Citation Nr: 1317954	
Decision Date: 06/03/13    Archive Date: 06/11/13

DOCKET NO.  12-19 580	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUE

Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a lumbar spine disability, and if so, whether service connection is warranted.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Michael Wilson, Associate Counsel



INTRODUCTION

The Veteran served on active duty from August 1955 to July 1963.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in May 2010, which, in relevant part, declined to reopen the Veteran's service connection claim for entitlement to service connection for a low back disability.  

The issues of entitlement to service connection for a cervical spine disability and entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disability have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  See July 2000 statement from Veteran and January 2012 independent medical examination report.  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  In a March 2003 decision, the Board denied the Veteran's claim of entitlement to service connection for a low back disability on its underlying merits.  

2.  The evidence received since the prior, final March 2003 Board decision is not duplicative or cumulative of evidence previously of record and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a lumbar spine disability.

3.  The Veteran's current lumbar spine disability was at least as likely as not incurred during or as a result of his active service.  


CONCLUSIONS OF LAW

1.  The March 2003 Board decision that denied the Veteran's claim of entitlement to service connection for a lumbar spine disability is final.  38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 3.104, 20.1100 (2012).

2.  Evidence received since the March 2003 Board decision is new and material, and the claim of entitlement to service connection for a lumbar spine disability is reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012).

3.  The criteria for entitlement to service connection for a lumbar spine disability have been met.  38 U.S.C.A. §§ 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision, the Board reopens and grants the Veteran's claim of entitlement to service connection for a lumbar spine disability.  As this represents a complete grant of the benefit sought on appeal, no further notice or assistance is required under the Veterans Claims Assistance Act of 2000.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).   

I.  Whether New and Material Evidence has been Submitted to Reopen the Veteran's Service Connection Claim

The Veteran's original claim for a back condition was denied on the merits by a February 1991 rating decision.  A low back disability claim was later reopened by the Board in an August 1999 decision and subsequently denied in a March 2003 Board decision on the grounds that the Veteran's July 1958 in-service back strain was held to have been acute in nature and resolved without residual disability.  As the Veteran did not subsequently appeal the Board's March 2003 decision, that decision is final.  See 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2012).  

The Veteran filed a petition to reopen his previously denied claim of entitlement to service connection for a lumbar spine disability in December 2009.  

A previously denied claim may be reopened by the submission of new and material evidence.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012).  New and material evidence cannot be cumulative or 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.  Id.  

In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) held that when determining whether 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.  Id. at 118.  The Court interpreted the phrase "raise[s] a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening," and emphasized that the relevant regulation was designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim."  Id. at 120.  

Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decision makers.  Id.  Evidence 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.  For purposes of determining whether VA has received new and material evidence sufficient to reopen a previously denied claim, the credibility of the evidence is to be presumed.  See Justus v. Principi, 3 Vet. App. 510, 512-513 (1992); see also Madden v. Gober, 125 F.3d 1477, 1481 (1997); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).

At the time of the March 2003 Board decision that denied the Veteran's back disability claim, the relevant evidence of record included the following:  the Veteran's service treatment records (STRs); VA treatment records dated between May 1989 and March 2002; private orthopedic treatment records from the Keene Clinic at Dartmouth-Hitchcock Medical Center, dated from July 1981 to April 1983; pain management treatment records from the Pain Clinic at Cheshire Medical Center, dated between September 1981 and January 1981; an October 1994 statement from Robert Fleming Norwood, M.D.; a November 1996 private back evaluation from the Lahey-Hitchcock Clinic; VA examination reports dated in September 1996, June 2000, April 2002, and October 2002; statements from the Veteran's friends, W. H. C., and S. M. B, dated in November 1994; a statement from the Veteran's daughter, also dated in November 1994; and statements from the Veteran dated in January 1992, November 1994, April 1997, May 2000, and July 2000.  

The Board's March 2003 decision was premised on a finding that the Veteran had back strain during service, but this resolved without residual disability.  The Board found a favorable medical opinion to be less probative than negative opinions, because the favorable opinion did not consider an intervening injury that had occurred in 1981.

Board decisions are final when issued, unless the Board Chairman orders reconsideration of the decision.  38 C.F.R. § 20.1100(a).

Relevant evidence obtained since the Board's final March 2003 decision largely consists of the Veteran's statement included with his July 2012 substantive appeal, and a January 2012 independent medical examination performed by Cell U. Kim, D.O., at Ellis Clinic.  This evaluation provides a thorough review of the Veteran's military and medical history, specifically surrounding his low back pain, and an assessment of the etiology of the Veteran's low back disability as specifically related to his in-service duties as a tank crewmember and his 1958 in-service back injury.  The opinion included discussion of the 1981 injury.

This new evidence was not previously submitted, relates to unestablished facts necessary to substantiate the Veteran's claims, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating his service connection claim.  See Shade, 24 Vet. App. at 117-121.  This evidence provides a clear opinion describing how the Veteran's in-service duties and injury contributed to his current disability, including impingement of the L5 and S1 spinal nerves, thereby, clearly relating his current disability to his in-service injury and his regular duties as a tank crewmember.  Additionally, the Veteran's July 2012 statement contained his clear contention that he has consistently suffered from low back pain since the time of his in-service back injury.  

Accordingly, the Board concludes that the new evidence of record submitted since the prior, final Board denial of his service connection claim is new and material, and therefore, the Veteran's claim of entitlement to service connection for a lumbar spine disability is reopened.

II.  Service Connection

      A.  Governing Law and Regulations

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012).  

Establishing service connection requires 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.  Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  

Service connection may also be granted for certain chronic diseases, including arthritis, when such disability is manifested to a degree of 10-percent or more within one year of discharge from service.  See 38 U.S.C.A. §§ 1101, 1112(a) (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012)

When service connection for chronic diseases is at issue, the second and third elements for service connection may be established by showing continuity of symptomatology.  See Walker, supra.  

In making all determinations, the Board must fully consider the lay assertions of record.  Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009).  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007).

When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v, 492 F.3d at 1376-77. 

The Board has a duty to assess the credibility and weight of evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. at 511.

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  Nieves-Rodriguez v. Peake, at 303-04.  

The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  Id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions").  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  See 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).


      B.  Analysis

The Veteran has specifically contended that his current lumbar spine disability is the result of an injury incurred as a result of falling on his back, and to the physical strain experienced while serving as a tank crewmember during his years of service.  

The Veteran's STRs provide no documentation that he continued to suffer from low back pain or that he sustained any additional low back injuries during service.  His April 1963 separation examination and accompanying report of medical history reveals no complaints or findings involving a low back disability.  The Veteran has credibly contended, nonetheless, that he additionally experienced sustained physical stress and strain on his back as a result of duties as a tank crewmember.  He reported experiencing many jolts and vibrations, and bouncing around while riding in tanks for lengthy periods of time during his service in Germany.  

His January 2012 independent medical examination report indicated that he rode in tanks between four and fifteen hours per day, riding through wooded areas, over uneven ground and steep hills, and through ditches.  He reported that firing the tank's 90 millimeter gun caused the tank to shake and vibrate, and that sometimes the tank would jolt when firing the gun while moving fast.  He reported that at times, the front of the tank would cause the left or right side to go up into the air and drop into the bottom of a ditch, and when this would happen, he felt jolting movements and strains, and pulling sensations in his neck, back, and upper arm muscles.  He reported being frequently subjected to these conditions during his eight years of service, and he reported that he continued to have back and neck pain due to his tank maneuvers.  He specifically contended in his July 2012 substantive appeal that he trained with the Third Armored Division for one year with the purpose of guarding and protect the Fulda Gap.  

The Veteran's contentions are substantiated in his form DD 214, which reveals a military occupational specialty of an armor crewman, and that he was an expert with the 90 millimeter tank gun (M-48).  His DD 214 additionally shows that he entered service at Armstrong Barracks, Germany and had nearly two years of overseas service with United States Army Europe.  

Based on the Veteran's noted in-service injury and his credible reports of suffering physical strain to his back as a result of lengthy periods of riding in tanks during his service, the Board finds that the second required element for service connection has been met.  See Walker, supra.

The remaining question before the Board is whether there is a nexus between the Veteran's in-service back injury, and/or the noted physical strain on his back as a result of riding in tanks, and his currently diagnosed lumbar spine disabilities.  

The Board notes that the Veteran has a length post-service medical history of treatment for low back pain.  Early treatment records from Keene Clinic dated from July 1981 to November 1982 noted treatment of a herniated intervertebral disc at the L4-L5 level.  The Veteran had persistent discomfort in his back since a lifting injury in July 1981.  A July 1981 report noted that the Veteran had experienced prior difficulties with his back, in the form of occasional mild problems.  X-ray images showed degenerative changes in the fifth disc.  He was additionally noted to have some degenerative changes of a mild sort elsewhere in the lumbar spine.  The assessment at that time was an aggravated degenerative disc.  

Outpatient treatment records dated from September 1981 to January 1982, from Cheshire Medical Center, include a September 1981 Myelogram report which showed a herniated intervertebral disc at L4-5 on the right.  The Veteran had persistent sciatica after six months of rest with epidural steroid injections.  A treating physician noted in December 1981 that the Veteran worked as a long haul truck driver.  The Veteran was notified that if his low back symptoms did not significantly improve in the near future, he would need to change his occupation.  

An October 1994 letter from Dr. Norwood indicated that the Veteran had been under his care since approximately 1991 or 1992.  Dr. Norwood noted that his past medical history extended back to 1958, while serving in Budingen, Germany for the 83rd Reconnaissance Battalion, when he sustained a back injury after falling down a staircase.  The Veteran reported receiving conservative treatment of his back injury in 1958 and that he was separated from service eight years later.  He also reported that after his 1958 injury, his back improved but was never the same and found that he could never walk, stand, or sit or do any one thing for a long period of time without having pain.  

The Veteran additionally reported being rejected for a job with a corporation in Orlando, Florida, because his back X-rays showed severe disc degeneration, which disqualified him from the position he was seeking.  Dr. Norwood additionally noted that recent MRIs of the Veteran's spine showed disc bulges and disc herniation in the lumbar and cervical spine.  He also noted that the Veteran's other neurologist opined that his back problems were undoubtedly related to the constant repetitive trauma of serving in a tank battalion and that he agreed with that opinion.  Dr. Norwood further indicated that although the Veteran had had several work injuries, these aggravated a pre-existing abnormal spine and that his problems undoubtedly began in 1958 when serving in the Army in Germany.

A September 1990 VA outpatient treatment record showed a diagnosis of L4-5 radiculopathy.  A November 1994 VA outpatient treatment record showed that he presented with a history of low back pain and neck pain.  He reported that he spent many years in the service on tanks and did much heavy lifting.  The report again cited to MRIs which showed small disc herniation at multiple levels.  A November 1995 VA progress note diagnosed cervical and lumbar disc disease, bulging discs of a vague nature, probably best treated with conservative treatment.

The Veteran was first afforded a VA examination in connection with his service connection claim in September 1996.  X-rays at that time revealed degenerative disc disease throughout his lumbar spine.  He was noted to possibly have an old L1 compression fracture.  The diagnosis was degenerative disc disease throughout the lumbar spine with mild stenosis at L4/5.  The examiner noted that there was no objective evidence of a L4 and L5 radiculopathy.  He noted that it was impossible to attribute the presence of his degenerative disc disease involving the lumbar spine to his previously reported injury because of its diffuse nature, and because these findings were not unusual in a 63 year old man.  

At a June 2000 VA examination, the Veteran reported that he fell down three or four steps in July 1958 and experienced back pain, when trying to carry a footlocker down the stairs.  He reported being treated at the dispensary where he made daily visits for approximately one week and received oral medications.  He indicated that his back had never been normal since that time.  He reported that after his separation from service, he found work as a long haul truck driver.  He stated that he was able to tolerate the job demands and did not miss any time because of his back.  He further reported that in July 1981, he was unloading his truck when he lifted a five-pound box and felt as if his low back "snapped."  He indicated that he had severe low back pain associated with right lower extremity pain, which kept him out of work for several years.  The Veteran was able to return to work and retired from his job as a truck driver approximately one month prior to the June 2000 examination.  

The examiner diagnosed low back pain; multilevel disc derangement (by MRI report); symptoms compatible with left L5 and/or S1 nerve root dysfunction; mild subjective sensory deficit, but no definite objective neurologic abnormalities in the left lower extremity.  

The examiner opined that it was as likely as not that the Veteran's duties as a Tankman contributed to the development of degenerative changes in his neck (cervical spine) and low back (lumbar spine).  Nonetheless, the examiner noted that, in his opinion, the contribution of that activity as a Tankman to the subsequent development of degenerative arthritic changes on x-ray must be considered minor or slight.  In his opinion, there was no sciatica until after the July 1981 non-service connected work injury, the current symptoms that were suggestive of nerve root dysfunction did not occur as a result of the duty in the U.S. Army, prior to the non-service connected work injury of July 1981.  The examiner noted that sciatica was the hallmark of disc herniation, and that the absence of sciatica symptoms prior to 1981 indicates that the sciatica described on the May 1994 MRI report did not occur as a result of the Veteran's active service.  In the examiner's opinion, the source of the Veteran's current chronic low back symptomatology was not service-connected.  

The examiner further opined that a diagnosis of L4-L5 radiculopathy seemed to have been established in approximately 1989.  The low back injury sustained by the Veteran in July of 1958 apparently did not lead to long term disability or inability to meet the demands of military service.  The injury sustained at work in July 1981 had caused hospitalization, recurrent sophisticated evaluation and was accompanied by sciatica.  There appeared to have been no documentation of sciatica after the 1958 service related injury until the July, 1981 non-service connected work related injury.  

VA X-rays dated in July 2000 revealed mild degenerative disease with small osteophytes at all levels; disc space narrowing and vacuum disc phenomenon at L5-S1.  VA outpatient treatment records dated June 2000 to February 2002 showed ongoing treatment for low back pain.

In a July 2000 statement, the Veteran reiterated that he was denied employment by Southland Corporation in Florida in the 1970s because a pre-employment physical showed evidence of bulging disc and disc degeneration in the lumbar spine.  

At a subsequent April 2002 VA examination, the VA examiner again noted the Veteran's medical history.  The Veteran reported that since his in-service injury, he has had episodes of low back pain which flare ups occurring approximately one to two times per week.

The assessment was a history of service-connected low back injury in 1958 with continued symptoms of low back pain with occasional radiculopathy, but no demonstrable weakness on examination.  The examiner indicated that the Veteran also had X-ray evidence of an old thoracic compression fracture at L1, as well as some mild instability at the L1-L2 level and degenerative disc disease, most evident at the L4-L5 and L5-S1 levels.

The examiner indicated that he believed that it was as likely as not that the current degenerative arthritic changes as well as the compression fracture in the veteran's spine were the result of the back injury sustained in 1958.

During a an October 2002 VA examination, the VA examiner opined that the most likely cause of the Veteran's right-sided leg pain, as well as back pain, appeared to be the lifting injury in July 1981.  While the Veteran did fall down some stairs in 1958 and presented the following day for medical treatment, the impression as documented in the medical record was that he had a mild back strain.  He had never sought treatment subsequent to that, although, he did return to the clinic for other issues, but there was never any documentation of persisting complaints regarding his back.

The examiner noted that following the Veteran's lifting injury in July 1981, there was repeated documentation of a persistent back problem with neurologic symptoms down the right leg.  Therefore, the medical record supports that his current back problems which continued to have neurologic symptoms and findings down the right leg would be attributable to the lifting injury in July 1981.  The examiner indicated that pain down the right leg was consistent with lower lumbar spine pathology.  The examiner noted that it was not clear what significance a possible mild old compression fracture at L1 would have on his current symptoms.  The examiner indicated that most likely the Veteran had lower lumbar spine pathology, possibly spinal stenosis and/or herniated disc, resulting in his right-sided neurologic symptoms.  Therefore, the examiner noted, it appeared not likely that his current right-sided neurologic symptoms in the right lower extremity as well as his back pain were due to the fall in 1958, but it appeared very likely that his back pain with pain and neurologic symptoms down the right leg were attributable at least in part to his lifting injury in July 1981 as his symptoms currently were very similar to those symptoms and have been persistent and chronic in nature since that date.

During the Veteran's more recent, January 2012, independent medical examination, Dr. Kim noted his extensive military and medical history and provided the opinion that the jolting and vibrating tank movements during the Veteran's service caused sprains and strains of the cervical, thoracic, and lumbar muscles, ligaments and discs.  He indicated that repetitive sprains and strains caused damage to the lumbar disc which caused impingement of the L5 and S1 spinal nerves into the legs, worse on the right.  Dr. Kim further noted that the fall incurred by the Veteran in July 1958 caused acute tearing of the lumbar muscles, ligaments, and discs, causing bilateral lumbar L5 and S1 spinal nerve root impingement, worse in the right leg.  

Dr. Kim thus opined that the sprains, strains, and tearing of the muscle, ligaments, and discs, due to tank exposures and the July 1958 fall, caused loss of structure in the lumbar discs which contributed to an accelerated osteophyte formation in the lumbar spine.  In conclusion, Dr. Kim opined that the injuries, impairments, and disabilities diagnosed during his examination of the Veteran were as likely as not due to and a consequence of the Veteran's military service. 

After a thorough review of the evidence of record, the Board finds that the evidence with respect to whether the Veteran's current lumbar spine disabilities can etiologically be linked to his active service is at least in equipoise.  In such cases, the benefit of the doubt must go to the Veteran.  See 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  

Notably, the favorable medical opinions of record tend to relate the Veteran's current lumbar spine diagnoses to the physical strain on his back sustained during his years of service as a tank crewmember, perhaps to a great degree than to his July 1958 in-service injury.  For instance, in his October 1994 statement, Dr. Norwood noted that a private neurologist opined that the Veteran's back problems were undoubtedly related to the constant repetitive trauma of serving in a tank battalion, and that he was in agreement with that opinion.  

Also, in the January 2012 independent medical examination, while Dr. Kim indicated that the Veteran's in-service injury played a role in his current lumbar spine disability, he further indicated that the Veteran's diagnosed lumbar strain and resulting L5 and S1 spinal nerve root impingement were at least as likely as not due to the Veteran having experienced jolting and vibrating tank movements during his service.  

While the June 2000 VA examiner concluded that the Veteran's duties as a tank crewmember as likely as not contributed to the development of his degenerative changes of the low back, he opined that such contribution was minor or slight.  In any event, the examiner did indicate that the Veteran's service contributed in some way to his current disability.  Additionally, the negative opinion provided by the October 2002 VA examiner did not provide a discussion of the effects of the Veteran's years of service as a tank crewmember, but only focused on his in-service fall and provided the opinion that his lumbar spine disability was related to his July 1981 post-service injury.  The October 2002 VA examiner did not consider the Veteran's lengthy service as a tank crewmember.

Based on a review of the evidence, the Board finds that Dr. Kim's well-informed, well-reasoned, and fully articulated opinion is at least as persuasive as the opinions of record to the contrary.  A review of Dr. Kim's opinion reveals that he was very familiar with the Veteran's military and post-service medical history, including his July 1981 injury, and based on all assembled evidence and data, he provided a thorough opinion indicating that the Veteran's current disability was at least as likely as not a consequence of his military service.  Therefore, largely based on Dr. Kim's thorough opinion, the Board finds that there is sufficient evidence to etiologically link the Veteran's current lumbar spine disability to his active service.  See Walker, supra.  

Accordingly, the Board finds that all required elements to establish service connection for a lumbar spine disability have been met.  Therefore, all doubt with respect to this claim is resolved in favor of the Veteran and his claim for service connection for a lumbar spine disability is granted.  38 U.S.C.A. § 5107(b) (West 2002).



ORDER

New and material evidence has been received to reopen the claim for service connection for a lumbar spine disability.

Entitlement to service connection for a lumbar spine disability is granted.



____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs