Citation Nr: 1752266 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 17-06 920 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Whether new and material evidence has been submitted to warrant the reopening of a claim for service connection for a low back disability. 2. Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.Wade, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017); 38 U.S.C. § 7107(a)(2) (2012). The Veteran served on active duty from August 1979 to April 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Veteran testified before a Decision Review Officer (DRO) in September 2016. FINDINGS OF FACT 1. An unappealed May 2006 rating decision denied entitlement to service connection for a low back disability. 2. Evidence submitted subsequent to the May 2006 rating decision is not cumulative or redundant, and it relates to an unestablished fact necessary to substantiate the claim for entitlement to service connection for a low back disability. 3. The Veteran's low back disability is not etiologically related to his service. CONCLUSIONS OF LAW 1. The May 2006 rating decision that denied the claim for service connection for a low back disability is final. 38 U.S.C § 7105(c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. Since the May 2006 decision, new and material evidence has been received to reopen the claim of entitlement to service connection for a low back disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1101, 1154, 5103, 5103a, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 and 38 C.F.R. §§ 3.159, 3.326. Under the Veteran's Claims Assistance Act (VCAA), when the VA receives a complete or substantially complete claim for benefits, the VA has a duty to notify the claimant of (1) the required information that is necessary to substantiate the claim, (2) the information the VA will obtain on the Veteran's behalf, and (3) the information the claimant is expected to provide. 38 U.S.C. § 5103 (2012); 38 C.F.R. § 3.159 (2017). VA's duty to notify was satisfied by letters dated in December 2013 and November 2016. The first letter was specifically responsive to his petition to reopen his claim for a low back disability. He was informed that new evidence must be evidence that was submitted to VA for the first time and that material evidence must pertain to the reason the claim was previously denied. See 38 U.S.C. §§ 5102, 5103 (2012); 38 C.F.R. § 3.156 (2017); see also Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). The VCAA also requires VA to make reasonable efforts to help the claimant obtain evidence that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c) and (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has met its duty to assist the Veteran. VA obtained all other relevant records identified by the Veteran. These records have been associated with the claims file. Additionally, the VA obtained medical opinions in June 2014 and November 2016 to assist the Veteran with his claim. Lastly, the Veteran has not identified any outstanding evidence that could be obtained to substantiate his claim; the Board is also unaware of any such evidence. Therefore, the VA has satisfied its duties to notify and assist for this claim. II. Reopening the Previously Denied Claim The Veteran requested in May 2013 that VA reopen his previously denied claim for service connection for a low back disability. Generally, pursuant to 38 U.S.C.A § 7104(b), a claim that has been denied in an unappealed RO or Board decision may not thereafter be reopened and allowed based upon the same factual basis. However, an exception to this is 38 U.S.C.A. § 5108, which permits the reopening of a claim if there is new and material evidence presented or secured with respect to the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 118, (2010). The Board's analysis of the issue of reopening must be limited to the subject of existence of new and material evidence alone and must not be an outcome-based decision. Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). Having carefully reviewed the record, the Board finds that new and material has been submitted to reopen the previously denied claim for service connection of a low back disability. The claim was previously denied in a May 2006 rating decision on the basis that the Veteran had not submitted any medical records that showed he suffered, at the time of the decision, from a chronic, service-incurred back disability. While it is not clear from the RO's decision whether the denial goes to lack of evidence of a current disability or lack of evidence of a medical nexus for a service connection claim, the Veteran has submitted new and material evidence that substantiates both elements. Evidence in support of the request to reopen the claim includes substantial medical records showing the Veteran has been treated for a low back disability. The record includes medical records from March 2012 and April 2012 from Aurora Rehabilitation Center where the Veteran was treated for his back disability; and medical records from January 2013 from United Hospital in Kenosha, Wisconsin where the veteran was seen for back disability. These records substantiate the Veteran's claim that he has a current disability for service connection purposes. Also the Veteran's statements from a September 2016 DRO hearing where the Veteran discussed that his low back disability began during his basic training and has continued since that date provide new and material evidence that a nexus exists between the Veteran's current disability and his service in the army. Viewing the recent evidentiary submissions in a light most favorable to the Veteran, the Board finds that the recent evidentiary submissions are not cumulative or redundant, and relate to unestablished facts necessary to reopen the claim. Therefore, as new and material evidence to reopen the previously disallowed claim has been submitted, the petition to reopen is granted. III. Service Connection for a low back disability The Veteran seeks service connection for a low back disability. The Veteran contends that he suffered from a back disability during basic training, and his current low back disability is related to his service in the army. Legal Criteria Compensation may be awarded for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131 (2012). Service connection is granted when the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the armed forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303 (2017). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303 (2017). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements of service connection is through a demonstration of continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303 (b) (2017). However, the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic, like arthritis, under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). Also, under 38 C.F.R. § 3.307 service connection will be awarded for chronic diseases under 38 C.F.R. § 3.309 on a presumptive basis and will be presumed to have been incurred during active service, even though there is no evidence of the disability during service, if such disability manifested to a compensable degree within a presumptive period. The presumptive period for arthritis is one year. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). The record indicates that the Veteran suffers from a current low back disability. In a December 2016 medical opinion from a VA physician, the Veteran was diagnosed with degenerative arthritis (DJD) and degenerative disc disease (DDD). Also, in his hearing with the DRO in September 2016, the Veteran stated he suffers from low back pain. The Veteran's claim meets the first requirement of a current disability for a service connection claim. There is sufficient evidence in the claim's file to show the Veteran had an in-service incurrence. The Veteran asserts that his current disabilities of DJD and DDD are a result of the lower back pain he suffered in basic training. In his hearing with the DRO, the Veteran stated that he was in infantry during his service in the army, and he began to have a lot of problems with his back during this time. Also, his service treatment records show while stationed at Fort Gordon, Georgia, the Veteran underwent an orthopedic evaluation for pain with his back, among other things. Therefore, the second criterion for service connection has been met. While the claim's file demonstrates a current disability and in-service occurrence, there is insufficient evidence to show that the Veteran's current disability is connected to his service. In his September 2016 hearing with the DRO, the Veteran stated that prior to his discharge from the army, his commanding officer told him that his muscles were deteriorating. While this statement corroborates the Veteran's claim that he suffered chronic back pain during service, the statement lacks probative value because the commanding officer was not a medical professional. Thus, his commanding officer was not competent to make a medical determination about muscle deterioration. Moreover, in both the VA examination performed in June 2014 and the VA examination performed in December 2016, both medical professionals found that the Veteran's current back disability was less likely than not caused by or aggravated by his military service. The medical opinion in the June 2014 VA examination reasoned that the Veteran had a "complicated medical history," including a recent stroke and a recent diagnosis of myopathy; and that neither of these disabilities were caused or a result of the Veteran's service. In the December 2016 VA examination, the medical doctor found that the Veteran's current disability of DJD and DDD were less likely than not incurred in or caused by the Veteran's military service. Instead, the medical doctor reasoned that the Veteran's current condition is likely related to the normal aging process and that the Veteran's records lacked any evidence of an in-service severe joint injury (i.e. fracture crossing the line) which would increase the likelihood of an eventual joint DJD. Furthermore, there was evidence of an intervening and interceding event in September 2015 where the Veteran injured himself while helping a friend move from a car. While the Veteran submitted testimony at his hearing that included a letter from his caregiver about the current pain the Veteran incurs, this lay testimony only sustains a finding that the Veteran has a current back injury. The record lacks any competent evidence that shows that his severe back disability is related to his active duty in the army. Therefore, the Veteran's service connection claim is denied because there is no medical evidence linking the Veteran's current disability of DJD and DDD to his back disability incurred during his active duty service. While presumptive service connection is permitted to help veterans meet the second and third requirements of service connection when a disability manifested to a compensable degree after discharge and within a presumptive period; or through a showing of continuity of symptomatology, these presumptions do not apply to the Veteran's claim. The Veteran's arthritis did not manifest to a compensable degree within one year after discharge. Furthermore, the Veteran's claim file lacks any competent medical evidence of a nexus between his active duty service and his current disability of DJD and DDD. Thus, presumptive service connection under these two theories cannot apply to this claim, and the Veteran's service connection for a low back disability is denied. ORDER As to new and material evidence to reopen the previously disallowed claim for a low back disability, the petition to reopen is granted. Service connection for a low back disability is denied. ____________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs