Citation Nr: 1237473 Decision Date: 11/01/12 Archive Date: 11/09/12 DOCKET NO. 11-24 913 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a low back disability with bilateral lower extremity radiculopathy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Haddock, Associate Counsel INTRODUCTION The Veteran had active service from August 1990 to December 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the Department of Veterans Affairs (VA), Regional Office (RO), in Columbia, South Carolina. In September 2012, the Veteran testified at a video conference hearing over which the undersigned presided while at the RO. A transcript of that hearing has been associated with his claims file. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. Although the RO has determined that new and material evidence has been submitted to reopen the Veteran's claim, the Board must determine on its own whether new and material evidence has been submitted to reopen this claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The issues of whether a timely substantive appeal has been filed with the May 2010 denial of entitlement to pension; entitlement to service connection for Lyme disease; and entitlement to a total disability rating based on individual unemployability (TDIU) have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these issues and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Service connection for a low back disability was denied by the RO in September 1993. The Veteran did not submit a notice of disagreement and new and material evidence was not received during the appeal period. 2. Evidence received since the September 1993 RO decision relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a low back disability with bilateral lower extremity radiculopathy. 3. A low back disability with bilateral lower extremity radiculopathy is etiologically related to the Veteran's active service. CONCLUSIONS OF LAW 1. The September 1993 rating decision that denied service connection for a low back disability is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103 (2012). 2. Evidence received since the September 1993 rating decision that denied service connection for a low back disability, is new and material, and the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. A low back disability with bilateral lower extremity radiculopathy was incurred in active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist VA has specified duties to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The Board has considered whether further development and notice under the Veterans Claims Assistance Act of 2000 (VCAA) or other law should be undertaken. However, given the results favorable to the Veteran, further development under the VCAA or other law would not result in a more favorable outcome or be of assistance to this inquiry. In the decision below, the Board reopens and grants the claim of service connection for a low back disability. The RO will be responsible for addressing any notice defect with respect to the rating and effective date elements when effectuating the award. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Reopening Service Connection for Low Back and Right Hip Disabilities Service connection will be granted for a disability resulting from an injury sustained or disease incurred in the line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307 (2012). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection for certain chronic diseases, such as arthritis, may be established based on a legal "presumption" for Veterans with 90 days or more of active service after December 31, 1946, by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Service connection will be granted for a chronic disease identified in service and at any time thereafter. 38 C.F.R. § 3.303(b). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. See 38 C.F.R. § 3.303(d) (2012); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). The Veteran originally filed his claim of entitlement to service connection for a back injury in December 1992. In a September 1993 rating decision, the RO denied entitlement to service connection for a back injury based on a finding that there was no significant back trauma during active service and because the Veteran failed to report for his scheduled VA examination. The Veteran did not submit a notice of disagreement within one year of the September 1993 decision. No evidence was received within the appeal period after the decision. As such, the decision became final. 38 U.S.C.A. § 7105(c) (West 2002); cf. 38 C.F.R. § 3.156(b) (2012) (new and material evidence received within the appeal period after a decision is considered as having been received in conjunction with the prior claim); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) (VA must determine whether evidence received during the appeal period after a decision contains new and material evidence per 3.156(b) and failure to readjudicate the appeal after receipt of such evidence renders the decision non-final). Because the Veteran did not submit a notice of disagreement with the September 1993 rating decision denying service connection, that determination became final based on the evidence then of record. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302 (2012). However, if new and material evidence is presented or secured with respect to a claim that has been disallowed the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 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 which, 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). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The pertinent evidence of record at the time of the September 1993 rating decision included the Veteran's service treatment records, which showed that the Veteran was diagnosed with back muscle strain and mechanical low back pain during active service and that he complained of recurrent back pain at the time of his separation examination. The pertinent evidence that has been received since the September 1993 rating decision includes the following: various statements from the Veteran in which he reports that he injured his back during active service and has continued to experience back pain since that time; various lay statements indicating that the Veteran does in fact experience back pain; VA Medical Center treatment notes indicating that the Veteran receives current treatment for chronic low back pain; a November 2009 VA general medical examination report, which shows that the Veteran was diagnosed with chronic low back strain at that time; an April 2010 VA addendum opinion, at which time the VA examiner opined that the Veteran's current low back disability was not related to his active service; an April 2011 VA examination report, which shows that the Veteran was diagnosed with degenerative disc disease of the lumbar spine at that time; and a July 2011 VA medical opinion report, at which time the VA examiner opined that the Veteran's current low back disability is at least as likely as not related to his active service. The Board finds that the July 2011 VA medical opinion report indicating that the Veteran's current low back disability was at least as likely as not related to his active service is new and material. In this regard, the Board finds that the evidence is not cumulative or redundant of the evidence previously of record. Moreover, it is sufficient to raise a reasonable possibility of substantiating the claim. Accordingly, reopening of the claim of service connection for a low back disability with bilateral lower extremity radiculopathy is in order. Having reopened the Veteran's claim of service connection for a low back disability, the Board must now consider whether entitlement to service connection is warranted on the merits. The Veteran has asserted that while in active service he injured his back and that he has continued to experience back pain since that time. He reported that he had self treated his back pain with over-the-counter medication until he sustained additional injury to his back in an occupational accident in April 2001. A review of the Veteran's service treatment records shows that he was seen in December 1991 for complaints of low back pain. The diagnosis was muscle strain on the left side of the midback. He was prescibed over the counter pain medication for treatment. In July 1992, he was again seen for reported low back pain with activity for the preceding six months. At that time, he was diagnosed with chronic mechanical low back pain. His October 1992 separtion report of medical history shows that he indicated having history of recurrent back pain. The examiner noted that there were no problems resulting from the Veteran's back pain. The Veteran filed a claim of entitlement to service connection for a back injury just following his separation from active service. While he was denied, in part, for failure to report for his VA examination, this does not change the fact that he was in fact having back pain at the time of his separation. The Veteran is competent to report when he first experienced symptoms of back pain and that the symptoms have continued since his active service. See Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board finds the Veteran credible in this regard. In November 2009, the Veteran was afforded a VA general medical examination. At that time, the Veteran reported that he injured his back while engaging in a road march during active service. He reported that the onset of the pain was instant and that it had gradually gotten worse since that time. X-rays of the Veteran's back revealed minimal discogenic change at the upper aspect of T12. A lumbar spine magnetic resonance imaging (MRI) study was recommended, but there is no indication that it was completed at the time of the examination. In April 2010, the November 2009 VA examiner was asked to review the Veteran's claims file and provide an opinion regarding the etiology of the Veteran's back disability. A review of the opinion report shows that the VA examiner opined that it was less likely as not that the Veteran's chronic lumbosacral strain was related to his low back pain while in active service. In this regard, the VA examiner reported that while the Veteran was diagnosed with mechanical low back pain in July 1992, at the time of his October 1992 separation examination, the Veteran was not found to have problems resulting from his low back. Further, the examiner noted that in April 2001, the Veteran injured his back on the job when lifting a box that weighed approximately 60 pounds. The examiner noted that while there are several lay statements of record indicating that the Veteran experienced back pain, the individuals who wrote the letters did not indicate how long the Veteran had been experiencing back pain. The examiner further opined that it was more likely than not that the Veteran's current disability was related to his work related back injury. The Board notes that the Veteran has reported that he has experienced back pain since his active service. Moreover, the Board has found the Veteran competent to report such matters and that his reports of continuity of back pain were credible. There is no indication from the report of medical opinion that the VA examiner took the Veteran's complaints of back pain since service into account when forming her opinion. Further, the fact that the Veteran had an occupational back injury in 2001 does not negate the fact that the Veteran had been experiencing back pain since his separation from active service, prior to the April 2001 occupational injury. The examiner's failure to account for thr Veteran's lay accounts of continuity of symptomatology renders this opinion inadequate for adjudication purposes. As such, the opinion is not sufficient to serve as the basis of a denial of entitlement to service connection. In April 2011, the Veteran was afforded another VA examination. At that time, the Veteran reported that he injured his back in 1991. The examiner diagnosed degenerative disk disease of the lumbar spine. However, the VA examiner did not provide an opinion regarding the etiology of the Veteran's low back disability. In July 2011, the Veteran was afforded another VA examination. Based on the history provided by the Veteran, a review of the record, and an examination of the Veteran, the VA examiner diagnosed lumbar spine disc disease with radiculopathy to the bilateral lower extremities. The VA examiner opined that it was at least as likely as not that the Veteran's current low back disability was related to his chronic low back pain during active service. In this regard, the VA examiner reported that the Veteran was actually diagnosed with chronic mechanical low back pain in July 1992, while in active service. In the opinion, the VA examiner appears to have accounted for the Veteran's lay account of continuity of symptomatology since his diagnosis of chronic mechanical low back pain during active service. In sum, the Veteran was diagnosed with chronic mechanical low back pain during active service. The Veteran has reported that he has continued to experience back pain ever since his separation from active service and the Board has found these statements both competent and credible. The July 2011 VA examiner competently opined that the Veteran's current low back disability is at least as likely as not related to the diagnosis of chronic mechanical low back pain during active service. Accordingly, the Board finds that the evidence for and against the claim is at least in equipoise. Therefore, the benefit of the doubt must be resolved in favor of the Veteran and so, entitlement to service connection for a low back disability with bilateral lower extremity radiculopathy is warranted. ORDER New and material evidence having been received, the claim of service connection for a low back disability with bilateral lower extremity radiculopathy is reopened. Service connection for a low back disability with bilateral lower extremity radiculopathy is granted. ____________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs