Citation Nr: 21074435 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 18-12 034 DATE: December 15, 2021 ORDER New and material evidence has been submitted sufficient to reopen a claim for lumbosacral spine pain with degenerative disc disease and the petition to reopen the claim is granted. REMANDED Entitlement to service connection for allergies is remanded. Entitlement to service connection for a heart disability, to include coronary artery disease (CAD) (also claimed as heart attack), is remanded. Entitlement to service connection for a left elbow disability is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for muscle pain is remanded. Entitlement to service connection for left lower extremity peripheral neuropathy, including of the common peroneal nerve, is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a sinus disability is remanded. Entitlement to service connection for a low back disability, to include lumbosacral spine pain with degenerative disc disease as secondary to the service-connected left knee chondromalacia patella, is remanded. Entitlement to service connection for Gulf War unexplained chronic multi-symptom illness as due to an undiagnosed illness is remanded. Entitlement to a compensable rating prior to May 8, 2016, for bilateral pes planus is remanded. Entitlement to a rating greater than 10 percent from May 8, 2016, for bilateral pes planus is remanded. Entitlement to a rating greater than 10 percent for chondromalacia patella, right knee, is remanded. Entitlement to a rating greater than 10 percent for chondromalacia patella, right knee, is remanded. FINDINGS OF FACT 1. An unappealed July 2003 rating decision denied a claim of entitlement to service connection for lumbosacral spine pain with degenerative disc disease. 2. Evidence received since the July 2003 rating decision is new, material and probative as to the low back claim. CONCLUSIONS OF LAW 1. The July 2003 rating decision that denied a claim for lumbosacral spine pain with degenerative disc disease is final. 38 U.S.C. § 7105 (2002); 38 C.F.R. § 20.1103 (2003). 2. Evidence received since the July 2003 rating decision in relation to the Veteran's claim for entitlement to service connection for lumbosacral spine pain with degenerative disc disease is new and material, and, therefore, the claim is reopened. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Air Force from November 1981 to October 1993 including service in Southwest Asia and reported Reserve service from 2006 to 2012. This matter comes before the Board on appeal from a September 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran had a hearing before the undersigned Veterans Law Judge (VLJ) in August 2021. A transcript of the hearing is of record. 1. Whether new and material evidence has been received sufficient to reopen a claim for entitlement to service connection for lumbosacral spine pain with degenerative disc disease The Veteran contends that his low back disability was incurred during active duty or otherwise was caused by his active service. The appellant has one year from notification of a Regional Officer (RO) decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.201, and 20.302(a). In a July 2003 rating decision, the RO found that the lumbosacral spine pain with degenerative disc disease was not related to or caused by service because the Veteran's service treatment records were negative for a diagnosis of or treatment for a back condition during service. In addition, the rating decision concluded that the low back disability was not caused or aggravated by his service-connected bilateral knee disabilities. The Veteran failed to timely appeal or otherwise express disagreement with the rating decision. As such, the July 2003 rating decision ultimately became final. 38 C.F.R. § 20.1103. As a result, the claim of entitlement to service connection for lumbosacral spine pain with degenerative disc disease may now be considered if new and material evidence has been received since the time of the last final adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); Evans v. Brown, 9 Vet. App. 273 (1996). Under 38 C.F.R. § 3.156(a), evidence is considered "new" if it was not of record at the time of the last final disallowance of the claim. 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. Finally, 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. 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). Additionally, when determining whether the appellant has submitted new and material evidence to reopen a claim, consideration must be given to all the evidence since the last final denial of the claim. Evans v. Brown, 9 Vet. App. 273 (1996). Moreover, the appellant need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. See Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding that it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). Again, the July 2003 rating decision found that low back disability was not incurred in service, otherwise caused by service, or was caused or aggravated by a service-connected disability. As will be discussed in the remand section below, since the time of the July 2003 rating decision the Veteran has submitted multiple lay statements and hearing testimony discussing his in-service back problems with ongoing problems from service. While there were general contentions of the same at the time of the July 2003 rating decision, the specificity of the statements is greater than at the time of the July 2003 rating decision. Pursuant to the Court's holding in Shade and presuming the credibility of the evidence for the sole purpose of determining whether the low back claim should be reopened, the Board finds the statements to constitute new and material evidence regarding whether the low back disability has its onset in service or otherwise was caused by service. Having reopened the claim, the Board concludes that a remand is required for additional development. REASONS FOR REMAND 1. Entitlement to service connection for allergies 2. Entitlement to service connection for a heart disability, to include CAD (also claimed as heart attack) 3. Entitlement to service connection for a left elbow disability 4. Entitlement to service connection for hypertension 5. Entitlement to service connection for muscle pain 6. Entitlement to service connection for left lower extremity peripheral neuropathy, including of the common peroneal nerve 7. Entitlement to service connection for a left shoulder disability 8. Entitlement to service connection for sleep apnea 9. Entitlement to service connection for a sinus disability 10. Entitlement to service connection for Gulf War unexplained chronic multi-symptom illness as due to an undiagnosed illness 11. Entitlement to a compensable rating prior to May 8, 2016, for bilateral pes planus 12. Entitlement to a rating greater than 10 percent from May 8, 2016, for bilateral pes planus The Veteran contends that entitlement to service connection is warranted for the above disabilities and that increased ratings are warranted for his service-connected bilateral pes planus. During his August 2021 Board hearing, the Veteran discussed how he had been awarded disability benefits from the Social Security Administration (SSA). Such records are not of record. Where there is actual notice to VA that the Veteran is receiving disability benefits from the SSA, VA has the duty to acquire a copy of the decision granting SSA disability benefits and the supporting medical documentation relied upon where the identified records have a reasonable possibility of assisting in substantiation of the Veteran's claims. Golz v. Shinseki, 590 F.3d 1317, 1321-22 (Fed. Cir. 2010). As such, a remand is required to afford the Agency of Original Jurisdiction (AOJ) the opportunity to seek these records. In addition, during the August 2021 Board hearing, the Veteran testified that he had been receiving ongoing treatment with VA. As VA treatment records from February 2018 are not of record (other than 3 pages of records from 2019 submitted by the Veteran in August 2019), the additional VA treatment records should be associated with the electronic claims file. 13. Entitlement to service connection for a low back disability, to include lumbosacral spine pain with degenerative disc disease as secondary to the service-connected left knee chondromalacia patella As discussed above, the Veteran contends that his low back disability was incurred during active service, otherwise was caused by his active service, or was caused or aggravated by his service-connected bilateral knee disabilities. In December 1982, the Veteran was seen for low back pain without trauma. There was a family history of back pain. The assessment was low back pain. Later that month the low back pain had improved. In January 1983, the Veteran initially was treated for a low back pain secondary to a mild muscle strain and later that month reported improved muscle strain and low back pain. In March 1983, the Veteran experienced low back pain that started after bending over to pick up a piece of paper. The assessment was acute back strain. In September 1984, the Veteran was seen for low left-sided back pain for the previous day. There was no known injury. In October 1985, the Veteran was seen for low back pain. In December 1985, the Veteran was seen for an acute back strain after the Veteran had bent over to pick up a bag. In April 1986, the Veteran was seen for resolved muscle spasm in the back. In November 1987, the Veteran complained of extreme pain in the lower left side of his back that had started an hour previously walking down steps. Just before the pain started the Veteran had been carrying a heavy load. On evaluation, there was tenderness to motion in all directions. The assessment was back sprain. In June 1988, the Veteran complained of severe pain to the right side of the back with no known trauma. The Veteran had a history of back problems. The assessment was muscle spasm. In October 1988, the Veteran had back pain from today from bending over giving a child a bath. The assessment was mild muscle pull and tightness in the right back. In April 1989, the Veteran sought treatment for low back pain for the previous day. That said, the back pain was noted to be "chronic [with] exacerbation due to lifting." Two days later, the Veteran described right lower lumbar pain without radiation for 3 to 4 days. The assessment was paraspinal muscle strain. In February 1991, the Veteran reported lower back pain for the previous week and a half. The assessment was low back pain. In October 1998, the Veteran described low back pain after the back of his chair had broken earlier that month and he fell backward. The assessment was lumbar strain. In January 1999, the Veteran reported a 2-week history of low back pain. In January 2000 and February 2000, the Veteran reported a history of back pain for 15 years. January 2000 x-rays showed modest degenerative changes. Another January 2000 treatment record noted "a long history of intermittent lower back pain. He has had a recent aggravation of lower back pain for which he saw a chiropractor with no improvement." The Veteran underwent a VA examination in March 2003. The Veteran reported chronic lumbosacral pain since 1998, with a prior history of lower back pain in 1984. The diagnosis was chronic lumbosacral pain degenerative disc disease. The examiner concluded that the degenerative disc disease was not related to his service-connected chondromalacia. The Veteran did not have any gait disturbance and the back pain had been present only since 1998. In March 2004, the Veteran sought emergency room treatment for a 3 week history of low back pain. X-rays and evaluation at VA had been negative. The assessment was left back strain. A diagnosis of lumbar degenerative disc disease appears to have been made following an MRI and other diagnostic testing in May 2004. In March 2005, the Veteran reported recurrent back pain with a history of degenerative disc disease. In August 2005, the Veteran reported recurrent low back pain that had worsened over the past few weeks. He believed the increased pain started after the Veteran was riding a forklift and tilted it down, the load fell off, and from that time had experienced increased pain. An October 2006 Report of Medical Examination included a normal examination of the spine but was noted to have degenerative joint disease of the lumbar spine. In May 2010, the Veteran reported constant low back pain. The Veteran was afforded a VA examination in August 2015. The examiner diagnosed lumbosacral degenerative disc disease and lumbar strain. The Veteran reported that around 1985 or 1986 the Veteran tried to lift 50 to 60 pounds and experienced severe pain and was unable to straighten up. The Veteran was diagnosed with muscle strain. He reported that civilian doctors did an MRI and discovered a herniated disc and degenerative disc disease of the thoracic and lumbar spine. He had epidurals every 3 years starting around 1996. Pain occurred about once a week and recently had been evaluated by a chiropractor. Following examination, the examiner concluded, "It is my medical opinion that the veteran's condition of mild lumbosacral degenerative disc disease is less likely than not (less than 50 percent probability) incurred in or caused by (the) back sprain during service since (a) there is no nexus by which to link these conditions. There is a history of acute lumbar strain during military service that has since resolved without residuals. There is a diagnosis of mild lumbosacral degenerative disc disease based on radiological criteria many years after military service. The weight of the medical literature does not support any nexus between resolved acute lumbar strain during military service and the later development of lumbosacral degenerative disc disease. Risk factors for the development of lumbosacral degenerative disc disease include aging (primary), occupation, genetics, obesity, cigarette smoking." During the Veteran's August 2021 Board hearing, the Veteran testified that he had back pain that started during service with picking up objects. He also testified that he engaged in rappelling down a 125 foot missile silo elevator shaft that caused trauma to the spine and lower legs. (He served at that unit from 1982-86.) At that time, the problems were attributed to "muscle issues," but after separation from service, in 1993 a civilian doctor noted spinal damage on MRI and x-rays. The Veteran's back problems had gotten progressively worse since service. The Board finds the August 2015 VA examination report inadequate for rating purposes. The examiner concluded that the Veteran's in-service lumbar strain or strains resolved without residuals. The opinion, however, does not appear to have accounted for the Veteran's reports of ongoing back problems from service. Moreover, the examiner cited to medical treatment during service and treatment beginning in March 2011. The foregoing, however, fails to discuss the multiple treatment records in the 1990s and 2000s, including the Veteran's reports in the early 2000s of a 15-year history of ongoing back problems. The foregoing supports the Veteran's contentions of ongoing problems since service that were intermittent in nature. As the examiner's rationale appears to have been based in part on the absence of a continuity of problems, the Board finds the failure to consider the foregoing problematic and an addendum opinion is required. 14. Entitlement to a rating greater than 10 percent for chondromalacia patella, right knee 15. Entitlement to a rating greater than 10 percent for chondromalacia patella, right knee While the record contains contemporaneous VA examinations regarding the Veteran's bilateral knee disabilities, the examinations do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examinations do not contain passive range of motion measurements or pain on weight-bearing testing. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from February 2018 to the present. 2. Request all available records concerning the Veteran from SSA. All records obtained or any response received should be associated with the electronic claims file. If these records are unavailable, this should be noted and explained in the electronic claims file, with appropriate notice provided to the Veteran and his representative. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's low back disabilities is at least as likely as not incurred in service or otherwise caused by service. In reaching the foregoing conclusion, the clinician must consider, and discuss to the extent necessary, the Veteran's lay contentions of ongoing symptoms from service, including his reports in January 2000 and February 2000 of a 15-year history of intermittent low back pain. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right and left chondromalacia patella. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In addition, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 5. After the above is complete, readjudicate the Veteran's claims. If a complete grant of benefits is not awarded, issue a supplemental statement of the case (SSOC) to the Veteran and his representative. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. J. Houbeck, 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.