Citation Nr: 23017170 Decision Date: 03/20/23 Archive Date: 03/20/23 DOCKET NO. 19-09 604 DATE: March 20, 2023 ORDER The petition to reopen the previously disallowed claim of entitlement to service connection for a left leg disability (claimed as leg cramps) is granted. The petition to reopen the previously disallowed claim of entitlement to service connection for a right leg disability (claimed as leg cramps) is granted. REMANDED The issue of entitlement to service connection for lumbar degenerative disc disease (DDD) is remanded. The issue of entitlement to service connection for a left leg disability (claimed as lumbar radiculopathy), including as secondary to lumbar DDD, is remanded. The issue of entitlement to service connection for a right leg disability (claimed as lumbar radiculopathy), including as secondary to lumbar DDD, is remanded. FINDINGS OF FACT 1. The claims of entitlement to service connection for bilateral leg disabilities were most recently considered and denied by the Department of Veterans Affairs (VA) Regional Office (RO) in September 2013. 2. The evidence associated with the claims file subsequent to the RO's September 2013 decision is new to the record and relates to an unestablished fact necessary to substantiate the merits of the claims of entitlement to service connection for bilateral leg disabilities and raises a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. The September 2013 rating decision, which denied service connection for bilateral leg disabilities, is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. As new and material evidence has been received since the issuance of a final September 2013 decision, the criteria for reopening the claim for service connection for a left leg disability are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. As new and material evidence has been received since the issuance of a final September 2013 decision, the criteria for reopening the claim for service connection for a right leg disability are met. 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 November 1979 to November 1982. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a Notice of Disagreement (NOD) in September 2018 and Statement of the Case (SOC) was issued in January 2019. In March 2019, the Veteran filed a VA Form-9 and requested an optional Board hearing. She withdrew her hearing request in May 2019. The Board acknowledges an April 2019 VA Form 646 where the Veteran's attorney indicated disagreement with the issue of entitlement to an effective date prior to March 13, 2018, for the award of service connection for depressive disorder. However, on the March 2019 VA Form 9, the Veteran stated that she was only appealing the issues of entitlement to service connection for lumbar DDD and radiculopathy of the bilateral lower extremities. She did not indicate disagreement with the issue of entitlement to an effective date prior to March 13, 2018, for the award of service connection for depressive disorder. As the April 2019 VA Form 646 was filed more than 60 days after the issuance of the January 2019 SOC, it is not considered a timely appeal as to the issue of entitlement to an earlier effective date for the award of service connection for depressive disorder; therefore, the issue is not on appeal before the Board at this time. New and Material Evidence In general, RO rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. If a claim for entitlement to service connection has been previously denied and that decision became final, the claim can be reopened only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is a low one. Consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate any element of the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). However, a new theory of entitlement does not automatically reopen a previously denied claim. See Bingham v. Nicholson, 421 F.3d 1346, 1348-49 (2005); see also Boggs v. Peake, 520 F.3d 1330, 1336 (Fed. Cir. 2008) (new theory of causation for same disease or injury that was subject of previously denied claim cannot be basis of new claim). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is generally presumed, unless it is inherently false or untrue or, if in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994). 1. Whether new and material evidence was submitted in order to reopen the claim for a left leg disability (claimed as leg cramps) 2. Whether new and material evidence was submitted in order to reopen the claim for a right leg disability (claimed as leg cramps) The Veteran's claim for bilateral leg cramps was denied in a September 2013 rating decision. The Veteran was notified of this decision and of her appeal rights in a September 2013 letter. The Veteran filed a NOD in October 2013 and a SOC was issued in April 2016. The Veteran did not perfect an appeal to the Board. Moreover, no evidence pertaining to the Veteran's claim was associated with the file or generated by VA within one year of the RO's decision. As a result, the September 2013 decision became final. When the Veteran's claims were denied in September 2013, the record contained the Veteran's service treatment records, post-service medical records, and the Veteran's lay statements. Based on this evidence, the RO denied the Veteran's claim because the evidence of record failed to show that the Veteran's leg cramps were permanently worsened as a result of service. Evidence associated with the claims file after the prior final denial includes the Veteran's VA treatment records, a March 2018 letter from a VA provider, an August 2018 back conditions examination, and lay statements from the Veteran. Because the March 2018 letter from a VA provider raises the possibility that the Veteran's bilateral leg disability (lumbar radiculopathy) is due to her military duties, the claims are being reopened. REASONS FOR REMAND 1. Entitlement to service connection for lumbar DDD The Veteran contends that she has lumbar DDD as a result of her duties in service. Specifically, she claims that while working as a cook, she had to lift heavy cookware. She also claims that her duties in the mailroom involved lifting heavy mail sacks. The Board is cognizant that a March 2018 letter written by a VA provider indicates that the Veteran's lumbar DDD is due to her military duties. However, as this opinion is not supported by an adequate rationale, it cannot be used as the basis to award service connection in this case. The Veteran also underwent a VA examination to determine the nature and etiology of her claimed back disability in August 2018. After reviewing the record and conducting a clinical evaluation, the examiner opined that the evidence in the service treatment records "is insufficient to support a nexus between the veteran's reports of back pain in service and her current back pain condition that was documented and diagnosed in 2013," over three decades after her separation from service. The examiner also indicated that it is significant to note that the Veteran reported working as a cook for over 23 years and a sorter in a film processing plant for over 25 years after service. The report states that these activities include daily heavy lifting which puts stress on the spine. The examiner reviewed the claims file, but it is unclear how she evaluated the Veteran's lay statements of ongoing pain. It is apparent that the examiner was aware of these statements because they were recounted on page 1 of the report. However, the opinion does not clearly indicate whether the examiner doubted the veracity of these statements in light of the medical evidence of record and/or the principles relating to the onset and progress of the disease. Additional clarification is necessary. Further, under 38 C.F.R. § 19.37(a), evidence received by the AOJ prior to the transfer of records to the Board after an appeal has been initiated will be referred to the appropriate rating or authorization activity for review and disposition. In such circumstances, a supplemental statement of the case (SSOC) must be furnished to the Veteran and any representative, as provided in 38 C.F.R. § 19.31, unless the additional evidence is duplicative or not relevant to the issue on appeal. 38 C.F.R. § 19.37(a). Here, a SOC was issued in January 2019. Subsequently, VA treatment records were added to the file following the SOC and prior to certification of the appeal to the Board. These records are pertinent to the Veteran's claim. Therefore, the evidence received by the AOJ prior to the transfer of records to the Board must be referred to the AOJ for initial review and disposition. 38 C.F.R. §§ 19.31, 19.37(a). 2. Entitlement to service connection for a left leg disability (claimed as lumbar radiculopathy), including as secondary to lumbar DDD 3. Entitlement to service connection for a right leg disability (claimed as lumbar radiculopathy), including as secondary to lumbar DDD The Veteran contends that she has a bilateral leg disability (claimed as lumbar radiculopathy) as a result of her duties in service. Specifically, she claims that while working as a cook, she had to lift heavy cookware. She also claims that her duties in the mailroom involved lifting heavy mail sacks. In the alternative, she contends that her bilateral leg disabilities are secondary to her lumbar DDD. Upon enlistment into service, the Veteran reported having cramps in her legs after exercise. See August 1967 Report of Medical History. However, upon clinical examination, the Veteran's lower extremities were found to be normal. Thus, the Veteran is presumed sound upon entry into service. 38 U.S.C. § 1111. While in service, the Veteran reported leg cramps and pain in January 1982. The Veteran was provided with a VA examination in September 2013 where the VA examiner noted muscle cramps in the right lower extremity but found that this not due to her service because there was "no compelling evidence in the C-file or VA records to suggest that the vet had an ongoing condition characterized by right leg cramps." The examiner added that the Veteran's enlistment physical showed reports of leg cramps. The Board notes that the September 2013 VA examiner partially based her negative nexus opinion on the Veteran entering service with leg cramps. However, as noted above, the Veteran is presumed sound upon entry into service in this case. As such, the Board finds that a new medical opinion is required prior to adjudication of these claims. The matters are REMANDED for the following action: 1. Arrange for an appropriate health care provider to review the Veteran's claims file and provide an opinion as to whether any lumbar spine disorder had its clinical onset during service or is due to an event or incident of the Veteran's period of active service. If the reviewing health care provider finds that physical examination or telehealth interview of the Veteran and/or diagnostic testing is necessary, such should be accomplished. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that her reports must be considered in formulating the requested opinion. However, if there is a medical reason to doubt its veracity, the examiner should explain why the Veteran's statements or recollection are inconsistent with the evidence in this case, medical principles relating to the onset and progress of the disease, the specific findings in the record, and/or your professional judgment. 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. 2. Obtain an addendum opinion from an appropriate clinician for the Veteran's bilateral leg disabilities, to include leg cramps and radiculopathy. The need for a physical examination is left to the discretion of the medical professional offering the medical opinion. The claims file should be made available for review. The examiner should provide an opinion on the following: (a.) Whether any diagnosed right or left lower extremity radiculopathy, to include leg cramps clearly and unmistakably existed prior to the Veteran's active duty service. A complete rationale for this opinion must be provided. (b.) If the examiner finds that right or left lower extremity radiculopathy, to include leg cramps clearly and unmistakably existed prior to service, please state whether it is clear and unmistakable that the pre-existing disability was NOT aggravated (i.e., permanently worsened beyond the natural course of the disease) during service. A complete rationale for this opinion must be provided. (c.) For any right or left lower extremity radiculopathy, to include leg cramps disability that did not clearly and unmistakably exist prior to service, the examiner must provide an opinion addressing whether any such disability had its clinical onset during service or is due to an event or incident of the Veteran's period of active service. (d.) If service connection for the lumbar spine is established, the examiner should also indicate whether the lower extremity radiculopathy, to include leg cramps were (A) caused or (B) aggravated beyond its normal progression by the lumbar spine. Aggravation means an increase in disability any additional impairment of earning capacity of the nonservice-connected disability. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the diagnosed disability prior to aggravation by the service-connected disability. A fully articulated medical rationale for any opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history and the relevant medical science as applicable to this case, which may reasonably explain the medical guidance in the study of this case. (Continued on the next page.) 3. Readjudicate the claims on appeal upon consideration of the additional evidence associated with the Veteran's claims file after the January 2019 SOC. Send the Veteran and her representative an SSOC that addresses the issues on appeal. The Veteran and her representative should be given an appropriate time to respond before the appeal is returned to the Board for further appellate consideration. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morrad, 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.