Citation Nr: 1323114 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 10-32 114 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a low back disability, and if so, whether service connection is warranted for the claimed disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from November 1951 to August 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in October 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified during a hearing before the undersigned Veterans Law Judge in June 2013. A transcript of the hearing is of record. 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. A rating decision dated in October 1993 denied the Veteran's service connection claim for a low back disability and the Veteran did not submit a notice of disagreement within the required time period. 2. Evidence associated with the claims file since the October 1993 rating decision was not of record at the time of the rating decision, and when considered in conjunction with the record as a whole, relates to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection for a low back disability. 3. The evidence of record is at least in equipoise with respect to whether the Veteran's current diagnoses of osteoarthritis, degenerative joint disease and degenerative disc disease of the lumbar spine are related to active military service. CONCLUSIONS OF LAW 1. The evidence received subsequent to the October 1993 rating decision is new and material and the claim of entitlement to service connection for a low back disability is reopened. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); 38 C.F.R. § 3.156(a) and (c) (2012). 2. Resolving all reasonable doubt in the Veteran's favor, osteoarthritis, degenerative joint disease and degenerative disc disease of the lumbar spine were incurred during active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance The United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal with respect to entitlement to service connection for a low back disability. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. New and Material Evidence As an initial matter, establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology for specific chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A finally decided claim will be reopened in the event that new and material evidence is presented. 38 U.S.C.A. § 5108 (West 2002). "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 (2012). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Competency of new evidence, however, is not presumed. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Veteran initially applied for service connection for a lower back condition in April 1992. A rating decision in September 1992 denied the Veteran's claim on the basis that the Veteran's lower back was shown to be normal on the July 1974 separation examination. The Veteran did not submit a substantive appeal to the January 1993 statement of the case. However, the Veteran submitted a letter in April 1993 from a private physician. A rating decision in October 1993 denied the Veteran's claim on the basis that the private opinion is not new and material evidence, which related to the basis and reasons for the denial of the claim in September 1992. The relevant evidence of record at the time of the October 1993 rating decision consisted of the Veteran's service treatment records, private treatment records, VA treatment records, a VA examination dated in May 1992 and a letter from a private physician dated in April 1993. The Veteran did not submit a notice of disagreement with the October 1993 rating decision within the required time period. Therefore, the October 1993 rating decision is final based on the evidence then of record. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. The Veteran submitted another claim of entitlement to service connection for a low back disability in January 2009. The relevant evidence of record received since the October 1993 rating decision includes VA treatment records, private medical opinions dated in October 2008 and January 2009, a September 2009 VA examination report, lay statements from the Veteran, and a Board hearing transcript dated in June 2013. The evidence received since the October 1993 rating decision is new in that it was not of record at the time of the October 1993 decision. The October 2008 and January 2009 opinions from the private physicians indicates that the Veteran's current back disabilities are related to the Veteran's back complaints in service and/or the incident of the Veteran being struck by lightning during service. These medical opinions are neither cumulative nor redundant of the evidence of record in October 1993 and they raise a reasonable possibility of substantiating the Veteran's claim by addressing a missing element of the claim, i.e., a nexus to active military service. Based on the foregoing, the Board finds the new evidence relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Such evidence is so significant that it must now be considered in order to decide fairly the merits of the claim. Accordingly, the Veteran's claim of entitlement to service connection for a low back disability is reopened. 38 C.F.R. § 3.156(a). III. Merits of the Claim for Service Connection The Veteran contends that he currently has degenerative joint disease or arthritis of lumbar spine, which was originally diagnosed during active military service. He claims that he has had recurrent low back since service. The Veteran also asserts that he was struck by lightning in 1969 and this incident resulted in his current low back disability. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology for specific chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection also may be established on a secondary basis for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Similarly, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). In assessing whether the Veteran is entitled to service connection for a low back disability, the evidence of record must show that the Veteran currently has the claimed disability. A letter from a private neurosurgeon dated in January 2009 shows the Veteran has a diagnosis of osteoarthritis of the lumbar spine with stenosis of the spinal canal and foramina at multiple levels. A private family practitioner also informed VA in an October 2008 letter that the Veteran had a diagnosis of degenerative joint disease, osteoarthritis and degenerative disc disease of the lumbar spine. Furthermore, a VA examiner in September 2009 diagnosed the Veteran with lumbar spine degenerative disk disease and degenerative joint disease. Thus, there is medical evidence of a current diagnosis of a low back disability. The Veteran's service treatment records also reveal that the Veteran sought treatment for and was diagnosed with a low back disability during active military service. Specifically, a March 1972 service treatment record shows that the Veteran complained of a low backache. The clinician noted that the Veteran had a history of arthritic type complaints. The Veteran complained of arthritis in his back in September 1972. The clinician observed that the Veteran had slight tenderness over the sacrum. His impression was degenerative joint disease. Report of Medical History forms dated in October 1972 and in July 1974 show that the Veteran reported that he experiences recurrent back pain. However, the July 1974 separation examination reveals that his spine was evaluated as clinically normal. With respect to the Veteran's claim that his current back disability is related to being struck by lightning in service, a service treatment record dated in July 1969 shows that the Veteran was struck by lightning, but there is no indication in the service treatment records that he complained of low back problems when he received treatment after the incident. With respect to the issue of whether the Veteran's current osteoarthritis, degenerative joint disease and degenerative disc disease of the lumbar spine is related active military service, the Board observes that the record contains conflicting medical opinions. An October 2008 letter from the Veteran's private family physician reveals that the Veteran has had severe back problems (degenerative joint disease, osteoarthritis and degenerative disc disease) that go back to the 1970's based on the Veteran's medical records. A private neurosurgeon in January 2009 provided the opinion that the Veteran's osteoarthritis of the lumbar spine with stenosis of the spinal canal and foramina at multiple levels had its onset during military service. He noted that the Veteran's medical records document spinal problems that began many years ago for which he was treated by military medical personnel. The neurosurgeon also observed that the Veteran was struck by lightning in 1969 while on duty at Tyndall Air Force Base. He was hospitalized for several days and the Veteran reported that during this time he experienced the onset of lumbar pain. The neurosurgeon explained that the lumbar pain was most probably due to the massive universal muscle contraction induced by the electrical shock, which led to an axial compression injury of the vertebral column. He determined that this was in all likelihood the starting point of the Veteran's degenerative osteoarthritic process. In contrast, after a review the claims file and evaluating the Veteran, a VA examiner (physician assistant) in September 2009 provided the opinion that the Veteran's severe lumbar spine degenerative disk disease and degenerative joint disease with lumbar stenosis are not caused by or related to the lightning strike in 1969. She noted that the Veteran complained of pain in his back and at that time the possible diagnosis was arthritis. However, there was no evidence of arthritis based on radiographic study at the time of the separation examination in 1974. She observed that the Veteran was hospitalized in 1969 due to being struck by lightning, but there were no findings of possible fractures or injuries of the lumbar spine. After a careful review of the evidence to include the aforementioned medical opinions, the Board finds no reason to accord more weight to the negative medical opinion over the two positive medical opinions. Thus, the record contains an approximate balance of positive and negative evidence regarding the issue of whether the Veteran's current low back disabilities are related to active military service. As such, the Board resolves any reasonable doubt in favor of the Veteran. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). Accordingly, the Board finds that entitlement to service connection for osteoarthritis, degenerative joint disease and degenerative disc disease of the lumbar spine is warranted. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for osteoarthritis, degenerative joint disease and degenerative disc disease of the lumbar spine is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs