Citation Nr: 21009564 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 17-10 648 DATE: February 22, 2021 ORDER The petition to reopen service-connection for a lumbar spine disability is granted. REMANDED Service connection for a lumbar spine disability, to include as secondary to service-connected right and left knee disabilities, is remanded. Entitlement to a total rating based on individual employability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. In an unappealed September 2012 rating decision, the RO denied the petition to reopen a claim of entitlement to service connection for a lumbar spine disability. 2. The evidence received since the September 2012 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for a lumbar spine disability. CONCLUSIONS OF LAW 1. The September 2012 rating decision, which denied reopening service connection for a lumbar spine disability is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1103 (2019). 2. The criteria to reopen the claim of service connection for a lumbar spine disability have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156 (a) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Reopening service-connection for a lumbar spine disability The Board is required to determine whether new and material evidence has been received before it can reopen a claim and readjudicate service connection or other issues on the merits. See Barnett v. Brown, 83 F.3d 1380, 1383-1384 (Fed. Cir. 1996). In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 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) (2019). 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 submitted 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 VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. 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. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence must be both new and material; if the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). If the Board determines that the evidence submitted is new and material, it must reopen the case and evaluate the veteran’s claim in light of all the evidence. Justus, 3 Vet. App. at 512. In the September 2012 rating decision, the RO denied reopening service connection for a lumbar spine disability, finding that the evidence did not show evidence of a nexus between a current lumbar spine disability and service, but rather showed a nexus between his spine disability and a post-service back injury. The Veteran did not submit a notice of disagreement to the September 2012 rating decision, and the decision became final. See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2019). In rendering the above decision, the RO considered service treatment records, lay statements, VA treatment records and a May 2012 VA examination. Therefore, the Board finds that new and material evidence must tend to show nexus between the Veteran’s current lumbar spine disability and service. New evidence received since the September 2012 rating decision pertinent to the claims on appeal includes VA treatment records, a December 2017 private medical opinion, May 2018 videoconference hearing testimony, and multiple VA examinations. Of note is the May 2018 videoconference hearing, in which the Veteran testified to experiencing back pain starting in service when he was marching and fell, and having consistent back pain since service separation. Further, the December 2017 private medical opinion states that the Veteran’s was totally and permanently disabled due to his back disability and could not hold employment as a result of the injury he sustained in service. Because the Veteran has submitted evidence that tends to show a nexus between currently diagnosed lumbar spine disability and service, the Board finds that the low threshold for reopening service connection, identified in Shade, has been met. Shade, 24 Vet. App. at 11. For these reasons, the Board finds that new and material evidence sufficient to reopen service connection for a lumbar spine disability has been received, and the claim is reopened. 38 C.F.R. § 3.156 (2019). REASONS FOR REMAND 1. Entitlement to service connection for a lumbar spine disability, to include as due to service-connected bilateral knee disabilities When VA undertakes to provide an examination, it must ensure that the examination and opinions provided are adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Pursuant to VA’s duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159 (c)(4)(i) (2019). While the Veteran has been afforded three VA examinations during the course of his appeal, these examinations have not adequately addressed whether a lumbar spine disability was incurred in or caused by active service, to include as to whether such disability was caused by or aggravated by his service-connected bilateral knee disabilities. First, an April 2018 VA examination of the lumbar spine did not include a review of the Veteran’s claims file by the VA examiner prior to rendering a nexus opinion. Second, a November 2018 VA examination of the lumbar spine did not include a medical opinion. Last, an August 2020 VA examination relied on lack of contemporaneous medical documentation between service separation in 1964 to a post-service 1970 back injury to find no continuity of symptomology without considering the Veteran’s lay statements within a May 2018 videoconference hearing testifying to the opposite. Additionally, the Veteran has not yet been afforded a VA examination to address the theory of secondary service connection. Therefore, the Board finds that remand is necessary for a VA addendum opinion to determine the theories of direct and secondary service connection as it relates to the Veteran’s lumbar spine disability. 2. Entitlement to a TDIU The Board finds that with the remand of the claim for service connection for a lumbar spine disability, the claim of entitlement to a TDIU must also be remanded as it is inextricably intertwined with the service connection issue. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a veteran’s claim for the second issue). Further, while Social Security Administration (SSA) medical records have been associated with the record, a final SSA determination letter has not located within those records. Because a majority of the medical documentation submitted to the SSA was in regards to the Veteran’s lumbar spine disability, the Board finds that this disability determination may be pertinent to the instant appeal. The matters are REMANDED for the following action: 1. The AOJ should obtain any SSA determination letter pertinent to the Veteran’s claim(s) for SSA benefits, and associate the same with the claims file. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records. 2. The AOJ should refer the case to an appropriate VA physician for an addendum opinion to address the etiology of the Veteran’s lumbar spine disability, to include as secondary to service-connected total right and left knee replacements. The electronic claims file must be made available to, and be reviewed by, the examiner, to include a copy of the REMAND directives. The examiner must note such review in the examination report. An in-person examination is not necessary unless the examiner determines otherwise. The examiner is requested to provide the following opinions: (a) Is it at least as likely as not (a 50 percent or greater probability) that currently diagnosed lumbar spine disability is etiologically related to service? Within May 2018 videoconference hearing testimony, the Veteran reported that he started having issues with his back in service and since service separation, up until his 1970 back injury that required surgery. (b) Is it at least as likely as not (a 50 percent probability or greater) that the currently diagnosed back disability is (i) caused by, or (ii) aggravated by service-connected total right and left knee replacements? Within May 2018 videoconference hearing testimony, the Veteran indicated that his 1970 back injury while he was a police officer was due to his knees giving out, which are service connected for total right and left knee replacements. SSA records include much of the Veteran’s private treatment history from the 1970s and 1980s. The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The term “aggravated” as used herein refers to an increase in the claimed disability; that is, a worsening of the condition beyond the natural clinical course and character of the condition. If the examiner finds that any of the Veteran’s lumbar spine disability is aggravated by his service-connected bilateral knee disabilities, the examiner must also provide an opinion as to the baseline level of severity of the Veteran’s claimed condition prior to any such aggravation. The aggravation need not be permanent. The examiner must provide a complete explanation for his or her opinions, based on his or her clinical experience, medical expertise, and established medical principles. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 3. After completing the above, and any other development as may be indicated, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. R. Woodarek 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.