Citation Nr: 1306352 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 10-46 661 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Whether new and material evidence has been submitted to reopen the issue of entitlement to service connection for a low back disability. 2. Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from February 1978 to November 1984, with additional service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. The claims file was subsequently transferred to the RO in Boise, Idaho. The Veteran testified at an October 2012 videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. FINDINGS OF FACT 1. A May 2007 rating decision denied service connection for a low back disability and the Veteran did not submit a timely appeal of that decision. 2. Evidence received since the time of the final May 2007 rating decision raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a low back disability. 3. The probative and persuasive evidence of record relates the Veteran's low back disability to his active duty military service. CONCLUSIONS OF LAW 1. The May 2007 rating decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2006); currently 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 2. Evidence submitted to reopen the claim of entitlement to 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. The criteria for service connection for a low back disability are met. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify claimants of information and evidence necessary to substantiate the claim and redefined its duty to assist in obtaining such evidence. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326 (2012). The decision to reopen the claim and grant entitlement to service connection for a low back disability represents a complete grant of the Veteran's claim and no discussion of the duties to notify or assist is required. New and Material Evidence Pertinent procedural regulations provide that nothing in 38 U.S.C.A. § 5103A shall be construed to require VA to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in 38 U.S.C.A. § 5108. 38 U.S.C.A. § 5103A (f) (West 2002). Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C.A. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). New evidence means existing evidence not previously submitted to VA. 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) (2012). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the Court of Appeals for Veterans Claims held the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court has also held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Here, the RO denied entitlement to service connection for a back-spine injury in May 2007, and notified the Veteran of the decision that same month. Although the Veteran filed a timely notice of disagreement in October 2007, he did not file an appeal to the Board in a timely manner. Although new and material evidence was submitted along with the notice of disagreement in October 2007, the RO readjudicated the claim in the May 2008 Statement of the Case. See 38 C.F.R. § 3.156(b). No timely appeal was filed to the Board subsequent to the May 2008 Statement of the Case. As such, the May 2007 rating decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2006); currently 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). The basis of the prior final denial was the RO's finding that although there was a record of in-service treatment for low back pain, there was no permanent residual or chronic disability subject to service connection shown by active duty service treatment records. Thus, in order for the Veteran's claim to be reopened, evidence must have been added to the record since the May 2007 rating decision that addresses these bases. Evidence submitted and obtained since the May 2007 rating decision includes Army National Guard records, correspondence dated in May 2008 from the Veteran's treating VA physician, the transcript of a May 2008 Decision Review Officer (DRO) hearing, VA treatment records dated from March 2006 to December 2010, the report of a May 2011 VA spine examination, and the transcript of an October 2012 Board videoconference hearing. This evidence addresses the basis of the prior final denial and raises a reasonable possibility of substantiating the Veteran's claim. In the report of the May 2011 VA spine examination, the examiner indicated that although it was less likely than not that the Veteran's currently-diagnosed mild degenerative disc disease with bilateral facet arthropathy was related to an April 1981 in-service back twisting injury, the examiner found it difficult to otherwise opine as to the etiology of the Veteran's back pain. Moreover, the transcripts of the Veteran's testimony at his May 2008 DRO hearing and October 2012 Board videoconference hearing address, to some degree, the etiology of the Veteran's claimed symptoms, his assertions of which are considered credible for the purposes of reopening. Justus, 3 Vet. App. at 512-513. This evidence is new as it had not been previously considered by VA and material as it raises the reasonable possibility of substantiating the Veteran's claim. The Board thus finds that new and material evidence has been submitted to reopen the issue of entitlement to service connection a low back disability since the May 2007 rating decision, and the claim is reopened. Merits of the Claim Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson, 581 F.3d at 1315-16. 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 Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The Veteran asserts that he initially injured his back while in service in April 1981. At his May 2008 DRO hearing and October 2012 Board videoconference hearing, he testified that he injured his back while dragging an approximately 1500-pound propeller assembly 20 feet while serving with the U.S. Navy in Myanmar (Burma). He further testified that he was unable to bend his back hours later, and received treatment at the Naval hospital. He indicated that he has experienced continual progression of back pain since the April 1981 injury. A review of the Veteran's service treatment records confirms that he complained of pain from the lower lumbar area to the coccyx after twisting his back picking up a propeller box in April 1981. He complained of lumbosacral paraspinous pain, although motor/sensory was intact and radiology was within normal limits. He was diagnosed as having low back strain, and prescribed pain relief medication as well as 48 hours of bed rest. Significantly, however, the Veteran's service treatment records do not contain any additional documentation of low back pain or treatment. The Veteran additionally testified that during his subsequent service with the Army National Guard, he aggravated his low back injury while preparing for deployment at Fort Hood, Texas. Specifically, he indicated that he was assisting a fellow guardsman in lifting double-wheel tires from the floor up to the back of a M35 2.5-ton cargo truck when the guardsman lost his balance, resulting in the Veteran having the entire weight of the double-wheel tire dropped on him and causing his back to fold backwards. The Veteran indicated that he was sent to a private physician for treatment, but that these records were no longer available. A review of the Veteran's Army National Guard records reveals complaints of low back pain. The Veteran's March 1985 Report of Medical History upon enlistment into the National Guard indicated that his spine was within normal limits. Additionally, he did not report any history of recurrent back pain on his corresponding March 1985 Report of Medical History. However, on an August 1989 Report of Medical History, the Veteran reported that he had a history of chronic lumbosacral spine pain , with increased pain upon lifting. He additionally reported a history of compression fracture of the thoracic spine (T11 and T12). The corresponding August 1989 Report of Medical Examination indicated that the Veteran had a history of severe musculoskeletal trauma to the lumbar spine, and diagnosed him as having mild kyphosis. The examiner noted that the Veteran was to continue his current military occupational specialty of vehicle mechanic, but indicated that he would need a further orthopedic evaluation of the lumbar spine and possibly be placed on a profile. In an October 1993 MP3 Form 14, the Veteran indicated that he felt he could be considered not available or not deployable due to back injury. He elaborated that he sustained a major back injury while in the Navy in approximately 1981 or 1982 after lifting a propeller assembly; additionally, he indicated that he sustained another back injury in the Army National Guard in approximately 1985 or 1986 lifting double-wheel tires. In November 1993, the Veteran requested that he be transferred into inactive reserve status so that he could obtain civilian employment; his request was granted and he was discharged from the Army National Guard in February 1994. Significantly, the Board notes that VA was unable to obtain the Veteran's complete Army National Guard records, and that the RO issued a formal finding of unavailability after receiving negative responses from the National Personnel Records Center as well as the Arizona Army National Guard. Post-service treatment records include September 2001 magnetic resonance imaging (MRI) of the lumbar spine which revealed mild, multilevel degenerative disc changes, with no acquired neural impingement at any level. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (holding that service connection requires a showing of current disability). In a November 2002 private treatment note, the Veteran indicated that, approximately 8 years prior (in approximately 1994), he fell 15 feet and landed on his back on a concrete block during activities in civilian employment. The Veteran further reported experiencing chronic lower back pain since that time, with occasional numbness and tingling radiating down the bilateral legs. The Veteran indicated that he was currently employed as a mechanical engineer and that his occupation involved a lot of physical activity. The Board notes, however, that the Veteran testified at the time of his May 2008 DRO hearing and October 2012 Board videoconference hearing that he only injured his head, neck, and wrist in this particular fall. In addition, in a January 2004 private treatment note, the Veteran again related that his initial back injury occurred in 1981 while lifting a propeller assembly weighing approximately 1,500 pounds in the Navy. He additionally indicated that he reinjured his back in 1985 and during the more recent 15-foot fall onto concrete. In a September 2005 treatment note, the Veteran's treating VA physician opined that his chronic low back pain was most likely related to his military service injuries. The Veteran was provided a VA spine examination in May 2011, at which time he was diagnosed as having diffuse degenerative disc disease and facet arthroplasty of the lumbar spine without evidence of spinal nerve root compromise. Subjectively, the Veteran reported that his back would go out and that he would be confined to sitting in a chair at least once per year since his separation from active duty service in 1984. The examiner acknowledged that the Veteran did suffer an in-service twisting injury to his back in April 1981; however, the examiner also emphasized that there were no further follow-up events from that injury, and that there were no records documenting any chronic back pain or systematic treatment of the low back from 1981 to 1989. As such, the examiner opined that it was less likely than not that his current presentation of mild degenerative disc disease of the lumbar spine with bilateral facet arthropathy was related to the 1981 back-twisting injury. Moreover, the examiner noted that it was not until the 1989 Army National Guard examination that the compression fractures were noted, and that this would typically result from a fall or direct hit to the area rather than a twisting or lifting injury. However, the examiner found that it would be difficult to otherwise opine as to the etiology of the Veteran's current low back disability, as there was a significant lapse in the medical treatment records from 1981 to 1989. The examiner noted that the Veteran's later MRI findings were consistent with age-related changes, and that one could not discount the Veteran's civilian work history as a mechanical engineer required to lift heavy objects. The examiner noted that the Veteran was sincere in his presentation and recitation of history, although the records did not corroborate or confirm his subjective medical history. The record contains two opinions with respect to the relationship between the Veteran's diagnosed low back disability and his active military service. The Veteran's treating VA physician opined that the Veteran's chronic low back pain was most likely related to his military service injuries. The Board acknowledges that the treating VA physician did not provide a rationale for his opinion. But see Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (holding that VA cannot reject a medical opinion simply because it is based on a history supplied by a veteran and that the critical question is whether that history was accurate). The May 2011 VA examiner, while conceding that it was difficult to report as to the most likely etiology of the Veteran's current back pain, nonetheless opined that it was less likely than not that the Veteran's current low back disability was related to his in-service April 1981 back injury. The Board notes that the VA examiner's opinion relies primarily on the lack of documentation of subsequent complaints of or treatment for back pain from 1981 to 1989. But this does not conclusively disprove the Veteran's claims that he experienced the symptoms that were ultimately diagnosed as a low back disability prior to 1989. See Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005) (holding that lay evidence cannot be discarded merely because it is unaccompanied by contemporaneous medical evidence). This is especially true in light of the fact that the Veteran's complete Army National Guard records from March 1985 to February 1994, as well as contemporaneous private orthopedic treatment records, were unavailable for review. The Board further emphasizes that the May 2011 VA examiner was unable to state that the Veteran's current low back disability was less likely than not related to service; rather, the examiner merely opined that it was less likely than not related to the specific April 1981 injury, and that it would be difficult to otherwise opine as to the etiology of the back disability. Moreover, the Board finds that the statements of the Veteran, to include at the October 2012 Board videoconference hearing, are credible lay evidence of his symptomatology, which with respect to continuity of back pain since service, are readily identifiable by laypersons. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). The Board finds it especially significant that, when pursing private treatment in 2004 in relation to a prospective workers' compensation claim for his civilian occupation, the Veteran still maintained that he initially injured his back in the Navy and that his 1994 civilian work injury merely aggravated the existing symptomatology, despite the fact that this information could prove to be disadvantageous to a workers' compensation claim. Additionally, the Veteran has, with few exceptions, consistently reported since 1993, over a decade prior to filing a VA compensation claim, that his chronic low back symptomatology had its initial onset following the in-service injury in April 1981. Resolving all doubt in favor of the Veteran, the Board finds that service connection is warranted for a low back disability. ORDER New and material evidence having been submitted, the Veteran's claim for entitlement to service connection for a low back disability is granted. Service connection for a low back disability is granted, subject to the applicable regulations concerning the payment of monetary benefits. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs