Citation Nr: 22014062 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 17-37 851 DATE: March 11, 2022 ORDER New and material evidence having been received, reopening of the previously denied claim for service connection for a low back disability is granted. REMANDED Entitlement to service connection for a low back disability, to include degenerative arthritis of the lumbar spine, status post spinal fusion at L4-L5-S1 with residual DDD, and spinal stenosis and as secondary to the service-connected residuals, right knee injury with degenerative changes, is remanded. FINDING OF FACT In an unappealed June 2015 decision, the Board denied service connection for a low back disability; subsequently received evidence includes evidence that is not cumulative or redundant and, presuming its credibility for these purposes, relates to an unestablished fact necessary to reopen the claim CONCLUSION OF LAW New and material evidence has been received to reopen the claim of entitlement to service connection for a low back disability. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1981 to March 1985. This case is before the Board of Veterans' Appeals (Board) on appeal from a December 2016 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that decision, the RO denied entitlement to service connection for a low back disability. In January 2017, VA received the Veteran's Notice of Disagreement (NOD). In July 2017, the RO issued a Statement of the Case (SOC). In July 2017, VA received the Veteran's VA Form 9 appeal to the Board. During the course of the appeal, the Veteran filed new claims for service connection for a low back disability in September 2019, August 2020, and December 2020. Rating decisions issued in February 2020, September 2020, and December 2020 denied readjudication of the claim for service connection for a low back disability. These rating decisions were issued under the modernized, Appeals Modernization Act (AMA) review system. The present appeal remains in the legacy review system and, therefore, this decision has been prepared consistent with legacy statutory and regulatory guidance. New and Material Evidence Whether new and material evidence has been received sufficient to reopen the previously denied claim for service connection for a low back disability. In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1100. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence is evidence not previously submitted to agency decision makers. Material evidence is defined as 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 cannot be cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable probability of the substantiating the claim. 38 C.F.R. § 3.156(a). The provisions of 38 U.S.C. § 5108 require a review of 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. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). In January 2009, VA received the Veteran's initial claim for service connection for a low back disability. See January 2009 VA Form 21-4138 (Statement in Support of Claim). In a June 2009 rating decision, the RO denied the claim for service connection for a low back disability. In August 2009, VA received the Veteran's NOD. See August 2009 VA Form 21-4138. In December 2009, the RO issued an SOC. In January 2010, VA received the Veteran's VA Form 9 appeal to the Board. In an October 2012 decision, the Board denied the Veteran's claim for service connection for a low back disability. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC or Court). In an April 2013 Court Order granting a Joint Motion for Partial Remand (JMPR) the Court vacated the Board's October 2012 decision in part and remanded the case for further development in compliance with the directives specified in the JMPR. In January 2014, the Board remanded the case back to the RO for additional development of the record pursuant to the directives specified in the JMPR. In June 2015, the Board again denied the Veteran's claim for service connection for a low back disability. The Veteran received notification of the Board decision in June 2015. However, the Veteran did not appeal within one year of the June 2015 Board decision. Therefore, the Board decision became final. In August 2016, VA received a new claim for service connection for a low back disability. In the December 2016 rating decision, the RO adjudicated the claim on the merits but confirmed and continued denial of the claim for service connection for a low back disability. In the legacy system, the Board is also required to address whether it is proper to reopen the claim, irrespective of the RO's actions in this regard. Barnett v. Brown, 83 F.3d 1380, 138384 (Fed. Cir. 1996); see also Jackson v. Principi, 265 F.3d 1366, 1369 (2001). Evidence of record at the time of the June 2009 rating decision included service treatment records (STRs), VA treatment records, and a December 2009 VA examination. Evidence received since the June 2015 Board decision includes additional VA treatment records, a VA examination from November 2016 and a September 2021 private medical opinion by Dr. Baber. The evidence received after the June 2015 Board decision relates to an unestablished fact necessary to substantiate the claim and is not cumulative or redundant. The evidence relates to a nexus between the current low back disability and service and also raises a new theory of secondary nexus to the service-connected residuals, right knee injury with degenerative changes. Therefore, the evidence is new and material and reopening of the previously denied claim for service connection for a low back disability is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a low back disability, to include degenerative arthritis of the lumbar spine, status post spinal fusion at L4-L5-S1 with residual DDD, and spinal stenosis (hereinafter "low back disability") and as secondary to the service-connected residuals, right knee injury with degenerative changes. The Veteran's current diagnoses include degenerative arthritis of the lumbar spine and status post spinal fusion at L4-L5-S1, DDD, and spinal stenosis. See November 2016 VA examination report; June 2014 VA examination report. The Veteran asserts that her current low back disability is related to an in-service injury resulting from a fall or alternatively is secondary to her service-connected residuals, right knee injury with degenerative changes. STRs from September 1982 show that the Veteran experienced low back pain after falling down a flight of stairs. There was also pain on movement and decreased range of motion of the right hip. See STRs dated September 4, 1982. However, a September 1984 Report of Medical History indicates that the Veteran denied recurrent back pain and an examination was negative for back abnormalities. See STRs dated September 20, 1984. Following service, the Veteran suffered a work-related low back injury and underwent spinal fusion in 1987. See June 2014 VA examination report. She has reported continuous low back pain since the in-service injury. See February 2015 VA Form 21-4138 Statement in Support of Claim. In September 2021, VA received a private medical opinion from Dr. Baber, who opined that the Veteran's low back disability was at least as likely as not related to service or, alternatively, was "secondary" to the service-connected residuals, right knee injury with degenerative changes. In formulating the above opinions, Dr. Baber considered "VAMC Medical Records," "Decision Reports," and "C & P Examinations," but did not list STRs as evidence considered. Regarding direct nexus to service, Dr. Baber reasoned that basic training was the cause of the Veteran's back disability. Dr. Baber cited literature noting "an incidence of 17% of lower back pain in all basic trainees." Furthermore, Dr. Baber cited literature finding that "unspecified low back pain during military service predicts low back pain in later life." Finally, Dr. Baber suggested that the Veteran may not have reported recurrent low back pain during service due to stigma of being labeled an "inferior soldier." Regarding secondary service connection, Dr. Baber noted that the Veteran's "knee pain has caused her to have an altered gait" which caused "an imbalanced stress on joint to support the bodies (sic) movements." Dr. Baber cited literature to demonstrate the process by which this imbalance can cause "accelerated degeneration ... or an exacerbation" of a pre-existing condition, including a lumbar spine condition. Dr. Baber indicated that the Veteran "has such a poor outcome of her knee disease that it required multiple treatments" and "[i]t is extremely unlikely that her knee disease did not have any effect on the lumbar spine." Dr. Baber stated that "[i]t is extremely unlikely that her knee disease did not have any effect on the lumbar spine" (emphasis added). Finally, Dr. Baber concluded "without reservations" that the Veteran's "lumbar spinal disease is at least as likely as not secondary to her service-connected knee disease and enlistment activities" (emphasis added). First, regarding the rationale for direct nexus, Dr. Baber failed to explain how the literature cited was applicable to the Veteran's case. For example, the literature cited revealed an incidence of 17% of lower back pain in basic trainees, but Dr. Baber failed to state why the Veteran falls within that group. Given that Dr. Baber's report also suggests that he did not review the Veteran's STRs, the opinion is not supported by full review of the Veteran's pertinent medical history and, therefore, cannot support a decision on the claim. Next, regarding the rationale for secondary nexus, Dr. Baber failed to provide a fully articulated opinion regarding whether the Veteran's low back disability was caused, i.e., proximately due to, or aggravated, i.e., made worse, beyond the natural progression. Instead, Dr. Baber stated that the Veteran's right knee disability had an "effect" on the low back disability and that the low back disability was "secondary" to the right knee disability. This is not a fully articulated opinion and, therefore, the opinion is insufficient to support a decision on the claim. Nonetheless, in light of Dr. Baber's opinions and literature cited therein, remand is warranted for a new VA examination for the low back disability that specifically addresses whether the low back disability is proximately due to or aggravated beyond its natural progression by the service-connected residuals, right knee injury with degenerative changes. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination to determine the current nature and likely etiology of the low back disability, to include degenerative arthritis of the lumbar spine, status post spinal fusion at L4-L5-S1 with residual DDD, and spinal stenosis. The claims file, including a copy of this Remand, must be made available to the examiner and the examiner must indicate that the claims file was reviewed in the examination report. A complete rationale for all opinions must be provided. The examiner should answer the following questions: (a.) Whether it is at least as likely as not that the Veteran's low back disability, to include degenerative arthritis of the lumbar spine, status post spinal fusion at L4-L5-S1 with residual DDD, and spinal stenosis, is caused by the service-connected residuals, right knee injury with degenerative changes. (b.) Whether it is at least as likely as not that the Veteran's low back disability, to include degenerative arthritis of the lumbar spine, status post spinal fusion at L4-L5-S1 with residual DDD, and spinal stenosis, is aggravated, i.e. made worse, beyond the natural progression by the service-connected residuals, right knee injury with degenerative changes. (c.) If aggravation is found, provide the baseline manifestations and any increased manifestations due to the service-connected disability. (d.) Whether it is at least as likely as not that the Veteran's low back disability, to include degenerative arthritis of the lumbar spine, status post spinal fusion at L4-L5-S1 with residual DDD, and spinal stenosis, is related to an in-service injury, event, or disease. The examiner should consider the September 2021 opinion completed by Dr. Baber, including any literature cited therein. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports are to be considered in formulating any opinion; however, in providing the requested opinion, the clinician should consider the Veteran's reported symptoms, including the progression and severity of her reported symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms are inconsistent with the nature of the service-connected disability, this should be noted. Stated another way, do the Veteran's reports about her symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? A complete rationale, with citation to appropriate medical principles, is requested. L. Baskerville Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Small, Attorney Advisor 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.