Citation Nr: 21028023 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 17-04 912A DATE: May 10, 2021 ORDER New and material evidence having been received, the service connection claim for a lumbosacral spine disability is reopened. New and material evidence having been received, the service connection claim for a disability of the left lower extremity is reopened. REMANDED Entitlement to service connection for a lumbosacral spine disability is remanded. Entitlement to service connection for radiculopathy of the left leg is remanded. Entitlement to service connection for erectile dysfunction is remanded. FINDINGS OF FACT 1. An April 1987 rating decision denied service connection for a back disability. 2. An August 2006 rating decision denied service connection for disabilities of the low back and left lower extremity. 3. Subsequent to the August 2006 rating decision, new and material evidence has been received regarding the Veteran's service connection claim for a lumbosacral spine disability. 4. Subsequent to the August 2006 rating decision, new and material evidence has been received regarding the Veteran's service connection claim for a left leg disability. CONCLUSIONS OF LAW 1. The April 1987 and August 2006 rating decisions are final. 38 U.S.C. § 7105; 38 C.F.R. § 19.20. 2. New and material evidence sufficient to reopen the claim of entitlement to service connection for a lumbosacral spine disability has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. New and material evidence sufficient to reopen the claim of entitlement to service connection for a left leg disability has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1974 to December 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In February 2020, the Veteran testified before the undersigned Veterans Law Judge. A transcript of this hearing has been added to the claims file. 1. Whether new and material evidence has been received to reopen service connection for a lumbosacral spine disability 2. Whether new and material evidence has been received to reopen service connection for a disability of the left lower extremity The Veteran seeks to reopen service connection claims for disabilities of the low back and left lower extremity. In an April 1987 rating decision, VA denied the Veteran's service connection claim for entitlement to service connection for a back disability. The Veteran did not file a timely notice of disagreement or submit new and material evidence within one year of that rating decision, and it became final. 38 U.S.C. § 7105. In an August 2006 rating decision, VA denied the Veteran's claims for entitlement to service connection for disabilities of the low back and left lower extremity, finding that there was no evidence of current disabilities of either the low back or left lower extremity. The Veteran did not file a timely notice of disagreement or submit new and material evidence within one year of that rating decision, and it became final. 38 U.S.C. § 7105. Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). In order to be new and material, the evidence must not be cumulative or redundant, and must raise a reasonable possibility of substantiating the claim, a requirement which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). Evidence received since the August 2006 rating decision indicates current diagnoses of disabilities of the low back and left lower extremity. A November 2014 clinical notation confirmed a current diagnosis of a lumbar strain. A lumbosacral strain was also confirmed on VA examination in November 2016. In January 2018, the Veteran was noted to have mild degenerative disc disease of the lumbosacral spine, verified by x-ray studies. Regarding the left lower extremity, the Veteran has stated on multiple occasions that he experiences pain and weakness radiating into his left lower extremity. An October 2009 VA clinical record noted the Veteran's complaints of his left leg giving out, causing him to fall. At his August 2016 RO hearing and his February 2020 Board hearing, he testified regarding the radiating pain into his left lower extremity which he asserts is related to a low back disability. Though a layperson, the Veteran is competent to testify regarding such observable symptomatology as pain of the left lower extremity. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). This evidence is material because it relates to unestablished facts necessary to establish the Veteran's claims; specifically, that the Veteran has current disabilities of the low back and left lower extremity which may be related to service or a service-connected disability. Additionally, the evidence is neither cumulative nor redundant, as this evidence was not of record at the time of the prior denials. Therefore, this evidence is also new. Accordingly, for all of the above reasons, the Veteran's claims for entitlement to service connection for disabilities of the low back and left lower extremity are reopened. REASONS FOR REMAND 1. Entitlement to service connection for a lumbosacral spine disability is remanded. The Veteran seeks service connection for disabilities of the lumbosacral spine and left lower extremity, and erectile dysfunction. Additional development is required before these claims may be adjudicated by the Board. Specifically, the Veteran has reported receiving Social Security disability benefits. Records associated with that claim have yet to be obtained and are potentially pertinent to the pending claim. VA has a duty to obtain Social Security Administration (SSA) records when they may be relevant to a claim. The possibility that SSA records could contain evidence relevant to the appellant's claim cannot be foreclosed absent a review of those records. Quartuccio v. Principi, 16 Vet. App. 183, 188 (2002). Therefore, the Board finds that an attempt should be made to obtain any available SSA records. 38 C.F.R. § 3.159(c)(2). Next, the Board finds an additional VA medical examination and opinion is required. While a VA medical examination and opinion was obtained in 2016, the examiner failed to address post-service diagnoses of degenerative joint disease or a lumbosacral strain. As such, a new VA examination and opinion is warranted. 2. Entitlement to service connection for radiculopathy of the left leg is remanded. The Veteran seeks service connection for radiculopathy of the left lower extremity. The Board finds an additional VA medical examination and opinion is required. While a VA medical examination and opinion was obtained in 2016, the examiner determined that a current diagnosis of radiculopathy was not warranted. Subsequent to that examination, however, the Veteran has testified that he has tingling of the left lower extremity and other radicular symptoms. As the last examination was conducted five-years ago and the Veteran has testified to experiencing symptoms in his lower extremity, a new VA examination and opinion is warranted. 3. Entitlement to service connection for erectile dysfunction is remanded. The Veteran seeks service connection for erectile dysfunction. The Board finds an additional VA medical examination and opinion is required. While a VA medical examination and opinion was obtained in 2016, the examiner determined that a current diagnosis of erectile dysfunction was not warranted. In so stating, the examiner noted "No overt complaints related to ED (at least to this layman)". It is unclear why the examiner, a VA medical professional, described himself as a layman. As such, a new VA examination and opinion is warranted. The matters are REMANDED for the following action: 1. The AOJ should obtain a copy of any decision to grant or deny SSA benefits to the Veteran and the records upon which that decision was based and associate them with the claims file. If the search for such records has negative results, the claims file must be properly documented as to the unavailability of those records. 2. After the above development is completed, schedule the Veteran for a VA examination to determine the nature and likely etiology of his claimed lumbosacral spine disability. The Veteran's claims file must be made available to the examiner. The examiner should indicate whether it is at least as likely as not (50 percent probability or greater) that the Veteran's currently diagnosed lumbosacral spine disabilities, to include osteophytes, a lumbosacral strain, and degenerative joint disease, had causal origins in service or are otherwise related to the Veteran's active duty service, to include any diseases or injuries incurred therein. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Schedule the Veteran for a VA examination to determine the nature and likely etiology of his claimed radiculopathy of the lower extremities. The Veteran's claims file must be made available to the examiner. The examiner should indicate whether a current diagnosis of radiculopathy of the left lower extremity is warranted. For any radiculopathy identified, the examiner must address the following: a) Whether it is at least as likely as not (50 percent probability or greater) that radiculopathy of the left lower extremity had causal origins in service or is otherwise related to the Veteran's active duty service, to include any diseases or injuries incurred therein. b) Whether it is at least as likely as not that any radiculopathy of the left lower extremity is due to or aggravated by (increased in severity beyond the natural progress of the disorder) a lumbosacral spine disability. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. Schedule the Veteran for a VA examination to determine the nature and likely etiology of his claimed erectile dysfunction. The Veteran's claims file must be made available to the examiner. The examiner should indicate whether a current diagnosis of erectile dysfunction is warranted. For any erectile dysfunction identified, the examiner must address the following: a) Whether it is at least as likely as not (50 percent probability or greater) that erectile dysfunction had causal origins in service or is otherwise related to the Veteran's active duty service, to include any diseases or injuries incurred therein. b) Whether it is at least as likely as not that any erectile dysfunction is due to or aggravated by a lumbosacral spine disability. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran's pending claims in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Thomas D. Jones, 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.