Citation Nr: 0811648 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 04-41 941 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for a low back disability, and if so, whether service connection should be granted. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Linda E. Mosakowski, Associate Counsel INTRODUCTION The veteran served on active duty from August 1987 to July 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A hearing was held before the undersigned Acting Veterans Law Judge via videoconference in November 2007. The veteran submitted evidence at that hearing with a signed statement that she waived RO consideration of the additional evidence. See 38 C.F.R. §§ 20.1304(a) (2007) (evidence received at a Board hearing is considered submitted within 90 days of certification to the Board). 38 C.F.R. § 20.1304(c) (if evidence is accepted by the Board, it need not be submitted to the agency of original jurisdiction if the veteran waives that procedural right). Accordingly, that evidence was accepted by the Board and considered in deciding this appeal. FINDINGS OF FACT 1. An unappealed December 1994 rating decision denied the veteran's claim for service connection for a low back disability. 2. Evidence has been received since the last, prior, final denial on any basis, in December 1994, which, when considered in conjunction with the record as a whole, constitutes existing evidence not previously submitted to agency decisionmakers, relates to an unestablished fact necessary to substantiate the claim, is not cumulative nor redundant of the evidence previously considered, and raises a reasonable possibility of substantiating the claim. 3. The veteran sustained a low back injury during service. 4. The veteran has been diagnosed with status post lumbar laminectomy with sciatica of the right lower extremity, with a history of degenerative disc disease. 5. The veteran's current low back disability is related to the injury incurred during service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for service connection for a low back disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.156, 3.303 (2007). 2. The criteria for service connection for a low back disability have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Claim To Reopen A. Last, prior, final decision denying service connection for a low back disability Following an adverse determination by the RO, a notice of disagreement must be filed within one year from the notification of that determination. 38 U.S.C.A. § 7105(b)(1); 38 C.F.R. §§ 3.104(a); 20.302(a). Generally, in the absence of clear and unmistakable error, RO determinations that are not timely appealed are final and may not be reconsidered. See 38 U.S.C.A. §§ 5109A(b); 38 C.F.R. § 20.1103. In May 1994, the veteran filed a claim for service connection for a low back disability. In December 1994, the RO denied that claim. The RO explained that although there was a record of treatment for low back pain, strain, no permanent residual or chronic disability was shown by service medical records or records after service. No evidence connecting the then-current back pain to the inservice back condition was submitted. The veteran was notified of the adverse decision in December 1994, but she did not file a notice of disagreement with respect to that decision. The decision therefore became final. 38 C.F.R. § 20.302(a). That December 1994 rating decision is the last, prior, final decision that denied service connection for a low back disability. B. New and material evidence If new and material evidence is submitted or secured with respect to a previously- denied claim, VA must reopen that claim and evaluate the merits of the claim in light of all the evidence, both new and old. 38 U.S.C.A. § 5108; Spalding v. Brown, 10 Vet. App. 6, 10 (1997). 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). Since the December 1994 rating decision, the RO has received much evidence. As relevant here, the March 2004 report by Dr. Jasmine Moini constitutes new and material evidence sufficient to warrant reopening the veteran's claim for entitlement to service connection for a low back disability. Dr. Moini's March 2004 report is evidence that was not previously submitted to agency decision makers before the December 1994 last, prior, final decision denying service connection for a low back disability. Thus, it is new evidence within the meaning of 38 C.F.R. § 3.156(a). That report is also material. The existence of a relationship between the current disability and an inservice injury or disease is one of the requirements for establishing service connection. 38 C.F.R. § 3.303. The RO's denial of the claim in December 1994 was based on the fact that there was no relationship between the veteran's current back disability and the inservice back condition. But Dr. Moini's March 2004 report included her medical opinion that the initial trauma to the veteran's back occurred while she was in the military and that injury has become more pathological and symptomatic over time. As a result, the report by itself relates to an unestablished fact necessary to substantiate the claim. That report is thus material within the meaning of 38 C.F.R. § 3.156(a). It also meets the other two requirements for new and material evidence sufficient to warrant reopening a previously-denied claim-evidence that is 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 that must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Since there was no definite nexus opinion of record at the time of the December 1994 rating decision, Dr. Moini's medical opinion is neither cumulative nor redundant of the evidence before the agency decisionmakers in December 1994. And since Dr. Moini is a medical professional capable of providing competent medical judgments, the report raises the reasonable possibility of substantiating the claim. Since Dr. Moini's March 2004 report meets all of the requirements for new and material evidence within the meaning of 38 C.F.R. § 3.156(a), the claim is reopened. II. Service connection for a low back disability Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For service connection, three requirements must be established: (1) a current disability exists; (2) an injury or disease was incurred during active military service; and (3) a relationship exists between the current disability and the inservice injury or disease. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) (a determination of service connection requires a finding of the existence of a current disability and a determination of the relationship between that disability and an injury or disease incurred in service). In this appeal, there is no controversy with respect to the first requirement. The veteran has been diagnosed with status post lumbar laminectomy with sciatica of the right lower extremity, with a history of degenerative disc disease. She thus has a current low back disability. As to the second requirement-that a disease or injury was incurred during service-the veteran was treated a few times during service for back strain. Her military records show that as a materials specialist, she was required to lift boxes. She testified that these boxes ranged from 15 to 55 pounds. Transcript, pp. 5-6; see also August 1989 Pregnancy Workplace Interview (supervisor confirms that her job involves lifting, bending, pulling, and working at heights); August 1989 Environmental Health Consultation Sheet (as a Material Facility Specialist, the veteran's duties are mostly manual in nature, i.e., works on lifting materials (bulk issue and office supplies), placing them on carts to transport or uses forklifts to palletize or transport). It is not clear whether the injury was incurred as a result of the June 1988 incident (diagnosed as lumbar strain), the February 1992 incident (diagnosed as lumbar strain), or some other incident. See, e.g., July 1992 treatment records of Dr. Frisbee (veteran complained of lower back pain with leg pain, for which he recommended bed rest). Nevertheless, the record shows that the veteran incurred a low back injury during service. While the report itself is not in her service medical records, an August 1992 examiner recorded that an X-ray showed transitional vertebrae with sacrilization of L-5 and slightly narrowed disc space at L4- L5. She was diagnosed with sciatica and sent to physical therapy. She also was prescribed a lumbosacral corset, which the February 1993 examiner noted she had been wearing for several months. At her April 1993 separation examination, on the medical history form, the veteran marked that she had recurrent back pain. The examiner conducting her separation examination checked the box for normal spine, but in the space for comments on the examination report, did not address her notation of, or history of, recurrent back pain. Nor did he address her recurrent back pain in the space for comments on her report of medical history form. Post-service records also show that the veteran injured her low back during service. Even if a disability is not clearly a chronic condition during service, continuity of symptomatology can support the service connection claim. 38 C.F.R. § 3.303(b). In this regard, in June 1994, eleven months after service, the veteran was given a VA compensation and pension (C&P) examination. An X-ray was taken that showed no significant abnormality of the lumbar spine and sacro-iliac joints preserved. Yet, while the June 1994 examiner noted that X-ray report, he nevertheless diagnosed the veteran with recurrent low back pain with a history of sciatica. No nexus opinion was provided by that examiner; yet that diagnosis shows at a minimum, that the veteran's low back pain symptoms had continued shortly after discharge. The next medical treatment report in the claims file about her low back is a November 1999 VA treatment record that merely reflects that the veteran's back spasm (for which she had been prescribed Flexeril) was clinically stable in a satisfactory condition. That record also shows that she had continuity of low back symptoms after service. In addition, the veteran is competent to present sworn testimony that her back pain was chronic for many years after service. Transcript, pp. 15-20. Falzone v. Brown, 8 Vet. App. 398, 405-406 (1995) (lay statements about a person's own observable condition or pain are competent evidence). And her explanation-that with two small children to care for, since she already had a prescription for muscle relaxants and had been told to take over-the-counter analgesics for the pain, she did not regularly seek medical attention for her back pain until it began to interfere with her work-is credible. Transcript, p. 18. Given the inservice X-ray report, the severity of her condition in August 1992 that required her to wear a lumbosacral corset for several months, the diagnosis of recurrent low back pain with a history of sciatica within one year of discharge, her competent and credible sworn testimony of continuity of symptoms that ultimately required surgery, and her contemporaneous report of recurrent low back pain on her July 1993 separation medical history form, the record establishes that the veteran incurred a low back injury during service. See also 38 U.S.C.A. § 5107(b) (when there is an approximate balance of positive and negative evidence about a claim, reasonable doubt should be resolved in the claimant's favor); 38 C.F.R. § 3.102. Thus, the second requirement for service connection has been satisfied. Two physicians competent to provide medical evidence were asked to provide an opinion as to whether the veteran's current back disability was related to an inservice injury. The March 2005 C&P examiner reviewed the claims file and conducted an examination. Because the initial injury occurred in 1988 and the veteran's surgery was in 2003, that examiner was unable to say with any certainty whether the inservice events of back strain were causally related to her condition in March 2005. In addition to citing to X-ray and MRI reports showing L5/S1 degenerative changes, the examiner noted the June 1994 VA normal lumbar X-ray. The 15 years between the incident and surgery made it difficult for that examiner to assess causality. The C&P examiner concluded that the condition may or may not have evolved without a muscle strain incident in 1988, but that was unknown. The C&P examiner stated that the issue could not be resolved without resorting to mere speculation. The veteran asked her primary physician (Dr. Moini) to provide an opinion as to whether her current low back disability was related to an injury or disease incurred during service. The veteran testified that she provided Dr. Moini with copies of her service medical records to review. (Transcript, p. 30.) It is not clear whether Dr. Moini had a copy of the June 1994 normal VA X-ray report. Dr. Moini pointed out that the inservice August 1992 X-rays showed an L5/S1 narrowing. The doctor noted that prior to the veteran's February 2003 initial visit, she had been receiving treatment for her low back by a chiropractor and other physicians. See July 1992 treatment records of Dr. Frisbee (veteran complained of lower back pain with leg pain, for which he recommended bed rest). Dr. Moini concluded that the veteran suffered an initial trauma to her back during the period from 1988 to 1993, while in the military, causing pain and radiculopathy. Over the ensuing years, degenerative changes and continued lifting, bending, etc., contributed to making the pathology worse in her lumbar spine. She explained that these types of injuries usually have a starting point and become more pathological and symptomatic as time goes on due to continued use of the back, aging, type of work environment, and weight. It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and in so doing, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998). Here, the March 2003 C&P examiner did not discuss the veteran's inservice condition. Although an examination of the veteran was conducted, the examiner was unable to reach a definite conclusion about whether the current back disability was related to service. However, that examiner did not state that the current condition could not be related to service; rather, the conclusion was that it may or may not be related. On the other hand, Dr. Moini discussed the veteran's inservice back treatment. She also had conducted a thorough examination of the veteran in February 2003 and at various times since then. When she initially examined the veteran in February 2003, she noted that the veteran had been receiving treatment for low back pain since service, which is consistent with the veteran's sworn testimony. Transcript, pp. 15-20. She also provided a logical rationale for her conclusion by pointing out the progressive nature of the veteran's condition. Since her opinion rests on service medical records that she cited, is consistent with the competent and credible lay testimony of the veteran, and contains a logical rationale, the Board assigns greater probative value to Dr. Moini's nexus opinion. Accordingly, the record establishes that the veteran's current low back disability is related to her inservice low back injury. In summary, all three requirements for service connection having been met, the veteran's claim for entitlement to service connection for a low back disability is granted. III. Duties to notify and to assist VA has certain duties to notify and to assist claimants concerning the information and evidence needed to substantiate a claim for VA benefits. 38 U.S.C.A. §§ 5103 and 5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159 (2007). Any errors with respect to VA's duties to notify and to assist the veteran are harmless here because the veteran's claim for service connection has been granted in full. Thus, the purposes for the notification and assistance have been met. ORDER The claim of entitlement to service connection for a low back disability is reopened, and service connection for a low back disability is granted. ____________________________________________ MICHAEL D. MARTIN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs