Citation Nr: 1739712 Decision Date: 09/15/17 Archive Date: 09/29/17 DOCKET NO. 14-09 952 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for a low back disorder, and if so, entitlement to service connection for a low back disorder. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. Edwards Andersen, Counsel INTRODUCTION The Veteran had active service from March 1992 to March 1998. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In September 2015, the Board remanded this claim to schedule the Veteran for a hearing. The requested hearing was conducted in December 2016 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. FINDINGS OF FACT 1. An August 2008 rating decision denied the claim of entitlement to service connection for a low back disorder. The Veteran did not file an appeal to that decision and it is final. 2. Evidence pertaining to the Veteran's low back disorder received since the August 2008 decision was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. 3. Resolving reasonable doubt in favor of the Veteran, the evidence of record demonstrates that his low back disorder, currently diagnosed as degenerative disc disease and arthritis of the lumbar spine, is related to injuries sustained during active service. CONCLUSIONS OF LAW 1. The August 2008 rating decision that denied entitlement to service connection for a low back disorder is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2016). 2. The evidence received since the August 2008 rating decision is new and material, and the Veteran's claim for service connection for a low back disorder is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2016). 3. Service connection for a low back disorder, diagnosed as degenerative disc disease and arthritis of the lumbar spine, is established. 38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2016). In this case, the Board is granting in full the benefit sought on appeal. Consequently, the Board finds that any lack of notice and/or development, which may have existed under the VCAA, cannot be considered prejudicial to the Veteran, and remand for such notice and/or development would be an unnecessary use of VA time and resources. II. Whether New and Material Evidence Has Been Received to Reopen a Previously Denied Claim for Entitlement to Service Connection for a Low Back Disorder The Veteran seeks to reopen his previously denied claim for entitlement to service connection for a low back disorder. Notwithstanding determination by the RO that new and material evidence has or has not been received to reopen the Veteran's claim, it is noted that on its own, the Board is required to determine whether new and material evidence has been presented. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (holding that the Board has a legal duty under 38 U.S.C.A. §§ 5108 and 7105, to address the question of whether new and material evidence has been presented to reopen a previously denied claim); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The record reflects that a claim for service connection for a low back disorder was last denied in a rating decision of August 2008. The Veteran did not complete a timely appeal and subsequently the August 2008 rating decision became final. Evans v. Brown, 9 Vet. App. 273, 285 (1996). As such, the Veteran's claim for service connection may only be opened if new and material evidence is submitted. In this instance, since the August 2008 rating decision denied the claim on the basis that there was no evidence that the Veteran's current low back disorder was causally or etiologically due to his in-service back injuries, the Board finds that new and material evidence would consist of evidence the Veteran's current low back disorder is due to service. The evidence received since the August 2008 rating decision consists of numerous records and documents. Among other things, the Veteran submitted a statement from his private physician opining that the Veteran's low back disorder was related to the injuries he sustained during service. See October 2011 statement from Dr. P. The Board must presume the credibility of all newly submitted evidence for the purpose of determining if such evidence is new and material evidence sufficient to reopen the claim. Fortuck v. Principi, 17 Vet. App. 173, 179 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). As a result, the Board finds that this additional evidence is neither cumulative nor redundant, and it is material since the evidence raises the possibility of substantiating the claim of service connection for a low back disorder. The Board determines that the claim is reopened. III. Entitlement to Service Connection for a Low Back Disorder The Veteran seeks entitlement to service connection for a low back disorder. He asserts his current disorder is due to several back injuries he sustained during service. Given the favorable outcome, and the fact that the RO considered the claim on the merits, the Veteran is not prejudiced by the Board's consideration of the reopened claim on the merits. Hickson v. Shinseki, 23 Vet. App. 394 (2010). Applicable Laws Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (a) (2016). In general, service connection requires competent evidence showing: (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 addition, for certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within a prescribed period following discharge from service; the presumptive period for arthritis is one year. 38 C.F.R. § 3.307, 3.309(a). When the disease entity is established, there is no requirement of evidentiary showing of continuity. If the condition noted during service (or in the presumptive period) is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned, then generally a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as "chronic diseases" in 38 C.F.R. § 3.309 (a). Because arthritis is specifically listed as a chronic disease under 38 C.F.R. § 3.309 (a), the theory of continuity of symptomatology is for application in the Veteran's claim of service connection for his back. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). Analysis Initially, the Board notes that the Veteran has a current diagnosis of degenerative disc disease and arthritis of the lumbar spine. See December 2013 VA examination. As such, element (1) set forth under Shedden, current disability, has been satisfied. See Shedden, supra. Regarding element (2), service treatment records were reviewed. The September 1991 enlistment examination did not note any low back problems. In February 1993, the Veteran sought treatment for low back pain after lifting a computer. He indicated he injured his back again during "alert." He had slight discomfort to palpation. He was assessed with mild low back pain. In January 1994, the Veteran again sought treatment for low back pain, indicating that he injured his back approximately six months prior, and that the pain usually comes and goes away in one to two days, but it was not going away this time. He had a limited range of motion due to pain; he was assessed with back pain. In April 1996, the Veteran sought treatment for low back pain after injuring his back while lifting. It was noted that he had tenderness over the broad ligaments, but full range of motion. X-rays were taken, noting a history of recurring low back pain with lifting and occasional radiation of symptoms into both legs. X-rays were normal. He was diagnosed with an acute L-S sprain. In July 1997, the Veteran sought treatment for low back pain after lifting heavy bags. He had mild tenderness in the mid-lower back. He was assessed with an acute lumbar strain and placed on a profile for one week. An x-ray was ordered to rule out a structural defect as etiology for his pain. X-rays were normal. The Veteran was sent for a consultation with physical therapy in July 1997 for his recurrent low back pain. It was noted that the Veteran had a history of recurrent low back pain, with recurrences once a year. It was noted that his original injury was five years prior after lifting heavy equipment while in Korea. He was assessed with biomechanical low back pain. The Veteran's February 1998 Report of Medical History indicated he had a history of ongoing low back pain and the February 1998 separation examination reported a lumbar strain. As the record contains numerous instances of low back injuries and treatment, the Board finds that Shedden element (2) has been satisfied. See Shedden, supra. For element (3), nexus, in light of the totality of the evidence of record, the Board finds the evidence is at least in equipoise that his current low back disorder is causally or etiologically due to service. The Veteran's private treating physician submitted a statement in December 2011 opining that the Veteran's prominent disc protrusions with central canal stenosis were most probably related to the injuries he suffered in the armed service. Then, in March 2014, the treating physician completed a Disability Benefits Questionnaire (DBQ) indicating that the Veteran has prominent disc protrusions L4-5, central disc protrusions L5-5, and left foraminal narrowing L3-4, noting that the history of the Veteran's current disorder was an injury during service in 1993, where the Veteran was unloading trucks and his back "snapped." A December 2013 VA medical opinion has been advanced against a causal connection between the Veteran's military service injuries and his current low back disorder. The examiner opined that it was less likely than not that the Veteran's L4-5 lumbar laminectomy and discectomy with degenerative changes were incurred in or caused by complaints of back pain that occurred in 1993, 1994, and 1997. The examiner stated that the Veteran sustained mild strains to his lower back in service, but no significant trauma was noted that would be anticipated to cause the early onset of arthritis of the lumbar spine. The Board finds that despite the negative etiological opinion from the VA examiner, the Veteran's extensive in-service treatment, lay statements of continuity of his symptoms and the December 2011 and March 2014 private medical opinions cannot be ignored. Importantly, the Board notes that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir 2006). Here, although the treatment records are no longer available, the Veteran has testified that he received treatment from a private physician since discharge from service, beginning in 1998, but that the physician is no longer practicing and he has been unable to obtain his treatment records. The VA may not simply disregard lay evidence because it is unaccompanied by medical evidence. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Generally, the degree of probative value that may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Also of significance is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). In this case, the Board finds that the VA examiner's opinion is at least as probative as the private medical opinions of record. While the private physician's opinions lack a complete rationale, the VA examiner did not comment on the Veteran's reported continuity of symptomatology since service and did not fully consider or explain the significance of the Veteran's lay statements. The examiner based the opinion partially on the lack of treatment records post service until 2007, but did not note the Veteran's statements regarding symptoms continuity. Here, the Board acknowledges the Veteran's lay history of his disorder, as he testified under oath that he experienced symptoms of a low back disorder during service and has continued to experience the same symptoms, post service. The Board notes that the Veteran's injuries during service were continually documented, including low back pain radiating into his legs. Post service, the Veteran complained of the same symptoms, low back pain radiating into his legs, which is documented in private treatment records in 2007. See April 1996 service radiologic examination report; December 2007 treatment note. The Veteran also reported these in-service injuries and symptoms while seeking treatment for his back pain, post service in 2007. See December 2007 private treatment note. The Board finds these statements highly probative. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the Veteran); Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I. 2003); see Fed. R. Evid. 803(4) and accompanying Notes (noting statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (providing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate). As such, the Board finds the Veteran's assertions of an in-service injury, symptoms of low back pain, and the continuity of such symptomatology since service are credible. Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007) (as a finder of fact, the Board, when considering whether lay evidence is satisfactory, may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Appellant, and his demeanor when testifying at a hearing). Furthermore, in this case, degenerative disc disease (arthritis) is an enumerated chronic disease under 38 C.F.R. § 3.309 as stated above. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Thus, the Board assigns probative value to these lay statements regarding continuity. The Board notes the Veteran's lay statements and hearing testimony under oath was not considered and discussed by the VA examiner when the opinion was provided in December 2013. Here, particularly persuasive is the Veteran's continuity of symptoms, documented by the numerous service treatment records noting low back pain with pain radiating into the legs, a history of low back pain with a lumbar strain noted on the separation examination, and treatment records documenting the same symptoms of low back pain with pain radiating into the legs, post service. In view of the totality of the evidence, including the Veteran's documented in-service back injuries, current findings of a disability, credible assertions of continuity of symptomatology, and positive medical opinions of record, the Board finds that the current low back disorder is causally related to the Veteran's active service. In light of the discussion above, while the evidence is not unequivocal, it has nonetheless placed the record in relative equipoise. As such, the Veteran's service connection for a low back disorder is granted. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for a low back disorder; to this extent, the appeal is granted. Entitlement to service connection for a low back disorder, currently diagnosed as degenerative disc disease and arthritis of the lumbar spine, is granted. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs