Citation Nr: 1335761 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 10-38 785 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether new and material evidence has been received sufficient to reopen a previously denied claim for service connection for a low back disorder, and if so, whether entitlement to service connection is warranted. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran served on active duty from October 1990 to February 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing held in August 2011, before the undersigned Veterans Law Judge. The transcript from that hearing has been associated with the claims file and has been reviewed. The Board has reviewed the Veteran's claims files as well as the record maintained in the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS). FINDINGS OF FACT 1. In an unappealed decision dated in April 1993, service connection for low back condition was denied on the basis that it a low back condition was not shown by service treatment records to have been incurred or aggravated by the Veteran's military service nor was a low back condition found on VA examination. 2. Evidence received since the April 1993 rating decision is new and raises a reasonable possibility of substantiating the underlying claim for service connection for a low back disorder. 3. The Veteran sustained a lower back injury during his active military service, continuous post-service symptoms relating to his chronic low back disorder are established, and the weight of the competent and credible evidence is at least in relative equipoise on the question of whether the currently diagnosed multilevel degenerative disc disease of the lumbar spine is related to a documented low back injury in service. CONCLUSIONS OF LAW 1. New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for a low back disorder. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2013). 2. Resolving reasonable doubt in favor of the Veteran, multilevel degenerative disc disease of the lumbar spine was incurred during his military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has satisfied its duty to assist and notify the Veteran in apprising him as to the evidence needed to substantiate, and in obtaining evidence pertinent to, his claim for service connection for a low back disorder. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2013). Indeed, to extent that there is any defect in VA's duty to assist and notify, the Board finds that such is non-prejudicial in light of the fact that the benefit sought on appeal is being granted in full. II. Law and Analysis - New and Material Evidence In April 1993, the RO denied service connection for a low back disorder on the basis that the condition was not shown by service treatment records to have been incurred in or aggravated by the Veteran's military service nor was a low back condition found on VA examination. The Veteran did not appeal this adverse determination, nor did he submit any additional evidence within a year following this decision. See 38 C.F.R. § 3.156(b); Buie v. Shinseki, 24 Vet. App. 242 (2010). The decision therefore became final based on the evidence then of record. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103. In May 2009, the Veteran filed an informal claim, seeking to reopen the matter. The current appeal arises from the RO's August 2009 rating decision that found new and material evidence had not been received sufficient to reopen the claim of entitlement to service connection for a low back disorder. Regardless of the RO's actions, however, the Board must still determine whether new and material evidence has been received in this matter. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); see also Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the Veteran's previously and finally denied claims). When an unappealed rating decision by the RO becomes final, that claim may only be reopened by the submission of new and material evidence. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002). When determining whether a claim should be reopened, the Board performs a two-step analysis. The first step is to determine whether the evidence presented or secured since the last final disallowance of the claim is "new" and "material." 38 U.S.C.A. § 5108; Smith v. West, 12 Vet. App. 312 (1999). Also, if VA finds that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of a Veteran's claim in light of all evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140 (1991); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996). In determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). VA regulation defines "new" as existing evidence not previously submitted. "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(a). The Court clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Shade v. Shinseki, 24 Vet. App. 110 (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, could at least trigger the duty to assist by providing a medical opinion. Id., at 117. The evidence of record at the time of the last final denial of service connection for a low back disorder in April 1993 consisted of service treatment and a post-service VA examination report. In denying the Veteran's claim, the RO basically found that there was no evidence of a current low back disorder related to his period of service. Since the April 1993 rating decision, newly-received evidence includes clinical records which show that in February 1991, during his period of active duty, the Veteran sought treatment from a private provider for complaints of dorsolumbar pain. X-ray and examination confirmed left lower trapezius sprain with fasciitis. There was T-10 vertebral body end plate fractures (active Schmorl's Node). See treatment record dated February 12, 1991 from R.T. Langford, D.C.. Newly-received evidence also includes the Veteran's testimony from the August 2011 hearing. As such, the evidence is new, in the sense that it was not of record when the RO last adjudicated the claim. As noted above, the claim was essentially denied because there was a lack of any evidence showing a current back disorder related to service. New evidence would thereby be considered to be material if it resolved any element that was previously not shown. Shade supra. In this case, the private treatment record is also material because it addresses evidence of a current back disorder and its possible correlation to military service - evidence that was not of record at the time of the prior final decision in April 1993. Per the criteria of Shade, the new evidence is material, and thus sufficient, to reopen the previously denied claim. As new and material evidence has been received, the claim for service connection for a low back disorder is reopened. The Board notes however that "[t]his does not mean that the claim will always be allowed, just that the case will be reopened and [that] the new evidence will be considered in the context of all other evidence for a new determination of the issue." Smith v. Derwinski, 1 Vet. App. 178, 180 (1991). Accordingly, this claim is reopened. 38 U.S.C.A. § 5108. III. Law and Analysis - Service Connection The Veteran is seeking service connection for a low back disorder that he contends had its onset during service as a result of an injury. See VA Form 9, Appeal to Board of Veterans' Appeals dated December 1, 2010 and August 2011 hearing transcript. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, 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) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, such as arthritis, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); arthritis and/or degenerative disc disease is a qualifying chronic disease. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As a result, service connection via the demonstration of continuity of symptomatology is applicable in the present case. Service connection is granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). After considering all information and lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The Board begins by noting that the evidence in support of the Veteran's claim consists of service treatment records, which contain uncontroverted evidence that in February 1991 the Veteran was evaluated for complaints of low back pain. It was noted that he had initially sought treatment from a civilian doctor several days earlier for left dorsolumbar pain attributed to left lower trapezius sprain with fasciitis. X-rays from that visit showed evidence of T-10 vertebral body end plate fractures (active Schmorl's node). At his separation physical in February 1993, the Veteran reported recurrent back pain. The examiner at that time noted the Veteran had a history of low back pain for 2-1/2 years. It was noted that the pain was intermittent, subsiding for months at a time with the last episode occurring the month prior. The post-service evidentiary record in this case shows the Veteran underwent VA examination in April 1993, two months after service discharge. At that time he reported injuring his back in November 1990 during basic training. On examination the Veteran had mild positive straight leg on the right. X-rays of the lumbar spine showed grade I spondylolisthesis of L5 on S1 with an apparent bilateral spondylolysis of L5 and disc degeneration L5-S1. A magnetic resonance imaging (MRI) of the lumbar dated in December 1997 was consistent with degenerative disc disease and broad-based disc bulge, L4-5 and L5-S1 with no definite nerve root compression and slight spondylolisthesis, L5-S1. In contrast, the evidence against the Veteran's claim consists of some evidence of a post-service injury of unspecified impact. Private clinical records show that in December 2004, he was treated for injuries sustained when he fell from a tree while trying to climb up into a deer stand. It appears the injuries were confined to the Veteran's left shoulder and right ankle with no complaints or findings pertaining to the low back. It appears that beginning in April 2008, the Veteran began fairly regular treatment for chronic lower back and lower extremity pain after a gradual worsening of pain to the point his usual conservative treatment has not helped. A MRI showed grade I spondylolisthesis and bilateral pars interarticularis defects at L5-S1, multilevel lumbar degenerative change, multilevel annular bulges with a small midline focal protrusion at L4-5 and bilateral L5-S1 neural exit foraminal stenosis, right greater than left. See Clinical records dated from December 2004 to April 2008, from C.A. Marouk, D.O. In addition, the Veteran underwent VA examination in January 2010, to determine the nature and extent of his low back disorder and to obtain an opinion as to its etiology. Following the examination, the examiner concluded that the Veteran's current back condition was less likely as not permanently aggravated or a result of any in-service incident including the reported T10 injury in February 1991, but rather was at least as likely as not a result of the fall from the deer stand as reported in December 2004 and or other incidence since leaving the military and or the risk of back pain in the general population. He did not otherwise address the lack of lumbar spine complaints at the time of the December 2004 accident. During the course of this appeal, the Veteran submitted a medical opinion from his private treating physician who attributed his current low back disability to his in-service injury. The physician reported that a review of medical records from 1991 revealed a history of back injury which resulted in a chiropractic visit and orthopedic evaluation prior to the Veteran's deployment to Saudi Arabia. Although the in-service orthopedic X-rays were reported as negative, the private chiropractic X-rays revealed possible compression fracture at T10. The physician also referred to the 1997 MRI findings which showed disc bulging at L4-5 and L5-S1 with a grade 1 spondylolisthesis, which were later confirmed in a repeat MRI in 2008 along with stenosis. The physician concluded that based on the lack of findings on X-rays performed prior to 1992, the Veteran suffered an injury resulting in spondylolisthesis at the L5-S1 level either during that time of injury or thereafter. See medical opinion from C. Marouk D.O. dated September 4, 2010. Unfortunately the private physician did not address the Veteran's 2004 post-service accident. The Veteran also provided testimony at two personal hearings, one before a Decision Review Officer at the RO in October 2010 and another before the undersigned Veterans Law Judge in August 2011. Basically he testified that the original injury to his low back occurred during his military service and that the treatment he received after his post-service trauma in 2004 did not involve his back at all. In this case, there is inconsistent evidence as to whether the Veteran's current low back disorder may be related to his military service. In determining whether service connection is warranted for disease or disability, VA must settle on whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). After careful review of the evidence of record, and in light of the conflicting medical opinions discussed above, the Board is satisfied that the Veteran's multilevel degenerative disc disease of the lumbar spine cannot be clearly disassociated from his military service. With regard to the medical opinions in this case, there are aspects of each that tend to lessen their probative value, so that in the end they are of relatively equal probative value. The VA examiner has concluded that the Veteran's back problems are not related to his military service. Although the examiner indicated a full review of all medical evidence of record, he did not specifically discuss the lack of documented lumbar spine complaints at the time of the December 2004 accident. On the other hand, the private physician has indicated a causal link between the Veteran's current back disorder and his complaints during service. He considered the Veteran's relevant in-service and other medical history, aside from the results of his personal clinical evaluation, and discussed the Veteran's symptoms in the context of that history. However, the physician made no reference to the 2004 post-service injury and thus did not discuss the possible impact, if any, such an injury may have had on the Veteran's back. Under the circumstances of this particular case, the Board finds that, at the very least, the evidence is in approximate balance, with no sound basis for choosing one medical opinion over the other. To be sure, the Board is not entirely satisfied with either medical opinion. That said, there is no adequate reason to reject the medical opinion of record that is favorable to the Veteran. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (in evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the record as a whole); Evans v. West, 12 Vet. App. 22, 26 (1998). While the supporting medical evidence is not unequivocal, it has nevertheless placed the pertinent record in relative equipoise. Consequently, the Board resolves all benefit of the doubt in the Veteran's favor and grants service connection for multilevel degenerative disc disease of the lumbar spine. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER New and material evidence having been received, the claim for service connection for a low back disorder is reopened. Service connection for multilevel degenerative disc disease of the lumbar spine is granted. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs