Citation Nr: 1638105 Decision Date: 09/28/16 Archive Date: 10/07/16 DOCKET NO. 14-00 469 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for a low back disorder. 2. Entitlement to service connection for a low back disorder. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD A. VanValkenburg, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1964 to May 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified at a videoconference Board hearing before the undersigned Veteran's Law Judge (VLJ) in July 2016. A transcript of the hearing is associated with the claims file. FINDINGS OF FACT 1. The evidence received since the last final denial of service connection for a low back condition in the August 2005 rating decision, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection. 2. The weight of the competent, probative evidence is in equipoise as to whether the Veteran's low back disorder is etiologically related to service. CONCLUSIONS OF LAW 1. The August 2005 rating decision, which determined that new and material evidence had not been received to reopen a claim for service connection for a back condition, became final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2015). 2. Evidence received since the August 2005 rating decision in relation to the Veteran's claim for entitlement to service connection for a low back condition is new and material, and, therefore, the claim is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 3. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for low back condition have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). In light of the grants of the claim to reopen and service connection for a low back disorder, no further discussion of VA's duty to notify and assist is necessary. Claim to reopen Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court recently interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). The Veteran's claim of entitlement to service connection for a low back condition was originally denied in a January 2004 RO rating decision. The Veteran did not express disagreement within a year of the denial and the decision became final. The Veteran filed a claim to reopen his low back condition in May 2005. The RO determined new and material evidence had not been submitted to reopen the claim in an August 2005 RO rating decision. Again, the Veteran did not express disagreement within a year of the denial and the decision became final. The current appeal arises from the Veteran's January 2009 claim to reopen which was denied in the April 2009 RO rating decision. The pertinent evidence submitted since the August 2005 RO rating decision includes an April 2010 private evaluation indicating a positive relationship between the Veteran's low back condition and service. The private evaluation is new in that it was not previously of record. Furthermore, it is material as it suggests a link between the Veteran's low back condition and service. Consequently, the claim of entitlement to service connection for a low back condition is reopened. Legal Criteria In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus or relationship between the two. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include arthritis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Low back disorder The Veteran asserts entitlement to service connection for a low back condition. The Veteran has essentially asserted that his low back condition began during service and has continued to the present. The Veteran has a current diagnosis of lumbar spondylosis and disc degeneration from 2006 and status post lumbar spine decompressive L1-S1 surgery laminectomy discectomy from 2012. See October 2013 VA back examination. The Veteran testified during his July 2016 Board hearing that his duties while serving on submarines included carrying supplies and equipment and conducting fire and security watches. He carried equipment from 30 to 80 pounds, loaded and moved supplies, and conducted watches which required standing from 16 to 20 hours. The Veteran believed he hurt himself moving equipment and doing things that were probably "beyond" his capacity. After retiring from the military, from 1987 to 2000, he sought treatment from local doctors and chiropractors. He contacted one chiropractor that he had received treatment from on and off during this time period but was told that records were destroyed after five years. Thereafter, he sought treatment from another chiropractor in 2001 and then he went to VA in approximately 2009. Service treatment records (STRs) document in-service back injuries and multiple complaints of low back pain. Specifically, the record documents an instance in January 1985 where the Veteran fell three feet off a ladder and hit his mid back on the corner of a cabinet on his way to the floor. About three days after the initial injury, he had a severe re-exacerbation from trying to lift a sea bag in an effort to return to his ship. One week later, he re-exacerbated his back injury a second time, though much less severely than the first, through carrying a suitcase. He was admitted to a hospital on February 4, 1985 due to the re-exacerbation of his back (right latissimus dorsi contusion) for physical therapy and an acute situational reaction with a significant grief component (related to news that his father had terminal cancer). Also in the record, are low back pain complaints from another fall and contusion from June 1986 and complaints with no specific injury. See e.g., January 6, 1969 record and November 23, 1977 records. Thus, the remaining question is whether there is an etiological link between the Veteran's active duty and his current low back condition. The STRs document multiple occasions of musculoskeletal low back pain, and the diagnosis or assessments include an acute low back strain (January 6, 1969), severe right latissimus dorsi contusion (February 4, 1985), status post musculoskeletal strain (January 11, 1985), early sciatica (April 23, 1985), muscle strain to the low back and groin (August 29, 1985), and a contusion of the left thoracic back (June 23, 1986). Notably, the lumbar spine X-rays conducted in associated with the January 1985 low back injury were negative, as noted in the January 9, 1985 record. A June 1986 VA enlistment annual examination indicated a normal clinical evaluation of the spine, other musculoskeletal. On the associated report of medical history the Veteran endorsed recurrent pain back but the physician's summary detailed that the Veteran had a 1985 back injury that was not considered disabling. Again, an April 1987 VA exit examination indicated a normal clinical evaluation of the spine, other musculoskeletal. The Board finds ongoing back pain weighs in support of the claim, though it does not appear that the records document a diagnosis of any chronic low back condition. The record contains conflicting evidence regarding a nexus between the low back condition and service. Evidence in support of the claim includes an April 2010 private medical opinion, which highlighted notable STRs related to his low back and stated that his low back conditions were highly likely to have been a result of his active duty injuries which were well documented in his medical record. Further, the Veteran has provided competent and credible complaints of continued back pain and treatment since service. Although the Veteran has identified receiving private treatment for his conditions from 1987 through 2000, he reported that he was unable to obtain the records as they were destroyed after five years. Consistent with the Veteran's report, VA treatment for his low back complaints began in 2009. In contrast, a October 2013 VA examiner provided a negative nexus opinion. In considering the evidence of record, the Board finds that the evidence of record for and against the claim is in relative equipoise. Resolving reasonable doubt in favor of the Veteran, the claim of entitlement to service connection for a low back disorder is granted. ORDER The previously denied claim of entitlement to service connection for a low back condition is reopened on the basis of new and material evidence. Entitlement to service connection for a low back disorder is granted. ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs