Citation Nr: 1327394 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 10-05 756 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for a back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran served on active duty from May 1968 to November 1989, including service in the Republic of Vietnam from December 1970 to December 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho, that determined new and material evidence had not been submitted to reopen the claim for service connection for a back disorder. In December 2009, the RO reopened the Veteran's claim, but denied it on the merits. The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the claim. These documents have been considered in reviewing the Veteran's claim below. FINDINGS OF FACT 1. Service connection for a back disorder was denied in an unappealed December 1989 rating decision; the Veteran was notified of the determination and of his appellate rights but did not appeal and the decision became final. 2. Evidence received since the December 1989 rating decision relates to an unestablished fact necessary to substantiate the claim. 3. Competent medical evidence indicates that a back disorder was aggravated by the Veteran's military service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for a back disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 2. Degenerative joint disease and degenerative disc disease of the low back was incurred in service. 38 U.S.C.A. §§ 1110, 1111, 1131, 1153 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board reopens the Veteran's back disorder claim and grants service connection. As such, no discussion of VA's duty to notify and assist is necessary. I. Claim to Reopen The Board has reviewed all of the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, and 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran's claim of service connection for a back disorder was previously denied in a December 1989 rating decision. The Veteran did not file any statement indicating disagreement with the prior decision, or submit relevant evidence within one year following its issuance. In fact, the next statement received by VA from the Veteran was his December 2008 petition to reopen this claim. Accordingly, the September 2008 rating decision is now final. See 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2012). Generally, a claim that has been finally denied by an unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7104(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that 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. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court recently interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is 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." Shade v. Shinseki, 24 Vet. App. 110 (2010); see also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only needs to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). At the time of the prior December 1989 determination, the evidence included the Veteran's service treatment and service personnel records showing a diagnosis of lumbar strain on the July 1967 induction examination, and VA treatment records. The RO denied the Veteran's claim because there was no evidence the Veteran's pre-existing low back disorder was permanently aggravated by his military service. In December 2008, the Veteran filed a petition to reopen this claim. The evidence received since the December 1989 rating decision includes VA treatment records dated through April 2009 showing continuous back treatment and a current diagnosis of degenerative disc disease (DDD); and, and, the report of a December 2009 VA compensation examination showing a diagnosis of degenerative joint disease (DJD) of the lumbar spine. The credibility of this additional evidence is presumed for the limited purpose of determining whether this evidence is new and material. Justus, 3 Vet. App. 510, 513 (1992). As such, the Board finds that the new evidence relates to a previously unestablished fact necessary to substantiate the Veteran's back disorder claim. Thus, the new evidence raises a reasonable possibility of substantiating the claim. II. Service Connection Claim In his statements, the Veteran maintains that his lumbar strain, noted at entry, was aggravated by his military service. Specifically, he states that he suffered from additional in-service injuries that worsened his pre-existing back disorder, and that service connection is thus warranted on an aggravation basis. 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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); 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). The law also provides that a Veteran who served during a period of war, or during peacetime service after December 31, 1946, is presumed to be in sound condition when he or she entered into military service, except for conditions noted on the entrance examination. 38 U.S.C.A. §§ 1111, 1132. If a pre-existing disorder is noted upon entry into service, service connection may be granted based on aggravation during service of that disorder. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); see Wagner v. Principi, 370 F.3d at 1096. A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). In making all determinations, the Board must fully consider the lay assertions of record. 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, 1377 (Fed. Cir. 2007), 492 F.3d at 1376-77. 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. The Board is charged with the duty to assess the credibility and weight given to 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). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The evidence of record confirms the Veteran has been diagnosed with DDD and DJD of the lumbar spine. Therefore the determinative issue, and focus of the analysis to follow, is whether there is sufficient evidence of a relationship between the Veteran's diagnosed back disorders and his military service. Here, the July 1967 Report of Medical Examination at service entry shows that the Veteran was noted to have a pre-existing chronic lumbar strain disorder, that was initially listed as disqualifying. However, a subsequent May 1968 date stamp determined the Veteran was "fit for military service." As such, there is no presumption of soundness at service entry with respect to this condition. 38 U.S.C.A. § 1111; see also Wagner v. Principi, 370 F.3d 1089, 1093 (Fed. Cir. 2004); Crowe v. Brown, 7 Vet. App. 238 (1994). The service treatment records also show numerous complaints of treatment for chronic low back pain, lumbar strain, and nerve impingement in his legs. His various Reports of Medical Examination taken throughout the course of his career, show that he repeatedly indicated he suffered from chronic back pain. Specifically, a May 1989 treatment record shows the Veteran received treatment for low back pain, lasting 5 days. He reported that he injured his back while holding a 25 pound item at arms length. Shortly thereafter, his September 1989 Report of Medical Examination for retirement also provides a diagnosis of chronic lumbar strain. Following service, a May 1993 Report of Medical Examination for "over 40" purposes reflects a diagnosis of recurrent back strain. VA treatment records, dated through April 2009, also show he had continuous complaints of and treatment for his back disorder, as well as a diagnosis of DDD of the lumbar spine. See June and September 2005 CT and MRI reports, respectively. As to the determinative issue, the Veteran was scheduled for a VA examination in December 2009. The examiner provided a diagnosis of DJD and DDD of the lumbar spine. After an objective physical examination, the examiner stated that he could not resolve the issue without resort to mere speculation. As rationale, the examiner stated that the disc disease was confirmed in 2005, 16 years after his separation from service. However, the examiner noted that the medical records show the Veteran was initially disqualified for military service; there are reports of pain/ paresthesia shooting down his legs sufficient to support a disc problem in service; but, also reports of normal examinations as late as 1987 concerning his back. Therefore, the examiner stated that it is impossible for him to determine when the Veteran's disc problems became clinically significant. He concluded that the answer lies sometime/ anytime between his pre-military injury and the September 2005 MRI. Considering all of the evidence together, and resolving reasonable doubt in favor of the Veteran, the Board finds that it is at least as likely as not that his back disorder was aggravated by his military service. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veteran entered military service with a back disorder, diagnosed as chronic lumbar strain disorder. He continued to receive treatment for the back disorder throughout service, and in the several years since. Consequently, the presumption of aggravation attaches for this claim. The evidence shows that the Veteran's back disorder increased in severity during service. In this case, there is no countervailing evidence to refute the Veteran's account. The December 2009 VA examiner stated the Veteran's disc problems began sometime/ anytime between his pre-military injury and the September 2005 MRI. However, these findings are not sufficient to rebut the presumption of aggravation during service, especially given the fact that it must be clear and unmistakable evidence. Certainly then, it is just as likely as not the Veteran's pre-existing back disorder was aggravated beyond its natural progression during service. 38 C.F.R. § 3.102. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); and Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As such, service connection is warranted. ORDER New and material evidence having been received, the claim of entitlement to service connection for a back disorder is reopened; to that extent, the appeal is granted. Service connection for degenerative joint disease and degenerative disc disease of the lumbar spine is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs