Citation Nr: 22013327 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 18-14 718 DATE: March 9, 2022 ORDER New and material evidence has been received to reopen a claim of entitlement to service connection for a low back disability and to that extent only the claim is granted. REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for bilateral hand and finger nerve damage is remanded. Entitlement to an increased rating for a left ankle disability is remanded. Entitlement to an increased rating for bilateral foot calluses is remanded. FINDINGS OF FACT 1. The August 1992 rating decision that denied service connection for low back pain is final. 2. The evidence received since the August 1992 rating decision, by itself, or in conjunction with previously considered evidence, is new and material. CONCLUSIONS OF LAW 1. The August 1992 rating decision that denied service connection for low back pain is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 2. The evidence received after the August 1992 rating decision is new and material, and the claim for service connection for a spine disability, to include cervical and lumbar spine disabilities, is reopened. 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 April 1986 to April 1989 and from August 1989 to January 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware. In August 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. The Veteran submitted a claim of entitlement to service connection for back spasms and a separate claim of entitlement to service connection for herniated disc. The Board notes that the Veteran does not have medical expertise and is not expected to precisely identify medical diagnoses. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board, based on the medical and lay evidence of record, has since recharacterized the claims for service connection for cervical and lumbar spine disabilities. Clemons v. Shinseki, 23 Vet. App. 1 (2009). 1. Whether new and material evidence has been received to reopen a claim for service connection for a low back disability. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. VA rating decisions that are not timely appealed are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as 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). An adjudicator must follow a two-step process in evaluating a previously denied claim. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided on the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA's statutory duty to assist the appellant in the development of her claim has been fulfilled. 38 U.S.C. § 5108. The claim to reopen does not require the submission of new and material evidence as to each previously unproven element of a claim for that claim to be reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether the low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. The Board has thoroughly reviewed all the evidence in the claims file. The Board has an obligation to provide reasons and bases supporting a decision. However, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000) (Board must address its reasons for rejecting evidence favorable to the Veteran). The Department of Veterans Affairs (VA) Regional Office (RO) first considered and denied a claim for service connection for low back pain in an August 1992 rating decision. At that time, the evidence of record included service medical records from April 1986 to January 1992 and a March 1992 VA examination. The August 1992 rating decision denied service connection for low back pain because no back disability was shown on VA examination. The Veteran was notified of the August 1992 rating decision and his appellate rights. However, the Veteran did not perfect an appeal in a timely manner or submit new and material evidence within one year of notification of that decision. The August 1992 rating decision is now final. 38 U.S.C. § 7105; 38 C.F.R. § § 3.156, 3.160(d), 20.200, 20.201, 20.302, 20.1103. The Board, based on the medical and lay evidence of record, has recharacterized the claim as service connection for a spine disability, to include cervical and lumbar spine disabilities. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The evidence received and submitted into the record since the August 1992 rating decision includes additional VA treatment and personnel records, and several lay statements. The evidence of record now shows medical evidence of a spinal diagnosis. Specifically, an October 2015 surgical note diagnosed cervical spondylosis and disk herniation with myelopathy. The credibility of the newly submitted evidence is presumed in determining whether the new evidence is material. Justus v. Principi, 3 Vet. App. 510 (1992). As the medical evaluations are presumed to be credible for the limited purpose of attempting to reopen a previously denied claim, that evidence raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Accordingly, the additional evidence is also material. As new and material evidence has been received, the claim for service connection for spine disability is reopened. REASONS FOR REMAND 1. Entitlement to an increased rating for a left ankle disability is remanded. 2. Entitlement to an increased rating for bilateral foot calluses is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claims of entitlement to an increased rating for a left ankle disability and bilateral foot calluses. VA's statutory duty to assist the Veteran includes the duty to conduct a thorough examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). The record shows that the Veteran was most recently provided a VA skin and ankle examinations in April 2018, almost four years ago. The Board recognizes that, generally, the mere passage of time is not a sufficient basis for a new examination. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). However, when available evidence is too old for an adequate evaluation of the current condition, VA's duty to assist includes providing a more current examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). The Board finds that not only are the most recent examinations remote, but the examinations appear to no longer indicate the current level of disability. Specifically, the Board notes that, during an August 2021 Board hearing, the Veteran explicitly alleged a worsening in severity of the service-connected disabilities. The Board finds that updated examinations are warranted to assess the current severity and manifestations of the service-connected disabilities. After all outstanding medical records are associated with the claims file, more contemporaneous examinations are needed to rate the claims for increased ratings for a left ankle disability and bilateral foot calluses. Allday v. Brown, 7 Vet. App. 517 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). 3. Entitlement to service connection for a cervical spine disability is remanded. 4. Entitlement to service connection for a lumbar spine disability is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of service connection for a spine disability. The Veteran contends that a current spine disability is caused by or related to active duty service, to specifically include a bike accident in service and/or fall from a helicopter. As an initial matter, the Board notes that the Veteran was most recently provided a VA back examination in March 1992. However, no etiological opinion was provided during that examination. The record now shows a potential diagnosis and an alleged potential causation related to service-connected disabilities. However, the Veteran has not been provided a VA examination which addresses any relationship between the claimed disabilities and service or service-connected disabilities. That is a pre-decisional duty to assist error. Therefore, the Board finds that a VA opinion to determine any relationship between the claimed disabilities and active service should be scheduled. 5. Entitlement to service connection for bilateral hand and finger nerve damage is remanded. Because a decision on a claim for service connection for neck and back disabilities could significantly impact a decision on the issue of entitlement to service connection for bilateral hand and finger nerve damage, which are claimed as secondary to neck and back disabilities, a determination cannot be made on the claims until a decision has been made on the claims for service connection for neck and back disabilities. The record contains medical records noting a potential etiological nexus between the claimed bilateral hand and finger nerve conditions and the claimed back and neck disabilities. As a result, the Board finds that those claims are inextricably intertwined, and remand is required for the hand and finger claims. Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, as there is some evidence of a secondary etiological connection between the claimed hand and finger conditions and a pending claim for service connection, the issues must be considered inextricably intertwined and remand is required pending resolution of the claims for service connection for lumbar and cervical spine disabilities. The Veteran is notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination, if needed, without good cause may include denial of the claim. 38 C.F.R. § 3.655. The matters are REMANDED for the following action: 1. Obtain all pertinent VA medical records, not yet associated with the claims file, and associate them with the claims file. 2. Schedule the Veteran for a VA examination to determine the current severity of a service-connected left ankle disability. The examiner must review the claims file and should note that review in the report. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The examiner should provide the following information: (a) All ranges of motion involving both ankles should be tested, and the examiner should note if repeated range of motion testing results in additional limitation of motion, or in functional loss, or if there is weakened movement, excess fatigability, or incoordination attributable to the Veteran's service-connected disability, expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. (b) The examiner should test the range of motion of both ankles in active motion, passive motion, weight-bearing, and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner should clearly explain why that is so. (c) Opine whether any pain associated with the left ankle disability significantly limits functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss due to pain on use or during flare-ups. The examiner must attempt to ascertain adequate information concerning the functional effects of the ankle disability during flare-ups, such as information regarding frequency, duration, characteristics, severity, or functional loss. The examiner should state whether or not there is any ankylosis of the left ankle. 3. Schedule the Veteran for a VA examination to determine the current level of severity of bilateral foot calluses. The examiner must review the claims file and must note that review in the report. Any indicated studies should be performed. The examiner must provide all information required for rating purposes, including whether the foot calluses result in any scars are tender, painful, unstable or otherwise symptomatic. Unretouched color photographs of the affected areas should be included in the examination report. The examiner should provide a statement as to the area, in square inches or square centimeters, of the skin affected. The examiner should also opine whether the calluses cause any scars that are deep, unstable, or painful. The examiner should state whether the calluses result in any functional impairment of the foot. The examiner should state whether the calluses result in moderate, moderately severe, or severe disability of either foot. The examiner should opine whether 5 percent or more of the body is affected by the calluses of the feet. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 4. Then, schedule the Veteran for a VA examination to diagnose and determine the nature and etiology of an y cervical or lumbosacral spine disability. The examiner must review the claims file, including this Remand and the Veteran's lay statements, including hearing testimony, and should indicate review of the file in the report. The examiner is advised that the Veteran is competent to report symptoms and history and that those reports must be acknowledged and considered in formulating any opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. The examiner should diagnose all neck and back disabilities found or shown in the record during the pendency of the claim, to include pain resulting in a functional loss of the lumbar or cervical spine. For each diagnosed back or neck disability found or shown in the records, to include any pain resulting in functional loss, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that each back or neck disability is etiologically related to service or any event, disease, or injury during service, including whether any back or neck disability (1) began during active service; (2) was noted during service with continuity of the same symptomatology since service; (3) was caused by the service-connected disabilities or treatment for the service-connected disabilities, to specifically include left ankle and bilateral foot callus disabilities or any altered gait caused by the left ankle and bilateral foot callus disabilities, (4) has been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities or treatment for the service-connected disabilities, to specifically include left ankle and bilateral foot callus disabilities or any altered gait caused by left ankle and bilateral foot callus disabilities, or (5) manifested as arthritis within one year after separation from service. Please cite to any evidence to support a finding of back or neck arthritis within one year following separation from service. The examiner must discuss the significance of any altered gait caused by a service-connected left ankle disability or bilateral foot callus disability and its impact on any current back or neck disability. A clearly stated rationale for each opinion should be provided and must not be based on the lack of record in service of the claimed disability. The examiner must discuss the significance, if any, of the Veteran's in-service bike accident and helicopter fall on his currently claimed back and neck disabilities. In writing the report, the examiner should refer to any service medical records indicating treatment in service for any back or neck disability. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mondesir, Eric 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.