Citation Nr: 21027687 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 19-24 652 DATE: May 6, 2021 ORDER New and material evidence has been received and the petition to reopen a claim of service connection for a thoracolumbar spine disability is granted. New and material evidence has been received and the petition to reopen a claim of service connection for bilateral lower extremity sciatic radiculopathy associated with degenerative arthritis of the thoracolumbar spine, claimed as a bilateral hip and thigh condition, is granted. Entitlement to service connection for a thoracolumbar spine disability, as proximately due to a service-connected bilateral foot disability, is granted. Entitlement to service connection for bilateral lower extremity sciatic radiculopathy associated with degenerative arthritis of the thoracolumbar spine is granted. Entitlement to service connection for a bilateral knee disability, as proximately due to a service-connected bilateral foot disability, is granted. FINDINGS OF FACT 1. In a November 2015 rating decision, the RO denied entitlement to service connection for spondylosis of the lumbar region (claimed as a low back condition) and bilateral lower extremity sciatica (claimed as a bilateral leg condition) on the basis that the evidence did not show that these disabilities were incurred during or were otherwise related to service or that they manifested to a compensable degree within the specified time period after separation from service. The Veteran did not file a notice of disagreement; therefore, the November 2015 rating decision became final. Evidence received since the November 2015 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the underlying claims. 2. The Veteran's thoracolumbar spine disability is proximately due to her service-connected bilateral foot disability. 3. The Veteran's bilateral lower extremity sciatic radiculopathy is proximately due to her thoracolumbar spine disability. 4. The Veteran's bilateral knee disability is proximately due to her service-connected bilateral foot disability. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claims of service connection for a thoracolumbar spine disability and associated bilateral lower extremity sciatic radiculopathy. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. § 3.156 (2020). 2. The criteria for service connection for a thoracolumbar spine disability as proximately due to a service-connected bilateral foot disability are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2020). 3. The criteria for service connection for bilateral lower extremity sciatic radiculopathy as proximately due to a service-connected thoracolumbar spine disability are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2020). 4. The criteria for service connection for a bilateral knee disability as proximately due to a service-connected bilateral foot disability are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army Reserve with a period of initial active duty for training (ACDUTRA) from August 1991 to December 1991. She has established veteran status by virtue of having a service-connected bilateral foot disability. These matters come to the Board of Veterans' Appeals (Board) from a November 2017 rating decision which, in pertinent part, reopened a claim of service connection for a lumbar spine disability but continued to deny the claim on its merits, and denied service connection for a bilateral hip and thigh condition and a bilateral knee disability. In April 2021, the Veteran testified before the undersigned at a Board virtual hearing. Reopening Claims Despite the RO's action, the Board must perform its own de novo review of whether new and material evidence has been received to reopen the claims of entitlement to service connection for a thoracolumbar spine disability and associated bilateral lower extremity radiculopathy before addressing the claims on their merits. See 38 U.S.C. § 7104; see also Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. 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; 38 C.F.R. § 3.156. 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). In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App. 273, 283 (1996); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase "raises a reasonable possibility of substantiating the claim" enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been received to reopen a claim of service connection for a thoracolumbar spine disability. 2. Whether new and material evidence has been received to reopen a claim of service connection for bilateral lower extremity radiculopathy associated with degenerative arthritis of the thoracolumbar spine, claimed as a bilateral hip and thigh condition. In a November 2015 rating decision, the RO denied entitlement to service connection for spondylosis of the lumbar region (claimed as a low back condition) and bilateral lower extremity sciatica (claimed as a bilateral leg condition) on the basis that the evidence did not show that these disabilities were incurred during or were otherwise related to service or that they manifested to a compensable degree within the specified time period after separation from service. The Veteran was notified of the decision by a November 2015 letter, but did not file a notice of disagreement; therefore, the November 2015 rating decision became final. In August 2017, the Veteran filed claims of service connection for a back disability and a hip and thigh condition. The Board finds that although the Veteran has variously claimed her bilateral lower extremity disability as a bilateral leg or bilateral hip and thigh condition, the underlying facts and symptoms of each claim are the same. Thus, new and material evidence is required to reopen the Veteran's claim of service connection for bilateral lower extremity disability, diagnosed as sciatic radiculopathy. See Murphy v. Wilkie, 983 F.3d 1313, 1318 (Fed. Cir. 2020). Since the November 2015 rating decision, evidence added to the claims file includes VA treatment records and examination reports, private treatment records and a nexus opinion, and buddy statements. Additionally, in a June 2018 rating decision, VA granted the Veteran service connection for bilateral pes planus, metatarsalgia, and planter fasciitis. Included in the evidence added since the last, final November 2015 rating decision is a letter dated in June 2018 from the Veteran's private treating clinician, in which the clinician indicated that the Veteran's service-connected bilateral foot disability has altered her gait and caused her knee, hip, and back pain with nerve problems. The credibility of this evidence is presumed for purposes of reopening the claims. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). This is new and material evidence that supports a new theory of entitlement. Accordingly, the claims are reopened and will be considered on their merits. See Boggs v. Peake, 520 F.3d 1330, 1336-1337 (Fed. Cir. 2008). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for a thoracolumbar spine disability. 4. Entitlement to service connection for bilateral lower extremity sciatic radiculopathy associated with degenerative arthritis of the thoracolumbar spine. 5. Entitlement to service connection for a bilateral knee disability. The Veteran contends that service connection is warranted for a thoracolumbar spine disability with associated bilateral lower extremity sciatic radiculopathy and a bilateral knee disability, to include as secondary to her service-connected bilateral foot disability. As discussed above, VA granted the Veteran service connection for bilateral pes planus, metatarsalgia, and planter fasciitis in a June 2018 rating decision. October 2017 and June 2018 VA examination reports show that the Veteran has current diagnoses of spinal stenosis and degenerative arthritis of the spine with associated bilateral lower extremity sciatic radiculopathy, as well as bilateral knee tendonitis. In a June 2018 letter, the Veteran's treating clinician of over 16 years indicated that an altered gait from the Veteran's service-connected bilateral foot disability had caused her knee and back pain. Specifically, pain from her service-connected bilateral foot disability caused years of abnormal walking, thereby causing her hip and back pain and subsequent radiculopathy. The clinician reported that the Veteran initially only had an issue with foot pain, that that her foot pain had progressed to knee, hip, and back pain with nerve problems. Furthermore, the Veteran's orthopedist, podiatrist, and neurologist all concurred that her knee, hip, and back pain with nerve problems was due to degeneration from walking irregularly for years due to foot pain. The Board finds the June 2018 private clinician's opinion probative, as the opinion is based upon long-standing treatment of the Veteran and provided an adequate rationale that considered the Veteran's medical history and effect of pain from her service-connected bilateral foot disability on her gait and the effect of her altered gait in causing her back and knee disabilities. There are no competent and probative opinions to the contrary. While a June 2018 VA examiner opined that the Veteran's thoracolumbar spine and bilateral knee disabilities were less likely than not proximately due to or the result of her service-connected foot disability, the examiner did not provide an adequate rationale or basis for the opinion. Therefore, the Board gives no probative weight to the June 2018 VA opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Thus, the only probative evidence specifically addressing a link between the Veteran's thoracolumbar spine disability with associated bilateral lower extremity sciatic radiculopathy and bilateral knee disability with her service-connected bilateral foot disability is the June 2018 positive nexus opinion of the Veteran's treating clinician. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current thoracolumbar spine disability with associated bilateral lower extremity sciatic radiculopathy and her bilateral knee disability are proximately due to her service-connected bilateral foot disability. (Continued on next page) Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a thoracolumbar spine disability, bilateral lower extremity sciatic radiculopathy associated with a thoracolumbar spine disability, and bilateral knee disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. TRACIE N. WESNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Owen, 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.