Citation Nr: 1720199 Decision Date: 06/07/17 Archive Date: 06/21/17 DOCKET NO. 13-20 504 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether new and material evidence was received to reopen a claim of entitlement to service connection for a back disability, claimed as scoliosis and degenerative disc disease. 2. Entitlement to service connection for a back disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Finn, Counsel INTRODUCTION The Veteran served on active duty from July 1958 to April 1961. This matter comes to the Board of Veterans' Appeals (Board) from a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran filed a claim to reopen service connection for a back disability in September 1974. 2. The RO denied this claim in a November 1974 rating decision. 3. The Veteran did not file a notice of disagreement, and the decision became final. 4. The Veteran has since filed new and material evidence to reopen a claim for service connection for a back disability. 5. There is no competent evidence that addresses whether the Veteran's scoliosis is congenital in nature. 6. The Veteran's scoliosis was not noted upon entry and there is no clear and unmistakable evidence that it preexisted service. 7. Scoliosis was first diagnosed in March 1960, while the Veteran was serving on active duty. 8. The Veteran's degenerative disc disease is linked to his military service. CONCLUSIONS OF LAW 1. The November 1974 rating decision, which denied service connection for a back disability, is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2016). 2. Evidence received since the November 1974 rating decision denying service connection for a back disability is new and material and the claim is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (a)(c)(1) (2016). 3. The criteria for establishing service connection for degenerative disc disease have been met. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Reopening Service Connection for a Back Disability The Veteran initially filed a claim to reopen service connection for a back disability in September 1974, which was denied in a November 1974 rating decision. He did not file a notice of disagreement and the decision became final. He filed a claim to reopen service connection in 2011. The preliminary question of whether a previously denied claim should be reopened, however, is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1, 4, (1995), aff'd, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). Therefore, regardless of how the RO characterized the issue, the initial question before the Board is whether new and material evidence has been received. Prior unappealed decisions of the Board and the RO are final. 38 U.S.C.A. §§ 7104, 7105(c) (West 2014); 38 C.F.R. §§ 3.160 (d), 20.302(a), 20.1100, 20.1103, 20.1104 (2016). If, however, new and material evidence is presented or secured with respect to a claim which has been denied, VA shall reopen the claim and review the former disposition of the claim. Manio v. Derwinski, 1 Vet. App. 145 (1991). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156 (a). 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 prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. New and material evidence need not be received as to each previously unproven element of a claim to justify reopening thereof; the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117-120 (2010). The Veteran's claim for service connection for back disability was previously considered and denied by the RO in a November 1974 rating decision, essentially explaining that it was "[p]robably degenerative disc disease, L4, 5 and L5, 51 associated with the congenital anomaly" and not a disability for VA compensation purposes. The Veteran was notified of that decision and of his appellate rights. The Veteran did not file a notice of disagreement and the rating decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. At the time of the November 1974 rating decision, the evidence before the RO consisted of the Veteran's records and post-service treatment records. Since that time, the Veteran has, in pertinent part, has filed a private nexus opinion. In November 2016, the Veteran submitted a private nexus opinion from his orthopedist that stated, in pertinent part, that the Veteran had a back injury in service and that it was a "high possibility and probability" that his current back disability was related to his service. His rationale was premised, in part, on the fact that "people who have facet problems or zygapophyseal joint disorder whether it is degenerative or traumatic typically have ongoing pain. The disorder rarely, if ever, corrects itself." In determining whether newly-received evidence is new and material, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). When credibility is presumed, the aforementioned evidence suggests a nexus between the current disability and active duty service. As this represents evidence not previously submitted to agency decision makers and relates to unestablished facts necessary to substantiate the claim, the Board finds that the additional evidence is new and material to reopen the Veteran's claim for service connection for a back disability. II. 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, 1131; 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 a general matter, 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). A Veteran is presumed in sound condition except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service. 38 U.S.C.A. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The burden then falls on VA 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, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227. Even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). Rather, the burden is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease. Id. Certain abnormal curvatures of the spine, including scoliosis, may be the result of a congenital or developmental defect, which are not considered diseases or injuries for VA compensation purposes. See 38 C.F.R. §§ 3.303 (c), 4.9 (2009); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996) (stating that congenital or developmental defects are not diseases or injuries within the meaning of VA law and regulation). As such, a congenital or developmental defect generally may not be service-connected as a matter of law; however, service connection may be granted if such a defect is subject to, or aggravated by, a superimposed disease or injury during service which results in additional disability. See VAOPGCPREC 82-90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990); see also Winn, 8 Vet. App. at 516. The presumption of soundness does not apply when a condition is a congenital or developmental defect, as service connection cannot be granted for such disorder. See Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993) (noting the difference between defect and disease and further noting that service connection may be granted if the congenital or developmental condition is a disease). VA's General Counsel has also held that familial or inherited diseases are not excluded from service connection. VAOPGCPREC 67-90 (Sept. 27, 1988), VAOPGCPREC 82-90 (July 18, 1990). A disease, which is defined as a condition capable of improving or deteriorating, is service-connectable if pathology first manifests in service or the disease progresses at a greater than normal rate during active service. Id. According to VAOPGCPREC 82-90, "disease" has been broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. On the other hand, "defect" has been defined as structural or inherent abnormalities or conditions which are more or less stationary in nature. Generally, a "disease" is considered to be a condition capable of improving or deteriorating, while a "defect" is not considered to be a condition capable of improving or deteriorating. Id. Furthermore, a preexisting disease will be presumed to have been aggravated by military service when there is an increase in disability during such service, unless there is a specific finding that the increase is due to the natural progress of the disease. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306 (a)(2011). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306 (b) (2011); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Before deciding a claim, the Board is required to evaluate all relevant evidence of the record on appeal, including lay and medical evidence. See 38 U.S.C.A. § 7104 (a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. Lay evidence may be competent and sufficient to establish a claim for service connection. Specifically, lay evidence may be sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Moreover, a layperson is competent to report the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (holding that a veteran is competent to report on that of which he or she has personal knowledge). The Board must then determine whether the evidence is credible or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of the relevant evidence, the Board must then weigh its probative value. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). III. Service Connection for Back Disability Analysis The Veteran contends that his back disability did not preexist service and was incurred during service. Although the RO determined that the Veteran's back disability/scoliosis was not incurred or aggravated by service, there is no competent evidence that addresses whether the Veteran's condition is congenital. Furthermore, neither scoliosis nor back issues were noted on his entrance examination. Instead, the Veteran's scoliosis was discovered near separation from service. Service treatment records from March 1960 show that the Veteran had complained of a low back strain. On April 15, 1960, a radiographic report noted that his lateral end oblique films reflect "mild roto-scoliosis with convexity to the right." Although a July 2013 VA examiner found the Veteran's degenerative disc disease was less likely than not (less than 50 percent probability) incurred in or caused by the claimed inservice injury event or illness, the rationale on which the conclusion was predicated is inadequate. The examiner cited to post-service treatment records that cited work-related back injuries and did not comment on his March 1960 inservice injury and scoliosis, which was diagnosed in service. In November 2016, the Veteran submitted a private nexus opinion from his orthopedist that stated, in pertinent part, that the Veteran had a back injury in service and that it was a "high possibility and probability " that his current back disability is related to his service. His rationale was premised, in part, on the fact that "people who have facet problems or zygapophyseal joint disorder whether it is degenerative or traumatic typically have ongoing pain. The disorder rarely, if ever, corrects itself." The Board finds that the weight of the evidence does not show that the Veteran's scoliosis is a congenital defect or disease. Moreover, the Veteran's service records show that scoliosis was not noted at entry. Thus, the presumption of soundness applies. See Wagner, 370 F.3d at 1096. Given that the evidence for and against the claim is in relative equipoise, the benefit-of-the-doubt doctrine is applicable. Accordingly, the Board finds that the Veteran's current degenerative disc disease was incurred during service. ORDER New and material evidence having been submitted, the Veteran's request to reopen the claim of entitlement to service connection for a back disability is granted. Entitlement to service connection for degenerative disc disease is granted. ______________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs