Citation Nr: 21077351 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 18-09 928 DATE: December 29, 2021 ORDER New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a back disorder, and the claim is reopened. Entitlement to service connection for a back disorder, including as secondary to service-connected left knee disabilities, is granted. REMANDED Entitlement to an increased disability evaluation for residuals of a left knee injury with instability, currently rated as 10 percent disabling, is remanded. Entitlement to an increased disability evaluation for degenerative arthritis of the left knee, currently rated as 10 percent disabling, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. In an unappealed July 2003 rating decision, the RO denied service connection for a back disorder. 2. In an un appealed April 2006 rating decision, the RO denied the Veteran's application to reopen the previously denied claim of entitlement to a back disorder. 3. The evidence associated with the claims file subsequent to the April 2006 rating decision is relevant to and probative of the claim of entitlement to service connection for a back disorder. 4. The Veteran's back disorder is attributable to his military service. CONCLUSIONS OF LAW 1. The April 2006 rating decision denying the application to reopen the previously denied claim of entitlement to service connection for a back disorder is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103 (2020). 2. New and material evidence has been received to reopen the claim for service connection for a back disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (2020). 3. The criteria for service connection of a back disorder have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from February 1985 to April 1986. He also had service in the Army National Guard from October 1988 to October 1993. These matters come before the Board of Veterans' Appeals (Board or BVA) on appeal from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2021, a virtual hearing was held before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is included in the claims file. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). New and Material Evidence to Reopen Service Connection In general, rating decisions and Board decisions that are not timely appealed are final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § § 20.1103. If new and material evidence is presented or secured with respect to a claim that has been finally disallowed, the claim shall be reopened and reviewed. See 38 U.S.C. § 5108; 38 C.F.R. § § 3.156. Under 38 C.F.R. § § 3.156, a claimant may reopen a finally adjudicated claim by submitting new and material evidence. "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. 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 United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § § 3.156(a) as creating a low threshold. Shade v. Shinseki, 24 Vet. App. 110 (2010). New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the AOJ by the Board without consideration in that decision in accordance with the provisions of 38 C.F.R. § § 20.1304(b)(1)), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § § 3.156(b). If VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim as an original claim for benefits. 38 C.F.R. § § 3.156(c). If it is determined that new and material evidence has been submitted, the claim must be reopened. The evidence is presumed credible for the purposes of reopening a claim, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510 (1992). 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a back disorder. The RO initially denied service connection for a back disorder in a July 2003 rating decision. The Veteran did not file a substantive appeal and the decision became final. 38 U.S.C. § 7105(c). The Veteran filed an application to reopen his claim, and in an April 2006 rating decision, the Veteran's application was denied on the basis that the Veteran did not submit new and material evidence to substantiate the claim. The July 2003 rating decision denied the Veteran's claim for service connection of a back disorder on the basis that there was no evidence that the Veteran's current back disorder was related to his military service; the rating decision also found that the Veteran's back disorder is related to the Veteran's service-connected residuals of left knee injury. The April 2006 rating decision noted that the Veteran failed to report for VA examinations, which could have provided new and material evidence. The rating decision acknowledged that medical treatment records from the Kansas City Department of Corrections indicate that the Veteran was diagnosed with a back disorder in September 2000, but pointed out that the Veteran failed to establish that his back disorder was causally or etiologically related to the Veteran's service or his service-connected residuals of the left knee injury. Evidence received since the April 2006 rating decision includes VA and private treatment records, VA examination reports, and lay statements, including the Veteran's testimony before a Veterans Law Judge (VLJ) of the Board. The additional evidence speaks directly to an element which was not of record. In this regard, the Board notes that the VA examination report and contemporaneous medical opinions found that the Veteran's current back disorder is not causally or etiologically related to service, or the Veteran's service-connected left knee disabilities. A November 2021 letter from the Veteran's treating physician at the VA Medical Center in Wichita, Kansas, in contrast, attributes the Veteran's back disorder to his duties during his military service. The transcript of the Veteran's September 2021 testimony before a VLJ of the Board reflects that the Veteran attributed his back disorder to heavy lifting associated with his duties as a combat engineer during his service. This evidence cures evidentiary defects; namely, that the Veteran's back disorder may be etiologically related to events and/or injuries during his service. See Kent v. Nicholson, 20 Vet. App. 1, 10 (2006) (finding that "the question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied"). Accordingly, the Board finds that the claim for service connection of a back disorder is reopened. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2020). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during servicethe so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. For chronic diseases, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § § 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). At the outset, the Board notes that the Veteran does not allege, and the evidence does not demonstrate, that the Veteran was exposed to combat during service. As such, the provisions of 38 U.S.C. § 1154 are not applicable in this case. 2. Entitlement to service connection for a back disorder. The Veteran contends that his back disorder related to his active military service. The Veteran claims that his back disorder is due to his duties during his period of active duty, or in the alternative, secondary to his service-connected knee disabilities. As an initial matter, the Board notes that the Veteran has current diagnoses of degenerative arthritis and degenerative disc disease of the lumbar spine. See July 2017 VA examination. Thus, the first element of service connection is met. With regard to an inservice event, injury or disease, a review of the Veteran's available service treatment records reflects that the Veteran complained of, and was treated for, back pain in August 1985. Service treatment records reflect that the Veteran was diagnosed with back pain secondary to muscle spasm and that the Veteran reported a history of back pain. The Board notes that, at his September 2021 virtual Board hearing before the undersigned VLJ, he testified that his back pain began in service due to the physical requirement of heavy lifting in his position as a combat engineer. As the described symptoms are capable of lay report and observation, the Board finds that an inservice event or injury, the second element of service connection has been established. Turning to a nexus, the Board finds that the evidence is in equipoise as to whether or not the Veteran's low back disability is related to his active service. In this regard, the Board notes that there was no diagnosis of degenerative arthritis and degenerative disc disease of the lumbar spine within one year of separation, so a nexus cannot be presumed for this condition. This appeal turns on the question of whether the Veteran's current degenerative arthritis and degenerative disc disease is related to his active service, or in the alternative, his service-connected left knee disabilities. As an initial matter, the Board finds Veteran's statements are insufficient to establish that the Veteran's degenerative arthritis and degenerative disc disease of the lumbar spine is related to his service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran is competent to report observable symptoms such as pain, but he is not competent to determine the cause of his disabilities. Such determinations require more than mere observation of symptoms, but medical training and knowledge which the Veteran does not have. Thus, his lay assertions of diagnosis and nexus are not competent evidence as to the claims. Accordingly, the Veteran's lay statements regarding a nexus are not probative evidence. Against the claim, after examining the Veteran, the July 2017 VA examiner concluded that the Veteran's degenerative arthritis and degenerative disc disease of the lumbar spine is not related to the Veteran's service, including his service-connected left knee disabilities. A January 2018 VA addendum medical opinion noted that found that the Veteran's degenerative arthritis and degenerative disc disease are also not likely related to the Veteran's service. The VA examiner acknowledged that the Veteran was treated for low back pain in service, but that the Veteran did not seek treatment for his back again until 2001. In support of the claim, the Veteran submitted a statement from a treating provider at the VA, stating that the Veteran's current back disorder is "directly related" to the Veteran's service in the Army, particularly due to his work as a combat engineer. The Board finds that the nexus evidence is in equipoise as to whether his back disability is related to his active service. As a result, the reasonable doubt is found in favor of the Veteran and a nexus between the Veteran's service and his current degenerative arthritis and degenerative disc disease of the lumbar spine is present. The claim for service connection for a low back disability is granted. REASONS FOR REMAND 1. Entitlement to an increased disability evaluation for residuals of a left knee injury with instability, currently rated as 10 percent disabling, is remanded. 2. Entitlement to an increased disability evaluation for degenerative arthritis of the left knee, currently rated as 10 percent disabling, is remanded. The Veteran asserts that his service-connected residuals of a left knee injury with instability, as well as his service-connected degenerative arthritis of the left knee, are more severe than presently evaluated. The Board observes that Veteran was most recently afforded VA examinations for these disabilities in July 2017. However, the Veteran and his representative continue to assert that his symptoms have continued to worsen since those examinations, and the Veteran testified before the undersigned as to increased functional impairment due to his service-connected left knee disabilities. VA adjudicators may consider only independent medical evidence to support their findings; they may not rely on their own unsubstantiated medical conclusions. If the medical evidence of record is insufficient, VA is always free to supplement the record by seeking an advisory opinion, or ordering a medical examination to support its ultimate conclusions. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). As such, the Veteran must be provided with VA examinations which consider the current severity and manifestations of his service-connected left knee disabilities, on appeal. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). See also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that the Veteran was entitled to a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). The Board observes that additional relevant VA and private medical evidence was received and uploaded into the Veteran's claims file subsequent to the issuance of the January 2018 statement of the case. A review of the electronic claims folder reflects that neither the Veteran nor his representative waived consideration of evidence by the AOJ in the first instance. See 38 C.F.R. §§ 19.37(a), 20.1305(c). As a result, the Veteran's claims must be remanded so that the AOJ can consider all evidence pertaining to the Veteran's claims on appeal in the first instance. See 38 C.F.R. § 19.31(b) (the agency of original jurisdiction is to issue a supplemental statement of the case when additional pertinent evidence is received after a statement of the case has been issued). 3. Entitlement to TDIU is remanded. Given that the Veteran's claims for increased disability ratings are being remanded for additional development, and that additional evidence speaking to the Veteran's employability may be obtained as part of those claims, the claim of entitlement to a TDIU is inextricably intertwined with the claim being remanded herein, and the claims should be considered together. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). Furthermore, VA must make all necessary efforts to obtain relevant records in the possession of a Federal agency. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. See also Bell v. Derwinski, 2 Vet. App. 611 (1992). All available VA treatment records relevant to the claims remaining on appeal should be associated with the Veteran's claims file. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his disabilities, on appeal. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. If the records are unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159. 2. The RO should schedule the Veteran for a VA knee examination to ascertain the current severity and manifestations of the Veteran's service-connected residuals of a left knee injury with instability and his service-connected degenerative arthritis of the left knee. The claims file should be made available to the examiner for review in connection with the examination. The examination reports should include a statement as to the effect of the service-connected left knee disabilities on his occupational functioning and daily activities. Specifically, the examiner is advised that it is necessary to consider, along with the schedular criteria, functional loss due to pain, fatigability, incoordination, pain on movement, and weakness. The VA examiner must also specify the severity of any instability or subluxation, and whether there is evidence of removal or dislocation of the semilunar cartilage. In particular, the VA examination must include range of motion testing for the right and left knees in the following areas: Active motion; Passive motion; Weight-bearing; and Nonweight-bearing If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. In so doing, 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). The VA examiner should provide a complete rationale for any opinions provided. 5. After completing all indicated development, the AOJ should readjudicate the remaining claims on appeal, to include TDIU, in light of all of the evidence of record. If any claim remains denied, the Veteran must be furnished with a supplemental statement of the case and afforded a reasonable opportunity for response. The case should be returned to the Board after compliance with requisite appellate procedures. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Brokowsky, 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.