Citation Nr: 1418852	
Decision Date: 04/29/14    Archive Date: 05/06/14

DOCKET NO.  10-44 302	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a low back disability, and if so, whether the reopened claim should be granted.  


REPRESENTATION

Appellant represented by:	The National Veterans Disability Advocates


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

Nadia Kamal, Associate Counsel

INTRODUCTION

The Veteran served on active duty from November 1967 to November 1970.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated June 2009 by the Denver, Colorado, Regional Office (RO) of the Department of Veterans Affairs (VA).

In a May 2013 Board hearing held at the RO, the Veteran presented evidence and oral testimony in support of his claim before the undersigned Veterans Law Judge.  A transcript of that hearing has been obtained and associated with the Veteran's claims file for the Board's review and consideration.  

At the May 2013 hearing, the Veteran stated that he is unable to work due to his low back disability.  As will be discussed below, the Board is granting service connection for the low back disability.  A claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) has thereby been raised by record, but has not been adjudicated by the AOJ.  The Board therefore refers this claim for appropriate action.  


FINDINGS OF FACT

1.  In March 2003 rating decision, the RO denied a claim for service connection for lumbar strain with degenerative joint disease. 

2.  The evidence associated with the claims file subsequent to the March 2003 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for lumbar strain with degenerative joint disease.

3.  The evidence is at least in equipoise as to whether Veteran's diagnosed degenerative joint/disc disease of the lumbar spine is related to an in service injury.  


CONCLUSIONS OF LAW

1.  New and material evidence has been received to reopen a 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 (2013).

2.  The criteria for establishing service connection for degenerative joint/disc disease of the lumbar spine have been met.  38 U.S.C.A. §§ 1101, 1110 (West 2002); 38 C.F.R. § 3.303 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran has been provided all required notice, to include notice pertaining to the disability rating and effective date elements of his claim.  In addition, the Board has determined that the evidence currently of record is sufficient to grant the benefit sought on appeal.  No further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013) or 38 C.F.R. § 3.159 (2013). 

Service connection for lumbar strain with degenerative joint disease was denied in a March 2003 rating decision on the basis that the evidence of record had not established that the Veteran's disability was the result of his service connected fracture of the hip.  The Veteran submitted a timely appeal to this decision but thereafter withdrew his appeal.  The March 2003 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 (2013).



The evidence received as part of the Veteran's March 2009 petition to reopen his claim for service connection for a low back disability includes an April 2013 opinion, by a VA physician, connecting the Veteran's degenerative joint/disc disease of the lumbar spine to his military service, specifically an injury when he was hit by a bulldozer.   The evidence is both new and material and raises a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010).  The claim is thereby reopened.  

Turning to a consideration of the claim on its merits, the Veteran's service treatment records (STRS) provide competent and credible evidence of the Veteran's report of a bulldozer injury in service.  He is service connected for a fracture of the right pubic rami.  In addition to the positive opinion by Dr. P., who stated that the force that fractured the Veteran's pubic rami had also caused his degenerative disc disease, the record includes a March 2009 from a different VA physician, who suggested that the Veteran's current back disability is the result of his 1969 hip injury.  The record also contains a negative opinion from a VA orthopedic consultant in February 2003.  No one opinion is any more probative than the other.  The opinions are at least in equipoise.  See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990) (held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail.).

Therefore, resolving all doubt in favor to the Veteran, the Board finds that the evidence supports a nexus between the Veteran's current low back disability and his military service.  As all elements of service connection have been satisfied, service connection for a low back disability is granted.  See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(d) (2013).




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ORDER

The claim for service connection for a low back disability is reopened.

Entitlement to service connection for degenerative joint/disc disease of the lumbar spine is granted.




____________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs