision (issued in September 2012), the Regional Office (RO) denied entitlement to service connection for sacroiliitis and mild levoscoliosis of the lumbar spine. 2. Evidence received since the August 2012 rating decision relates to an unestablished fact necessary to substantiate the lumbar spine claim. CONCLUSIONS OF LAW 1. The August 2012 rating decision (issued in September 2012) that denied service connection for sacroiliitis and mild levoscoliosis of the lumbar spine is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. The claim of entitlement to service connection for a lumbar spine disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had several periods of active duty service including from May to August 2000, June to August 2001, September to November 2005, April 2011 to April 2012, and from September 2016 to October 2017. The Veteran testified before the undersigned Veterans Law Judge via video conference in June 2021. A transcript of the hearing is associated with the claims file. 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a lumbar spine disability Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). One exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. "New" evidence is evidence not previously submitted to agency decision makers. "Material" evidence is 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 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 determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). In March 2012, the Veteran filed a claim for several disabilities, including a back injury that she stated was aggravated by her service in Southwest Asia. She was afforded a VA examination in May 2012 during which the examiner noted the Veteran's report that she initially injured her back while working at Walmart and subsequently settled a Workmen's Compensation claim before entering the National Guard. The Veteran also denied incurring a specific injury in Afghanistan but stated that she felt wearing full body armor and the jolting and jerking of her back caused her to experience back pain, for which she was given pain medication in Afghanistan. In this regard, the examiner noted the Veteran was diagnosed with sacroiliitis in January 2012 and that a current x-ray revealed mild levoscoliosis. However, the VA examiner noted that the Veteran's sacroiliitis had resolved and opined that her levoscoliosis is a developmental condition that existed prior to service and did not appear to be aggravated by any event or occurrence in military service. In an August 2012 rating decision (issued in September 2012), the RO denied service connection for sacroiliitis and mild levoscoliosis of the lumbar spine on the basis that, while service treatment records (STRs) showed complaints, treatment, or diagnosis similar to that claimed, the Veteran's condition is considered a congenital or developmental defect that is unrelated to service and not aggravated by it. The Veteran did not submit a timely notice of disagreement following the issuance of the August 2012 rating decision; nor does any other exception to finality apply. Therefore, the August 2012 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In December 2014, the Veteran filed a claim seeking service connection for several disabilities, including a low back condition, which is the basis of this appeal. The evidence associated with the claims file since the August 2012 rating decision includes service treatment records (STRs) from the Veteran's subsequent periods of active duty service which show she continued to endorse having recurrent back pain during and after periods of active service that she attributed to wearing full body armor and performing various duties while deployed. See e.g., August 2017 STR. Also received were statements from individuals who were deployed to Afghanistan with the Veteran from 2011 to 2012 and attest to observing her low back pain and problems during that deployment. See e.g., August 2015 buddy statement from I.G. The Veteran was also afforded a new VA back examination in September 2019, during which she was diagnosed with degenerative arthritis of the spine and levoscoliosis. The Board finds the foregoing evidence is new, as it was not of record at the time of the last final rating decision. The evidence is also material as it relates to whether the Veteran's pre-existing back condition was aggravated during a period of active service and raises a reasonable possibility of substantiating the claim. Therefore, the lumbar spine claim is reopened and, to this extent only, is granted. REASONS FOR REMAND 1. Entitlement to service connection for a lumbar spine disability is remanded. As noted, the RO denied this claim on the basis that the Veteran's lumbar spine disability, which existed prior to service, was not aggravated by her military service. However, the VA opinion of record does not adequately address whether there is clear and unmistakable evidence that a lumbar spine disability existed prior to service and was not aggravated by the Veteran's multiple periods of active duty service, particularly given the lay and medical evidence of record that shows consistent reports of low back pain during her deployments to Afghanistan in 2011 to 2012 and to Kuwait in 2016 and 2017 and a new diagnosis of degenerative arthritis of the spine. The Veteran has also suggested that her lumbar spine disability may be secondary, or intertwined, with her hip disability and, in this regard, the Board notes that service connection has been established for right hip bursitis and that a left hip claim remains on appeal. See December 2014 VA form 21-526EZ. Therefore, the Board finds a remand is needed to obtain an opinion that addresses if the Veteran's lumbar spine disability is related to or aggravated by her periods of active service or, in the alterative, is secondary to her right or left hip disability. 2. Entitlement to service connection for a left hip disability is remanded. The Veteran's service and post-service treatment records show complaints and treatment for left hip pain, and the Veteran a current diagnosis of left hip bursitis. See November 2018 VA examination addendum. There is, however, no medical opinion of record that addresses whether the current left hip disability is related to the in-service complaints of left hip pain. Therefore, a remand is needed to obtain a medical opinion. The matters are REMANDED for the following action: 1. Request that a medical professional review the claims file and obtain a medical opinion that addresses the following: (a) Is there clear and clear and unmistakable (undebatable) evidence that a lumbar spine or low back disability existed prior to service? If so, identify the evidence. (b) If there is clear and unmistakable evidence that a lumbar spine disability pre-existed service, the examiner must also state if there is clear and unmistakable (undebatable) evidence that a lumbar spine or low back disability was not aggravated during service? In other words, is there undebatable evidence that there was no increase in the disability during service or that any increase in disability was due to the natural progress of the pre-existing condition? In answering the foregoing, the examiner must address the lay and medical evidence of record that document consistent reports of low back pain during her deployments to Afghanistan from 2011 to 2012 and Kuwait from 2016 to 2017. (c) If the answer to (a) and (b) is no, the examiner should opine whether it is as likely as not (i.e., probability of 50 percent or higher) that the Veteran's lumbar spine disability was incurred during or as a result of her periods of active service. In answering the foregoing, the examiner must consider and address the Veteran's assertions that wearing full body armor and performing other duties while on active service aggravated the injury she incurred while working at Walmart before service. (d) Regardless of the answer to (a) and (b), the examiner mut indicate whether it is at least as likely as not that the lumbar spine disability was (A) caused or (B) aggravated beyond its normal progression by the left or right hip disability, to include any manifestations thereof, such as pain or altered gait. Aggravation means an increase in disability any additional impairment of earning capacity of the nonservice-connected disability. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the diagnosed disability prior to aggravation by the service-connected disability. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. Arrange for an appropriate health care provider to review the Veteran's claims file and provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the current left hip disability had its clinical onset during service or is due to an event or incident of the Veteran's period of active service. If the reviewing health care provider finds that physical examination or telehealth interview of the Veteran and/or diagnostic testing is necessary, such should be accomplished. In answering the foregoing, the examiner must consider and address the service and post-service treatment records, as well as the lay statements of record regarding the nature and onset of the Veteran's left hip pain. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Turnipseed, 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.