Citation Nr: 1418103 Decision Date: 04/23/14 Archive Date: 05/02/14 DOCKET NO. 11-01 342 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Whether there is new and material evidence to reopen a claim of entitlement to service connection for a low back disorder and, if so, whether service connection is warranted. WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD A. Larson, Associate Counsel INTRODUCTION The Veteran had active military service from August 1989 to August 1995. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was originally denied service connection for this claimed disability in an earlier April 1996 rating decision, so shortly after the conclusion of his service. He since has attempted to reopen this claim based on new and material evidence, but his petition was denied in May 2003. The September 2009 decision at issue reopened the claim, so determined there was the required new and material evidence, but then proceeded to continue denying the claim on its underlying merits following a de novo review of the evidence. Irrespective of what the RO determined concerning this, insofar as whether there is the required new and material evidence to reopen the claim, so, too, must the Board make this threshold preliminary determination - before proceeding further - because this initial determination governs whether the Board has jurisdiction to consider the underlying merits of the claim. See Barnett v. Brown, 83 F.3d 1380, 1383-84 (1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996); McGinnis v. Brown, 4 Vet. App. 239 (1993); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); and VAOPGCPREC 05-92 (March 4, 1992). As support for this claim, the Veteran testified at a videoconference hearing in May 2013 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. FINDINGS OF FACT 1. A prior May 2003 rating decision declined to reopen this claim of entitlement to service connection for a low back disorder; the Veteran was appropriately notified of that decision but did not appeal it. 2. Additional evidence since received, however, raises a reasonable possibility of substantiating this claim. 3. The evidence is now in a state of relative equipoise, meaning about evenly balanced, as to whether the Veteran's current low back disorder is the result of an injury he sustained during his military service. CONCLUSIONS OF LAW 1. Absent an appeal, the May 2003 rating decision previously declining to reopen this claim of entitlement to service connection for a low back disorder is final and binding based on the evidence then of record. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103 (2013). 2. But there is new and material evidence since that decision to reopen this claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. 3. Moreover, when resolving all reasonable doubt in his favor, it is just as likely as not the Veteran's current low back disorder is due to injury incurred during his active duty service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Given the fully favorable outcome of this appeal concerning this claim, the Board need not discuss whether there has been compliance with the duty-to-notify-and-assist obligations of the Veterans Claims Assistance Act (VCAA). I. New and Material Evidence to Reopen the Claim A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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 and binding denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The credibility of the evidence in question must be presumed, albeit just for the limited purpose of determining whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court explained that, when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id., at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. In determining whether new and material evidence is required, the focus of the Board's analysis must be on whether the evidence presented truly amounts to a new claim based upon distinctly diagnosed diseases or injuries or whether the evidence substantiates an element of a previously adjudicated matter. See Velez v. Shinseki, 23 Vet. App. 199 (2009). New arguments based on the same evidence of record at the time of the previous final denial do not constitute the presentation of new and material evidence. See Untalan v. Nicholson, 20 Vet. App. 467 (2006). The May 2003 rating decision, which represents the last prior, final decision on record, declined to reopen the Veteran's claim because it determined that the evidence submitted in support of the petition did not establish the required linkage between his current disability and his service. He was provided notice of that decision in June 2003 and he did not appeal; therefore, that decision became final and binding on him based on the evidence then of record. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103. In this most recent bid to reopen this claim, the Veteran submitted a December 2010 statement from his treating orthopedic surgeon. The statement notes the Veteran's in-service treatment for back pain and then summarizes the physician's personal experience treating the Veteran, beginning in 2000. It notes the two surgical procedures performed on the Veteran's back in 2003 and 2009. The physician then opined that the Veteran had injured his back in the military and that this injury "was the initiating factor which led to treatment in my practice beginning in 2000 and extending up to the current time and including surgical treatments of 2003 and 2009." He concludes by indicating the Veteran had received treatment for lumbar disc disease, "which is known to begin with injury and is known to progress forward once it has become a chronic problem." This statement is new evidence as it has never been consider by the RO in a previous adjudication. Indeed, it addresses the reason for the last denial in May 2003, as it speaks to the existence of a link between an in-service injury and a current condition. Thus, it is also material evidence, so the claim is reopened. II. Entitlement to Service Connection Service connection is granted for disability resulting from personal injury sustained or disease contracted in the line of duty during active military service, or for aggravation during service of a pre-existing condition, meaning for a permanent worsening of the condition above and beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. Service connection may be granted for any disease diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection on a direct basis requires competent and credible evidence showing: (1) the Veteran has the alleged disability or, at the very least, indicating he has at some point since the filing of his claim; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship or nexus 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), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran alleges that he chronically injured his back while in service and that this injury is the cause of lower back problems he experiences even to this day. Specifically, he alleges that he injured his back sometime in 1991 or 1992 while stationed in Okinawa, Japan, while lifting a transmission oil cooler as part of his job as a mechanic. His service treatment records (STRs) do contain entries for various back treatments. In January 1992, he received treatment for thoracic back pain that had begun three weeks prior while lifting weights. He was diagnosed with a muscle strain to the thoracic region. This treatment continued in February 1992. In May 1993, there is a record detailing treatment for a lower back strain. The onset of the then current pain was described as the prior week while he was pushing a Humvee; however, notation was also made that he had injured his back one year earlier in Okinawa, Japan. There is further record of treatment for "muscular back pain" in a November 1994 record. At his separation-from-service examination in July 1995, his spine was described as normal. Thus, at the very least, the Board concludes that he did in fact injure his back as he has alleged while stationed in Okinawa, Japan. The Board is also satisfied that he has a current low back disability. His private treatment records reveal diagnoses of a lower back strain, degenerative disc disease, and stenosis. Furthermore, at a November 2011 VA compensation examination, the examiner concluded that the record indicated the Veteran had had two spinal fusion procedures and, thus, there was no question that he had "some measure of disability." Resolution of this claim therefore turns on whether this current low back disability is the result of the injury in service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). As mentioned in the earlier discussion of whether there was new and material evidence to reopen this claim, the Veteran submitted a December 2010 statement from his treating orthopedic surgeon opining that the current lower back condition was in fact caused by the back injury in service. The Board gives a lot of probative weight to this opinion, as it is from a physician who treated the Veteran for over 10 years and performed surgery twice. That said, both the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) and the U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) have specifically declined to adopt a "treating physician rule" that would give preference to statements from a treating physician. White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001); Guerrieri v. Brown, 4 Vet. App. 467 (1993). Still, however, the duration and depth of a physician's treatment relationship with a Veteran is nonetheless a factor to be considered where medical opinions are in conflict. Here, a VA compensation examiner concluded against the claim, but this private orthopedic surgeon's opinion certainly is as probative, meaning as competent and credible, if not more so given this private physician's medical expertise in the specific branch of medicine at issue. An opinion may decline in probative value even where the statement comes from someone with medical training, if, as here, the medical issue requires special knowledge. But the contrary is true, also, allowing for an increase in probative value of an opinion coming from someone with specialized subject matter expertise. See Black v. Brown, 10 Vet. App. 279 (1997). The private orthopedic surgeon's opinion also provides the necessary explanatory rationale, which is where most of the probative value of an opinion is derived, not instead merely from reviewing the claims file or the ultimate conclusion. See Neives-Rodriguez v. Peake, 22 Vet. App. 295 (2008). After submitting this opinion, the Veteran had a VA compensation examination in January 2011. The VA examiner opined against the claim, concluding the Veteran's lumbar spine strain, post-operative, was less likely than not related to or a progression of the low back condition that he had complained of and was treated for during his military service. The VA examiner based this opinion on the belief that any back injury the Veteran had sustained in service was acute and resolved, that he did not seek treatment for a back condition between separating from service in 1995 and 2000, and that when he did get treatment in 2000 it was following a distinct, work-related (so "intercurrent") injury. The VA examiner specifically stated that there did not appear to be any continuity in a low back problem from an in-service injury to the current back condition. But after considering both opinions, the Board concludes that, at the very least, the evidence is in a state of relative equipoise as to whether the Veteran's current lower back condition relates back to his time on active duty. And when, as here, the evidence supporting the claim is as probative as the evidence against the claim, the Veteran is given the benefit of the doubt and the claim granted. 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). See, too, Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (An "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology). ORDER Because there is new and material evidence, the petition to reopen this claim of entitlement to service connection for a low back disorder is granted. Moreover, this claim of entitlement to service connection for a low back disorder is granted on its underlying merits. ____________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs