Citation Nr: 21023385 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 17-66 904 DATE: April 20, 2021 ORDER New and material evidence has been received, and the previously denied claim for service connection for arthritis of the neck is reopened. New and material evidence has been received, and the previously denied claim for service connection for arthritis of the bilateral hands is reopened. New and material evidence has been received, and the previously denied claim for service connection for degenerative arthritis lumbar spine is reopened. REMANDED Entitlement to service connection for arthritis of the neck is remanded. Entitlement to service connection for arthritis of the bilateral hands is remanded. Entitlement to service connection for degenerative arthritis lumbar spine is remanded. FINDINGS OF FACT 1. Service connection for arthritis of the neck, hands, and back was denied in unappealed October 1998 and August 2011 rating decisions on the basis that the conditions were not shown to have had their onset in service and a causal nexus was not established. 2. Evidence received since the October 1998 and August 2011 rating decisions was not previously considered by agency decision makers; is not cumulative and redundant of evidence already of record; relates to an unestablished fact; and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria to reopen the claim of entitlement to service connection arthritis of the neck have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria to reopen the claim of entitlement to service connection for arthritis of the hands have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria to reopen the claim of entitlement to service connection for arthritis of the lumbar spine have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1970 to July 1972, and from June 1974 to November 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Board determined new and material evidence sufficient to reopen that previously denied claims for service connection for arthritis of the neck, bilateral hands, and lumbar spine had not been received. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). By way of an August 2020 memorandum decision, the Court vacated the Board’s decision and remanded the matters for adjudication consistent with the decision. Reopening The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156 (a). 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. Id. In October 1998, the RO denied the Veteran’s service connection claim for a bilateral hand disorder and a neck disorder on the basis that there was no evidence of a link between his claimed disorders and his service-connected right knee disability. In August 2011, the RO denied the Veteran’s claim for service connection for a lumbar spine disorder on the basis that there was no evidence of a link between his claimed lumbar spine disorder and his service-connected right knee disability. The Veteran did not initiate an appeal of these decisions and they became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. New and material evidence was not received within a year of notice of either decision. 38 C.F.R. § 3.156 (b). The Veteran submitted an application to reopen these claims in August 2016. The RO declined to reopen them in the May 2017 rating decision currently on appeal citing a lack of new and material evidence. Since the last final denial, VA treatment records and a May 2017 notice of disagreement were added to the file. As noted in the Court’s decision, the May 2017 notice of disagreement reiterated the Veteran’s argument that his back, neck, and hand disorders were either caused by service or were secondary to his service-connected knee disorder. This argument, sympathetically read, could apply to either right or left knee. Subsequent VA treatment records reflect complaints of back and neck pain and numbness exacerbated by walking. At a July 2018 chiropractic assessment, the clinician noted low back pain, left knee pain, and neck pain. An August 2018 orthopedic note opined that the Veteran “wore out” his left knee compensating for right knee arthritis. The Board finds that the foregoing lay and medical evidence, when combined with a sympathetic reading of the May 2017 notice of disagreement, relates to a causal nexus between the claimed disabilities and service-connected knee disabilities- an unestablished fact necessary to substantiate the claim. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). When considered with the evidence of record, the duty to assist is triggered. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Thus, the claims for service connection for arthritis of the neck, bilateral hands, and low back are reopened. These issues are further addressed in the remand section below. REASONS FOR REMAND The Veteran has contended that his arthritis of the neck, bilateral hands, and lumbar spine had is secondary to his service-connected left and right knee disabilities. In the previous final decisions, the Veteran was afforded VA examinations in July 1998 and August 2011. The examiners did not offer any opinions as to whether the Veteran’s degenerative arthritis of the neck, bilateral hands, and lumbar spine is proximately due to or aggravated by his service-connected left knee disability. As such, a remand for an addendum opinion is necessary. The matters are REMANDED for the following action: Arrange to obtain a medical opinion from an appropriate clinician addressing the etiology of the Veteran’s diagnosed arthritis of the neck, bilateral hands, and low back, based on claims file review. (Only arrange for the Veteran to undergo VA examination, by an appropriate clinician, if one is deemed necessary in the judgment of the individual designated to provide the addendum opinion.) The contents of the entire, electronic claims file must be made available to the designated clinician. Upon review of the claims file, the clinician should provide an opinion as to whether it is at least as likely as not that the Veteran’s service-connected right or left knee disability has caused or aggravated the Veteran’s diagnosed arthritis of the neck, bilateral hands, and low back. The clinician must address both causation and aggravation, and separate opinions for each disability should be rendered. In so opining, the examiner is asked to consider the Veteran’s asserted theory that his arthritis disorders are due to or aggravated by an altered gait as a result of his knee disabilities. (Continued on the next page)   Complete, clearly-stated rationale for the conclusions reached must be provided. The clinician is reminded that merely stating that it is his or her opinion that a condition was not caused or aggravated by a service-connected disability is not sufficient. An explanation is required that takes into account the record and pertinent medical principles and the clinician’s rationale should include citation to pertinent evidence and/or medical principles relied upon to form the opinion. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, he or she must explain why this is so. KRISTIN E. NEILSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Lauritzen, 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.