Citation Nr: 21073685 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 18-50 947 DATE: December 9, 2021 ORDER New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for a lumbar spine disability, to include as secondary to a service-connected disability, is granted. REMANDED Entitlement to service connection for a left leg disorder is remanded. Entitlement to service connection for a lumbar spine disorder, to include as secondary to a service-connected disability, is remanded. FINDINGS OF FACT 1. In a March 1997 rating decision, the Veteran was denied entitlement to service connection for a lumbar strain. He did not submit new evidence within the appeal period, rendering the March 1997 rating decision final. He subsequently filed a supplemental claim for entitlement to service connection for a back disorder, to include as secondary to a service-connected disability, in November 2015. In a January 2016 rating decision, the claim of entitlement to service connection for a back disorder was denied because the evidence submitted since the last prior final denial was not new and/or material. 2. The evidence added to the record since the March 1997 rating decision relates to an unestablished fact that is necessary to substantiate the claim of service connection for a lumbar spine disorder. CONCLUSIONS OF LAW 1. The March 1997 rating decision that denied the Veteran's claim for entitlement to service connection for a lumbar strain is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. As the evidence received subsequent to the March 1997 rating decision is new and material, the requirements to reopen the claim for entitlement to service connection for a lumbar spine disorder, to include as secondary to a service-connected disability, have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.102, 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1959 to May 1960 and from October 1961 to August 1962. Although the issue of entitlement to service connection for a left hip disorder was addressed in the statement of the case, and was discussed in the November 2021 statement submitted by the Veteran's representative, the Board notes that this issue was never appealed, as it was specifically excluded on the November 2018 VA Form-9. Therefore the Board will not take jurisdiction over this issue. New and Material Evidence In order for evidence to be sufficient to reopen a previously allowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends, and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999); Manio v. Derwinski, 1 Vet. App. 140 (1991). Under the relevant regulation, "new" evidence is defined as 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. If it finds that the submitted evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the Veteran in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low, and consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. Rather, consideration should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a lumbar spine disability, to include as secondary to a service-connected disability In this case, the Veteran is claiming entitlement to service connection for a lumbar spine disorder. The Veteran's claim for a lumbar spine strain was previously denied in a March 1997 rating decision because the evidence did not materially establish that the Veteran's lumbar spine disorder was incurred in or caused by his military service. The Veteran did not appeal or submit new evidence within the appeal period, rendering the March 1997 rating decision final. See Buie v. Shinseki, 24 Vet. App. 242 (2011). He subsequently filed a supplemental claim for entitlement to service connection for a back disorder, to include as secondary to a left leg disorder, for which he is also seeking service connection, in November 2015. In a January 2016 rating decision, the claim of entitlement to service connection for a lumbar spine disorder was denied because the evidence submitted since the last prior denial was not new and/or material. After a review of the evidence submitted since the March 1997 rating decision became final, the Board of Veterans' Appeals (Board) determines that the claim should be reopened. The evidence now includes new medical evidence, including VA examinations, private medical records, and the Veteran's lay statements, which raises the possibility that his lumbar spine disorder is related to active duty service. Not only is this evidence "new" in that it was not of record prior to the last final denial of the claims; it is also "material," as it relates to an unestablished fact necessary to support the claims. Namely, it shows that the Veteran has a diagnosis of degenerative arthritis of the lumbar spine that may be related to his active duty service. Therefore, the claim should be reopened. 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. REASONS FOR REMAND 1. Entitlement to service connection for a left leg disorder is remanded. Regrettably, the Board finds that a remand is necessary to obtain an addendum medical opinion. The Veteran underwent a VA examination in January 2016 and reported that he has pain, swelling, limited range of motion, and difficulty ambulating in his left leg. However, the examiner opined that the Veteran does not have a current left leg disorder. The examiner also stated that the Veteran does not have any post-service records demonstrating complaint of or a diagnosis of a left lower extremity condition. Although the record does not reveal a current diagnosis of a left leg disorder, the Court of Appeal for Veterans Claims (Court) has determined that this does not preclude a finding of a current disability. See Saunders v. Wilkie, 886 F.3d 1356 (2018) (holding that pain alone may constitute a disability when it reaches the level of functional impairment of earning capacity.). Furthermore, the records reveal complaints of left leg pain after service since at least January 2012. Additionally, a private medical treatment record was submitted into the record on August 8, 2016 revealing follow-up treatment on April 14, 2016 of an arterial duplex of the bilateral lower extremities. The document indicates there are four pages contained in the treatment record, but only one page is in evidence. The Veteran claims his in-service left leg injury caused a vein to dry up and disappear in his leg, causing his current left leg pain and complications. Because this treatment record appears relevant to the Veteran's claim, the Regional Office (RO) should attempt to obtain the full private treatment record and invite the Veteran to submit any other private treatment records pertaining to his claim. 2. Entitlement to service connection for a lumbar spine disorder, to include as secondary to a service-connected disability, is remanded. The Board finds that a remand is necessary to obtain a new medical opinion. The January 2016 VA examiner opined that the Veteran's current lumbar spine disabilities are less likely than not proximately due to or caused by the Veteran's left leg disability, for which he is seeking service connection, because the Veteran does not have a current left leg disability. However, as discussed above, pain alone may constitute a disability when it reaches the level of functional impairment of earning activity, and the Veteran has consistently reported left leg pain since at least January 2012. As such, an addendum secondary service connection is required to determine if they Veteran's lumbar spine disability is caused or aggravated by a current left leg disorder. Separately, the Veteran's service treatment records from November 1959 demonstrate that the Veteran was diagnosed with a lumbar strain and treated with low back traction. He then underwent spinal surgery after service in 1989 and has continued receiving treatment for low back pain since then. Despite this, the examiner did not opine as to whether the Veteran's current lumbar spine disabilities are directly related to his in-service low back injury. As such, an addendum opinion is necessary. The matters are REMANDED for the following action: 1. The RO should obtain any updated VA treatment records and associate them with the claims file. The RO should also attempt to obtain the full 4-page treatment record from Southern Ohio Surgical Associates dated April 14, 2014 and submitted into evidence August 8, 2016, as it appears incomplete. If the Veteran has any other private treatment records in his possession, he should be afforded the opportunity to submit such records. 2. Forward the claims file to the VA examiner who conducted the January 2016 VA examination (or to another examiner if the original examiner is unavailable) to identify the Veteran's current left leg disorder(s) and lumbar spine disorder(s). If the Veteran does not have a current underlying left leg diagnosis, the examiner should be aware that pain alone may constitute a disability if it reaches the level of functional impairment of earning capacity. Obtain addendum opinions as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran's: (a.) current left leg disorder(s), if applicable, is related to active duty service; (b.) lumber spine disorder(s) is directly related to active duty service; and (c.) lumbar spine disability is proximately due to, caused by, or aggravated by his left leg disorder(s) or any service-connected disability. It would be most helpful if the examiner addressed the evidence indicating the Veteran received treatment during service for a left leg gastrocnemius strain and low back strain in November 1959, as well as his lay statements that he has experienced continuous symptoms since service. The examiner should also review this remand and the evidentiary record and provide a comprehensive report, including complete rationales for all opinions. A new examination is not necessary unless deemed so by the examiner. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Veltri, Associate Counsel