Citation Nr: 0829286 Decision Date: 08/28/08 Archive Date: 09/04/08 DOCKET NO. 06-00 387 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a low back condition, and if so, whether service connection is warranted. ATTORNEY FOR THE BOARD Nicole Klassen, Associate Counsel INTRODUCTION The veteran served on active duty from May 1969 to July 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which denied the above claim. In a June 2008 letter, a VA doctor reported that the veteran was currently hospitalized and was being treated for depression, anxiety, and post-traumatic stress disorder, which he attributed to events during the veteran's military service. This matter is referred to the RO for appropriate action. FINDINGS OF FACT 1. In a February 1992 decision, the RO denied the veteran's claim to reopen his claim for service connection for a low back condition; he was notified of the determination and of his appellate rights, but he did not appeal the determination and the decision became final. 2. The evidence received since the February 1992 decision is not duplicative or cumulative of evidence previously of record and raises a reasonable possibility of substantiating the veteran's low back condition claim. 3. The veteran's currently diagnosed degenerative disc disease (DDD) was incurred in, or caused by, active service. CONCLUSION OF LAW 1. The February 1992 decision that denied reopening the claim of entitlement to service connection for a low back condition is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2007). 2. Evidence received since the February 1992 decision that denied reopening of the claim of entitlement to service connection for a low back condition is new and material, and the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). 3. The criteria for entitlement to service connection for a low back condition, including DDD, have been met. 38 U.S.C.A. §§ 1110, 1310, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.312 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. New and Material Evidence In this decision, the Board reopens the veteran's low back claim and grants the claim in full. Thus, a discussion of VA's duties to notify and assist is not necessary. In a March 1986 rating decision, the RO denied service connection for a low back condition on the basis that his "probable DDD" could not be related to his service connected contusion of the right thigh. In February 1992, the RO disallowed the veteran's request to reopen this claim, noting that he had failed to submit new and material evidence. The evidence of record at the time of the determination consisted of the veteran's service medical records; post- service VA treatment records dated from October to December 1978, which are negative for treatment for a low back pain condition; and a February 1976 VA examination report, which is negative for an etiological opinion regarding his low back; and VA treatment records from 1988, which reflected no treatment for low back complaints. Initially, it is noted that the evidence to be reviewed for sufficiency to reopen a claim is the evidence submitted since the most recent final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). Under 38 C.F.R. § 3.156(a), evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is 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. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Evidence associated with the claims folder since the RO's February 1992 decision, including VA treatment records dated from 1992 to 2008, as well as a letter from his treating doctor dated in February 2008, shows that his currently diagnosed DDD was caused by, or incurred during, his military service. In light of the basis of the RO's February 1992 determination, the new evidence raises a reasonable possibility of substantiating the veteran's claim. As such, the evidence is new and material under the provisions of 38 C.F.R. § 3.156(a) and the claim is reopened. II. Service Connection The veteran contends that service connection is warranted for a low back condition, to include DDD, due to a 1970 injury when a 70-pound shell fell on him. Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2007). In order to prevail on the issue of service connection on the merits, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). That an injury or disease occurred in service is not enough; there must be a chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2007). A veteran may also be granted service connection for any disease initially diagnosed after discharge, but only if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status generally do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Arthritis may be presumed to have been incurred in service if it is manifested to a degree of 10 percent within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). As discussed below, however, the evidence in this case does not show that the veteran was diagnosed with arthritis within one year of his separation from service. Therefore, the presumption for arthritis does not apply. Id. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The issue on this appeal is whether the veteran's DDD was incurred during, or caused by, an event or injury in service. Service medical records indicate that the veteran was never specifically treated for back pain during service; however, these records show that he did receive treatment after falling on several occasions during service. In November 1969, he was treated for a right forearm injury after he fell down a ladder. The veteran was also treated for an abrasion and a right shoulder muscle strain in December 1969 after he fell off of a stage on deck. Additionally, in February 1970, he was treated for right thigh pain and numbness after falling off of a stage again and landing on his knees and right elbow; he did not sustain any serious injuries, but was assessed as having a slight nerve injury secondary to a contusion of the right thigh. The veteran returned for follow-up treatment later that month reporting continuing right thigh pain and numbness. The veteran did not report any back conditions on his separation examination in June 1970. Post service, the veteran underwent a VA examination in February 1976 for lumbodorsal back strain, reporting that he sustained a back injury during service, which had since caused intermittent low back pain. The examiner did not provide an opinion as to the etiology of the veteran's back pain. The veteran underwent a second VA examination of the spine in November 1993, when he reported falling down some stairs on a ship and sustaining a right thigh contusion. He further reported that within a month of that injury he had low back pain that had persisted and worsened since. The examiner diagnosed him with a lumbosacral strain/sprain and minimal degenerative changes on x-ray. Since June 2002, the veteran has sought VA treatment for his low back pain on numerous occasions, which has been diagnosed as DDD, degenerative joint disease of the spine, osteoarthritis, spondylolysis, and lumbar radiculopathy; he has consistently reported that such pain has continued since service. Significantly, in September 2003, a VA doctor reported that the veteran had long standing back pain and DDD since trauma during service. She further provided the opinion that it was very likely that the veteran's current pain and symptoms were caused by excessive marching, heavy lifting, and trauma while in service; specifically, she stated that it was more likely than not that his DDD was related to injuries sustained while on active duty. Further, in a February 2008 letter, the same VA doctor reported that the veteran had been under her care since 2002, had sustained an injury during service in February 1970 when a 70-pound live ammunition shell fell on him, which at the time had been diagnosed as a traumatic contusion with nerve injury, had chronic back pain since, and currently had lumbar radiculopathy. She provided the medical opinion that the veteran's pain and numbness were related to his in-service injury. Based on the foregoing, the Board finds that the evidence demonstrates that the veteran's DDD was caused by his period of active duty service. There is no reason to doubt the credibility of the veteran in reporting low back pain since service and it is facially plausible that he injured his back during his numerous falls and other activities while in service. The veteran is also competent to report back pain, as it is within his realm of personal knowledge whether he had back pain while performing activities in service. Competent testimony is limited to that which the witness has actually observed, and is within the realm of his personal knowledge; such knowledge comes to a witness through use of his senses, that which is heard, felt, seen, smelled or tasted. 38 C.F.R. § 3.159 (2007); Layno v. Brown, 6 Vet. App. 465 (1994). The veteran has consistently reported that his back pain began in service in 1969/1970, when he sought medical treatment for a fall, and has continued to the present. Further, a VA doctor has provided a positive medical opinion linking the veteran's current DDD and corresponding pain to military service. Therefore, the veteran meets the criteria for service connection for a low back condition. He has been diagnosed with DDD, degenerative joint disease of the spine, osteoarthritis, spondylolysis, and lumbar radiculopathy. Additionally, the veteran has consistently reported that pain began after an injury in service in 1969/1970, as is evidenced by his VA treatment records, VA examination reports, and statements supporting his claim. Finally, as discussed above, a nexus between the veteran's currently diagnosed DDD and service has been established by the medical opinion of a VA doctor. Accordingly, applying the benefit of the doubt doctrine, the doubt is resolved in favor of the veteran. See 38 C.F.R. § 3.102 (2007). Therefore, the veteran's claim for service connection for a low back injury, including DDD, is granted. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for a low back condition is reopened. Service connection for degenerative disc disease of the lumbar spine is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ L.M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs