Citation Nr: 1332766 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 09-45 104 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUE 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a back disorder. 2. Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from December 1984 to September 1987. His primary duties were as an aviation ordnance man. This case was previously before the Board of Veterans' Appeals (Board) in February 2013, at which time, it was remanded so that the Veteran could be scheduled for a video conference with a member of the Board. In April 2013, that video conference was held with the Acting Veterans Law Judge whose signature appears at the end of this decision. The hearing transcript shows the presiding Acting Veterans Law Judge conducted the proceeding in accordance with the mandates of 38 C.F.R. § 3.103(c)(2) insofar as 1) explaining fully the issue and 2) suggesting the submission of evidence that the claimant may have overlooked and that would be advantageous to his position. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). Therefore, there was no prejudice to the Veteran's claim as a result of the conduct of that hearing. See Bryant, 23 Vet. App. at 498 (citing to 38 U.S.C. § 7261(b)(2); Shinseki v. Sanders, 129 S. Ct. 1696, 1704 (2009)). Following that hearing, the Veteran's case was returned to the Board for further appellate consideration. FINDINGS OF FACT 1. In an unappealed rating decision, dated in May 1988, the RO denied the Veteran's claim of entitlement to service connection for a back disorder. 2. Evidence associated with the record since the RO's May 1988 decision is neither cumulative nor redundant and, by itself or in connection with evidence previously assembled, relates to an unestablished fact or raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a back disorder. 3. The evidence shows that the Veteran's lumbosacral strain and degenerative disc disease were first manifested in service. CONCLUSIONS OF LAW 1. The RO's May 1988 rating decision, which denied the Veteran's claim of entitlement to service connection for a back disorder, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2013). 2. New and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for a back disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 3. A back disorder, diagnosed as lumbosacral strain and degenerative disc disease, was incurred in service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107(b) (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist Prior to consideration of the merits of the Veteran's appeal, the Board must determine whether VA has met its statutory duty to assist him in the development of his claim of entitlement to service connection for a back disorder. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. In this case, the Board finds that VA has met that duty. A review of the record discloses that this is not the Veteran's first claim entitlement to service connection for lung disease due to asbestos exposure. That claim was initially denied by the RO in May 1988. The Veteran was notified of that decision, as well as his appellate rights. However, he did not file a notice of disagreement with which to initiate an appeal. Therefore, that decision became final under the law and regulations then in effect. 38 U.S.C. § 4004 (1988) (codified as amended at 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 19.192 (1985) (codified as revised at 38 C.F.R. § 20.1103 (2013). In August 2008, the Veteran filed an application to reopen his claim of entitlement to service connection for a back disorder. Following the receipt of that application. VA informed the Veteran of the basis for the prior denial and advised him of the evidence necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). VA also informed him of the evidence necessary to support the underlying service connection claim, including the evidence to be provided by the Veteran, and notice of the evidence VA would attempt to obtain. In response, the Veteran has submitted a substantial amount of additional evidence. In sum, the Veteran has been afforded a meaningful opportunity to participate in the development of his appeal. He has not identified any outstanding evidence which could support his claim; and there is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will determine whether or not new and material evidence has been received to reopen the claim of entitlement to service connection for a back disorder. Analysis The Veteran contends that his current back disorder was first manifested in service and has continued to cause problems since that time. Therefore, he maintains that service connection is warranted. After reviewing the record, the Board agrees. Accordingly, the appeal will be allowed. Service connection is warranted for a particular disability, when there is competent evidence of current disability (generally, a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498, 506 (1995). In May 1988, when the RO denied the Veteran's claim of service connection for a back disorder, the evidence on file consisted of the Veteran's service treatment records and the report of a February 1988 VA examination. The service treatment records were replete with instances where the Veteran had sought treatment for back pain. The various diagnoses included mechanical low back pain, strain, somatic dysfunction, and pain of urologic origin. A chronic, identifiable back disorder was not diagnosed, and at the time of his separation examination, his spine was reported to be normal. Following the February 1988 VA examination, the diagnosis was chronic lumbosacral strain with a history of periodic, acute episodes. However, the examiner found no evidence of disabling orthopedic low back disease. Therefore, the RO denied the Veteran's claim of entitlement to service connection for a back disorder. As noted above, that decision became final. Generally, a claim which has been denied by the RO may not thereafter be reopened and allowed, and a claim based upon the same factual basis may not be considered. 38 U.S.C.A. § 7105. 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 which has been disallowed, the VA shall reopen the claim and review the former disposition of the claim. When a veteran seeks to reopen a final decision based on new and material evidence, the Board must first determine whether the veteran has, in fact, presented new and material evidence under 38 C.F.R. § 3.156. Evidence offered by a claimant to reopen a claim is presumed credible for the limited purpose of ascertaining its materiality. Justus v. Principi 3 Vet. App. 510, 512 (1992). 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. Relevant evidence added to the record since the RO's May 1988 decision includes records reflecting the Veteran's VA treatment from August 2000 to August 2012; records reflecting his July 2008 treatment at the John J. Stroger, Jr., Hospital; records reflecting his August 2008 treatment at Provident Hospital; and the report of a July 2012 VA examination. Such evidence is new in the sense that it has not previously been before the VA. It is also material in that it tends to fill the deficits in the evidence which existed at the time of the prior denial. For example, in August 2009 and April 2010, an MRI, taken during VA treatment, revealed degenerative disc disease throughout the Veteran's lumbar spine; and the Veteran's treating physician stated that it was probably the result of an injury sustained in service. Such evidence is neither cumulative nor redundant of the evidence of record in May 1988, and, when considered with the evidence previously of record, raises a reasonable possibility of substantiating the claim of entitlement to service connection for a back disorder. Therefore, it is sufficient to reopen the claim. As such, the Board will proceed to evaluate the merits of the claim. Elkins v. West, 12 Vet. App. 209 (1999). The Veteran is competent to report what he experienced in and after service, such as chronic back pain. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Indeed, his complaints of back pain were well-documented in his service treatment records. Although a definitive diagnosis was not reported, there were suggestions of back strain in March and May 1986 and June 1987. Lumbosacral strain was reported during the February 1988 VA examination shortly after service; and in VA records, dated in August 2003, October 2004, and August 2005, the Veteran was treated for back strain. In July and August 2008, the Veteran was treated for back pain at John J. Stroger, Jr., Hospital and Provident Hospital, respectively; and in July 2012, following the Veteran's VA examination, the VA examiner confirmed the presence of lumbosacral strain. In view of the Veteran's reports of continuing symptomatology, the medical evidence strongly suggests that the Veteran's lumbosacral strain was first manifested in service and has continued since that time. Accordingly, service connection for lumbosacral strain is warranted. However, that does not end the inquiry. The Veteran's post-service treatment records show that in June 2009, an MRI confirmed the presence of degenerative disc disease throughout the lumbar spine. In December 2009 and April 2010, following treatment for the Veteran's back disorder and a review of his service records, the Veteran's treating VA physician opined that the Veteran's degenerative disc disease was probably related to service. In July 2012, the VA examiner confirmed that the Veteran had degenerative disc disease. However, the examiner opined that it was less likely than not that it had been incurred in or caused by an inservice injury, event, or illness. The VA examiner noted that exercises, of themselves, would not cause degenerative disc disease. Rather, he noted that it was part of the aging process and not the back strain incurred in service from lifting or exercise. With respect to degenerative disc disease, the Board finds that the opinions of the VA examiner and the VA treating physician to be in relative equipoise. In formulating their opinions, both relied on in-person treatment or examination of the Veteran, as well as a review of his medical history. As such, they provide an approximate balance of evidence both for and against the claim that the Veteran's degenerative disc disease had its onset in or as a result of an injury, event, or illness in service. Under such circumstances, all reasonable doubt is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for degenerative disc disease is also warranted. ORDER Entitlement to service connection for a back disorder, diagnosed as lumbosacral strain and degenerative disc disease, is granted. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs