Citation Nr: A21020041 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 210120-133768 DATE: December 15, 2021 ORDER New and relevant evidence has been received to reopen the claim of entitlement to service connection for a low back disability. Entitlement to service connection for a low back disability is granted. FINDINGS OF FACT 1. In a January 2019 rating decision, the RO denied service connection for a low back. The Veteran did not timely perfect an appeal of this determination, and no new and relevant evidence was received within one year of notice of this decision. 2. The evidence received since the January 2019 rating decision is new and relevant to the previous claim of entitlement to service connection for a low back disability. 3. Resolving reasonable doubt in the Veteran's favor, the evidence of record favors a finding that the Veteran has lumbar spine disability that is related to his service-connected bilateral knee and right ankle disabilities. CONCLUSIONS OF LAW 1. New and relevant evidence has been received since the January 2019 denial, and the claim of entitlement to service connection for a low back disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2020). 2. The Veteran's low back disability was incurred during his military service. 38 U.S.C. § § 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. § § 3.102, 3.159, 3.303, 3.304(f), 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1961 to September 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2020 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. This decision has been written consistent with the new AMA framework. In January 2021, the Veteran submitted VA Form 10182 Decision Review Request: Board Appeal (Notice of Disagreement) and selected Hearing with a Veterans Law Judge Board review option, indicating he wanted a Board hearing and the opportunity to submit additional evidence in support of the appeal within 90 days of hearing. In a September 2021 Board hearing, the Veteran testified before a Veterans Law Judge. A hearing transcript has been associated with the claims file. The Board notes the record was left open for 90 days in order for the Veteran to submit additional evidence in support of his claim. New and Relevant Evidence VA will readjudicate a claim if new and relevant evidence is presented or secured. 38 C.F.R. § 3.156 (d). "New evidence" is evidence not previously part of the actual record before agency adjudicators. "Relevant evidence" is information that tends to prove or disprove a matter at issue in a claim. 38 C.F.R. § 3.2501 (a)(1). The RO previously denied the Veteran's service connection claim for a low back disability in a January 2019 rating decision. While the Veteran submitted a notice of disagreement (NOD), he did not timely perfect this decision, and it became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In August 2002, the Veteran filed a Supplemental Claim for service connection for a low back disability. In the September 2020 rating decision, the RO confirmed its denial, finding that new and relevant evidence had not been received to readjudicate the claim. At the time of the last final rating decision in January 2019, whereby the RO denied service connection for breast cancer, the evidence consisted of the Veteran's service treatment records, private treatment records, VA treatment records, and lay statements from the Veteran. Notably, the prior denial of service connection for a low back disability was denied on the basis that the Veteran did not have a current low back disability that was related to service or secondary to a service-connected disability. Here, the Board finds that new and relevant evidence was submitted after the prior January 2019 final decision. Notably, in an October 2021 correspondence, a private physician indicated that the Veteran's low back disability was at least as likely as not related to the outlined progressive nature of the Veteran's ankle and knee disabilities, his length of service and his documented lower extremity injury he sustained during service. The Board finds that these statements were not previously part of the actual record before agency adjudicators at the time of the January 2019 rating decision and are relevant evidence as they tend to prove or disprove a matter at issue in this claim. As such, readjudication of the Veteran's service connection claim for a low back disability is warranted. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (d), 3.2501(a)(1), 20.1103. Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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 service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include arthritis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2020). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden for certain chronic disabilities such as arthritis is through a demonstration of continuity of symptomatology. In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service- connected disease or injury. Such permits a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation to a nonservice- connected disability by a service- connected disability. Id. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Factual Background and Analysis The Veteran contends that his current low back disability is secondary to his service, to include as secondary to his service-connected bilateral knee and right ankle disabilities. Notably, the Veteran testified that he hurt his back while in service overseas and that his time in Vietnam made the back disability worse. The Veteran indicated that his back injury occurred very early in his service in 1964 which was before he became a paratrooper. He then continued to aggravate his back at times due to parachute landings while also experiencing back pain in Vietnam including a specific instance in 1965 when he was carrying heavy mortars in his ruck sack. The Veteran underwent a VA examination in December 2018. The examiner opined that it was less likely than not that the Veteran's current back soreness was secondary to his service-connected bilateral knee and right ankle disabilities. The examiner noted that the Veteran on a November 2018 Disability Benefits Questionnaire for his knee disabilities indicated that his back pain started in 1964 or 1965. The examiner noted that the Veteran's low back pain started in June 2004 which was about 39-40 years after the Veteran started having bilateral knee pain and at least 37 years after an ankle disability. As a result, the medical records did not support that the claimed low back disability was proximately due to or the result of the Veteran's bilateral knee disability or right ankle disability. An April 2020 MRI report noted that the Veteran had central spinal stenosis and a right lateral recess disc at L5-S1 which obscured the right S1 descending nerve root sleeve and "appeared to be compromising it". In an October 2021 correspondence, a private physician noted that the Veteran had a history of back soreness that was secondary to his knee and ankle problems. The physician indicated that the Veteran was seen for back pain, lumbar degenerative joint disease, lumbar stenosis, radiculopathy, arthritis and lumbar degenerative disc disease from 2004 to 2005, in 2007, in 2009, from 2011 to 2015 and from 2019 to 2020. The physician noted that multiple studies correlate specifically the severity of low back pain to knee symptoms and it was clearly demonstrated that the back played a significant part of the biomechanical interrelationship of joints in the kinetic chain. As a result of the kinetic chain and the timeline outlining the deterioration of the knee and the ankle joint in the Veteran's history, the physician found that a causa relationship between his lower extremities and back pain was found. The physician noted that the Veteran's medical record cited pain with both ranges of motion and caused an antalgic gait. Additionally, multiple knee MRIs pointed to advanced disease process and lower back MRIs reported lumbar multilevel degenerative disc disease. Based on the studies and identified diagnoses, the physician found that a causal link was established between the Veteran's knees and his back. Regarding a direct basis, the physician also noted that extensive nexus existed identifying the risk factors for injuries in the military including load carriage, training, exercises and footwear which were all causal factors for musculoskeletal injuries. Based on the length of the Veteran's service and a documented lower extremity joint injury sustained while in service, there was a causal link between the Veteran's compensatory kinetic adjustments related to his ankle disability and his back disability. The physician concluded that there were causal links identified between the Veteran's bilateral knee and bilateral ankle disabilities and the biomechanical interrelationship of these joints/disease process n the kinetic chain. The physician opined that it was at least as likely as not that the Veteran's low back disability was related to the outlined progressive nature of the Veteran's ankle and knee disabilities, his length of service during the Vietnam era and a documented lower extremity joint injury sustained during service. After resolving all reasonable doubt in favor of the Veteran, the Board finds service connection for a low back disability is warranted as the evidence demonstrates that the Veteran has a current lumbar spine disability that is related to service to include as secondary to his service-connected bilateral knee and right ankle disabilities. Initially, the Board notes that there is a current diagnosis of a low back disability. Accordingly, the first element for service connection is established. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). The Board notes that there are conflicting opinions as to whether the Veteran's current low back disability is related to service or secondary to his service-connected bilateral knee and right ankle disabilities. As noted above, a December 2018 VA examiner opined that it was less likely than not that the Veteran's low back disability was secondary to his service-connected bilateral knee and right ankle disabilities. However, the Board notes that the VA examiner did not address whether the Veteran's service-connected bilateral knee and right ankle disabilities aggravated his claimed low back disability beyond its natural progression. In addition, the examiner did not provide an etiology opinion regarding whether the Veteran's low back disability was related to service on a direct basis. Conversely, in an October 2021 correspondence, a private physician opined that it was at least as likely as not that the Veteran's low back disability was related to the outlined progressive nature of the Veteran's ankle and knee disabilities, his length of service during the Vietnam era and a documented lower extremity joint injury sustained during service. The October 2021 private physician notably discussed the nature of the Veteran's service, the length of the Veteran's service and medical literature regarding the kinetic relationship between back disabilities and lower extremity disabilities such as knee and ankle disabilities. As a result, the Board finds that there is an approximate balance of positive and negative evidence regarding the question of whether the Veteran has a current lumbar spine disability that is related to service to include as secondary to his service-connected bilateral knee and right ankle disabilities. Additionally, a remand for new VA examinations is not necessary because the evidence of record is sufficient to grant the Veteran's claim, and a remand would only serve to unnecessarily delay final adjudication of the claim. In sum, for the reasons and bases discussed above, the Board has resolved reasonable doubt in favor of the Veteran, and service connection for a low back disability is granted. See 38 U.S.C. § 5107(b). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James A. DeFrank, 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.