Citation Nr: 1330386 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 10-04 861 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE 1. Whether new and material evidence has been submitted to reopen the claim of service connection for a back disability. 2. Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Ozger-Pascu, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1983 to May 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Offices (RO) in Nashville, Tennessee, which denied the Veteran's application to reopen a claim of service connection for a back disability. In his February 2010 substantive appeal, the Veteran requested a videoconference hearing before Board. A hearing was scheduled for January 2011 but the Veteran failed to report. As such, his hearing request is deemed withdrawn. In his May 2009 Notice of Disagreement, the Veteran reported that he was unable to work due to his back disability. In light of the Board's grant of service connection for lumbar spine degenerative disc disease, the Board finds that the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. In a March 2002 rating decision, the RO denied service connection for a back disability; after he was notified of the adverse determination and of his procedural and appellate rights, the Veteran did not appeal the rating decision and no new and material evidence was received within the applicable appellate period. 2. Evidence added to the record since the March 2002 rating action relates to unestablished facts necessary to substantiate the claim and raises the possibility of substantiating the service connection claim for a back disability. 3. Lumbar spine degenerative disc disease had its onset in service. CONCLUSIONS OF LAW 1. The March 2002 rating decision, denying service connection for a back disability became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.156(a) (2013). 2. Evidence added to the record since the March 2002 rating decision is new and material and the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 3. Lumbar spine degenerative disc disease was incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1154(a), 5107(b), 7104(a) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants service connection for the Veteran's lumbar spine degenerative disc disease, which represents a complete grant of the benefit sought on appeal. As such, no discussion of VA's duty to notify and assist is necessary. New and Material Evidence Under 38 U.S.C.A. § 5108, "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." See 38 U.S.C.A. § 7105. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board without consideration in that decision in accordance with the provisions of § 20.1304(b)(1)), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim. See Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Under 38 C.F.R. § 3.156(a), evidence is considered "new" if it was not previously submitted to agency decisionmakers. "Material" evidence is evidence which, 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. In Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the Court held that when evaluating the materiality of newly submitted evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should focus on whether the evidence, taken together with evidence previously of the record, could at least trigger the duty to assist by providing a medical opinion. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In a March 2002 rating decision, the RO denied the Veteran's claim for service connection for a back disability. The RO determined that although the Veteran had incurred a back injury during service, there was no current back disability. The Veteran was notified of the adverse determination and of his procedural and appellate rights. He did not appeal the rating decision and no new and material evidence was submitted within the applicable appeal period. By operation of law, the March 2002 rating decision became final based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104 and 3.156(b). The Veteran sought to reopen the claim in January 2009. The March 2002 rating decision is the last, final rating decision on the merits with respect to the Veteran's claim for service connection for a back disability. The evidence of record at the time of this decision included the Veteran's service treatment records and his lay statements regarding his back disability. The evidence submitted after the last, final rating decision consists of the Veteran's post-treatment records for back pain and additional lay statements of continued symptoms. Since the lack of evidence demonstrating a back disability was the basis for the denial of the claim in the March 2002 decision, any new evidence must relate to this unestablished fact and/or at least trigger the duty to assist by providing a medical opinion. Shade at 117. The evidence received since the last, final rating decision is new as it was not previously considered by the RO and it demonstrates that the Veteran currently suffers from a back disability. Moreover, when considered with the Veteran's statements as to the onset of his back disability, it triggers the duty to assist by obtaining a medical opinion. Thus, the evidence is material under 38 C.F.R. § 3.156 (a). As new and material evidence has been received, the claim of service connection for a back disability is reopened. To this extent only, the claim is allowed. Service Connection The Veteran seeks service connection for low back pain, which the Veteran asserts is related to an injury he incurred in 1985, while in service, when he fell off a two and a half ton truck and landed with his back on a tree stump. The Board has reviewed all of the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, the Board is not required to discuss in detail the evidence submitted by the Veteran or obtained on his behalf. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 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). Service connection may also be granted on a presumptive basis for certain chronic disabilities when they are manifested to a compensable degree within the initial post-service year. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). 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 v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (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. Nicholson, 492 F.3d 1372, 1376-77. 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) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (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). 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, and 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 v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The service treatment records show that in January 1985 the Veteran presented with low back pain and with restricted range of motion and that he was prescribed medication and placed on a limited profile. In September 1985, the Veteran fell off a 2 1/2 ton truck, landing with his back on a tree stump. The Veteran injured his right shoulder and lumbar paravertebral area bilaterally. The Veteran was admitted to the hospital the following day and was kept under observation for 6 days. At that time, the Veteran was diagnosed with multiple contusions and grade 11 right acromioclavicular separation. The Veteran was described as experiencing spasms in the lumbar paravertebral area bilaterally and bilateral hip tenderness with minimal ecchymosis. The Veteran's neurologic examination was normal. Thereafter, the Veteran presented again with complaints of back pain in October and December 1985. In January 2002, the Veteran sought service-connection for his back disability. He stated that although he had not received continuous treatment for his condition since his service, he had treated the pain by self-medicating. He also explained that he was seeking service-connection because his back disability worsened in severity and he suffers continuously. The Veteran submitted new and material evidence in January 2009, after undergoing two private medical consultations and an MRI in 2008 and 2009. An MRI from October 2008 showed the Veteran had disc degeration in the lumbar region, with annular bulging discs. In December 2008, the Veteran obtained a consultation with a private physician. He presented with low back pain and bilateral lower extremity pain and reported that his back pain began after his injury in service in 1985, and that it had recently increased in severity. The Veteran denied any other back injury besides the one he incurred in service. The physician diagnosed the Veteran with lower back pain, lumbar degenerative disc disease and lumbar radiculopathy. The physician proposed conservative treatment, including Tylenol, Ibuprofen, physical therapy and a lumbar brace. In January 2009, the Veteran sought and obtained a second opinion for his back pain. He presented with mild tenderness in the midline lumbar area and with mildly restricted movement in all directions. He stated that his pain began in the military, after he fell off the back of a truck, that he has had low back pain with numbness and tingling in both hips and legs since that time and that the pain got progressively worse. The physician diagnosed the Veteran with lumbosacral spondylosis without myelopathy and degenerative lumbar/lumbosacral intervertebral disc disorder. The physician indicated that the Veteran's degenerative changes and bulging discs were age-related and not necessarily the cause of his back pain. The physician opined as to the Veteran's in-service injury, continuous back pain since service and current back pain disability, concluding that the Veteran's back condition was "more than likely related to the injury that he received" in service, reasoning that if the Veteran was having such pain at the age of 43, it was bound to get progressively worse. In an April 2009 statement, the Veteran reported that the only back injury he ever incurred was the one in service and that he was experiencing such a restricted range of motion that he could not even put on his shoes. In a June 2009 statement, the Veteran reiterated his report regarding the injury during service and the duty assignments he was given to accommodate his back injury. The Board finds that the evidence, both lay and medical, shows that the Veteran has had low back pain since service. Service treatment records include multiple reports regarding his fall in 1985 and recurrent back pain. Further, post-service treatment records reflect ongoing complaints of low back pain and a current diagnosis of degenerative disc disease of the lumbar spine. Moreover, his treating physician linked the Veteran's back disability to service, and the Board finds the Veteran's account of having back problems since service both competent and credible. Based on the foregoing, and resolving all reasonable doubt in the Veteran's favor, service connection is warranted for lumbar spine degenerative disc disease. 38 U.S.C.A. §§ 1131, 1154(a), 5107 (b); 38 C.F.R. §§ 3.102, 3.303. ORDER Service connection lumbar spine degenerative disc disease is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs