Citation Nr: 1757560 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 15-03 946 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for scoliosis and spondylolisthesis of the thoracolumbar spine (lower back and pelvic disabilities). 2. Entitlement to service connection for lower back and pelvic disabilities. REPRESENTATION The Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran, the Veteran's Wife, M.K.; and Dr. R.G., Jr. ATTORNEY FOR THE BOARD V-N. Pratt, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1981 to January 1984. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In July 2017, the Veteran, his wife, M.K., and his private physician, Dr. R.G., Jr. (Dr. R.G.) all testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. FINDINGS OF FACT 1. The new and material evidence received since the last, final May 2012 rating decision, includes the testimony of the Veteran's private physician at a videoconference hearing, which raises a reasonable possibility of substantiating the service connection claim for lower back and pelvic disabilities. 2. The Veteran's current lower back and pelvic disabilities were aggravated beyond the natural progression by his active service. CONCLUSIONS OF LAW 1. Evidence received since the final May 2012 rating decision is new and material and the service connection claim for lower back and pelvic disabilities is reopened. 38 U.S.C. §§ 5108, 7105 (West 2014); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2017). 2. The criteria for an entitlement to service connection for lower back and pelvic disabilities are met. 38 U.S.C. §§ 1111, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION New & Material Evidence to Reopen a Claim for a Lower Back and Pelvic Condition 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, 510 - 513 (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 lower back and pelvic disabilities was previously denied in a May 2012 rating decision because the RO made a finding that this condition was not incurred in or aggravated by military service. After this rating decision, the Veteran did not perfect an appeal of this decision within one year; therefore, the May 2012 rating decision became final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). Evidence received and obtained since the May 2012 rating decision includes the testimony of the Veteran's private physician at the Veteran's July 2017 videoconference hearing in which he provided a positive nexus opinion on the Veteran's lower back and pelvic disabilities. See July 2017 Videoconference Hearing Transcript. This evidence is "new" because it had not been previously submitted and considered by VA. The evidence is "material" because it serves as medical evidence of a nexus between the Veteran's current disability and his active service. The Board recognizes that this additional piece of evidence is presumed to be credible for the purpose of reopening the claim. Justus, 3 Vet. App. at 512 - 513. 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, as new and material evidence has now been received, the service connection claim for lower back and neck disabilities is reopened. Service Connection for Lower Back and Pelvic Disabilities 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 rule, 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). A Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at entrance into service or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111 (West 2014); 38 C.F.R. § 3.304(b) (2017). Where there is "clear and unmistakable" evidence that the injury or disease claimed pre-existed service and was not aggravated during service, the presumption of soundness does not attach. Id. A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). The medical evidence of record reflects that the Veteran had an abnormality of the musculoskeletal spine prior to active service. See, e.g. January 1981 Pre-Induction Examination (documenting scoliosis of the spine in the right T5 L3 regions). Despite this pre-existing disability, however, the pre-induction examiner determined that the Veteran was fit for duty. See id. Nonetheless, for purposes of this analysis, the Veteran is not afforded the presumption of soundness with regard to his lower back and pelvic disabilities, given that abnormalities of the musculoskeletal spine was noted in his pre-induction examination report. If any in-service aggravation of a preexisting disorder noted at service entrance is shown, the in-service evidence of aggravation is considered sufficient to allow for service connection unless there is clear and unmistakable evidence that the disorder was not permanently aggravated beyond the natural progression of the condition during service. See 38 C.F.R. § 3.306. In deciding a claim based on aggravation, after having determined the presence of a preexisting condition, the Board must first determine whether there has been any measured worsening of the disability during service, and then whether this constitutes an increase, permanent in nature, in the disability. Browder v. Brown, 5 Vet. App. 268, 271 (1993). Thus, in this case, the presumption of aggravation may be for application. Among various assertions that his condition was aggravated by service, the Veteran indicated that he believes that his condition was severely aggravated by the decision made by the enlistment recruiter who required him to have his surgical support pins removed from his right leg, prior to accepting his enlistment into the United States Navy. See April 2012 Statement in Support of Claim (Received by the RO in April 2015); see also June 2012 Correspondence. In support of his claim for service connection, the Veteran was accompanied by his private physician, Dr. R.G., at the July 2017 videoconference hearing. At this hearing, Dr. R.G. testified and opined that the Veteran's current condition was aggravated by his military service. As the basis and rationale for his opinion, Dr. R.G. indicated that he arrived at this conclusion by examining the records and measuring the Veteran's X-rays. Dr. R.G. explained that the Veteran had 1 1/2 centimeters going into the service and he had 6.38 centimeters going out. He then stated that the progression is almost five centimeters. Dr. R.G. also explained that the Veteran's original injury that caused him to have curvature was a very significant injury in and of itself, and that the curvature was pretty minimal, but that it placed his spine in an abnormal position to where carrying weights and jarring his body would have a tendency to move the vertebrae to one side or the other, in the impact on the buttocks coming up through the spine, or from the head, going back down, and ending up with possibilities of fracturing and other situations of the facet joints, as well as of the disc fibers of sharpey that attach the disc to the vertebrae end plates. Dr. R.G. additionally explained that with the Veteran's work as a jet engine mechanic on a carrier entailed carrying boxes, tools and supplies in the box, up and down very steep ladders from the flight deck to the hangar bay, and in doing that, he would hit his head on the opening above the ladder. He provided specific details about the manner in which the Veteran ascended and descended steps, based on what the Veteran told him, and explained that the Veteran occasionally missed with his heel and would slide down two or three steps with a heavy box, landing on his buttocks, jamming him down, causing his back to become inflamed, causing him to go to the infirmary, where he was prescribed with codeine or some other type of similar medication to stop the pain. Dr. R.G. stated that by looking at the X-rays, the Veteran has a movement of the third lumbar vertebrae sideways, off of the fourth lumbar vertebrae and a significant of the fourth lumbar vertebrae on the fifth lumbar vertebrae, all of which happened because of trauma. Dr. R.G. clarified that this was directly to the vertebrae and not just simply from his accident to begin with, at one and a half centimeter deviation. Dr. R.G. indicated that the progression the Veteran had during his service career would not have happened had he not been in this kind of job while in active service and that this was not a type of injury that one would find in normal progression of spine scoliosis. The Board finds Dr. R.G.'s medical opinion to be the most probative evidence of record, which is dispositive of this issue. His July 2017 testimony and opinion provides a clear, detailed rationale, which is based on a review of the Veteran's in-service and post-service medical records, the Veteran's credible statements, his treatment of the Veteran for five years, as well as 55 years of experience in his capacity as a chiropractor who has treated several thousands of patients who have been diagnosed with scoliosis. In this regard, the Board finds that service connection for lower back and pelvic disabilities are warranted. ORDER New and material evidence has been submitted and the claim to reopen the service connection claim for lower back and pelvic disabilities is granted. Entitlement to service connection for lower back and pelvic disabilities is granted. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs