Citation Nr: 1742832 Decision Date: 09/27/17 Archive Date: 10/04/17 DOCKET NO. 12-09 845 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for a back disability. 2. Entitlement to service connection for a back disability, to include degenerative disc disease, degenerative joint disease, and sacroiliitis. (The issue of whether there was clear and unmistakable error (CUE) in the November 17, 2005 decision of the Board of Veterans' Appeals (Board) denying entitlement to service connection for a back disability is the subject of a separate Board decision.) REPRESENTATION Appellant represented by: South Carolina Office of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from March 1963 to March 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. Jurisdiction over this claim is currently with the RO in Columbia, South Carolina. In October 2014, the Veteran testified in a Videoconference Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the Veteran's file in the Legacy Content Manager Documents (formally, Virtual VA). In September 2015, the Board issued a decision denying reopening service connection for a back disability. The Veteran appealed the September 2015 Board decision that denied reopening service connection for a back disability to the United States Court of Appeals for Veterans Claims (Court). In a Memorandum Decision, dated in November 2016, the Court vacated the September 2015 Board decision, and remanded the issue back to the Board for readjudication. FINDINGS OF FACT 1. In a November 2005 decision, the Board denied the Veteran's appeal as to the claim of service connection for a back disability. The Chairman of the Board did not order reconsideration. 2. The evidence received since the November 2005 Board decision (final disallowance) is neither cumulative nor redundant and addresses the grounds of the prior final denial of service connection for a back disability (nexus to service), so raises the possibility of substantiating the claim of service connection for a back disability. 3. The Veteran experienced back pain, muscle spasms of the back, and back strain in service. 4. The Veteran's current degenerative disc disease, degenerative joint disease, and sacroiliitis are related to active service. CONCLUSIONS OF LAW 1. The November 2005 Board decision that denied service connection for a back disability is final. 38 U.S.C.A. § 7104 (West 2015); 38 C.F.R. §§ 20.1100(a), 20.1104 (2016). 2. New and material evidence has been received to reopen the claim of service connection for a back disability. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2016). 3. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a back disability, to include degenerative disc disease, degenerative joint disease, and sacroiliitis, have been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The application to reopen the claim of service connection for a back disability, and service connection for a back disability have been considered with respect to VA's duties to notify and assist. Given the favorable outcomes adjudicated herein (reopening of the claim of service connection for a back disability and granting service connection for a back disability), further explanation of how VA has fulfilled the duties to notify and assist is not necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Reopening of Service Connection for a Back Disability Generally, a Board decision is final unless the Chairman of the Board orders reconsideration. See 38 U.S.C.A. §§ 7103(a), 7104(a); 38 C.F.R. § 20.1100(a) (2016). If "new and material" evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). "[N]ew evidence" means evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial. 38 C.F.R. § 3.156(a). Materiality has two components, first, that the new evidence pertains to the reason(s) for the prior final denial, and second, that the new evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When making a determination whether the submitted evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim, applying concepts derived from the duty to assist. Id. at 118. Only evidence presented since the last final denial on any basis (whether by the Board or RO, and whether upon the merits of the case or upon a previous adjudication that no new and material evidence had been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of determining whether to reopen a claim, the credibility of the recently submitted evidence will be presumed. See Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curiam); see also Justus v. Principi, 3 Vet. App. 510, 513 (1992). In the November 2005 decision, the Board reopened the claim of service connection for a back disability and denied service connection for a back disability on the merits. The Veteran did not appeal the November 2005 Board decision to the Court nor did he seek reconsideration. In addition, in the separate Board decision, the Board dismissed the September 2010 motion of CUE in the November 2005 Board decision. Thus, the Board finds that the November 2005 Board decision is final. 38 U.S.C.A. § 7104(b). At the time of the November 2005 Board decision, the Board reopened the claim of entitlement to service connection for a back disorder and denied it on the merits. At that time, the evidence of record included in-service complaints of back pain, post service evidence of a back disability, and both positive and negative opinions as to whether the post-service back disability was related to the in-service complaints of back pain. Specifically, with respect to nexus evidence, the Board considered a December 2002 letter from Dr. MAM who opined that the Veteran's current back disorder originated in service. In arriving at the conclusion, Dr. MAM considered the Veteran's medical history back into the 1960s and treatments of the back in service. The Board also considered a February 2005 VA opinion (with a clarifying March 2005 addendum); the VA examiner concluded that it was less likely than not that the Veteran's back disability was related to an incident in service after considering the Veteran's medical records, notations of back pain in service, and the medical status (normal) of the Veteran's back upon separation examination. Upon weighing the evidence for and against the claim, as the outcome of the case hinged on the nexus element, the Board found that the preponderance of the evidence was against the claim, finding that the February 2005 VA examiner's opinion was more probative than the December 2002 opinion from Dr. MAM, which the Board found less persuasive as Dr. MAM did not medically substantiate his reasoning for causation. Since the November 2005 Board decision (last final disallowance), additional evidence has been received in the form of private treatment records and private medical opinions from Dr. CGK and Dr. EWA. The private treatment records, and private medical opinions from Dr. CGK and Dr. EWA, are new because they have not been previously submitted. This evidence, particularly the September 2014 letter from Dr. CGK and the May 2017 letter from Dr. EWA, is also material because it pertains to the basis for the prior denial, that is, a relationship (or nexus) between the current back disability and service, and raises a reasonable possibility of substantiating the claim. Specifically, Dr. CGK indicated that the Veteran's lumbar spine injuries in service caused the current back conditions. In the May 2017 letter, Dr. EWA opined that the current back disability is more likely than not caused by, and related to, the in-service injuries. For these reasons, the Board finds that new and material evidence has been received to reopen the claim of service connection for a back disability. See 38 C.F.R. § 3.156(a). Service Connection for a Back Disability Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active 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). In this case, degenerative joint disease and sacroiliitis (as arthritis) are "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Regardless, as the Board is granting service connection based on direct service connection (adjudicated below), the additional theory of presumptive service connection for a chronic disease (arthritis) is rendered moot because there remain no questions of law or fact as to the fully granted issue; therefore, the presumptive service connection theory will not be further discussed. See 38 U.S.C.A. § 7104 (West 2002) (stating that the Board decides questions of law or fact). In rendering a decision on appeal, the Board must also 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Generally, the degree of probative value which 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, 448-9 (2000). Also significant 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); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The United States Court of Appeals for Veterans Claims (Court) has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veteran contends that the back disability is related to active service, particularly back pain experienced during service. After a review of all the evidence, the Board first finds that the Veteran has a current back disability, to include degenerative disc disease, degenerative joint disease, and sacroiliitis. See February 2005 VA examination; see also May 2017 Letter from Dr. EWA. Service treatment records reflect that, in August 1964, the Veteran complained of pain in the lumbar region. Physical examination of the Veteran revealed muscle spasms. The Veteran again complained of continued back pain in the lumbar region in September 1964. In February 1965, the Veteran's chief complaint was a low back strain. The Board next finds that, after a review of all the evidence of record, both lay and medical, the evidence is at least in equipoise as to whether the Veteran's currently diagnosed back disability is related to the in-service complaints of back pain and injury. Post service, in December 1966, the Veteran was treated for a lumbar strain; this treatment continued until at least 1977. In a March 1977 statement, the Veteran's treating physician, Dr. JWB, indicated that, in January 1972, the Veteran was initially diagnosed with "chronic low back strain." The Veteran gave a history of a work-related accident. Dr. JWB also noted that there was some prior history of back trouble while in service some years earlier and that the Veteran complained of intermittent mild to moderate pain since then. In a December 2002 letter, the Veteran's treating physician, Dr. MAM, opined that the Veteran's back disorder originated in service and that the initial back strain injuries in service "ultimately progressed" to the current back disabilities. The Veteran underwent a VA orthopedic examination in June 2004, which was conducted by a family nurse practitioner. According to the examination report, the examiner reviewed the Veteran's medical records and noted his history of back problems as detailed above. The VA examiner commented that the Veteran's previous back sprains appeared to be "isolated and always related to some type of physical activity." The VA examiner indicated that the three incidents in service were documented as sprains without any comment regarding any physical bruising to the back secondary to a fall. She noted that the back incidents resolved and that, when the Veteran was examined for discharge, he had no subjective or objective complaints of chronic or acute back problems. In the VA examiner's opinion, "it is least likely that [the Veteran's] current chronic back condition and sacroiliitis is related to his military career." The VA examiner noted that she discussed the Veteran's case with two VA staff physicians who agreed with her opinion. In February 2005, VA afforded the Veteran another orthopedic examination, conducted by one of the VA staff physicians who reviewed the June 2004 examination findings. The February 2005 VA examiner opined that "[t]his examiner again agrees with [the June 2004 VA examiner's] conclusion that '[i]t is at least likely as not that [the Veteran's] current chronic back condition and sacroiliitis is related to his military career.'" The VA physician also said it was at least likely that the Veteran's current chronic back condition and sacroiliitis was related to service and that "the final impression remains the same." In March 2005, clarification of the opinion expressed in the February 2005 VA examination was obtained. It was noted that the June 2004 VA examiner concluded that it was least likely that the Veteran's current back condition was related to service. In the February 2005 VA examination report, the VA physician agreed with the opinion, but opined that it was "least as likely as not that [the Veteran's]" back condition was related to service. The June 2004 VA examiner concluded that a typing error occurred and that the February 2005 VA examiner actually determined that the Veteran's back condition was "NOT" related to problems in service. In a March 2005 electronic message, the VA physician who examined the Veteran in February 2005 reviewed the clarification and stated, "I agree with the conclusion." In a September 2014 letter, Dr. CGK, a medical professional who specializes in spine and sports medicine, stated that the Veteran had been suffering from lower back pain since service and that this pain has continued throughout his lifetime. Based on this finding, Dr. CGK opined that the Veteran's lumbar spine injuries in service caused the current back conditions. The Veteran also provided a private medical opinion from Dr. EWA in May 2017. Dr. EWA noted that the medical treatment records describe a progression from the lumbar strain in 1964 and 1965 to a possible herniated disc in 1972 (post service) to severe disc and spine troubles, eventually leading to multiple surgeries. Dr. EWA agreed with the opinion of Dr. CGK and indicated that the record depicts recurrent back strains that originated in service. Dr. EWA explained that muscle strains can heal, but only with proper treatment. He further noted that the fact that the Veteran was treated for low back pain multiple times in service indicates that the Veteran was suffering from chronic lumbar strain while still in active service. Dr. EWA indicated that subsequent (post-service) treatment was for exacerbations of the existing lumbar strain (in service) that never healed. Further, Dr. EWA explained that the post-service work injuries caused flare ups, and were not new injuries. Based on these explanations and the detailed review of the Veteran's medical history, Dr. EWA opined that the Veteran's current lumbar spine disabilities are more likely than not caused by, and related to, the in-service injuries. He also opined that it is more likely than not that the Veteran suffered a chronic lumbar strain during service, and that this strain progressed in the current back disability. Dr. EWA's medical opinion regarding the etiology of the Veteran's back disability, which is consistent with Dr. MAM's and Dr. CGK's opinions, is probative. These three opinions, favorable to the Veteran's claim, outweigh the opinions of the VA examiners in June 2004 and February 2005. Guerrieri v. Brown, 4 Vet. App. 467, 471-73. In short, all medical opinions from Dr. MAM, Dr. CGK, and Dr. EWA are competent and probative medical evidence because they are factually accurate, as it appears both physicians had knowledge of the relevant evidence in this case, relied on accurate facts, and gave a fully articulated opinion with an adequate rationale for the conclusion based on medical principles. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the current back disability is etiologically related to the back complaints and injuries in service. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As service connection is being granted on a direct basis, there is no need to discuss service connection on a presumptive basis, or any other theory, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C.A. § 7104 (West 2014). ORDER As new and material evidence has been received, the appeal to reopen service connection for a back disability is granted. Service connection for a back disability, to include degenerative disc disease, degenerative joint disease, and sacroiliitis, is granted. ____________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs