Citation Nr: 1336252 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 11-01 758 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Whether new and material evidence has been received to reopen service connection for degenerative joint disease and degenerative disc disease of the lumbar spine (lumbar spine disorder), and if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his mother ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from April 2003 to September 2003, and from January 2004 to April 2005. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which, in pertinent part, denied reopening of service connection for degenerative disc disease (claimed as degenerative back disease), finding that new and material evidence had not been received. FINDINGS OF FACT 1. An unappealed July 2007 rating decision denied service connection for a lumbar spine disorder, finding that the Veteran had a pre-existing back injury prior to service, the back injury was not aggravated during service, and that the currently diagnosed lumbar spine disorder was not incurred in or otherwise related to service. 2. The Veteran did not submit a timely notice of disagreement to the July 2007 rating decision. 3. The evidence received since the July 2007 rating decision relates to an unestablished fact (i.e., that a lumbar spine injury did not preexist service entrance) necessary to substantiate the claim for service connection for a lumbar spine disorder. 4. A lumbar spine disorder was not "noted" at service entrance. 5. Symptoms of degenerative joint disease (DJD) and degenerative disc disease (DDD) have been continuous since service separation. CONCLUSIONS OF LAW 1. The July 2007 rating decision, which denied service connection for degenerative disc disease (claimed as degenerative back disease), became final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. § 20.1103 (2013). 2. The evidence received subsequent to the July 2007 rating decision is new and material to reopen service connection for a lumbar spine disorder. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156(a) (2013). 3. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for a lumbar spine disorder are met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA applies to the claim on appeal. Inasmuch as this Board decision constitutes a full grant of the claim for service connection for a lumbar spine disorder (reopening and on the merits), there is no reason to explain how VA has fulfilled the VCAA duties to notify and assist in this case. New and Material Evidence Law and Analysis In an July 2007 rating decision, the RO denied service connection for a lumbar spine disorder, finding that the Veteran had a pre-existing back injury prior to service, the back injury was not aggravated during service, and that the currently diagnosed lumbar spine disorder was not incurred in or otherwise related to service. The Veteran was properly notified of the July 2007 rating decision, did not appeal, and it became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. A claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. 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 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). The evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence of record at the time of the July 2007 rating decision included statements from the Veteran, available service treatment records, and VA treatment records from May 2006 to April 2007. Evidence received since the July 2007 rating decision includes additional VA treatment records from September 2007 to November 2012, the Veteran's written statements, and a transcript from the May 2013 Board hearing. During the May 2013 hearing, the Veteran and his mother testified that the Veteran did not have a preexisting back disorder or diagnosis prior to entry into service. Although the Veteran testified that he reported a previous injury to his back upon service entrance, the Veteran contends that this "injury" did not persist and he did not experience low back symptoms prior to entrance into service. The Veteran and his mother both testified that, after a review of the Veteran's x-rays, a doctor informed them that the Veteran had a "gas bubble," and not a back injury. The Veteran also testified that he was never diagnosed with a back disorder and he did not miss any school after his back injury as a child. The Board finds that the May 2013 Board hearing testimony, obtained after the July 2007 rating decision and presumed to be true for the purpose of determining whether new and material evidence has been received, demonstrates that the presumption of soundness at service entrance has not been rebutted by clear and unmistakable evidence. As such, this new evidence relates to an unestablished fact which may substantiate the claim for service connection for a lumbar spine disorder (i.e., if the presumption of soundness attaches, service connection may be established by showing "chronic" symptoms in service and/or "continuous" symptoms since service separation under the presumptive service connection provisions of 38 C.F.R. § 3.303(b)). Accordingly, new and material evidence has been receive to reopen service connection for a lumbar spine disorder. 38 C.F.R. § 3.156(a). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be 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). As the lumbar spine disorder, diagnosed as both DJD and DDD, incorporates a "chronic disease" (arthritis) listed under 38 C.F.R. § 3.309(a), the Board finds that 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As a preliminary matter, the Board notes that "degenerative joint disease," "osteoarthritis," and "degenerative arthritis" are interchangeable terms. See Dorland's Illustrated Medical Dictionary 1365 (31st ed. 2007). Generally, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be 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). Under 38 C.F.R. § 3.304(b), a veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. When no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. VA may only rebut this presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). A mere history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions. See 38 C.F.R. § 3.304(b)(1); Crowe v. Brown, 7 Vet. App. 238 (1995). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. When all the evidence is assembled, VA is responsible for determining 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 a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection for Lumbar Spine Disorder During the May 2013 Board hearing, the Veteran testified that he injured his back during service when he feel off the side of a humvee. VA treatment records also reflect that the Veteran has reported that he has had chronic back pain since service separation. The Veteran also reported that he was an Army Ranger and jumped from air planes with large weights during service. Upon review of the evidence of record, the Board finds that a preexisting lumbar spine disorder was not "noted" at service entrance. Despite various efforts by the RO to obtain additional service treatment records, the Veteran's service entrance and service separation medical examination reports are not of record. A January 2003 Report of Medical History, completed by the Veteran upon entrance into service, reveals a notation that the Veteran was treated at an emergency room at the age of 11 after falling on ice. That notwithstanding, a January 2003 Medical Prescreen of Medical History Report, also completed by the Veteran upon entry into service, shows that the Veteran checked "no" as to recurrent neck or back pain. During the May 2013 Board hearing testimony, both the Veteran and his mother credibly testified that the Veteran's back "injury" prior to service had not persisted, and the Veteran had not experienced back symptoms upon entrance into service. The Veteran also testified that he did not miss any school after his back injury as a child. A review of the evidence of record also does not reveal a diagnosis for any back disorder prior to service. For these reasons, the Board finds that the record does not reveal that a back injury was noted at entrance into service, and does not demonstrate by clear and unmistakable (obvious or manifest) evidence that an injury or disease existed before service entrance. For these reasons, the Board finds that the presumption of soundness of the back that attached at service entrance has not been rebutted in this case. Next, the Board finds that the Veteran has a current lumbar spine disability, diagnosed as DJD and DDD, confirmed by x-ray findings. See June 2006 VA treatment record. After review of all the evidence of record, both lay and medical, the Board finds that the evidence is against a finding that the Veteran experienced chronic lumbar spine disorder symptoms in service. The evidence tending to weigh against the Veteran's claim regarding chronic symptoms in service includes an absence of complaints, findings, or diagnosis of a lumbar spine disorder during service. The Board finds that the evidence is in equipoise on the question of whether the Veteran had continuous symptoms of a lumbar spine disorder since service separation. See 38 C.F.R. § 3.303(b) (if a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection). The favorable evidence of record that tends to show continuous low back symptoms since service includes VA treatment records which reveal that the Veteran was diagnosed with DDD and DJD of the lumbar spine in June 2006, just over one year after service separation, coupled with the Veteran's report during the June 2006 VA treatment session that he had "chronic back pain for some time." During the June 2006 VA treatment, the Veteran also stated that his back pain had worsened after assisting his grandfather out of bed on the previous day. The Board finds that, although the Veteran's back pain may have increased due to lifting his grandfather from bed, the June 2006 VA treatment note suggests that the Veteran had been suffering from symptoms of back pain prior to that time. A second July 2006 VA treatment note also reveals that the Veteran reported low back pain since service. In a following July 2007 VA treatment note, the Veteran stated that he had "excruciating low back pain since I got out of the Army last year." The Veteran reported that he was an Army Ranger and jumped from air planes with large weights during service. The Veteran similarly testified during the May 2013 Board hearing that he had experienced back pain and had self-medicated with over-the-counter pain relievers since service separation. During the hearing testimony, the Veteran also stated that he did not seek treatment for his back injury when he fell off the humvee during service because he was in a province "off the map" in Afghanistan and was unable to immediately seek medical attention. The Veteran also testified that he did not seek treatment for his back pain for the year following service separation because he was self-medicating; however, he reported that the pain increased in severity and he finally sought treatment in 2006. The Board finds that the Veteran's statements made during the appeal period regarding continuous symptoms of low back pain since service are internally consistent, and he has offered at least some explanation for not seeking treatment for low back pain in service and in the year following service. Based on this evidence, the Board will resolve reasonable doubt in the Veteran's favor to find that symptoms of a lumbar spine disorder were continuous since service separation. Accordingly, the criteria for presumptive service connection for a lumbar spine disorder under 38 C.F.R. § 3.303(b) have been met. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER New and material evidence having been received, the appeal to reopen service connection for a lumbar spine disorder is granted. Service connection for a lumbar spine disability of degenerative joint disease and degenerative disc disease is granted. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs