Citation Nr: 1333752 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 10-49 474 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of service connection for a low back disability, to include as secondary to postoperative residuals of an osteochondral fracture of the right talus, with anterior instability and arthritis (right ankle disability). 2. Entitlement to service connection for a low back disability, to include as secondary to postoperative residuals of an osteochondral fracture of the right talus, with anterior instability and arthritis (right ankle disability). REPRESENTATION Veteran represented by: Daniel G. Krasnegor, Attorney ATTORNEY FOR THE BOARD Luke Pelican, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1982 to August 1987. This matter comes before the Board of Veterans' Appeals (the Board) from a June 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Board has considered the records contained in the electronic claims file and the paper claims folder in adjudicating this decision. FINDINGS OF FACT 1. A February 2007 Board decision that denied service connection on a direct basis and as secondary to the postoperative residuals of an osteochondral fracture of the right talus, with anterior instability and arthritis (right ankle disability), was not appealed. 2. The evidence received since the February 2007 Board decision is new and raises a reasonable possibility of substantiating the claim for service connection for a low back disability. 3. The probative evidence of record is at least in equipoise regarding whether the Veteran's low back disability is related to his service. CONCLUSIONS OF LAW 1. The February 2007 Board decision that denied service connection for a low back disability is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2006). 2. Evidence added to the record since the February 2007 Board decision is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of sustaining the Veteran's claim of entitlement to service connection for a low back disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.156, 20.1100 (2013). 3. The Veteran's lumbosacral sprain and degenerative disc disease were incurred in service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159(a), 3.303, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (explaining that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Duties to Notify and Assist The VCAA describes VA's duties to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). As discussed in more detail below, sufficient evidence is of record to grant the application to reopen the Veteran's claim for entitlement to service connection for a low back disability. Thus, any errors in complying with the notice or assistance requirements with respect to that matter are moot. Claim to Reopen In a rating decision dated February 2007, the Board denied service connection for a low back disability on the basis that there was no evidence of a chronic low back disability being present in service or of a medical nexus between the Veteran's disability and his service, nor was the disorder found to be causally related to or made worse by the service-connected right ankle disability. The Veteran did not appeal the Board's decision nor did he assert the decision should be vacated or reconsidered. He also did not assert there was clear and unmistakable error, and the decision became final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 20.904, 20.1000, 20.1100, 20.1400 (2006). Even so, applicable law provides that a claim which is the subject of a prior final decision may be reopened upon presentation of new and material evidence. See 38 C.F.R. § 3.156 (2013). The Veteran filed a claim to reopen in February 2009. A June 2009 rating decision reopened on the basis that new and material evidence had been submitted, but denied the Veteran's claim on the merits. Although the RO has reopened the previously denied claim for service connection for a low back disability, the Board is required to address this particular issue (e.g., the new and material claim) in the first instance. The Board has the jurisdiction to address a new and material issue and to reach the underlying de novo claim. If the Board determines that new and material evidence has not been received, the adjudication of the particular claim ends, and further analysis is neither required nor permitted. Any decision that the RO may have made with regard to a new and material claim is irrelevant. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). Thus, despite the fact that in the present case the RO has already determined that new and material evidence sufficient to reopen the Veteran's previously denied claim for service connection for a low back disability has been received, the Board will proceed, in the following decision, to adjudicate this new and material issue in the first instance. New evidence is defined as existing evidence not previously submitted to the VA, and material evidence is defined as 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(a) (2013). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 284 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). At the time of the February 2007 denial, the evidence of record consisted of service treatment records (STRs), private treatment records, and VA examinations in 2002, 2003, 2005, and 2006. Service connection was denied on the grounds that no chronic disability was shown by the service treatment records, and no causal relationship between his low back disability and an event in service was shown. In addition, the Board found that the low back disability was not due to or aggravated by the service-connected right ankle disability. Since February 2007, the Veteran submitted two opinions from his private physician, Dr. T., received in September 2009 and November 2010. This evidence documented the Veteran's continuing back problems since the early 1990's, and provided an opinion as to a causal nexus between the Veteran's low back disability and his military service. This evidence is new, as it came into existence after the issuance of the February 2007 Board decision and could not have been considered by prior decision makers. Moreover, it is material as it addresses the relationship between the Veteran's current low back disability and his military service, which was one of the elements of service connection that the Board found lacking. New and material evidence having been received, reopening of the previously denied claim of service connection for a low back disability is warranted. Service Connection The Veteran essentially contends that his current low back disability is related to service. He has claimed that that the disability is due to trauma suffered while in service, or alternatively was caused by or aggravated by his service-connected right ankle disability. He, therefore, believes that service connection is warranted. In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2013). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (2013); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additionally, a disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). With respect to Hickson element (1), current disability, the record shows that the Veteran currently has chronic lumbosacral sprain, as noted in the May 2009 VA examination report. He also has a diagnosis of degenerative disc disease, as per a May 2004 private treatment record. Hickson element (1) is accordingly met for the claim. With respect to in-service disease and injury, the Veteran's STRs contain several notations of complaints of and treatment for back problems. In January 1985, the Veteran was treated for lower back pain after lifting weights. In March 1985, the Veteran was treated for injuries sustained after a motorcycle accident during a training exercise. The Veteran complained of upper back pain at this time. The injuries also included a fractured right ankle; the Veteran was granted service-connection for the postoperative residuals of that right ankle disability in 1987. In May 1986, the Veteran was treated for lower back pain after completing hyperextension exercises. The Veteran also submitted a statement describing a training accident in 1986, in which he injured his back after the tank he was riding in drove into a tank ditch. Hickson element (2) is therefore satisfied. With respect to crucial Hickson element (3), medical nexus, the question presented in this case, i.e., the relationship, if any, between the Veteran's current low back disability and his military service, is essentially medical in nature. The Board is prohibited from exercising its own independent judgment to resolve medical questions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Veteran received treatment in 1992 for low back pain after lifting a refrigerator, and was diagnosed with lumbar spine strain. An x-ray examination at the time revealed no abnormalities. Between 1999 and 2001, the Veteran received treatment for a low back condition that reportedly occurred in 1999, during the course of the Veteran's employment in a Post Office. In a VA examination report from September 2002, the examiner opined that it was "unlikely that the Veteran's right ankle problems have *-* enough to cause the lumbar back pain of the severity he describes." In a March 2003 VA examination report, the examiner concluded that it was not likely at all that any of the Veteran's current low back pain represented a chronic residual or progression of the pain experienced following hyperextension exercises done in 1986. That examiner also concluded that given the mild decrease in the Veteran's right ankle range of motion, it was unlikely that any current low back disability represented a chronic condition acquired or aggravated by the service-connected right ankle disability. An MRI examination conducted in 2004 as part of the Veteran's private treatment for low back pain revealed L3-4 disc desiccation and mild posterior disc bulge, L4-5 disc desiccation, mild posterior disc bulge and mild facet degenerative changes, and L5-S1 mild facet degenerative changes. The private physician in March 2004 noted an impression of L3-4 and L4-5 degenerative disc disease, but could not say whether the disc degeneration was related to the Veteran's March 1985 injury in the military. A 2005 VA examination report concluded that while the Veteran exhibited chronicity of back pain over the years, his chronic low back pain and mild degenerative arthritis was not as least as likely as not related to his two minor service episodes as recorded. The examiner explained that the Veteran's symptomatology was that which could occur following normal working conditions in a man who did physical work on a regular basis. In a March 2006 VA opinion, a VA examiner, who had reviewed the claims file but not evaluated the Veteran, concluded that it was much less likely than not that the Veteran's low back disability was caused by anything either in service or by the right ankle disability. The examiner explained that the episodes of back pain in service were minor and at most temporary strain, and that the Veteran's right ankle range of motion was almost normal. VA afforded the Veteran an examination in May 2009, the report of which was rendered after an evaluation of the Veteran. Noting diagnoses of the Veteran's right ankle disability and chronic lumbosacral sprain, the examiner opined that the Veteran's low back disability was not secondary to his right ankle disability. However, the examiner explained that while there was no relationship between the two conditions, the Veteran's low back disability had been aggravated by his right ankle disability prior to its being aggravated in 1991 or 1992. The examiner noted that the back condition was insignificant. The examiner also observed that the Veteran's increased manifestations are the constant back pain and dysfunction which has progressed in severity, especially making his occupation difficult for him. The same examiner submitted an addendum opinion in May 2010, in which he reiterated his previous opinion regarding the causal relationship and aggravation, but added that the Veteran's right ankle range of motion had become abnormal. The examiner submitted an additional addendum opinion in August 2010, indicating that the Veteran's back pain was not secondary to his right ankle disability. The examiner explained that there were no documented baseline manifestations of a low back disability prior to 1991. Medical opinions from the Veteran's private physician, Dr. T, support the Veteran's contention of a direct, causal relationship between his military service and his low back disability. In a September 2007 letter, Dr. T. wrote that the Veteran reported a history of back pain since March 1985, initially caused by trauma sustained in a service-related motorcycle accident while on active duty in the Army. Dr. T. noted that the injuries the Veteran sustained in that accident had persisted through the years and resulted in recurrent episodes of painful incapacity and inability to work. He opined that the 1985 service-related injury was the underlying and initiating event of the Veteran's ongoing disability. In a letter submitted in November 2010, Dr. T. stated that it was medically credible for a person to sustain significant trauma of soft tissue without major pain developing in the near aftermath of injury. He explained that after severe injury a major source of pain develops surrounding the swelling and inflammation caused by the accident, and that this swelling and inflammation do not normally completely develop until approximately 48 to 72 hours after the trauma. He added that epinephrine glucocorticoids and endorphins can also mask the pain following a trauma. Dr. T. also addressed x-ray findings from medical treatment the Veteran received in 1992, which indicated no abnormalities with the Veteran's spine. He explained that a 2004 MRI examination revealed disc desiccation at T11-12, L1-2, L3-4, and L4-5, and that these changes on the MRI would not be expected to be evident on the previous x-rays as x-ray resolution was not sufficient to delineate these types of findings. He added that the lack of findings on the x-ray taken in 1992 in no way indicated that physical findings were not there at that time. On the basis of these statements and careful review of the facts of the Veteran's case, Dr. T. reiterated his opinion that the causes of the Veteran's lower back pain were the military accidents and trauma he suffered during service. When assessing the probative value of a medical opinion, the access to the claims file and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board finds that the opinions of Dr. T. are entitled to probative value as he provided a rationale. Additionally, the Board notes that Dr. T. had been treating the Veteran since approximately 1991, and thus has an understanding of the Veteran's medical history and the nature of his low back disability. The Board also finds that these opinions provided a more sound and detailed rationale than any previous opinion, and persuasively addressed issues raised by medical evidence of record, such as the 1992 x-ray examination which showed no spinal abnormalities or the STRs from March 1985 that indicated the Veteran only had pain in his upper back. The Board notes that there are VA medical opinions which are negative to the claim. However, the Board cannot find a basis upon which to assign greater probative weight to the VA opinions. Thus, the positive evidence of record consists of the 2009 and 2010 opinions from Dr. T. indicating that the Veteran's low back disability was caused by his 1985 in-service injury and trauma. The evidence unfavorable to the claim for service connection includes the aforementioned VA examination reports. Thus, the Board concludes that the evidence for and against the claim for service connection for a low back disability is at least in approximate balance. In other words, the Board finds, based on this record, that the Veteran's low back disability is as likely the result of his military service as it is the result of some other factor or factors. Accordingly, the Board will resolve the benefit of the doubt in favor of the Veteran in this case, as the law requires, and grant service connection for a low back disability. 38 U.S.C.A. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. ORDER New and material evidence having been received to reopen the claim of entitlement to service connection for a low back disability, the appeal is granted. Service connection for a low back disability is granted. ____________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs