Citation Nr: 1331190 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 12-01 252 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim for entitlement to service connection for low back disability. 2. Entitlement to service connection for low back disability, currently diagnosed as lumbar radiculopathy. REPRESENTATION Appellant represented by: J. Michael Woods, Attorney at Law ATTORNEY FOR THE BOARD A.P. Armstrong, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1965 to November 1965. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The RO found that new and material evidence had not been submitted to reopen the claim for entitlement to service connection for low back disability. After the rating decision, the case was transferred to the RO in Atlanta, Georgia. FINDINGS OF FACT 1. Service connection was denied for a low back disability, lumbosacral strain in a November 1967 determination by the RO, the Veteran was notified of his appellate rights but 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 of service connection includes information that was not previously considered and that relates to an unestablished fact necessary to substantiate the claim. 3. The Veteran is presumed sound upon entry into service, and evidence is in relative equipoise that the Veteran's current low back disability was caused by his in-service injury. CONCLUSIONS OF LAW 1. The November 1967 RO denial of service connection for low back disability became final, and new and material evidence has been received to reopen the previously denied claim. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103 (2013). 2. The criteria for service connection for low back disability have been met. 38 U.S.C.A. §§ 1110, 1111, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.304(b) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Procedural Duties The Veteran applied to reopen his claim for service connection for low back disability in October 2008. In light of the Board's favorable decision in reopening the claim and granting service connection for low back disability, the claim is fully substantiated. Therefore, no further action is necessary to satisfy the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. II. New and Material Evidence Where a claim has been finally adjudicated, a claimant must present new and material evidence in order 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. 239-40 (1995). For claims to reopen received on or after August 29, 2001, new evidence is that which was not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is necessary to substantiate the claim. Id. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial, and it must raise a reasonable possibility of substantiating the claim. Id. 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). The Board applies a low threshold when determining whether new and material evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The RO issued a rating decision on the merits of the Veteran's claim for entitlement to service connection for low back disability in November 1967. The RO denied the claim finding that the Veteran had a condition that preexisted service and there was no permanent aggravation to that condition such that service connection could be granted. The Veteran was notified of his appellate rights and did not contact the VA again until October 2008. Therefore, the November 1967 rating decision became final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104, 19.118, 19.153 (2013). The evidence of record at the time of the prior final denial of service connection for low back disability included service treatment records and lay statements from the Veteran. Specifically, the evidence included in-service treatment for low back pain, reports from the Veteran that he hurt his back when he fell over a wall in service, and a VA examination where the Veteran was diagnosed with lumbosacral strain. In July 1997, the Veteran submitted an application to reopen the claim for service connection. In November 1997, the RO advised the Veteran by letter that the claim had been finally denied and that he needed to submit new and material evidence to reopen the claim. He was advised that he had one year to submit such evidence. No response was received from the Veteran until October 2008. The RO essentially treated the July 1997 application as abandoned and did not adjudicate it. See 38 C.F.R. § 3.158(a) (2013) (providing that where a claimant fails to provide requested evidence within one year, the claim will be considered abandoned). In October 2008, the Veteran made another request for entitlement to service connection for low back pain, a claim to reopen. The Veteran provided a list of treatment he received from 1965 to 1997. Additionally, he provided a statement asserting that the automobile accident, deemed to be the cause of his injury prior to service, never occurred, and instead that his back injury was during service. Considering the new evidence together with the prior evidence, and presuming it credible for the purposes of reopening, the evidence relates to unestablished elements of the previously denied claim. Specifically, the new evidence is pertinent to whether there was actually a preexisting disability and whether it was permanently aggravated by service. The private medical records could show persistent symptoms to establish a nexus. Further, the evidence raises a reasonable possibility of substantiating the claim by providing evidence of continued treatment and nexus. Therefore, the claim is reopened. III. Merits of the Claim Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). When no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. 38 U.S.C.A §§ 1111, 1137; 38 C.F.R. § 3.304(b). The burden then shifts to VA to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's condition was both preexisting and not aggravated by service. Id. If VA fails to rebut the presumption of soundness, the Veteran's claim is treated as one for service connection. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Horn v. Schinseki, 25 Vet. App. 231, 234-35 (2012). In making a determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. When all of the evidence is assembled, VA must determine whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim will be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). First, the Veteran has a current disability. The Veteran was afforded a VA examination in October 2011, and the examiner diagnosed lumbar radiculopathy based on reported symptoms and an objective evaluation. Second, the Veteran had an injury and symptoms in service. The Veteran has maintained since service and throughout the claims process that he injured his back during basic training in 1965 when he fell from a wall. The Veteran's service treatment records do not corroborate a back injury from a fall from a wall, but show that in August 1965, he sought treatment for low back pain. He was evaluated and the results were negative for any condition other than back pain. He also sought treatment for an injury to his right elbow where he stated that he hurt it when falling from a wall. During the VA examinations in 1967 and 2011, the Veteran reported the same injury during service. In the October 1967 VA examination, approximately 18 months after service, the Veteran was diagnosed with lumbosacral strain. Third, the Veteran is presumed sound upon entry into service and the VA has not rebutted that presumption. The Veteran was examined before entering service and was found to have normal back and musculoskeletal system with no preexisting disability. At that time, the Veteran reported being involved in an automobile accident the prior year, but said the injury was to his hip, not his back. During treatment in August 1965, he reported the auto accident, but now had severe back pain. On examination later the same day, it was reported that had had some back pain since the auto accident, but went through basic training without difficulty. The back pain had "started again" two weeks earlier. An examination was essentially negative, and psychiatric evaluation was recommended. There were no further findings referable to a back disability in service. While this is evidence that he may have had a preexisting disability, the second prong of the test, lack of aggravation, is not satisfied. There is very little evidence to suggest that the Veteran's low back disability was not aggravated during service. To the contrary, service treatment records noted that he did not report any problems with his back until after completing basic training. The evidence certainly does not rise to the level of clear and unmistakable evidence to rebut the presumption of soundness. Therefore, the presumption of soundness stands. See 38 U.S.C.A § 1111; 38 C.F.R. § 3.304(b). As such, the analysis moves to the elements of service connection, specifically in question, the element of nexus. See Wagner, 370 F.3d at 1096; Horn, 25 Vet. App. at 234-35. The Veteran has reported having pain in his back since his fall in service. He has also reported having treatment on his back in December 1965, one month after service, and from 1987 to 1997, including several surgeries. The Veteran is competent and credible to report sustaining an injury in service and having persistent and recurring symptoms. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). Further, his treatment in service and in the decades since service generally corroborates his statements, although the identified post-service records have not been requested or obtained. Additionally, there is no evidence of physical trauma after military service, but there was further treatment and surgeries. The VA examiner in 1967 did not give an opinion as to a nexus. The 2011 VA examiner noted that the Veteran denied being in an automobile accident, that he stated he had persistent symptoms since service, and that the service records indicated he was in an accident before service. She could not provide an etiology opinion without resorting to speculation, but she reasoned that it was "possible" the injury in service caused or aggravated the current condition, while it was also "possible" that the automobile accident prior to service caused the injury and the numerous post-service surgeries continued to aggravate the back. Given the 2011 examiner's rationale and the Veteran's statements of recurrent symptoms and treatment, the evidence is in relative equipoise to prove a nexus between the in-service injury and the current disability. When the evidence is in relative equipoise, the benefit of the doubt will go to the Veteran. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Resolving reasonable doubt in favor of the Veteran, the Board finds that there is a nexus between the Veteran's current low back disability and his in-service injury such that service connected is granted. ORDER New and material evidence having been received, the claim for low back disability is reopened. Service connection for low back disability, currently diagnosed as lumbar radiculopathy, is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs