Citation Nr: 1742579	
Decision Date: 09/26/17    Archive Date: 10/04/17

DOCKET NO.  13-20 693	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim for service connection for mild degenerative disc disease of the lumbar spine (lumbar spine disability).

2.  Entitlement to service connection for lumbar spine disability.


REPRESENTATION

Veteran represented by:	Minnesota Department of Veterans Affairs


ATTORNEY FOR THE BOARD

V-N. Pratt, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from August 2003 to December 2003 and from June 2004 to November 2005.  He is a recipient of the Combat Action Badge.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.

In a June 2016 Correspondence, the Veteran withdrew his request for a Board hearing and asked that the claim be reviewed by the Board based on the evidence of record.

In May 2017, the Board remanded the matter for further development.


FINDINGS OF FACT

1.  A February 2006 rating decision that denied the Veteran's claim of service connection for mild spine degenerative disc disease was final because the Veteran did not appeal that decision within the one-year appellate period.

2.  Evidence received since the final February 2006 rating decision is new and material to raising a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for lumbar spine disability.

3.  Resolving all doubt in favor of the Veteran, his lumbar spine disability was manifest to a compensable degree within a year of separation from active service in November 2005.


CONCLUSIONS OF LAW

1.  The February 2006 rating decision denying service connection for mild spine degenerative disc disease is final.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017).
	
2.  Evidence received to reopen the claim of entitlement to service connection for lumbar spine disability is new and material, and the claim is reopened.  38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156(a) (2017).

3.  The criteria for service connection for lumbar spine disability are met.  38 U.S.C.A. §§ 1110, 5107, 5108; 38 C.F.R. §§ 3.102, 3.303 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.	New & Material Evidence to Reopen a Claim 
for Service Connection for Degenerative Arthritis of the Lumbar Spine

VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a Veteran.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2017); Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998).

New evidence is evidence not previously submitted to agency decision makers.  Material evidence is 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 final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a) (2017).

In determining whether new and material evidence has been received, VA must initially decide whether evidence associated with the claims file since the prior final denial is new.  New evidence is that which was not of record at the time of the last final disallowance on any basis of the claim, and is not merely cumulative of other evidence that was then of record.  38 C.F.R. § 3.156(a) (2017).  That analysis is undertaken by comparing newly received evidence with the evidence previously of record.  After evidence is determined to be new, the next question is whether it is material.

The Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened.  Evans v. Brown, 9 Vet. App. 273 (1996).  For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed.  Justus v. Principi, 3 Vet. App. 510 (1992).  New and material evidence is not required as to each previously unproven element of a claim.  Shade v. Shinseki, 24 Vet. App. 110 (2010).

The Veteran's service connection claim for degenerative disc disease of the lumbar spine was previously denied in a final February 2006 rating decision because there was no evidence that the Veteran's disability occurred in or was caused by service.  At the time of his claim in 2006, evidence submitted in support of his claim included, a VA Form 21-526 Veteran's Application for Compensation or Pension; a January 2006 VA examination; the Veteran's DD 214 Service Discharge Record; and his Service Treatment Records (STRs) from April 2003 through October 2005.  After that February 2006 rating decision, the Veteran did not perfect an appeal within one year and accordingly, the decision became final with respect to this claim.  38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017).

Several pieces of new evidence have been obtained by VA since the February 2006 rating decision.  However, within the context of reopening this claim, the most pertinent evidence received and obtained since the February 2006 rating decision includes VA treatment records, as well as statements from the Veteran in which he asserts that he was diagnosed with a chronic condition two and-a-half months after his separation from active service.  The evidence is "new" because it had not been previously submitted or considered by VA.  The evidence is "material" because it is provided in support of establishing service connection based on an alternative theory of presumptive service connection.  See 38 C.F.R. §§ 3.303(b), 3.307, 3.309.  The Board recognizes that this additional piece of evidence is presumed to be credible for the purpose of reopening the claim.  Justus v. Principi, 3 Vet. App. 510, 512 - 513 (1992).  Therefore, this additional piece of evidence, when considered in conjunction with the record as a whole, raises a reasonable possibility of substantiating the Veteran's claim.  Thus, since new and material evidence has been received to reopen the claim of service connection for degenerative disc disease of the lumbar spine, this claim is reopened.

II.	Service Connection for Lumbar Spine Disability

Generally, service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2017).  

Service connection may established on a direct basis if there is competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service.  See Shedden v. Principi, 381 F.3d 1163, 1166 - 67 (Fed. Cir. 2004).

In some cases, service connection may also be established by showing evidence of a chronic disease in service, which requires a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  38 C.F.R. § 3.303(b).  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  Id.  The provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 133, 1338 (Fed. Cir. 2013).  Arthritis is listed as a chronic condition under 38 C.F.R. § 3.309(a).

Additionally, certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service.  See 38 U.S.C.A. §§ 1101, 1112 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2017).  The Veteran must have served 90 days or more during a war period or after December 31, 1946, and the chronic disease must have become manifest to a degree of 10 percent or more within 1 year from the date of separation from service, even if there is no evidence of the disease during the service period itself.  Id.  This presumption may be rebutted by affirmative evidence to the contrary.  38 C.F.R. § 3.307(d).

In a July 2013 VA 9 Appeal to Board of Veterans' Appeals, the Veteran asserts that he is a combat veteran who spent many hours in the gunner's seat of a Humvee, and that he did not always have the time to go to the medical center.  The Veteran further indicated that in October 2005, during his post deployment health assessment, he voiced concerns over his "newly developed" back pains for the first time.  In a December 2015 Statement of Accredited Representative in Appealed Case, the Veteran also asserts that he was diagnosed with a chronic condition two and-a-half months after he was separated from service and that he is entitled to service connection on a presumptive basis.  

The Board notes that the Veteran is competent to report about his diagnosis after his separation from service, as well as what occurred immediately prior to his separation from active service.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (finding that a Veteran is competent to report what occurred in service because testimony regarding first-hand knowledge of a factual matter is competent); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir 2007) (noting that a layperson is competent to report what he was told by a medical professional); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim . . ."); Barr v. Nicholson, 21 Vet. App. 303, 307 - 08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology).  Moreover, the Board finds no reason to doubt the credibility of the Veteran in reporting his diagnosis and the onset of his symptoms, especially given that his lay assertions are corroborated by an October 2005 DD Form 2796 Post Deployment Health Assessment Form, which documents his complaint of low back pain, as well treatment records, which reflect a January 2006 diagnosis of mild degenerative changes of the lumbar spine at T12 - L1.

An April 2012 VA examination reflects that imaging studies of the lumbar spine were conducted and arthritis was documented.  By comparing the January 2006 X-ray of the lumbar spine to the X-ray taken at this examination, the VA examiner expressly noted that the x-ray from this examination is similar to the x-ray from January 2006.  Nonetheless, the VA examiner opined that the Veteran's lumbar spine disability is not related to active military service.  However, the Board finds that this VA examination is inadequate because it did not consider the Veteran's complaints of low back pain while in service, as well as the Veteran's lay statements pertaining to the continuity of symptoms.

Notwithstanding, there is medical evidence diagnosing arthritis during the pendency of the appeal; medical evidence confirming the onset of symptoms, including back pain, which occurred within a year of his discharge from active service; and lay and medical evidence reflecting a continuity of this symptomatology from 2005 to the present.  Furthermore, in light of the medical evidence of record relating that initial symptomatology in October 2005 to the Veteran's current lumbar spine disability, and in the absence of any evidence to the contrary, the Board finds that the Veteran's low back disability had its onset within one year of his separation from active service.  See 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a); See also Walker, 708 F.3d at 1338 (reflecting that service connection may be awarded for a "chronic" condition, including arthritis, when a disease manifests itself during service, or during the presumptive period, but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the Veteran's present condition).  Moreover, considering the Veteran's reported symptomatology and resolving reasonable doubt in his favor, the Board additionally finds that the Veteran's low back disability was manifest to a compensable degree.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003 (2017).


ORDER

New and material evidence having been submitted, the claim to reopen a claim for entitlement to service connection for lumbar spine disability is granted.

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



____________________________________________
BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs