Citation Nr: 1752558 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 13-21 113 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received to reopen the claim for a back disorder? 2. Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Booker, Associate Counsel INTRODUCTION The Veteran had active service from May 1969 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran testified at a hearing in April 2016 before the undersigned. A copy of the transcript has been associated with the Veteran's electronic claims file. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. In a February 2005 rating decision VA denied entitlement to service connection for ruptured disc. The Veteran neither appealed this decision nor submitted new and material evidence within the one year appeal period. 2. The evidence received since February 2005 is new, it relates to a previously unestablished fact necessary to substantiate the service connection claim for a back disorder, and raises a reasonable possibility of changing the prior outcome. 3. The preponderance of the competent and credible evidence of record is against finding that a back disorder was incurred in or related to active duty, or that spinal arthritis was manifested to a compensable degree within one year of separation from active duty. CONCLUSIONS OF LAW 1. The February 2005 rating decision denying entitlement to service connection for a back disorder is final, however, new and material evidence has been received and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 2. A back disorder was not incurred or aggravated in service and may not be presumed to have been incurred in service. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. New and Material Evidence and Service Connection The appellant is seeking to reopen a claim of entitlement to service connection for a back disorder. In February 2005 VA denied that claim, and the Veteran was notified of that decision. Significantly, he did not perfect a timely appeal, or submit new and material evidence within a year. As such, the February 2005 rating decision is final. 38 U.S.C. § 7105. A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. 3.156. Evidence is new if it has not been previously submitted to agency decision makers. Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence cannot be cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. The United States Court of Appeals for Veterans Claims interprets the language of 38 C.F.R. § 3.156 (a) as creating a low threshold, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Entitlement to service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "medical nexus" between the current disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see 38 C.F.R. § 3.303(a). Presumptive service connection may be granted for arthritis if the disorder was compensably disabling within a year of a claimant's separation from active duty. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). While the evidence shows that this Veteran is diagnosed with degenerative disc disease, this presumption does not apply, given that the disease was not compensably disabling within one year following his separation from active duty. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). III. Facts The Veteran seeks to establish service connection for a back disorder. He contends that his back disorder either incurred in service or was the result of injury while on active duty. As noted above VA denied entitlement to service connection for a back disorder in a February 2005 rating decision, concluding that the Veteran was never diagnosed with a chronic back disorder or ruptured disc in service, and that he did not then show evidence of a current back disability. The Veteran neither appealed this decision nor submitted new and material evidence within the one year appeal period, thus the decision is final. 38 U.S.C. § 7105. Since that decision, medical evidence has been obtained that relates to a previously unestablished fact necessary to substantiate the claim of entitlement to service connection for a back disorder, and raises a reasonable possibility of changing the prior outcome. Specifically, VA received private treatment records dated September 2010, which indicate that the Veteran has degenerative disc of the cervical spine. In April 2016 VA also received a statement from L.L., the Veteran's sister, who indicated that the appellant did not have medical problems when he entered into service, that he incurred a back injury in April 1971 while on active duty, and that his back has been injured ever since. Thus, the claim is reopened. A review of the service treatment records shows that the Veteran was treated in April 1971 for complaints of a back ache. Physical examination yielded a diagnosis of a back sprain, and he was treated with 48 hours of bedrest, physical therapy and pain reliever. There are no additional complaints, findings or diagnoses pertaining to any back disorder during the remainder of the appellant's active duty service. September 2010 private treatment records provide the first postservice documented diagnosis of a back disorder. The appellant testified at a hearing in April 2016 before the undersigned. He stated that during an inservice training exercise he was required to lift a person weighing 235 pounds, walk at least a quarter of a mile, and then drop the person into a fox hole. The Veteran explained that he weighed 165 pounds inservice, and that he injured his back during this exercise when he "popped a disc." He alleged that his current back disorder was related to that event. At the hearing the undersigned informed the appellant that the record would be kept open for 60 days to provide him an opportunity to secure medical opinion evidence linking any currently diagnosed back disorder to service. No such evidence has been submitted. A medical opinion was obtained in January 2012 at which time a VA examiner noted the Veteran's diagnoses of degenerative disc disease, mild scoliosis, and radiculopathy. Significantly, however, the examiner did not find documented evidence of a ruptured disc in service. The examiner stated that the Veteran likely had a lumbar strain which has not been shown to accelerate the development of degenerative disc disease. The examiner further opined that the Veteran's current back disorder was likely related to normal wear and tear of the lumbar spine. Ultimately, the examiner opined that the Veteran's back disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. On review of the evidence the Board finds that the most probative evidence in this case is not in equipoise. Rather, the evidence preponderates against the claim. Although the appellant is sincere in his belief as to etiology of his back disorder, the interplay of any current back disability and any inservice injury is a complex question, not amenable to lay statements and testimony. Moreover, the VA medical opinion offers the only competent evidence addressing the etiology of any back disorder. That opinion is against the claim, and again, there is no competent evidence to the contrary. The January 2012 VA physician reported reviewing the entire record, and that examiner provided reasons and bases for the opinion that the Veteran's back disorder was not related to service. As the most probative evidence preponderates against finding entitlement to service connection for a back disability the claim is denied. In reaching this determination, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990), 38 C.F.R. § 3.102. ORDER The claim of entitlement to service connection for back disorder is reopened. Entitlement to service connection for back disorder is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs