Citation Nr: 21005523 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 15-37 453 DATE: February 1, 2021 ORDER New and material evidence having been received, the claim for service connection for a lumbar spine condition is reopened; to this extent only the appeal is granted. REMANDED Entitlement to service connection for a lumbar spine condition is remanded. Entitlement to service connection for a cervical spine condition is remanded. FINDINGS OF FACT 1. The Veteran’s claim for service connection for a lumbar spine condition was most recently denied in an August 2009 rating decision. 2. The Veteran did not appeal the August 2009 rating decision and the VA did not actually or constructively receive documentation constituting new and material evidence within the one-year appeal period. 3. Evidence received since the final August 2009 rating decision is new and relates to an unestablished fact necessary to substantiate the claim for service connection for a lumbar spine condition.   CONCLUSIONS OF LAW 1. The August 2009 rating decision denying service connection for a lumbar spine condition is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2020). 2. New and material evidence has been received to reopen the Veteran's claim for service connection for a lumbar spine condition. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1970 to October 1973. These matters are before the Board of Veterans’ Appeals (Board) on appeal from August 2013 and March 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, a Board hearing was held before the undersigned. A transcript of the hearing is of record. New and Material Evidence The Veteran’s claim for service connection for a lumbar spine condition was first denied in a March 1991 rating decision as the RO found the evidence did not show the Veteran’s lumbar spine condition was incurred in or aggravated by his service. The Veteran timely submitted a Notice of Disagreement with that decision and, in April 1991, a statement of the case was issued. However, the Veteran did not perfect an appeal or submit new and material evidence within 60 days of issuance of the statement of the case; therefore, the March 1991 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104(a), 3.156(b), 20.302, 20.1103. A January 2005 rating decision declined to reopen the claim. The Veteran did not appeal the decision, nor was any new and material evidence actually or constructively received within a year following the decision; therefore, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104(a), 3.156(b), 20.302, 20.1103. An August 2009 rating decision reopened the Veteran’s claim but denied the claim on the merits. The Veteran did not appeal the August 2009 decision, nor was any new and material evidence actually or constructively received within a year following the decision; therefore, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104(a), 3.156(b), 20.302, 20.1103. Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, pursuant to 38 U.S.C. § 5108, 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 defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence cannot be cumulative or 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. Id. In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask 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. Shade, 24 Vet. App. at 118. Regardless of the RO's determination as to whether new and material evidence has been received, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claim and to adjudicate the claim de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all of the evidence. Justus, 3 Vet. App. at 512. Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. As the August 2009 rating decision was the last final decision regarding this claim, the Board must review all the evidence submitted since that time to determine whether the Veteran's claim should be reopened and readjudicated on a de novo basis. As such, the Board first turns to the question of whether new evidence has been submitted since the final August 2009 rating decision. Evidence associated with the claims file since the August 2009 rating decision includes a July 2011 statement from chiropractor G.D in which he indicated that the primary contributing factor to the Veteran’s low back disorder was the derangement of his knees due to an injury and subsequent degenerative process. This evidence qualifies as new because it was not of record at the time of the August 2009 rating decision and it is not cumulative or redundant of the evidence of record at the time of that decision. In comparing this evidence to that submitted prior to the August 2009 rating decision, the Board finds the new evidence also qualifies as material because it relates to an unestablished fact necessary to substantiate the Veteran’s claim, namely whether there is a nexus between his current lumbar spine condition and his service or his service-connected right knee disability. See Justus, 3 Vet. App. at 512-13. Thus, the Board finds that this new evidence also qualifies as material. The Board therefore finds new and material evidence has been received since the final August 2009 rating decision. Accordingly, the claim is reopened and to this extent only the appeal is granted. Shade, 24 Vet. App. at 117. REASONS FOR REMAND 1. Entitlement to service connection for a lumbar spine condition is remanded. The Veteran contends his lumbar spine condition is directly related to his active service or, alternatively, is secondary to a service-connected knee disability. Regarding whether the Veteran’s condition is directly related to his active service, a VA examiner opined in a June 2012 VA examination that the Veteran’s lumbar spine condition was not related to an acute condition noted in his service treatment records. In support of the opinion, the examiner noted that the Veteran’s condition improved following physical therapy, that his separation examination was negative for any spinal conditions, and that a National Guard physical completed in 1984 contained no back abnormalities or complaints of back pain. However, the Board finds the opinion inadequate as the examiner failed to adequately consider the Veteran’s lay statements, namely that he continued to have low back pain following the in-service injury. Furthermore, during the June 2019 Board hearing, the Veteran testified that he sought chiropractic care within a month of discharge and continually since his separation from service. Thus, the Board finds remand for a new VA medical opinion is required. Regarding whether the Veteran’s lumbar spine condition is secondary to a service-connected knee condition, in an April 1996 statement Dr. J.K.R. stated that, “…because of the severe degenerative changes in his knees, [the Veteran] has continual pain from arthritis and this is causing gait malalignment, which is giving him problems with his back.." Additionally, in a July 2011 statement, Dr. G.D. stated that the primary contributing factor to the Veteran’s low back disorder was the derangement of his knees due to an injury and subsequent degenerative process. A June 2012 VA examiner opined that the Veteran’s condition was not secondary to a service-connected knee disability because there was no literature indicating a knee condition causes a spinal condition. The Board, however, finds all of the medical opinions inadequate as the clinicians failed to provide adequate rationale to support the opinions. Thus, remand for a new medical opinion as to whether the Veteran’s lumbar spine condition is secondary to a service-connected knee disability is warranted. Additionally, in correspondence received in April 2009, the Veteran indicated that Dr. D., Dr. G., and Dr. S.D. provided treatment for his lumbar spine condition. While records from Dr. G. were obtained, a review of the file indicates all the other identified records have not been obtained. As these records may contain information pertinent to the Veteran’s claim, the Board finds remand is required to allow VA to obtain authorization and request the records. 2. Entitlement to service connection for a cervical spine condition is remanded. The Board finds remand for a VA examination and medical opinion addressing the etiology of the Veteran’s cervical spine condition necessary. VA is obliged to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79. The threshold for finding a link between a current disability and service is low. McLendon, 20 Vet. App. at 83. Here, the record shows the Veteran has a current cervical spine condition. Additionally, during the June 2019 Board hearing, he reported an in-service injury during a flight mission when the plane hit turbulence causing him to bounce around the plane and jar his neck. Additionally, the record reflects that he contends his cervical spine condition may be secondary to his lumbar spine condition. In light of this, the Board finds that the low threshold requirements for obtaining a VA examination and opinion have been satisfied. Therefore, remand is required to obtain a VA examination to determine whether the Veteran’s cervical spine condition is related to his active duty service or, alternatively, his lumbar spine condition. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records for the period from March 2015 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for any treatment he has received for his lumbar spine condition, including the doctors identified in the Veteran’s April 2009 submission (Dr. D. and Dr. S.D.). Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 3. After obtaining any additional records, schedule the Veteran for a VA examination to determine the nature and etiology of his lumbar and cervical spine conditions. The electronic claims file must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies incorporated into the claims file. Following examination of the Veteran, the examiner is asked to provide an opinion on the following: Lumbar Spine: (a) Whether it is at least as likely as not (a 50 percent or greater probability) the Veteran’s lumbar spine condition is related to his active service, including noted in-service treatment for low back pain and his reported in-service injury during a flight mission. In providing an opinion on this question, the examiner is asked to consider the Veteran’s testimony that he began receiving chiropractic treatment for the lumbar spine shortly after his discharge from active duty and has been seeking chiropractic treatment since that time. (b) Whether it is at least as likely as not (a 50 percent or greater probability) the Veteran’s lumbar spine condition was caused by a service-connected knee disability. (c) Whether it is at least as likely as not (a 50 percent or greater probability) the Veteran’s lumbar spine condition was aggravated (i.e., worsened beyond its natural progression) by a service-connected knee disability. Cervical Spine: (a) Whether it is at least as likely as not (a 50 percent or greater probability) the Veteran’s cervical spine condition is related to his active service, including his reported in-service injury during a flight mission. In providing an opinion on this question, the examiner is asked to consider the Veteran’s testimony that he began receiving chiropractic treatment for his cervical spine shortly after his discharge from active duty and has been seeking chiropractic treatment since that time. (b) Whether it is at least as likely as not (a 50 percent or greater probability) the Veteran’s cervical spine condition was caused by his lumbar spine condition. (c) Whether it is at least as likely as not (a 50 percent or greater probability) the Veteran’s cervical spine condition was aggravated (i.e. worsened beyond natural progression) by his lumbar spine condition. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Jiggetts 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.