Citation Nr: 1342824 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 10-37 096 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a low back disability. 2. Entitlement to service connection for a low back disability, claimed as low back and mid-back injuries. REPRESENTATION Veteran represented by: Cynthia Harbin Holman, Attorney ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1978 to February 1979. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board notes that the Veteran filed claims for arthritis, elevated cholesterol, obesity, diabetes and an acquired psychiatric disorder to include posttraumatic stress disorder and a rating decision was issued in September 2013. These issues have not yet been appealed to the Board and are not before the Board at this time. FINDINGS OF FACT 1. A June 1999 Board decision denied the claim of entitlement to service connection for a low back disorder, the Veteran did not appeal the decision in a timely manner. 2. A January 2001 RO decision letter denied a claim to reopen service connection for a back disability, the Veteran did not appeal that decision in a timely manner, and no new and material evidence was submitted within the appeal period. 3. Evidence received since the final January 2001 RO decision letter is new and raises the reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a low back disability. 4. The Veteran's low back disability is as likely as not attributable to his active service. CONCLUSIONS OF LAW 1. The June 1999 Board decision is final. 38 U.S.C.A. § 7104(b) (West 1991), 38 C.F.R. § 20.1100 (1998); currently, 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. §20.1100 (2013). 2. The January 2001 RO decision letter, which denied a claim to reopen entitlement to service connection for a back disability, is final. 38 U.S.C.A. § 7105(c) (west 1991), 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2000); currently, 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013). 3. New and material evidence sufficient to reopen the previously denied claim of service connection for a back condition has been received. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a), 20.1105 (2013). 4. The criteria for service connection for a low back disability are met. 38 U.S.C.A. §§ 1111, 1131, 1154, 5107 (West 2002); 38 C.F.R. §.3.102, 3.303, 3.304(b) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board both reopens the claim for service connection for a low back disability and also grants entitlement to service connection for a low back disability. These awards represent a complete grant of the benefits sought on appeal for these two issues. Therefore, no discussion of VA's duty to notify or assist is necessary. A. New and Material Evidence The Veteran originally filed a claim of service connection for a back injury when he submitted an application for benefits in November 1997. The RO denied the claim in a February 1998 rating decision and the Veteran appealed the decision to the Board. By a June 1999 decision, the Board denied entitlement to service connection for a low back disorder and it was not appealed. Thus, the June 1999 Board decision is final. 38 U.S.C.A. § 7104(b) (West 1991), 38 C.F.R. § 20.1100 (1998); currently, 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. §20.1100 (2013). In November 2000, the Veteran submitted a statement, construed by the RO in part, as a claim to reopen Veteran's low back claim. Reopening of the back claim was denied in a January 2001 decision letter, there was no appeal and no new and material evidence was established within the appeal period, thus, the January 2001 decision letter is final. 38 U.S.C.A. § 7105(c) (west 1991), 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2000); currently, 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013). The Veteran filed a claim to reopen the previously denied low back claim in March 2008. In a September 2008 rating decision, the RO reopened the claim and denied it on the merits. The Board must determine whether new and material evidence has been presented before it can reopen a claim to re-adjudicate the issue going to the merits. 38 C.F.R. § 20.1105 (2013). The issue of reopening a claim goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). In other words, the Board is required to first consider whether new and material evidence is presented before the merits of a claim can be considered regardless of the RO's action. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). VA may reopen and review a claim, which has been previously denied, if new and material evidence is submitted by or on behalf of a Veteran. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). New evidence means existing evidence not previously submitted to agency decision makers. 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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Additionally, the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The evidence of record at the time of the January 2001 RO decision letter included: service treatment records; treatment records from Asheville, North Carolina, VA Medical Center (VAMC), dated from October 1984 to July 1990; various private medical records; and an application for benefits, testimony and statements from the Veteran. In the June 1999 Board decision, which denied the claim of entitlement to service connection for a low back disorder, the Board considered the evidence and conceded that the Veteran was treated for a back issue in service. However, the Board determined that competent medical evidence was not been presented establishing that the Veteran's low back disorder was service-related. The January 2001 RO decision letter denied the claim for failure to submit new and material evidence. New evidence added to the record, at the time of the September 2008 rating decision and since the January 2001 RO decision letter, consisted of treatment records from VA North Texas Healthcare System, dated February 2008 to August 2008, and from the Asheville VAMC, dated April 2007 to February 2008. A review of the new evidence reveals that the Veteran had sought treatment for continued low back pain. Moreover, the Veteran participated in an October 2009 informal conference and was informed that he needed to provide a statement from his doctor indicating that his current lower back condition was related to or was a continuation of his reported problems in service. The Veteran's representative submitted a January 2010 medical letter providing a nexus opinion within the 60 day period following the issuance the statement of the case (SOC). The Board finds that this evidence is new because it was not previously before VA decision makers. The evidence is also material because the new medical evidence suggests that the Veteran has a chronic back disability that may be related to a back injury that occurred during military service. Accordingly, the claim of entitlement to service connection for a back condition is reopened. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). B. Merits of the Claim Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). To establish service connection for a present disability, the 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In service connection claims consideration must be given to all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. § 3.303(a). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2013). When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry and then burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). In April 1999 testimony, the Veteran asserted that he initially injured his back during service, when assigned to KP duty in January 1979. He testified that the injury occurred when he was lifting a 50 gallon garbage can into a dumpster. He contends that he has experienced continual back pain since the January 1979 injury during service. Here, the Veteran satisfies the existence of the present disability standard with regard to his claim for a low back disability. In June 2011, the Veteran was afforded a VA examination and was diagnosed with a lumbar strain and lumbar degenerative joint disease. Thus, the Board finds the Veteran does a current disability in the form of a lumbar strain and lumbar degenerative joint disease. The requirement for a current disability is satisfied if the disability is present at any point during the claim or appeal period. See McClain v. Nicholson, 21 Vet. App. 319 (2007). A review of the Veteran's service medical records (SMRs) reveals that an entrance examination was conducted in July 1978. No defect or diagnosis was listed on the entrance examination report with respect to the Veteran's back and he was found to be qualified for service. SMRs show that the Veteran separated from service in February 1979, and received an existing prior to service discharge due to a possible herniated disc. However, because there was no defect, infirmity, or disorder noted at entrance, the presumption of soundness applies unless there is clear and unmistakable evidence that the disability pre-existed service and clear and unmistakable evidence that it was not aggravated by service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304 (2013), Wagner 370 F.3d 1163. Here, although there is clear and unmistakable evidence that the Veteran had a pre-service back disability, the evidence does not establish that it was clearly and unmistakably not aggravated by service. To the contrary, the Veteran's back disability appears to have worsened during service, leading to his eventual discharge. Since only one of the two criteria needed to rebut the presumption of soundness have been met, the Veteran is presumed to have been in sound condition as to any back disability. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). Additionally, the Veteran's SMRs confirm that he complained of back pain in December 1978 and January 1979. Thus, the element of the incurrence of an in-service injury is met for a low back disability. The record contains two opinions with respect to the relationship between the Veteran's current low back disability and his active service. In January 2010, a physician, at the Charles George VA Medical Center, stated that the Veteran's current back condition was as likely as not related to and/or a continuation of the back problems noted in service. The Board acknowledges that this January 2010 physician did not have access to the claims file but he did state that his opinion was based upon physical examination and review of the medical records, which is sufficient. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (holding that VA cannot reject a medical opinion simply because it is based on a history supplied by a veteran and that the critical question is whether that history was accurate). In June 2011, the Veteran was afforded a VA examination and the June 2011 VA examiner stated that the Veteran's current back condition was not due to service back pain. The Board does not find the VA June 2011 examination report persuasive. This is because the June 2011 VA examiner stated there were no post service treatment notes from 1979 to 1993. However, the evidence of record does reflect treatment from earlier dates. Thus, the medical opinion is of little evidentiary value because the probative value of a medical opinion comes from the factually accurate, fully articulated, and sound reasoning for the conclusion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Furthermore, the June 2011 VA examiner's opinion relies primarily on the lack of documentation of complaints of or of treatment for back pain since service. However, this does not conclusively disprove the Veteran's claims that he experienced the symptoms that were ultimately diagnosed as a low back disability prior to 1993. See Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005) (holding that lay evidence cannot be discarded merely because it is unaccompanied by contemporaneous medical evidence). Moreover, the Veteran has credibly stated he was not always able to seek treatment due to financial constraints. He testified, in April 1999, that between 1979 and 1984, he self-medicated because he did not have medical insurance. At the least, the evidence raises reasonable doubt as to whether the Veteran's low back disability is etiologically related active service. When resolving the benefit of the doubt in the Veteran's favor, the Board finds that the low back disability is in fact related to service. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013). Thus, the Board concludes that service connection for a low back disability is warranted. ORDER New and material evidence having been submitted, the claim to reopen entitlement to service connection for a low back disability is granted. Entitlement to service connection for a lumbar strain and lumbar degenerative joint disease is granted, subject to the applicable regulations concerning the payment of monetary benefits. _________________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs