Citation Nr: A26036070 Decision Date: 04/17/26 Archive Date: 04/17/26 DOCKET NO. 210630-169327 DATE: April 17, 2026 ORDER New and relevant evidence having been received, readjudication of the claim of entitlement to service connection for a back condition to include degenerative joint disease and degenerative disc disease is warranted. REMANDED The claim of entitlement to service connection for a back condition to include degenerative joint disease and degenerative disc disease is remanded. FINDING OF FACT 1. An April 2015 rating decision denied the Veteran's claim of entitlement to service connection for a back condition to include degenerative joint disease and degenerative disc disease. 2. Evidence received since April 2015 is new and relevant. CONCLUSION OF LAW The criteria for readjudicating the claim of entitlement to service connection for a back condition to include degenerative joint disease and degenerative disc disease have not been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156, 3.2501. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1971 to May 1974 and from June 1975 to January 1978. The Veteran appeals a June 2021 rating decision. In the June 30, 2021, VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. The Board held a hearing on February 11, 2025, and the transcript is in the record. Therefore, the Board may only consider the evidence of record at the time of the June 2021 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. Because the Board is remanding the claim, the AOJ will consider any evidence the Board could not consider when it adjudicates the claim. 38 C.F.R. § 3.103(c)(2)(ii). 1. New and relevant evidence having been received, readjudication of the claim of entitlement to service connection for a back condition to include degenerative joint disease and degenerative disc disease is warranted. The Veteran seeks readjudication of his claim of entitlement to service connection for a back condition to include degenerative joint disease and degenerative disc disease. He contends that his back disability is due to either his service-connected bilateral knee disability or to an alleged in-service gunshot wound. In general, the three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury, which is the "nexus" element. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). "Secondary service connection will be granted if a disability is . . . due to or the result of a service-connected disease or injury." Harvey v. Shulkin, 30 Vet. App. 10, 15 (2018); see 38 C.F.R. § 3.310; Spicer v. McDonough, 61 F.4th 1360, 1363 (Fed. Cir. 2023) (secondary service connection requires "but-for causation," which is "broader than proximate causation") After VA decides a claim, the claimant may file a supplemental claim. 38 C.F.R. § 3.1(p)(2). When new and relevant evidence is "presented or secured with respect" to a supplemental claim, the AOJ will readjudicate the claim and consider all the evidence of record. 38 C.F.R. § 3.156(d). "New evidence is evidence not previously part of the actual record before agency adjudicators." 38 C.F.R. § 3.2501(a)(1). "Relevant evidence is information that tends to prove or disprove a matter at issue in a claim." Id. Relevant evidence also "includes evidence that raises a theory of entitlement that was not previously addressed." Id. A March 1980 rating decision found that the Veteran had complaints of a back condition in service, and it also notes that he has a current back disability. It states that the Veteran claimed that his back disability was due to sleeping on cots during his active service, but it found no nexus between the Veteran's current disability and his service. An April 2003 rating decision denied the Veteran's claim by finding that there was no nexus between his back disability and his bilateral knee disability. A March 2008 rating decision denied the claim on the same basis. A February 2015 rating decision found that there was no new and material evidence to reopen the Veteran's claim. A June 2021 VA medical opinion states that the Veteran's back disability is not likely related to his service-connected knee disability. During the February 2025 hearing, the Veteran asserted that he was shot during his active service, and he stated his belief that the arthritis in his back is due to that injury. In April 2025, the Veteran submitted a lay statement from P.O., who stated that he served with the Veteran and recalled the Veteran telling him that he was shot in 1972. The previous rating decisions denied the Veteran's claim by finding that there is no nexus between his current back disability and his active service or his service-connected knee disability. Thus, the "matter at issue" is whether the third Shedden element. The June 2021 examiner opined that there is no nexus between the Veteran's current back disability and his service-connected knee disabilities. This evidence is "new" because it was not before VA adjudicators in 2015 when VA last considered the Veteran's claim. Although the examiner's opinion is negative, it satisfies the regulatory definition for "relevant" evidence because it "tends to . . . disprove a matter at issue," which is whether there is a nexus between the Veteran's current back disability and his bilateral knee disability. 38 C.F.R. § 3.2501(a)(1) (emphasis added). Also, the Veteran testified and submitted lay evidence suggesting that his current back arthritis is due to an alleged in-service gunshot injury. The Board is not determining the credibility of that evidence now. However, the Board finds that the Veteran had never asserted that his arthritis was due to a gunshot injury, and this lay evidence is "new" evidence raises "a theory of entitlement that was not previously addressed." 38 C.F.R. § 3.2501(a)(1). Therefore, the Board finds that the Secretary has received new and relevant evidence, and readjudication of the Veteran's claim of entitlement to service connection for bilateral pes planus is warranted. REASONS FOR REMAND 2. The claim of entitlement to service connection for a back condition to include degenerative joint disease and degenerative disc disease is remanded. In the June 2021 rating decision on appeal, the AOJ denied entitlement to service connection for a back condition to include degenerative joint disease and degenerative disc disease on the basis that new and relevant evidence had not been received sufficient to warrant readjudication on the merits. As discussed above, new and relevant evidence has been received and readjudication of the claim is warranted. The Veteran has a procedural right to have one review of his appeal by the Secretary under 38 U.S.C. § 7104 (a), and amendments under the AMA do not specifically revoke that right. Thus, the issue must be remanded so that the claim may be considered on the merits by the AOJ. In addition, the Board finds that there is a pre-decisional duty to assist error with respect to the June 2021 medical opinion, which is not adequate. 38 C.F.R. §§ 3.2501(c), 20.802(a). The examiner's rationale states: "The Veteran's [s]ervice connection for a back condition is denied. [sic] at least ([l]ess likely than not (less than 50% probability)-negative) due to or the result of chondromalacia, both knees, rated as analogous to arthritis." This rationale is conclusory and provides no basis for the Board to evaluate the basis for the examiner's opinion. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) ("An opinion is adequate where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation will be a fully informed one.") (internal quotation omitted). Therefore, the Board finds that the AOJ should have returned the opinion for clarification, and the Board will remand the matter to correct this pre-decisional duty to assist error. 38 C.F.R. §§ 4.2, 20.802(a). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate medical professional for his back disability. The Veteran's electronic claims file, including a copy of this remand, must be accessible to the designated professional for review. The examiner must provide a detailed rationale for any opinion that he or she provides, and the opinion must state that the examiner has reviewed the Veteran's electronic claims file and this remand. After examining the Veteran and reviewing the claims file, the examiner must respond to the following: (a) Is it at least as likely as not (at least approximately balanced or nearly equal) that the Veteran's back disability was caused by the Veteran's bilateral knee disability? The examiner must address whether the Veteran would have his current back disability if he did not have his service-connected bilateral knee disability. (b) Is it at least as likely as not (at least approximately balanced or nearly equal) that the Veteran's back disability has been aggravated by the Veteran's service-connected bilateral knee disability? The examiner must address whether the Veteran's back disability is worse than it would be if the Veteran did not have the service-connected bilateral knee disability. If the examiner finds aggravation, the examiner must attempt to quantify the degree of additional disability resulting from aggravation. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. As the Board has found that new and relevant evidence has been received in support of the Veteran's previously denied service-connection claim for a back condition to include degenerative joint disease and degenerative disc disease, readjudicate the claim on its merits in the first instance. Consideration must be given to the new and relevant evidence described above, including the June 2021 medical opinion and the lay evidence regarding an alleged in-service gunshot injury. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B.B., 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.