Citation Nr: 21006014 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 15-07 592 DATE: February 3, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for a back disorder is reopened; the appeal is granted to this extent only. REMANDED Entitlement to service connection for a back disorder is remanded. Entitlement to service connection for right leg paralysis as secondary to a back disorder is remanded. Entitlement to service connection sciatic nerve neuralgia as secondary to a back disorder is remanded. Entitlement to service connection for cirrhosis of the liver secondary to a back disorder is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In an unappealed decision issued in June 1985, the Agency of Original Jurisdiction (AOJ) denied service connection for a back disorder. 2. Evidence associated with the record since the final June 1985 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claim for service connection for a back disorder. CONCLUSION OF LAW New and material evidence has been received to reopen the claim for service connection for a back disorder. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1972 to April 1975 with additional periods of service in the Army National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). While the February 2015 Statement of the Case addressed five other claims, the Veteran withdrew those claims from appeal in a statement received in October 2016. New and Material Evidence The Board must address the question of whether new and material evidence has been received since the noted June 1985 rating decision, which was unappealed and is final. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996); 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Since the issuance of the June 1985 rating decision, the Veteran submitted an April 2014 physician statement that provides a positive opinion linking the Veteran’s back pain to his active duty service. In addition, the Veteran submitted a detailed statement further describing his injury during active service. In summary, the Veteran asserts that he injured his back while assigned to the Transportation Squadron at the Homestead Air Force Base in Florida while loading and offloading cargo from the aircrafts. The Board finds that this evidence raises a reasonable possibility of substantiating the Veteran’s claim by supporting the in-service injury and nexus element required for establishing entitlement to service connection. Consequently, the Board finds that the evidence associated with the record since the final June 1985 denial is neither cumulative nor redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a back disorder. As such, new and material evidence has been received, and the claim is reopened. REASONS FOR REMAND Entitlement to service connection for a back disorder The Veteran asserts that his back disorder had its onset in active service, and the Board has considered the noted physician’s statement. To date, however, the Veteran has not been afforded a VA examination in connection with his service connection claim on appeal. Here, the Board finds the low standard in McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006) for an examination has been met and, therefore, a VA examination is warranted to determine the nature and etiology of any current back disorder. Moreover, the record shows correspondence from the Social Security Administration (SSA) granting disability benefits. When VA has notice that the Veteran may be receiving disability benefits from the SSA, and that records from that agency may be relevant, VA has a duty to acquire a copy of the decision granting Social Security disability benefits, and the supporting medical documents upon which the decision was based. See Hayes v. Brown, 9 Vet. App. 67 (1996); 38 C.F.R. § 3.159(c)(2). Thus, the Board finds that a remand is necessary in order to obtain a VA examination and opinion as well as the Veteran’s SSA records. Entitlement to service connection for right leg paralysis, sciatic nerve neuralgia, and cirrhosis of the liver as secondary to a back disorder The Veteran asserts that his right leg paralysis, sciatic nerve neuralgia, and cirrhosis of the liver are related on a secondary basis to his back disorder. In particular, the Veteran states that his spine condition and surgery resulted in right leg paralysis and pain. Furthermore, the Veteran asserts that the medications he has been taking for his back pain caused cirrhosis of his liver. These claims are accordingly inextricably intertwined with the back disorder claim and must be deferred on remand. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Moreover, although the Veteran’s back disorder is not yet service connected, it is being remanded for further development and a determination on the merits. If the claim is granted, the Veteran’s claims of entitlement to service connection for right leg paralysis, sciatic nerve neuralgia, and liver cirrhosis will be impacted. As such, if service connection for a back disorder is established on remand, the Veteran should be scheduled for a VA examination to assess whether the issues above are secondary to the service-connected back disorder. Entitlement to TDIU Finally, because a decision on the remanded issues above could significantly impact a decision on the issue of TDIU, the issues are inextricably intertwined. As such, a remand of the claim for TDIU is required. Id. The matters are REMANDED for the following action: 1. Obtain the Social Security Administration records pertinent to the Veteran’s claim for disability benefits, including the medical records relied upon in adjudicating the application, and associate these with the claims file. All efforts to obtain these records should be fully documented. 2. The Veteran should be scheduled for a VA spine examination with an appropriate clinician to determine the nature and etiology of any current back disorder. All necessary testing should be conducted, and the results thereof associated with the record. Based upon a review of the entirety of the claims file, the history presented by the Veteran, all lay statements of record, and the examination results, the examiner is requested to address the following: (a) Identify all current back disorders diagnosed during the pendency of the appeal. (b) With respect to any current back disorder, provide an opinion as to whether it is at least as likely as not (i.e. a 50 percent probability or greater) that such had its onset in service or is otherwise related to service. The examiner must provide a complete rationale for all opinions. 3. If the Veteran is found to be service connected for a back disability, schedule a VA examination to obtain an opinion that assesses the nature and etiology of his right leg paralysis, sciatic nerve neuralgia, and liver cirrhosis. The examiner should provide an opinion as to whether the Veteran’s right leg paralysis, sciatic nerve neuralgia, and liver cirrhosis are at least as likely as not (a 50 percent or greater probability) proximately due to, or aggravated beyond their natural progression, by the Veteran’s service-connected back disability. The examiner must address both causation and aggravation for the opinions to be deemed adequate. The examiner should be aware that Ward v. Wilkie, 31 Vet. App. 233 (2019) held that a “permanent worsening” of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). The examiner should provide a detailed and medically-supported rationale for all opinions given. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Ariasaif, Associate 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.