Citation Nr: 22004875 Decision Date: 01/28/22 Archive Date: 01/28/22 DOCKET NO. 17-19 966 DATE: January 28, 2022 ORDER With new and material evidence having been presented, the claim for entitlement to service connection for degenerative arthritis of the spine, also claimed as spondylolisthesis, is reopened. Entitlement to service connection for degenerative arthritis of the spine, also claimed as spondylolisthesis, is granted. REMANDED Entitlement to service connection for a psychiatric disorder is remanded. FINDINGS OF FACT 1. In a March 2003 rating decision, the RO denied service connection for degenerative arthritis of the spine. The Veteran did not perfect an appeal and the decision became final. 2. Evidence added to the record since the March 2003 rating decision is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claim of service connection for degenerative arthritis of the spine. 3. The Veteran's back disability is related to his active service. CONCLUSIONS OF LAW 1. New and material evidence has been received since the March 2003 rating decision denying entitlement to service connection for the degenerative arthritis of the spine; the criteria for reopening this claim have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. The criteria for service connection for degenerative arthritis of the spine, also claimed as spondylolisthesis, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from February 1975 to February 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in February 2016 by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared for a hearing before the undersigned Veterans Law Judge in February 2021. A transcript of the hearing is of record. New and Material Evidence 1. With new and material evidence having been presented, the claim for entitlement to service connection for degenerative arthritis of the spine, also claimed as spondylolisthesis is reopened The Veteran is seeking to reopen his claim for entitlement to service connection for degenerative arthritis of the spine, also claimed as spondylolisthesis. VA may reopen a claim for service connection which has been previously and finally disallowed when new and material evidence has been presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996). In this regard, "new evidence" means existing evidence not previously submitted to VA. "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. Taken in combination, 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). New evidence may be sufficient to reopen a claim if it can contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998); Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Thus, the Board must first determine whether new and material evidence has been submitted under 38 C.F.R. § 3.156(a) to have a claim reopened under 38 U.S.C. § 5108. Elkins v. West, 12 Vet. App. 209 (1999). Then the Board may proceed to evaluate the merits of the claim after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). To determine whether new and material evidence has been submitted, it is necessary to consider all evidence added to the record since the last time the claim was denied on any basis in conjunction with the evidence already of record. The RO initially denied the Veteran's claim for service connection for his back disability in March 2003 the basis that there was no nexus linking his current back disability to his military service. This denial of service connection became final, as the Veteran did not perfect an appeal of the RO's rating decision, nor was any new and material evidence received within a year. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. The Veteran sought to reopen his claim for service connection in December 2015 by submitting new evidence. The February 2016 rating decision denied the reopening of the Veteran's claim because the RO determined that the evidence submitted was not new and material. The Veteran perfected an appeal. The Board finds that the new evidence does raise a reasonable possibility of substantiating the Veteran's claim. Again, the March 2003 rating decision denied the Veteran's claim on the basis that there was no medical nexus linking the Veteran's current back disability to his military service. The new evidence (which is discussed more fully in the subsequent section) not only establishes that the Veteran has a diagnosis of degenerative arthritis, it also establishes the reasonable possibility that the Veteran's disability could be related to his active duty service. This evidence raises a reasonable possibility of substantiating the Veteran's claim. Therefore, the Board finds that new and material evidence is of record since the prior final denial of this claim in March 2003. Shade, 24 Vet. App. at 117. The claim of entitlement to service connection for degenerative arthritis of the spine is thus reopened. Service Connection 2. Entitlement to service connection for degenerative arthritis of the spine, also claimed as spondylolisthesis The Veteran asserts he is entitled to service connection for a low back disability. Generally, to establish service connection there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the in-service injury incurred or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). During his February 2021 hearing, the Veteran reported that he was diagnosed with scoliosis during his entrance examination. He reported performing strenuous work during service that would leave his back sore for a few days. The Veteran stated that he didn't begin to start having issues with his back until he was in his 30's. VA treatment records reveal a current diagnosis of degenerative arthritis of the spine. Service treatment records (STRs) document a notation of scoliosis on the Veteran's entrance examination in February 1975. The Veteran's STRs do not contain further complaints or treatment for his back. He also did not indicate any issues with his back on his December 1978 separation examination. In August 2016, the Veteran submitted a medical opinion from his private treating physician. The physician noted that the Veteran had episodes of severe back pain associated with lifting and carrying heavy equipment during his active duty service. The physician opined that the Veteran developed a stress fracture during service which led to the development of his current spondylolisthesis. The Board finds that the August 2016 private physician opinion is entitled to great probative weight as such considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). As such, the Board finds that all three elements for service connection have been satisfied and entitlement to service connection for degenerative arthritis of the spine is warranted. REASONS FOR REMAND 1. Entitlement to service connection for depression is remanded. The Veteran asserts he is entitled to service connection for depression as secondary to his service connected tinnitus. The Veteran appeared for a VA examination to determine the nature and etiology of his depression in February 2016. The examiner determined that the Veteran had obsessive compulsive disorder. The examiner opined that the Veteran's obsessive compulsive disorder was less likely than not related to his military service either directly or as secondary to his hearing loss and tinnitus. The Board finds the February 2016 VA medical opinion to be inadequate. First, the examiner determined that the Veteran had obsessive compulsive disorder instead of depression. Multiple notations in the Veteran's VA treatment records since December 2015 note a diagnosis of depression. The February 2016 VA examiner did not address these notations in determining that the Veteran did not have a diagnosis of depression. Second, the examiner did not provide an adequate rationale for the opinion provided. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). As such, the Board finds that the February 2016 VA medical opinion is inadequate and a remand is warranted to obtain a new VA medical examination and opinion. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his claimed psychiatric disorder. The examiner must review the claims file, to include a copy of this remand, prior to examining the Veteran. The examiner is asked to provide a response to the following: a. From what current psychiatric disorder or disorders does the Veteran currently suffer? If your diagnosis differs from previous diagnoses found in the record, then explain the basis for the difference. b. Is it at least as likely as not that any diagnosed psychiatric disorder had its onset during or is otherwise related to the Veteran's active service? c. Is it at least as likely as not that any diagnosed psychiatric disorder is secondary to the Veteran's service-connected disabilities? That is, is it at least as likely as not that any diagnosed disorder is proximately due to, the result of, or aggravated by the Veteran's service-connected back disability, tinnitus, or bilateral hearing loss? (Continued on next page) The examiner must provide a complete rationale for all requested opinions. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. K. Hall, 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.