Citation Nr: 21008481 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 20-14 163 DATE: February 17, 2021 ORDER New and material evidence having been received, the previously denied claim for entitlement to service connection for a back condition is reopened. REMANDED Entitlement to service connection for a lumbar spine disorder, to include as secondary to service-connected right total knee replacement and/or left total knee replacement, is remanded. FINDINGS OF FACT 1. In a November 2005 rating decision, the Regional Office (RO) denied the Veteran's service connection claim for a back condition. The Veteran was notified of the decision and his appellate rights, but he did not appeal or submit new and material evidence within the one-year period thereafter. 2. The evidence received since the November 2005 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the Veteran's service connection claim for a back condition. CONCLUSIONS OF LAW 1. The November 2005 rating decision that denied the Veteran's service connection claim for a back condition is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103 (2005). 2. The evidence received since the November 2005 rating decision is new and material, and the claim of entitlement to service connection for a back condition is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Army from November 1965 to November 1967. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2019 rating decision, notification of which was sent to the Veteran in a February 15, 2019 letter. In November 2018, the Veteran filed a service connection claim for a back condition, to include injury in Vietnam and secondary to service-connected knees due to altered gait. In the February 2019 rating decision, the agency of original jurisdiction (AOJ) denied entitlement to service connection for degenerative arthritis of the spine (claimed as back condition to include injury in Vietnam and secondary to knees due to altered gait). However, the record shows that the AOJ previously denied entitlement to service connection for a back condition in a November 2005 rating decision. Although the November 2005 rating decision discussed the Veteran’s diagnosis of chronic lumbar strain, the examination report referenced in the decision shows that the full diagnosis was chronic lumbar spine strain with sacroiliac joint dysfunction and degenerative disc disease confirmed on x-rays. See August 2005 VA examination. The Board notes that claims that are based upon distinctly diagnosed diseases or injuries must be considered separate and distinct claims for new and material evidence purposes. Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); Ephraim v. Brown, 82 F.3d 399, 402 (Fed. Cir. 1996) (noting that a newly diagnosed psychiatric disorder (e.g., PTSD, even if medically related to a previously diagnosed disorder (such as depressive neurosis), is not the same for jurisdictional purposes when it has not previously been considered). As the symptoms of the degenerative arthritis of the spine considered in the February 2019 rating decision appear to overlap with the prior diagnosis of degenerative disc disease, the Board finds that the claims are not separate and distinct. The Board finds that under the circumstances of this case, the appropriate action is to reopen the claim for service connection for a back condition and to expand the service connection claim on appeal to include all current lumbar spine disorders for which the Veteran has been diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). 1. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for a back condition. The Veteran’s service connection claim for a back condition was initially denied in a November 2005 rating decision. The AOJ determined that the Veteran's service treatment records (STRs) were negative for any complaint, treatment, or diagnosis for any back condition; and there was no medical evidence showing the onset of any back condition within a reasonable period of time following discharge from active military service. In addition, the evidence did not support finding that the Veteran's diagnosed chronic lumbar strain was related to his service-connected bilateral knee disabilities. The Veteran was notified of the decision and his appellate rights in a November 2005 letter. However, the Veteran did not file a notice of disagreement. In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103 (2005). There was also no new and material evidence submitted within one year of the date of mailing of the decision. Although the Veteran testified at a May 2006 RO hearing within one year of this rating decision, the hearing addressed a separate claim for a total disability rating based on individual unemployability (TDIU) and increased rating claims for the Veteran's service-connected posttraumatic stress disorder (PTSD), right knee disability, and left knee disability. The testimony did not provide information that was new and material to his service-connection claim for a back condition. Therefore, the rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.302, 20.1103 (2005). Although a decision is final, a claim will be reopened if new and material evidence is presented. 38 U.S.C. § 5108. 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 it must raise a reasonable possibility of substantiating the claim. New evidence means existing evidence not previously submitted to VA. 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. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513(1992). The evidence need not relate specifically to the reason why the claim was last denied; rather it need only relate to any unestablished fact necessary to substantiate the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Additionally, the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Id. at 117. Reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. at 117. At the time of the November 2005 rating decision, the evidence of record included the Veteran’s DD 214, STRs, his statements, and an August 2005 VA examination. In the Veteran's April 2005 claim, he asserted that he injured his back in Vietnam and received an assignment of light duty for approximately one month as a result. He also contended that his back disorder had been worsened by his service-connected bilateral knee disability. The Veteran’s STRs show that his spine was noted to be normal upon clinical evaluation in the October 1965 induction examination. The Veteran also did not report any relevant problems in the October 1965 Report of Medical History. No spine abnormalities were noted in the September 1967 separation examination, and the Veteran denied having recurrent back pain in the September 1967 Report of Medical History. The Veteran was provided with a VA examination related to his claim in August 2005. The Veteran informed the examiner that he believed his back had worsened in the last couple of years, and this worsening was directly due to his knees. The Veteran reported that the more time he spent weight-bearing on his knees, the more pain he experienced in his back. Although he had seen a chiropractor in the last few years for hip pain, he had not sought treatment for his back. The examiner indicated that he treated his symptoms with Aleve and ibuprofen. The Veteran also reported that he used a cane around the house, and he indicated that he began to limp on his left leg due to pain after lifting, carrying, bending, twisting, or standing for more than 10 minutes. The assessment was chronic lumbar spine strain with sacroiliac joint dysfunction and degenerative disc disease confirmed on x-rays. The examiner also noted an assessment of bilateral Osgood-Schlatter's disease with arthritis. The examiner opined that it was not at least as likely as not that the Veteran’s back problem was due to his knee injury. The examiner stated that the Osgood-Schlatter's disease did not cause any muscle imbalance because of the limp, and the Veteran had not experienced any injurious episode. As a result, the examiner did not find any reason to connect the knees and back problem. The Board notes that although the claims file indicates that copies of the service treatment records (STRs) were associated with the record in December 2014, the November 2005 rating decision reflects that these STRs were already of record at the time of that decision. As such, the application of 38 C.F.R. § 3.156(c) is not appropriate in this case. The evidence that has been received since the November 2005 rating decision also includes a December 2018 VA examination and medical opinion. The examiner diagnosed degenerative arthritis of the lumbar spine. The examiner also provided a negative opinion regarding direct service connection and the theory that the Veteran’s lumbar spine disorder is secondary to his right knee disability and/or left knee disability. In addressing this theory of secondary service connection, the examiner noted that the Veteran believed he had an altered gait that had affected his back. The examiner observed that the Veteran had degenerative changes noted while he was greater than the age of 60, and these changes were consistent with degenerative changes due to chronic breakdown. There was no evidence that altered gait had caused the breakdown degenerative changes in the lumbar spine as the x-rays did not reveal the degenerative changes specifically on one side of the spine; they were instead uniform throughout the spine and lumbar region. The Veteran had bilateral knee complaints, and the spine was not consistent with one side having a compensation mechanism to cause the degenerative changes in his lumbar spine. Therefore, there was no finding on examination or x-rays that was consistent with degenerative changes being caused from compensation mechanism from the knees; therefore, the low back was not at least likely secondary to the total knees. This evidence relates to the previously unestablished question of whether the Veteran's current disorder is secondary to his service-connected right and/or left knee disabilities. As explained further below, the Board also finds that the evidence raises a reasonable possibility of substantiating the claim as when it is considered with the other evidence of record, it triggers VA's duty to assist by providing a medical opinion. See Shade, 24 Vet. App. at 116; 38 C.F.R. § 3.159(c)(4). Thus, the Board finds that new and material evidence has been presented to reopen the Veteran's previously denied claim of entitlement to service connection for a back condition. REASONS FOR REMAND 1. Entitlement to service connection for a lumbar spine disorder, to include as secondary to service-connected right total knee replacement and/or left total knee replacement, is remanded. As discussed above, the AOJ obtained a December 2018 VA examination specific to the Veteran’s service connection claim for a lumbar spine disorder, and the examiner provided a negative opinion regarding both direct and secondary theories of service connection. However, the examiner’s rationale only discussed why the lumbar spine disorder was not caused by the right knee disability or left knee disability and did not clearly address the aggravation prong of secondary service connection. See 38 C.F.R. § 3.310; El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). As the Board consequently finds that the opinion is inadequate, a remand is warranted to obtain an additional medical opinion. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his lumbar spine disorder. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding VA medical records, to include records dated since April 2020. 2. After the preceding development in paragraph 1 is completed, obtain a VA medical opinion from a qualified examiner on the etiology of the Veteran's lumbar spine disorder. The claims file must be made available to the examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. A clear explanation for all opinions based on specific facts for the case as well as relevant medical principles is needed. If an examination is deemed necessary, one must be provided. The Veteran is competent to attest to observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. First, the examiner should clearly identify all current lumbar spine disorders. For each identified disorder, the examiner must provide an opinion as to the following questions: (a) Is it at least as likely as not (i.e., 50 percent or more probable) that the Veteran's lumbar spine disorder manifested during active service, manifested within one year of the Veteran's discharge from active service, or is otherwise related to active service? If the examiner determines that the Veteran's current lumbar spine disorder is less likely than not related to service, the examiner should explain why, including why the delayed onset of the disorder is significant. (b) Is it at least as likely as not (i.e., 50 percent or more probable) that the Veteran's current lumbar spine disorder was caused by his service-connected right total knee replacement and/or left total knee replacement? (c) Is it at least as likely as not (i.e., 50 percent or more probable) that the Veteran's current lumbar spine disorder is "aggravated by" or "worsened by" his service-connected right total knee replacement and/or left total knee replacement? [Aggravation is defined as a worsening of the disability beyond natural progression.] In rendering an opinion, the VA examiner is cautioned to not combine the causation and aggravation facets of secondary service connection, as [under governing caselaw] they are independent concepts requiring separate findings and rationale. That is, a VA medical opinion cannot provide the same rationale to both the causation and aggravation elements and must distinguish between the two theories, as they are separate. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.C. Spragins, 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.