Citation Nr: 21007569 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 17-57 349 DATE: February 10, 2021 ORDER New and material evidence having been received, the claim for service connection for back pain is reopened, and to that extent only, the appeal is granted. New and material evidence having been received, the claim for service connection for degenerative disc disease (DDD) of the cervical spine, with osteophyte complexes and herniated disc, is reopened, and to that extent only, the appeal is granted. New and material evidence having been received, the claim for service connection for headaches is reopened, and to that extent only, the appeal is granted. New and material evidence having been received, the claim for service connection for numbness in bilateral thighs is reopened, and to that extent only, the appeal is granted. New and material evidence having been received, the claim for service connection for prostate problems is reopened, and to that extent only, the appeal is granted. New and material evidence having been received, the claim for service connection for skin rashes is reopened, and to that extent only, the appeal is granted. Service connection for back pain is granted. Service connection for DDD of the cervical spine, with osteophyte complexes and herniated disc, is granted. Service connection for headaches, as secondary to back and cervical disabilities, is granted. Service connection for right lower extremity radiculopathy, as secondary to back pain, is granted. Service connection for left lower extremity radiculopathy, as secondary to back pain, is granted. Service connection for prostate problems, to include as due to environmental hazards, is granted. Service connection for skin rashes, to include as due to environmental hazards, is granted. FINDINGS OF FACT 1. An October 2007 rating decision denied service connection for back pain, DDD of the cervical spine, headaches, numbness in thighs, prostate problems, and skin rashes. The rating decision was not appealed nor was new and material evidence received within the appeal period. 2. The evidence received since the last final rating decision relates to an unestablished fact necessary to substantiate the claims of service connection for back pain, DDD of the cervical spine, headaches, numbness in thighs, prostate problems, and skin rashes, and raises a reasonable possibility of substantiating the claims. 3. The Veteran’s back pain is reasonably shown to be related to/caused by his active service. 4. The Veteran’s DDD of the cervical spine is reasonably shown to be related to/caused by his active service. 5. At the Veteran’s January 2021 Board hearing, he provided competent and credible testimony that his headaches are reasonably shown to be related to or caused by active service, to include his now service-connected back and cervical disabilities. 6. At the Veteran’s January 2021 Board hearing, he provided competent and credible testimony that his bilateral lower extremity radiculopathy is reasonably shown to be related to or caused by active service, to include his now service-connected back and cervical disabilities. 7. Affording the Veteran the benefit of the doubt, his prostate problems are reasonably shown to be related to/caused by his active service, to include environmental hazards. 8. Affording the Veteran the benefit of the doubt, his skin rashes are reasonably shown to be related to/caused by his active service, to include environmental hazards. CONCLUSIONS OF LAW 1. The October 2007 rating decision that denied service connection for back pain, DDD of the cervical spine, headaches, numbness in thighs, prostate problems, and skin rashes, is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been received; the claims of service connection for back pain, DDD of the cervical spine, headaches, right and left lower extremity radiculopathy, prostate problems, and skin rashes are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria are met for service connection for back pain. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria are met for service connection for DDD of the cervical spine. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria have been met for service connection for headaches. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § §§ 3.102, 3.303, 3.307, 3.309, 3.310. 6. The criteria have been met for service connection for right lower extremity radiculopathy. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § §§ 3.102, 3.303, 3.307, 3.309, 3.310. 7. The criteria have been met for service connection for left lower extremity radiculopathy. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § §§ 3.102, 3.303, 3.307, 3.309, 3.310. 8. The criteria are met for service connection for prostate problems. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 9. The criteria are met for service connection for skin rashes. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1988 to September 1992. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). The Board notes that in a January 2018 rating decision, the Veteran’s claims were readjudicated and denied again. In that decision, the RO stated that the Veteran requested to reopen his previous claims in November 2017. This is incorrect. The January 2018 rating decision is a continuation of the Veteran’s January 2014 claim. In January 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) via videoconference. The Veteran initially filed a claim to establish service connection for numbness in his bilateral thighs. In determining the scope of a claim, the Board must consider the Veteran’s description of the claim, symptoms described, and the information submitted or developed in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In light of the decision in Clemons and the diagnoses of record, the Board has expanded the Veteran’s claim to include separate claims for right and left lower extremity radiculopathy, and the issues have been recharacterized as stated on the title page. This will provide the most favorable review of the Veteran’s claims in keeping with the holding in Clemons. New and Material Evidence 1. New and material evidence has been received to reopen the claim for service connection for back pain. 2. New and material evidence has been received to reopen the claim for service connection for DDD of the cervical spine. 3. New and material evidence has been received to reopen the claim for service connection for headaches. 4. New and material evidence has been received to reopen the claim for service connection for right lower extremity radiculopathy. 5. New and material evidence has been received to reopen the claim for service connection for left lower extremity radiculopathy. 6. New and material evidence has been received to reopen the claim for service connection for prostate problems. 7. New and material evidence has been received to reopen the claim for service connection for skin rashes. As there is considerable overlap in the applicable evidence for the Veteran’s claims, the Board will discuss them together. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. “New” evidence means existing 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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. Specifically, 38 C.F.R. § 3.156(a) creates a low threshold, and the phrase “raises a reasonable possibility of substantiating the claim” enables, rather than precludes, reopening. See Shade v. Shinseki, 24 Vet. App. 110 (2010). In this case, service connection for back pain, DDD of the cervical spine, headaches, numbness of the bilateral thighs, prostate problems, and skin rashes were denied in an October 2007 rating decision. That appeal was not perfected nor was new and material evidence received within the appeal period. 38 U.S.C. § 7105. Evidence received since that decision includes April 2015 VA examination reports, a November 2017 private nexus opinion, and the Veteran’s January 2021 testimony at his Board hearing. This evidence is new to the record, relates to previously unestablished facts to support the claims, and raises a reasonable possibility of substantiating the claims. 38 C.F.R. § 3.156(a). Accordingly, the claims are reopened. Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1110. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain disabilities, including arthritis, organic neurological disorders, and psychoses, are presumed to be serviced connected if manifested to a compensable degree within one year following service. 38 C.F.R. §§ 3.303, 3.307, 3.309. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 1. Service connection for back pain is granted. 2. Service connection for DDD of the cervical spine is granted. 3. Service connection for headaches, as secondary to back and cervical disabilities, is granted. 4. Service connection for right and left lower extremity radiculopathy, as secondary to back pain, is granted. As there is considerable overlap in the applicable evidence for the Veteran’s claims, the Board will discuss them together. Factual Background In an April 2015 VA examination report, the Veteran was diagnosed with a lumbosacral strain and degenerative arthritis of the spine. The examiner noted that the date of the lumbar strain diagnosis was 1988, which corresponds to when the Veteran was in active service. According to the Veteran’s DD 214, his military occupational specialty (MOS) was as a heavy equipment operator. The Veteran reported that his back problems started while he was in service. He stated that he was seen by the battalion medic and was given ibuprofen. Additionally, in the April 2015 VA examination report, it was noted that the Veteran had symptoms of radiculopathy in both lower extremities. In an April 2015 VA examination report, the Veteran was diagnosed with migraines. The Veteran reported that his headaches started while in active service and he was seen in sick call and given Advil. He noted that he still experienced headaches 2-3 times a week. The Board notes that in the April 2015 VA examination report, the examiner never opined as to whether the Veteran’s headaches were caused or aggravated by his back and cervical conditions. In an October 2017 opinion, the Veteran’s private physician noted that the Veteran was diagnosed with chronic back and neck pain, sciatica, and headaches. The private examiner wrote that he had reviewed the Veteran’s medical records. According to the private physician, the records indicated that the Veteran complained of an injury while working as a heavy equipment operator. This injury resulted in low back pain and associated spasm after shoveling during active service in 1989. The Veteran had subsequent treatment in service for recurring headaches. The examiner noted that since the Veteran’s original injury during active service, he has had a continuous progression of his symptoms, most likely due to a lumbar disc herniation and DDD in the cervical and lumbar spine. According to the private physician, the specific term for this process is intervertebral osteochondrosis and it represents pathologic degradation of the disc. The examiner reported that the Veteran’s chronic neck and back pain, his bilateral thigh numbness, and his headaches were directly related to this arthritic process. The examiner also noted that the Veteran’s headaches were related to his neck spasms which caused traction-type headaches. The private physician opined that it was “probable” that the Veteran’s initial injury represented the first manifestation of his progressive process. His occupation as a heavy machine operator, as well as repetitive manual labor involving the spine, was well documented to cause such changes to become symptomatic or to aggravate existing symptomatology. Because this condition went unrecognized and his occupation did not change, “this more likely than not directly led to an increased rate of degeneration which has manifested over time as increased symptomatology that would otherwise be expected.” In his January 2021 Board hearing, the Veteran testified that his back and neck pain started right after his injury during active service and persisted to the present. Analysis Although a causal relationship has not been demonstrated through the foregoing VA opinion, the absence of a “valid [VA] medical opinion” is not an absolute bar to service connection. Davidson v. Shinseki, 581 F.3d at 1316. Weighing the available evidence, the Board finds that the October 2017 opinion from the Veteran’s private physician, concluding that the Veteran’s current back and neck pain was the result of his active service, and that his headaches and bilateral lower extremity radiculopathy were secondary to these conditions, combined with the competent and credible January 2021 testimony from the Veteran, are of greater probative value than the April 2015 VA negative nexus opinions. Because of this, the Board finds that it is at least as likely as not that the Veteran’s back and neck pain are causally related to active service and his headaches and bilateral lower extremity radiculopathy are causally related to his now service-connected back and neck disabilities. Accordingly, the criteria for service connection have been met, and the claims for back pain, DDD of the cervical spine, headaches, and right and left lower extremity radiculopathy are granted. 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 5. Service connection for prostate problems, to include as due to environmental hazards, is granted. 6. Service connection for skin rashes, to include as due to environmental hazards, is granted. As there is considerable overlap in the applicable evidence for the Veteran’s claims, the Board will discuss them together. Factual Background Concerning his prostate problems, in a June 2006 VA treatment report, it was noted that the Veteran had urinary problems that were considered chronic but had an unexplained etiology. In an April 2015 VA examination report, the Veteran was diagnosed with benign prostatic hyperplasia (BPH). He noted that during active service, he began to have problems with urinary frequency. The Veteran reported that he urinated approximately every hour. In his January 2021 Board hearing, the Veteran testified that he had no urinary problems before he went to the Gulf. He stated that his urinary and other problems began while he was there, and that they had been constant ever since. Concerning his skin rashes, in an April 2015 VA examination report, the Veteran was diagnosed with dermatitis or eczema, specifically contact dermatitis. The Veteran reported that his rashes began during active service and that he began to have rashes on his arms, back, and the insides of his legs. He noted that at the time, he was provided cream. He reported that he continued to have rashes on his arms, back, and his inner thighs. In his January 2021 Board hearing, the Veteran testified that he started having rashes while he was serving in the Gulf and that it continued after he returned. He stated that during service, he saw medics about his rashes while he was in Iraq and Kuwait, and they gave him creams and powders. The Veteran testified that his unit was near a location in Khamisiya, Iraq, and that it was a confirmed location where nerve agents were released. After he returned from the Gulf, he treated himself with over the counter medication. Analysis Although a causal relationship has not been demonstrated through a foregoing VA opinion, nor otherwise shown through competent medical opinion evidence, the absence of a “valid medical opinion” is not an absolute bar to service connection. Davidson v. Shinseki, 581 F.3d at 1316. The Board finds the reports by the Veteran, of prostate and urinary frequency, as well as skin rashes, beginning during active service to be competent and credible evidence of continuing symptoms since active service. Because of this, the Board finds that it is at least as likely as not that the Veteran’s prostate problems and skin rashes are causally related to active service, to include environmental hazards. Accordingly, the criteria for service connection have been met, and the claims for prostate problems and skin rashes are granted. 38 C.F.R. §§ 3.303, 3.307, 3.309. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Abrams, 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.