Citation Nr: 1322196 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 12-14 997 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Whether new and material evidence has been received sufficient to reopen a claim for service connection for a low back disorder. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Fields, Counsel INTRODUCTION The Veteran served on active duty from August 1956 to August 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Veteran testified at a Board hearing at the RO in April 2013, and a transcript of that hearing is of record. The Board has reviewed both the paper claims file and the Virtual VA paperless claims file. As discussed below, the benefit sought on appeal is being granted in full, and no further notice or development is necessary. 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. Service connection for a low back disorder was last finally denied in a March 1960 rating decision; the Veteran was notified of the determination and his rights to appeal, but he did not appeal and no new and material evidence was received within one year of that determination. 2. Evidence received since the last final denial includes information that was not previously considered and which relates to an unestablished fact necessary to substantiate the claim, the absence of which was the basis of the previous denial. 3. The Veteran has had persistent low back symptoms since injury during active service, and his current low back disability has been medically linked to service. CONCLUSIONS OF LAW 1. The March 1960 RO denial of service connection for a low back disorder became final, but new and material evidence has been received sufficient to reopen the previously denied claim. 38 U.S.C. § 4005(b) (1958); 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); 38 C.F.R. § 3.104 (1956, Supp. 1960); 38 C.F.R. §§ 3.104, 3.156(a), 20.302, 20.1103 (2012). 2. The criteria for service connection for a low back disability have been met. 38 U.S.C.A. §§ 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board's decision herein to reopen the previously denied claim and to grant service connection for the current low back disability is a full grant of the benefit sought on appeal. As such, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. I. Claim to Reopen Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995). In contrast, new and material that is received prior to the expiration of the appeal period will be considered as having been filed with the claim that was pending at the beginning of the appeal period, and the denial will not be considered final. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). For the purpose of determining whether new and material evidence has been received, all evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). For claims to reopen that are received on or after August 29, 2001, new evidence means existing evidence not previously submitted to agency decisionmakers. 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether new and material evidence has been received, there is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Here, the RO initially denied service connection for a low back disorder in March 1960. The Veteran was notified of his rights to appeal at that time, but he did not do so. There was also no new or material evidence received within one year of the denial. As such, the March 1960 RO denial became final. See 38 U.S.C. § 4005(b) (1958) [38 U.S.C.A. § 7105(c) (West 2002)]; 38 C.F.R. § 3.104 (1956, Supp. 1960) [38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2012)]. In October 1994, the Veteran requested copies of his service records and indicated that he wanted to file a claim for a low back disorder. Shortly thereafter, also in October 1994, the RO notified the Veteran that he must submit a formal claim form, or VA 21-526, within 60 days in order for his claim to be processed. He did not do so. As such, this claim was abandoned. No other communication, information, or evidence was received concerning the low back until February 2011. At that time, the Veteran submitted an informal and a formal claim (VA 21-526) for a low back disability, which led to the current appeal. The RO initially denied service connection in March 1960 based on a finding that no back disability was incurred during service. Evidence received since that time includes the Veteran's lay statements concerning the mechanism of injury during service, treatment, what his providers told him during service, and reports of continuing intermittent low back symptoms since service. There is also a summary of VA and private treatment, and a description of his post-service employment. The Veteran is competent to testify as to all of these facts. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Further, the Board conducted additional development to obtain a medical opinion, which establishes a link to service, as discussed below. In sum, the new evidence relates to an unestablished fact necessary to substantiate the Veteran's claim, namely, whether the current low back disability is related to service. Accordingly, new and material evidence has been received to reopen this claim. 38 C.F.R. § 3.156(a); Shade, 24 Vet. App. at 117-18. II. Merits of Service Connection 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. § 1131; 38 C.F.R. § 3.303(a). Where a disease is diagnosed after discharge, service connection may be granted when all of the evidence, including pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). In addition, certain chronic diseases, including arthritis, will be presumed to have been incurred in or aggravated by service if they manifest to a degree of 10 percent within one year after separation from service, even if there is no evidence of such disease during service. 38 U.S.C.A. § 1101, 1112(a), 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Where a condition is noted during service (or within the applicable presumptive period) but is not chronic, there must be evidence of continuity of symptomatology after separation from service. 38 C.F.R. § 3.303(b). When there is an approximate balance of positive and negative evidence (or the evidence is in relative equipoise) regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veteran asserts that he injured his low back when he slipped and fell while shoveling mud or clay out of the bed of a pickup on active duty in May 1958, and that providers told him at the time that he had a slipped disc. He further reports having off and on symptoms of low back pain since that time, which progressed over the years, and that he occasionally sought VA and private treatment. The Board first finds that the evidence establishes a current low back disability of degenerative disc disease and degenerative joint disease (or arthritis), based on x-rays and an MRI. See, e.g., April 2011 and May 2012 VA examination reports. There is also evidence to support the Veteran's report of an in-service injury. Service records reflect treatment on three occasions from May 24 to May 31, 1958, for complaints involving the right kidney and lumbar area. He had light duty during the course of treatment, but it does not appear that x-rays were performed. A few months later, during an August 1958 separation examination, there was no reference to the low back, and no clinical abnormalities of the spine were found. The Veteran has consistently reported injuring his back during service in the 1950s, as well as having off and on low back symptoms and treatment after that time. In particular, he has reported receiving private treatment for the low back in the 1960s and in 1972 or 1973, VA treatment in the late 1980s or early 1990s, and more recent VA and private treatment from 2010 forward. Any such records are no longer available, although the evidence includes VA treatment records dated from April 1992 forward, and private records dated from 2003 forward. Presumptive service connection for chronic disability is not warranted in this case. Rather, the evidence does not establish a diagnosis of arthritis of the low back during service or within the one year following separation from service, as there were no x-rays or clinic abnormalities found during service, and no medical records are available for the one year following service. See 38 C.F.R. §§ 3.307, 3.309. There are also conflicting medical opinions as to the cause of the Veteran's current disability. He was afforded VA examinations in April 2011 and May 2012. Those examiners both opined that the current low back disability was not likely related to the Veteran's reported injury during service but, rather, was more likely related to age and/or a history of labor-intensive positions. In this regard, the Veteran has reported post-service employment as a pest exterminator for approximately 20 years, which involved carrying a 15 to 20 pound container and several years of climbing in and out of crawl spaces. Prior to that, he traveled a lot in sales, and he owned a bar in the past, which involved lifting heavy items such as carbon dioxide containers and beer kegs. He has also performed strenuous work in his garden. Nevertheless, the two VA examiners' opinions are inadequate, as they indicate a lack of consideration of the Veteran's lay statements concerning his injury during service and subsequent symptoms and treatment. They also contain an inaccurate summary of the available medical evidence, as they indicate that there was no treatment for low back symptoms until recently, and the evidence includes documented post-service treatment as early as 1992. Further, the Veteran is competent to report prior episodes of treatment from 1960 through the late 1980s. The Board finds the Veteran's reports of off and on symptoms since service, as well as periodic treatment for low back pain, to be credible. As such, the Board requested a medical opinion from an orthopedic spine surgeon with the Veterans Health Administration (VHA), with consideration of all available evidence. In a June 2013 report, the VHA specialist opined that the Veteran's current low back disability was at least as likely as not (probability of 50 percent or more) incurred or aggravated by his military service. The specialist reasoned that the Veteran had lumbar complaints during service in May 1958, and he mentioned the injury and continuous low back symptoms afterwards in a January 1960 letter. The Veteran also reported that he initially injured his back in 1958 and had occasional pain after that time during an April 1992 VA physical therapy evaluation, with similar statements in May 1992. More recently, in a September 2010 VA neurosurgery consult, the Veteran reported suffering a slipped disc in the mid-1950s during service, and having on-and-off back problems since that time. The Veteran also reported having low back pain off and on since an injury during service in private records dated in October 2010 and 2011. The VHA specialist concluded that these records indicate that the Veteran has had low back symptoms dating back to 1958, and he had been very consistent over the years in tracing his low back problems to 1958 and attributing it to his injury during service. Further, the specialist did not find any evidence that the Veteran had any preexisting back pain or problem before the 1958 injury. The specialist acknowledged that it would be impossible at this point to delineate which changes in the Veteran's spine were due to natural again and deterioration from those that were incurred as a result of the 1958 injury, or from any possible subsequent injuries. Nevertheless, he opined that the Veteran's current low back disability was at least as likely as not incurred during his military service. The Board finds the VHA specialist's opinion to be highly probative, as it reflects consideration of all available lay and medical evidence and is consistent with the Board's credibility determinations herein. This positive opinion outweighs the negative etiological opinions of record. Therefore, the benefit-of-the-doubt doctrine applies, and service connection is warranted. See 38 C.F.R. § 3.102, 3.303. ORDER New and material evidence having been received, the claim for service connection for a low back disorder is reopened. Service connection for the current low back disability is granted, subject to the controlling laws and regulations as to monetary payment. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs