Citation Nr: 21009149 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 19-19 975 DATE: February 19, 2021 ORDER New and material evidence having been received, the claim for service connection for a low back disability is reopened. To that extent only, the claim is granted. REMANDED Entitlement to service connection for a low back disability, to include as secondary to a service-connected disability, is remanded. Entitlement to a rating in excess of 10 percent for a right ankle disability is remanded. Entitlement to a temporary total convalescence rating following right ankle replacement surgery is remanded. FINDINGS OF FACT 1. A May 2016 rating decision reopened and denied a claim for service connection for a low back disability. 2. Evidence received since the May 2016 rating decision is neither cumulative nor redundant, and, when considered with previous evidence of record, raises a reasonable possibility of substantiating the claim for service connection for a low back disability. CONCLUSIONS OF LAW 1. A May 2016 rating decision that reopened and denied the claim for service connection for a low back disability is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence sufficient to reopen the claim of entitlement to service connection for a low back disability has been received and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a low back disability. Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means 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). New and material evidence is not required as to each previously unproven element of a claim. There is a low threshold for reopening claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). To establish service connection for a current disability, a Veteran must show the existence of a present disability; in-service incurrence or aggravation of a disease or injury; and 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). Additionally, service connection may be established, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310. A May 1969 rating decision denied a claim for service connection for a low back disability. VA found that, although the Veteran reported back pain during his last year of service, he was asymptomatic for the final months of service. A May 2016 rating decision reopened and denied a claim for service connection for a low back disability. Despite the Veteran’s lay evidence indicating that a service-connected cervical spine disability caused a low back disability, VA found that there was insufficient evidence to indicate a connection between a cervical spine disability and a low back disability. The Veteran did not appeal the May 2016 rating decision and it became final. Briefly reviewing the evidence submitted since the May 2016 rating decision, at a December 2020 Board hearing, the Veteran submitted testimony indicating that a service-connected right ankle disability had aggravated a low back disability. The Veteran’s testimony is new, because it was not before VA at the time of the May 2016 rating decision. When presuming the credibility of the new evidence, as is required only when determining whether to reopen previously denied claims for service connection, it is also material because it suggests that the claimed low back disability is related to a service-connected right ankle disability. New and material evidence having been received, the claim for service connection for a low back disability is reopened. To that extent only, the claim is allowed. REASONS FOR REMAND 1. Entitlement to service connection for a low back disability, to include as secondary to a service-connected disability, is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a low back disability, because no VA examiner has opined whether the disability is related to a service-connected right ankle disability. Remand is necessary to schedule an examination. Additionally, the Veteran stated that he was treated for an injury of the low back while serving in Panama in the 1980s. At a December 2020 hearing, the Veteran specifically indicated that he was treated for the low back at an Army hospital facility, even though he served in a different service branch. In an April 2016 VA medical examination report, the Veteran identified Gorgas Hospital, a now retired medical United States Army medical facility located in Panama, as the location of the treatment. The service medical records do not have any records indicating treatment for a low back disability during the Veteran's service in Panama or any records noted as being from Gorgas Hospital. Remand is necessary to attempt to obtain any outstanding records. 2. Entitlement to a rating in excess of 10 percent for a right ankle disability is remanded. At the December 2020 Board hearing, the Veteran reported experiencing worsening symptomatology in the right ankle. Remand is necessary to schedule an examination. 3. Entitlement to a temporary total convalescence rating following right ankle replacement surgery is remanded. In a May 2019 letter, Dr. Conklin, a physician working at Panorama Orthopedics and Spine Center, reported having performed a right ankle replacement operation on January 29, 2018. After being advised by VA to submit the treatment records regarding the surgery, in December 2020, the Veteran provided VA with records from Dr. Conklin’s facility. However, the latest record written by Dr. Conklin provided by the Veteran is dated December 2017, one month before the claimed surgery. Remand is necessary to obtain the surgical records. The matters are REMANDED for the following action: 1. Obtain any outstanding service medical records, to specifically include any records of treatment at Gorgas Hospital for a low back disability during the Veteran's period of service in Panama. If necessary, seek those records from that facility that holds records from that facility. 2. Ask the Veteran to complete a VA Form 21-4142 for Panorama Orthopedics and Spine Center so that VA may acquire records regarding the claimed right ankle replacement procedure in January 2018. Make two requests for the authorized records from that facility, unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for a VA orthopedic examination by an orthopedist to determine the severity of a right ankle disability and the etiology of any low back disability. The examiner must review the record and should note that review in the report. In reviewing the record, the examiner should note the service medical records, the post-service treatment records, and the Veteran's lay statements regarding symptoms during and since service. A complete rationale should be stated for all opinions and conclusions expressed. All appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail. The examiner should be aware that the Veteran most likely underwent a full right ankle replacement procedure prior to the examination. Regarding the right ankle, the examiner must report the range of motion of the ankle, expressed in degrees, to include measurements for weight-bearing, nonweight-bearing, passive motion, and active motion. The examiner must make specific findings as to whether, during the examination, there is objective evidence of additional loss of function due to painful motion, weakened motion, excess motion, fatigability, incoordination, or on flare up. If pain on motion is observed, the examiner should indicate the point at which pain begins. The examiner should also indicate whether, and to what extent, the Veteran experiences functional loss of the ankle or any other symptoms during flare-ups or with repeated use. To the extent possible, the examiner should express any additional functional loss in terms of additional degrees of limited motion. After an examination of the low back, a review of the claims file, and an interview with the Veteran, the examiner is asked to also provide the following opinions: (a.) Is it at least as likely as not (50 percent probability or greater) that any identified low back disability had its onset during the Veteran's first period of active service, lasting from approximately January 1968 to April 1969, or is related to any incident of that period of service, to include a low back strain diagnosed in September 1968? (b.) If arthritis of the lumbosacral spine is diagnosed, is it at least as likely as not (50 percent or greater probability) that the disability (1) began during the Veteran's first period of active service, lasting from approximately January 1968 to April 1969, (2) manifested within one year after the Veteran's April 1969 discharge from that period of service, or (3) was noted during service with continuity of the same symptomatology since service? (c.) Did the Veteran's low back disability clearly and unmistakably (undebatably) preexist the second period of service, lasting from approximately November 1985 to February 1989? (d.) If the examiner finds the low back disability clearly and unmistakably preexisted the second period of service, lasting from approximately November 1985 to February 1989, was the preexisting low back disability clearly and unmistakably not aggravated by that period of service? (e.) If the examiner finds that the low back disability either did not clearly and unmistakably preexist the Veteran’s second period of service, lasting from approximately November 1985 to February 1989, or was not clearly and unmistakably aggravated by that period of service, is the disability at least as likely as not (50 percent or greater probability) related to the second period of service or any incident of that service, to include a claimed in-service back injury in Panama? (f.) If arthritis of the lumbosacral spine is diagnosed, is it at least as likely as not (50 percent or greater probability) that the disability (1) began during the Veteran's second period of active service, lasting from approximately November 1985 to February 1989, (2) manifested within one year after the Veteran's February 1989 discharge from that period of service, or (3) was noted during service with continuity of the same symptomatology since service? (g.) Is a low back disability at least as likely as not (50 percent or greater probability) proximately due to the service-connected disabilities, to include a left hip disability, psychiatric disability, cervical spine disability, tinnitus, right ankle disability, residuals of a fracture of the right distal fibula, bilateral hearing loss, and a left hip scar? (h.) Was a low back disability at least as likely as not (50 percent or greater probability) aggravated (worsened beyond the natural progression) by the service-connected disabilities, to include a left hip disability, psychiatric disability, cervical spine disability, tinnitus, right ankle disability, residuals of a fracture of the right distal fibula, bilateral hearing loss, and a left hip scar? Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.M. Gillett 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.