Citation Nr: 21040377 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 17-47 999 DATE: July 3, 2021 ORDER New and material evidence having been received, the petition to reopen the claim of service connection for a back disability is granted. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for kidney cancer is remanded. FINDINGS OF FACT 1. A July 1993 rating decision denied entitlement to service connection for a back disability; the Veteran did not perfect an appeal, and the decision became final. 2. The evidence associated with the claims file following the July 1993 rating decision is new and material, and the claim for entitlement to service connection for a back disability is thus reopened. CONCLUSIONS OF LAW 1. The December July 1993 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 3.160. 2. New and material evidence has been received to reopen the claim for entitlement to service connection for a back disability. 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 February 1980 until September 1992 and from September 2005 until February 2006. These matters come to the Board of Veterans' Appeals (Board) on appeal from a June 2017 Department of Veterans Affairs (VA) regional office (RO) rating decision. The Veteran participated in a hearing before the undersigned in March 2021; a transcript is associated with the claims file. New and Material Evidence VA may reopen and review a claim that has been previously denied if new and material evidence is submitted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. Material evidence is 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 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). The Board must review 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. Evans v. Brown, 9 Vet. App. 273 (1996). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. Whether new and material evidence was submitted to reopen a claim of entitlement to service connection for a back disability. The Board finds that new and material evidence regarding the Veteran's claim for entitlement to service connection for a back disability has been received since the July 1993 rating decision. Namely, since these decisions, the Board is in receipt of post-service treatment records, a VA examination, and testimony before the undersigned at a March 2021 hearing. The Board notes that the July 1993 rating decision denied the claim based on a lack of diagnosis; here, the Veteran is now diagnosed with a paraspinal muscle strain and moderate degenerative disc disease. This new evidence relates to unestablished facts necessary to substantiate the claim. Accordingly, the Board finds that the threshold for reopening the claim has been met and is thus reopened. REASONS FOR REMAND 1. Entitlement to service connection for a back disability is remanded. When VA undertakes to obtain an opinion, it must ensure that the opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion is considered adequate "where it is based on consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one." Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Veteran participated in an April 2017 VA examination for his back disability. Therein, he was solely diagnosed with an acute lower paraspinal muscle strain. He reported that his back disability has been "going on for a while," and attributes his back pain to lifting ammunition in-service and his service-connected knee conditions. The VA examiner opined that the Veteran's current paraspinal muscle strain is not due to his knee conditions but more likely due to the physical nature of his current job. The Board finds the April 2017 VA examination inadequate for several reasons. First, the Veteran is not solely diagnosed with a paraspinal muscle strain; he is additionally diagnosed with moderate degenerative changes of the lumbar spine. Upon remand, the VA examiner must clarify and identify all of the Veteran's current back disabilities and opine on their etiology. See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that service connection may be granted for a disability that manifests at any point during the pendency of a claim, even if it subsequently resolves prior to resolution of the claim). Second, the VA examiner failed to opine whether the Veteran's back disability was directly related to service. In rendering this opinion, the addendum VA examiner must consider the Veteran's lay testimony at the March 2021 hearing that his back disability has progressed over time since service. See Miller v. Wilkie, 32 Vet. App. 249 (2020) (holding that an examiner must address the Veteran's lay statements to provide an adequate medical opinion). Third, the VA examiner failed to opine whether the Veteran's back disability is aggravated by his service-connected knee disabilities. See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). Fourth, there is a question as to whether or not the Veteran's back disability pre-existed his second stint in active duty. Demonstratively, at the March 2021 hearing, the Veteran testified that his back disability onset after his first tour of active duty, to include due to lifting heavy munitions. Thus, it is not clear whether his back disability pre-existed his second tour of active duty. For these reasons, an addendum opinion is needed. 2. Entitlement to service connection for kidney cancer is remanded. The Veteran's VA treatment records show that he is currently diagnosed with kidney cancer. At the March 2021 hearing, the Veteran testified that he was exposed to several environmental exposures while serving in the Persian Gulf War, to include burn pits, burning oil fields, cleaning agents, and depleted uranium in munitions. The Veteran's testimony is consistent with his circumstances of service. 38 U.S.C. § 1154(b). The Veteran has not yet had a VA examination to determine whether his kidney cancer is related to his military service, to include as due to these environmental exposures. Accordingly, a remand is required to obtain a VA examination and opinion addressing the etiology of the Veteran's kidney cancer. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board notes that a May 2018 letter from the Veteran's physician states that the Veteran has "several cancers which could certainly be linked to his exposure to many carcinogenic agents during his military service as a munitions specialist." The letter noted that the Veteran was exposed to burn pits in Iraq and Saudi Arabia, oil field fires, radiation, several chemicals, and depleted uranium in munitions. Unfortunately, the Board is unable to grant service connection based upon this opinion as it is too speculative. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Nevertheless, upon remand, the VA examiner should discuss the May 2018 letter. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment and private medical records and associate them with the claims file. The Board notes that there is a gap in the Veteran's VA treatment records from about March 2017 into March 2018. Any negative reply must be associated with the claims file. 2. Thereafter, obtain an addendum VA medical opinion to determine the nature and etiology of the Veteran's back disability. An in-person examination (or telehealth interview or similar action, if in-person examinations are not feasible) need not be scheduled unless it is deemed necessary by the examiner or otherwise required by the evidence. The examiner must review the claims file in its entirety, and that review should be noted in the examination report. The examiner is requested to provide separate, fully articulated medical opinions with respect to the following: The examiner should clarify and identify all back disabilities experienced by the Veteran during the appeal period, to include a paraspinal muscle strain and moderate degenerative disc disease. The examiner should offer an opinion as to whether it is at least as likely as not that the Veteran's back disability, however diagnosed, onset in service, within a year of service, or is otherwise directly related to service, to include due to lifting heavy munitions. The examiner must consider and comment on the Veteran's March 2021 testimony that his back disability progressed since service. The examiner should also offer an opinion as to whether it is at least as likely as not that the Veteran's back disability, however diagnosed, was caused or aggravated by his current service-connected knee disabilities. Lastly, the examiner should offer an opinion as to whether any back disability both [1] clearly and unmistakably preexisted the Veteran's second period of service, and [2] clearly and unmistakably was not aggravated beyond its natural progression by service. The Board reminds the examiner that the Veteran served on active duty from February 1980 until September 1992 and again from September 2005 until February 2006. For purposes of this analysis, aggravation is defined as a permanent worsening of the nonservice-connected disability beyond that due to the natural disease process. The rationale for all opinions expressed must be provided. If the examiner is unable to provide the requested opinion, he or she must explain why the opinion cannot be provided. 3. Thereafter, schedule the Veteran for a VA examination (or telehealth interview or similar action, if in-person examinations are not feasible) to determine the nature and etiology of his kidney cancer. After reviewing the claims file, the examiner is asked to opine on the following: Is the etiology of the Veteran's kidney cancer, inconclusive, partially understood, or fully understood? This determination must be made based on the Veteran's specific case and cannot be based on the etiology of the disease or disability in the population as a whole. Is the pathophysiology of the Veteran's kidney cancer (1) inconclusive, (2) partially understood, or (3) fully understood? This determination must be made based on the Veteran's specific case and cannot be based on the etiology of the disease or disability in the population as a whole. If both the etiology and pathophysiology of the Veteran's kidney cancer is partially understood or fully understood, then is it at least as likely as not (a 50 percent or greater probability) that the disability had its onset in service; manifested within one year after separation from service; OR is otherwise related to service, to include exposure to environmental toxins. The VA examiner is asked to comment and discuss the May 2018 letter stating that the Veteran has "several cancers which could certainly be linked to his exposure to many carcinogenic agents during his military service as a munitions specialist." A complete rationale for all opinions is requested. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Finelli, 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.