Citation Nr: 21022597 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 20-26 442 DATE: April 16, 2021 ORDER New and material evidence has been received to reopen a claim of entitlement to service connection for a low back disability is granted. Entitlement to service connection for degenerative disc disease of the lumbar spine and lumbar herniated nucleus pulposus (low back disability) is granted. Entitlement to service connection for left lower extremity radiculopathy is granted. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Entitlement to a nonservice-connected pension benefits is remanded. FINDINGS OF FACT 1. An unappealed November 1999 rating decision denied service connection for a low back disability; unappealed May 2009 and June 2013 rating decisions continued the denial. 2. Evidence received more than one year since the November 1999, May 2009, and June 2013 rating decisions denying service connection for a low back disability, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim of service connection for a low back disability, and raises a reasonable possibility of substantiating the claim. 3. The Veteran’s low back disability had its onset in service. 4. The Veteran’s left lower extremity radiculopathy is a manifestation of his service-connected low back disability. CONCLUSIONS OF LAW 1. The November 1999, May 2009, and June 2013 rating decisions are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received to reopen the claim of service connection for a low back disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for degenerative disc disease of the lumbar spine and lumbar herniated nucleus pulposus have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 1995 to December 1998. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing held before the undersigned Veterans Law Judge in an April 2021. New and Material 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a low back disability. 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 C.F.R. § 5108. “New” evidence means existing evidence not previously submitted to agency decisionmakers. “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). In determining whether evidence is “new and material,” the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273 (1996). 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, 121 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead one should ask whether the evidence could reasonably substantiate the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Historically, an unappealed November 1999 rating decision denied the Veteran’s claim for service connection for a low back disability, based on findings that such was not related to service. No additional evidence pertinent to this issue was associated with the claims file within the one-year appeal period. The denial of service connection for a low back disability was continued in the May 2009 and June 2013 rating decisions. The Veteran did not appeal these decisions concerning entitlement to service connection for a low back disability. Accordingly, the November 1999, May 2009, and June 2013 rating decisions are final. 38 U.S.C. § 7105. The instant claim for service connection for a low back disability was received in September 2015. Since the November 1999, May 2009, and June 2013 rating decisions, the Veteran has submitted additional evidence, by way of his April 2021 Board hearing testimony, that back pain began in service and has been continuous since discharge from service. The Board finds the Veteran’s statements of recurrent back pain since service to be credible. In addition, the Veteran is competent to report back symptomatology since service. This evidence is new, in that it was not previously of record at the time of the November 1999, May 2009, and June 2013 rating decisions. Additionally, the newly submitted evidence is not cumulative or redundant of evidence already of record. Given the standard set forth in Shade, outlined above, the Board finds that the additional evidence is new and material within the meaning of 38 C.F.R. § 3.156, warranting reopening of the claim of service connection for a low back disability. Service Connection 2. Entitlement to service connection for a low back disability. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table decision). The Veteran contends that he has a low back disability that is related to service. He specifically maintains that he has chronic low back pain because of his military service and military occupational specialty (infantryman and radioman) and his duties therein. The Veteran essentially asserts that he has suffered from low back problems since service. See April 2021, Board hearing. VA treatment records indicate the Veteran reported chronic low back pain since 1999 that has continued to escalate over the years. See VA treatment records dated October 2006, April 2008, January 2010, May 2012, August 2012, April 2013, April 2015, and August 2015. The Veteran was afforded two VA examinations in March 1999 and February 2016. The March 1999 VA examiner diagnosed chronic low back pain, musculoskeletal. The Veteran reported low back pain since 1997 after injuring his low back by pulling a muscle during field training. At the time of the exam, the Veteran stated he did not have residual problems and would rarely get flare-ups when bending to pick up objects from the floor. An etiology opinion was not provided. See March 1999, VA examination. The February 2016 VA examiner diagnosed degenerative disc disease of the lumbar spine and lumbar herniated nucleus pulposus (HNP). The Veteran reported having back pain since at least 1999 due to wear and tear from his military duties as a radioman. The examiner opined that it was less likely than not the low back disability was related to service. The examiner stated that there were no service medical records for the condition, the Veteran denied recurrent back pain in the medical history section of the September 1998 separation examination, and a clinical evaluation of the lumbar spine was normal in September 1998. Therefore, the examiner reasoned, the evidence clearly and unmistakably establishes that any wear and tear in service from duties did not result in a chronic back condition, and the diagnosed back disabilities are most likely a result of events following military service. See February 2016, VA examination. The Board observes that the February 2016 examiner did not address the Veteran’s reported flare-ups of back pain in March 1999 and did not have the opportunity to consider the Veteran’s April 2021 Board testimony regarding continuous back pain since his active service. The Board observes that the Veteran is competent to report low back problems during and since service. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Therefore, the Board finds the February 2016 examiner’s opinion is not probative because the examiner based his opinion on an incomplete factual premise. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). The Veteran is diagnosed with a low back disability, diagnosed as degenerative disc disease of the lumbar spine and lumbar HNP, and left lower extremity radiculopathy. The Board finds the Veteran’s reports of low back problems since service to be credible. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (holding that lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). Here, the competent and credible evidence of record shows that the Veteran’s low back disability began during service and have been recurrent since that time. The Veteran reported that he first noticed hearing back pain during service and indeed, filed a claim seeking service connection at the time of his discharge and the VA examination report reflects low back pathology. The Veteran is competent to report the onset and continuation of his back symptoms and the Board finds his testimony credible. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); see also Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, service connection is warranted. In reaching this determination, the Board acknowledges that the February 2016 VA examiner opined that the Veteran’s current back disability was not related to service; however, because the evidence shows that the Veteran’s back disability had its onset in service, service connection is warranted. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that “the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty”). Therefore, service connection for a low back disability, diagnosed as degenerative disc disease of the lumbar spine and lumbar HNP, is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. Entitlement to service connection for left lower extremity radiculopathy. Service connection may be established for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). A December 2016 VA treatment record noted that the Veteran was seeing a chiropractor once per week for lumbar radiculopathy. In November 2019, Dr. K. D. stated the Veteran has known L4-L5 herniation with left foraminal stenosis causing radicular pain and low back pain which radiates into his left lower extremity. See VA treatment records dated December 2016 and November 2019. Therefore, the evidence reflects a diagnosis of left lower extremity radiculopathy secondary to the Veteran’s currently service-connected low back disability. Id. Inasmuch as the Veteran has been awarded service connection for a low back disability, service connection is also awarded for the Veteran’s left lower extremity radiculopathy. 38 C.F.R. § 3.310. REASONS FOR REMAND 1. Entitlement to TDIU is remanded. The Veteran contends he is unable to work due to his back and knees. Specifically, he stated his previous jobs involved physical labor in which he can no longer perform due to his bilateral knee and back impairments; he also indicated that since 2016, he has been incapacitated at least eight weeks per year because of his back disability. The Veteran testified that back pain has worsened to the point of decreased mobility and associated left lower extremity radiculopathy results in pain, numbness, and loss of feeling in his left leg and upper left buttock. See April 2021, Board hearing; September 2015, VA Form 21-8940. In September 2015, the Veteran’s treating VA physician, Dr. C.M. opined that the Veteran was disabled and unemployable due to his service-connected medical disabilities. The record indicates the most recent VA examinations for the knees and back were conducted in December 2015 and February 2016, respectively. At that time, the functional impact of the Veteran’s knees was described as mildly functionally limited with prolonged running, jumping, directly kneeling, and activities that will cause increased torque on the knee which could cause pain. The functional impact of the Veteran’s back was described as the ability to limit physical activities such as siting, standing, walking, bending, lifting, and carrying. Since the Veteran stated at the April 2021 Board hearing that his bilateral knee and back disabilities were severe enough to prevent him from performing physical labor and back pain has incapacitated him at least eight weeks out of the year since 2016, new VA examinations for the knees and back are warranted. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). In light of the Board’s grant of service connection for a low back disability and left lower extremity radiculopathy, on remand, the RO must assign an evaluation for these disabilities prior to determining entitlement to TDIU. Here, in order to properly adjudicate the Veteran’s TDIU claim, updated VA examinations reflecting the level of the Veteran’s right knee, left knee, low back and left lower extremity impairment is necessary. In addition, in Morgan v. Wilkie, the Court held, “VA has powerful, ready-made schedular rating tools with which it can better adjudicate claims that include symptoms and effects not contemplated by an applicable diagnostic code.” 31 Vet. App. 162, 167 (2019). Indeed, the Court stated doing so was necessary to ensure a veteran is appropriately compensated before resorting to § 3.321(b)(1) extraschedular provisions. In doing so, the Court held this included secondary service connection. Id; see also Long v. Wilkie, 33 Vet. App. 167 (en banc) (2020); Bailey v. Wilkie, 33 Vet. App. 188 (2021). Pursuant to Morgan v. Wilkie, the Board finds that it is essential to rate, on a schedular basis, all of the manifestations of the Veteran’s service-connected bilateral knee and back residuals, in this case, to include any psychiatric disorders (depression). As such, on remand, a medical opinion should be obtained to determine any psychiatric disorders the Veteran may have and whether they are proximately due to his service-connected knees or back. Morgan, 31 Vet. App. 162. Here, at the hearing, the Veteran reported that he was depressed due to his back disability. As such, VA must investigate whether the Veteran has psychiatric impairment as a manifestation of his back disability as well as well as whether he has a psychiatric disability, e.g., depression that is related to the service-connected disability. 2. Entitlement to a nonservice-connected pension is remanded. The Veteran testified that a previous hernia repair with mesh inside is productive of a lot of pain. He also stated that he is depressed because his bilateral knee and back disabilities prevents him from having a “meaningful lifestyle.” See April 2021, Board hearing. The Board notes that a claim for a permanent and total disability rating for nonservice-connected disability pension purposes is determined based on the total impairment caused by all nonservice-connected disabilities not the result of the Veteran’s willful misconduct. See 38 U.S.C. §§ 1502, 1521(a); 38 C.F.R. §§ 3.321(b)(2), 3.340, 3.342(a); Roberts v. Derwinski, 2 Vet. App. 387, 390 (1992) (stating that before a total and permanent disability rating can be awarded, an evaluation must be performed to determine the percentage of impairment caused by each disability). The Board observes that the Veteran has not been afforded a contemporaneous VA examination to assess the nature, extent, and severity of each of his nonservice-connected disabilities, to include inguinal hernia residuals and depression. As such, this matter is also remanded in order to afford the Veteran appropriate VA examinations. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records since April 2015. 2. Notify the Veteran that he may submit additional evidence or argument in support of his claim for entitlement to nonservice-connected pension benefits and TDIU, to include the nature, extent, and severity of his service-connected and nonservice-connected disabilities and the impact of those conditions on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible), to determine whether it is at least as likely not that the Veteran has a psychiatric disability, or a psychiatric manifestation, of his back disability. All psychiatric disabilities should be diagnosed, and a diagnosis of depression must be ruled in or excluded. The examiner must opine as to whether any psychiatric disability and/or psychiatric disability is a manifestation of the Veteran’s back disability and/or was caused or aggravated by his service-connected disability, to include the aggregate impact of those conditions. 4. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible), to determine the nature, extent, and severity of all disabilities (both service-connected and nonservice-connected) found to be present, including bilateral knee, back, inguinal hernia residuals. Any diagnosed disabilities must be evaluated for the specific purpose of assessing their relative degree of industrial impairment, in light of the Veteran’s medical, educational, and vocational history. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Straughn, 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.