Citation Nr: 1740558 Decision Date: 09/19/17 Archive Date: 10/02/17 DOCKET NO. 13-33 929A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Whether new and material evidence has been received to reopen the Veteran's claim for entitlement to service connection for a low back strain. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from April 1996 to May 1998. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in October 2013; a statement of the case was issued in November 2013; and a substantive appeal was received in December 2013. The Veteran presented testimony at a Travel Board hearing in January 2017. A transcript of the hearing is associated with the Veteran's claims folder. FINDINGS OF FACT 1. In February 1999, the RO denied the Veteran's claim for service connection for lumbosacral spine pain. The Veteran failed to file a timely notice of disagreement; and no new and material evidence was received within a year of the rating decision's issuance 2. Certain evidence received since the February 1999 decision is neither cumulative nor redundant of the evidence of record at the time of the February 1999 denial and, by itself or in conjunction with the evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim of service connection. 3. The evidence is at least in equipoise as to whether the Veteran's low back strain began during service or is otherwise related to service. CONCLUSIONS OF LAW 1. The February 1999 RO rating decision, which denied the Veteran's service connection claim for lumbosacral spine pain is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 3.156(b). 2. Evidence received since the February 1999 RO rating decision is new and material; accordingly, the claim for service connection for lumbosacral spine pain is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2016). 3. The criteria for an award of service connection for a low back strain have been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.6, 3.159, 3.303 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist There is no need to undertake any review of compliance with VA's duty to notify and assist in view of the fact that the full benefit sought by the Veteran is being granted by this decision of the Board. New and Material Evidence In its August 2013 rating decision, the RO found new and material evidence to reopen the Veteran's previously denied claim. It then confirmed the previous denial by adjudicating the claim on a de novo basis. The Board notes that despite the determination made by the RO, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001); see also VAOPGCPREC 05-92. Following notification of an initial review and adverse determination by the Regional Office (RO), a notice of disagreement must be filed within one year from the date of notification thereof; otherwise, the determination becomes final and is not subject to revision except on the receipt of new and material evidence. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156. Following receipt of a notice of a timely disagreement, the RO is to issue a statement of the case. 38 C.F.R. § 19.26. A substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the statement of the case to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 C.F.R. § 20.302(b). Otherwise, the determination becomes final and is not subject to revision except on the receipt of new and material evidence. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156. Where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. See 38 U.S.C.A. §5108; 38 C.F.R. §3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239-40 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA's duty to provide a VA examination is triggered. There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening. Id. at 117-20. The Veteran's claim for service connection for lumbosacral pain was denied by way of a February 1999 RO decision. The Veteran failed to file a timely notice of disagreement, and no evidence was received within the appeal period after the decision. As such, the decision became final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. § 3.156(b) (2016) (new and material evidence received within the appeal period after a decision is considered as having been received in conjunction with the prior claim); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) (VA must determine whether evidence received during the appeal period after a decision contains new and material evidence per 3.156(b) and failure to readjudicate the appeal after receipt of such evidence renders the decision non-final). The evidence on record at the time of the February 1999 denial consisted largely of the service treatment records and a December 1998 VA examination report. The service treatment records reflected an in-service injury. However, the December 1998 VA examination report reflected only subjective complaints of pain in the dorsal spine area (not the low back). The examiner failed to find evidence of a chronic disability. The RO's denied the claim on the basis of no current chronic disability. Evidence received since the February 1999 rating decision includes Board hearing testimony; a lay statement by a witness to the injury, a July 2013 VA examination in which the Veteran was diagnosed with a chronic lower back strain; and a May 2017 positive nexus opinion from A.W. of the Claddagh Chiropractic Wellness Center, where the Veteran is being treated for an acute episode of lumbar pain, sciatica, and muscle spasms. The Board finds that the Veteran's testimony of chronic symptoms since service, a diagnosis of a chronic lower back strain, and a positive nexus opinion constitute new and material evidence going to one or more of the bases of the prior final denial of service connection for the low back. As new and material evidence has been received to reopen the claim, the petition to reopen the issue of entitlement to service connection for a low back disability is allowed. Service Connection Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). At the Veteran's January 2017 Board hearing, he testified that he injured his back in July 1997; and that he has had continuity of symptomatology ever since service. He testified that he did not want to "run to the doctor for every little pain that [he] had." Consequently, he either dealt with the pain or self-medicated with over the counter painkillers. He testified that he made numerous visits to Memorial Health System, and that at least a third of those visits were for his lower back. The service treatment records confirm that the Veteran sustained a back injury in July 1997. He was assessed with mechanical back pain with sciatica. He was put on light duty 48 hours. The service treatment records reflect no other in-service findings related to the low back (VBMS, 3/8/15, p. 24). The Veteran submitted a lay statement from T.D., a witness to the injury (VBMS, 10/8/13). T.D. stated that it was at least 10 days after the injury before the Veteran showed signs of his former self. He also stated that the Veteran frequently complained about the injury and was "reduced to light duty." The Veteran filed a claim for a back disability in June 1998 (one month after being discharged from service). The Veteran underwent a VA examination in December 1998. The Veteran described a sprain/strain related to lifting during service. He stated that he was evaluated by a field medic; given a temporary profile; and was given medications. He was sent back to work. He reported that he still has intermittent mild discomfort, primarily in the morning. He stated that he basically ignored the pain. It did not interfere with his activities of daily living. There was no limitation of range of motion, weakness, or numbness. Upon examination, the examiner noted that the Veteran's reported pain was not in the low back, but in the dorsal spine at the dorsal lumbosacral junction. The examiner stated that it was a normal clinical examination and x-ray with insufficient clinical evidence to warrant a diagnosis of any acute or chronic disorder. Additional post-service evidence reflects that the Veteran was admitted to the Memorial Health System on seven occasions between October 1998 and October 2001 (VBMS 12/17/13). The record does not state the nature of the treatment/why he was admitted. However, the Veteran testified in 2017 that at least a third of those visits were for his lower back. Specifically, he went to the emergency room for his back pain on June 11, 2001; August 26, 2011; and October 23, 2011 (VBMS, 1/25/17, p. 3). The Veteran underwent another VA examination in February 2013. The examiner reviewed the claims file in conjunction with the examination. The Veteran reported that since his in-service injury, he has continued to have back pain which has become progressively worse over the years. He reported that his back pain starts in the lower back and radiates to the front of the abdomen on the right side and right thigh. He also reported intermittent tingling and numbness of the right leg. He occasionally takes either Ibuprofen/Baclofen to relieve the pain. He also stated that he wears a back brace occasionally. The examiner diagnosed the Veteran with a chronic lower back strain. The examiner opined that it was less likely than not that the Veteran's current disability is related to service. He stated that the July 1997 injury resolved in service; and that the Veteran's current disability is a separate and distinct disability with no relationship. The Veteran submitted a May 2017 correspondence from Claddagh Chiropractic Wellness Center. Chiropractor A.W. stated that the Veteran sought treatment from March 2016 to May 2016 for an acute episode of lumbar pain, sciatica, and muscle spasms. A.W. stated that all health records that were supplied have been reviewed. She noted that the Veteran's examination findings and x-rays findings are consistent with the in-service injury. She opined that it was at least as likely as not that the initial cause of his continued re-occurrences of low back pain and sciatica began with the in-service incident. Analysis In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). There is no doubt that the Veteran has satisfied the first two elements of service connection. The service treatment records confirm an in-service back injury in July 1997; and the post service records reflect a diagnosis of a chronic lower back strain. As such, the first two element of service connection have been established by the evidence. The crux of the issue is whether there is a causal connection between the in-service injury and the Veteran's current disability. There are competing opinions in regards to this issue: a positive nexus opinion provided by a private provider, and a negative nexus opinion provided by the VA examiner. The Court has held that the Board must determine how much weight is to be attached to each medical opinion of record. See Guerrieri v. Brown, 4 Vet. App. 467 (1993). Greater weight may be placed on one medical professional's opinion over another, depending on factors such as reasoning employed by the medical professionals and whether or not, and the extent to which, they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). Adequate reasons and bases, in short, must be presented if the Board adopts one medical opinion over another. In assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are a review of the pertinent medical history in the claim file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. 444, 448-49 (2000). In some cases, the physician's special qualifications or expertise in the relevant medical specialty or lack thereof may be a factor. In every case, the Board must support its conclusion with an adequate statement of its reasoning of why it found one medical opinion more persuasive than the other. The Board finds no adequate reasons and bases for finding either opinion more probative than the other. The Board acknowledges that the private examiner failed to note that the Veteran was examined in December 1998, and that the examination yielded normal findings. The Board also acknowledges that the VA examiner did not consider the Veteran's statements regarding continuity of symptomatology. Additionally, as a factor for consideration, the Board notes that the Veteran's original claim was filed in June 1998 (within a month of being discharged from service). The Board finds this to be compelling evidence that the Veteran was, in fact, experiencing symptoms upon being discharged from service. At the very least, the Board finds that, in giving the benefit of the doubt to the Veteran, the evidence is at least in equipoise. 38 C.F.R. §§ 3.102, 3.303(d). Consequently, the Board finds that service connection for a chronic low back strain is warranted. ORDER The petition to reopen the issue of entitlement to service connection for a low back disability is granted. Service connection for a low back strain is granted. ______________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs