Citation Nr: 1801755 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 16-20 103 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Whether new and material evidence has been presented to reopen a previously denied claim for entitlement to service connection for degenerative disc disease (back disability). 2. Whether new and material evidence has been presented to reopen a previously denied claim for entitlement to service connection for a postconcussion syndrome (headache disability). 3. Entitlement to service connection for degenerative disc disease. 4. Entitlement to service connection for a postconcussion syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Kass, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1965 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran testified before the undersigned Veterans Law Judge in November 2016. A transcript of the hearing has been associated with the record. FINDINGS OF FACT 1. A November 2010 rating decision denied entitlement to service connection for a back and headache disability. 2. The evidence received since the November 2010 decision relates to unestablished facts that establish a nexus for the back disability, and an in-service incident and a nexus for the headache disability. 3. Resolving all doubt in the Veteran's favor, the Veteran's degenerative disc disease is related to the Veteran's active military service. 4. Resolving all doubt in the Veteran's favor, the Veteran's postconcussion syndrome is related to the Veteran's active military service. CONCLUSIONS OF LAW 1. The November 2010 rating decision denying service connection for a back and headache disability is final. 38 U.S.C. §§ 5108, 7104 (West 2012); 38 C.F.R. §§3.156, 20.1100, 20.1104 (2017). 2. Evidence received since the November 2010 rating decision is new and material; the service connection claim for a back and headache disability is reopened. 38U.S.C. §§ 5108, 7104 (West 2012); 38 C.F.R. §§ 3.156, 20.1100, 20.1104 (2017). 3. The criteria for service connection for degenerative disc disease are met. 38 U.S.C. §§ 1110, 5107(b) (West 2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 4. The criteria for service connection for postconcussion syndrome are met. 38 U.S.C. §§ 1110, 5107(b) (West 2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104 (a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302 (2017). Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c) (West 2012). However, 38 U.S.C. § 5108 provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. See Elkins v. West, 12 Vet. App. 209, 218-19 (1999) (en banc); see also 38 U.S.C. A. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When making a determination on whether the submitted evidence meets the definition of new and material evidence, the Board must consider whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim, applying the concepts derived from the VCAA. Shade, 24 Vet. App. at 118. Moreover, the Veteran need not present evidence as to each previously unproven element of a claim. Shade, 24 Vet. App. at 120. Back Disability The Veteran's original claim for entitlement to service connection for a back disability was denied in a November 2010 rating decision. The Veteran's current claim was denied in an April 2014 rating decision and the Veteran has appealed. Since the November 2010 rating decision, the Veteran has submitted more recent treatment records. In September 2013, he submitted a nexus opinion from his physician's assistant that found it was more likely than not that his current back disability was due to a fall during service. In December 2016, he submitted a nexus opinion from his doctor that found it was at least as likely that his current back disability was due to a fall down a ladder during service. This evidence is new and material. The medical evidence showing a nexus between the claimed in-service disease or injury and the current disability establishes the third element in a claim for service connection. Accordingly, the Board concludes that new and material evidence has been presented to reopen the Veteran's previously denied claim for service connection for a back disability. Headaches The Veteran's original claim for entitlement to service connection for a headache disability was denied in a November 2010 rating decision. The Veteran's current claim was denied in an April 2014 rating decision and the Veteran has appealed. Since the November 2010 rating decision, the Veteran has submitted more recent treatment records. In December 2016, he submitted a nexus opinion from his doctor that found it was at least as likely that his current headache disability was due to two separate injuries during service, blunt force trauma with a wrench and a fall down a ladder. This evidence is new and material. The medical evidence showing an in-service incident and a nexus between the claimed in-service disease or injury and the current disability reasonable possibility of substantiating the second and third elements in a claim for service connection. Accordingly, the Board concludes that new and material evidence has been presented to reopen the Veteran's previously denied claim for service connection for a headache disability. II. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131 (West 2012); 38 C.F.R. § 3.303(a) (2017). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Back Disability The Veteran is seeking service connection for degenerative disc disease. The Board finds service connection is warranted for degenerative disc disease because he satisfies the three required elements. First, the Veteran has a current diagnosis for degenerative disc disease. See August 2014 Letter from J.P., PA-C. Accordingly, the Veteran satisfies the first element - a current disability. Second, there was an in-service occurrence when he fell from a ladder. See June 1966 service treatment records. An x-ray showed no fracture. He was diagnosed with a lumbosacral contusion. There was an indication that the Veteran's back problems existed prior to service; however, the evidence does not rise to the level of clear and unmistakable regarding preexistence. Moreover, even if one were to accept that there was such evidence, the evidence certainly is not clear and unmistakable that it was not aggravated by service or was due to the natural progression of the disease. Thus, the Veteran is presumed sound upon entrance to service. Accordingly, the Veteran satisfies the second element - an in-service incurrence. Third, the Board finds the evidence is at least in equipoise as to whether the Veteran's degenerative disc disease is related to service. In September 2013, he submitted a nexus opinion from his physician's assistant that found it was more likely than not that his current back disability was due to a fall during service. She based her opinion on the fact that the Veteran suffered multiple injuries that were consistent with a history of trauma. In August 2014, his physician's assistant stated that the Veteran had degenerative disc disease and had multiple procedures done. He had an in-service incident and reviewed the service treatment notes. She concluded that there is no way to identify a bulging disc on a plain film x-ray and that an adequate evaluation was performed. In December 2016, he submitted a nexus opinion from his doctor that found it was at least as likely that his current back disability was due to an injury during service. The Veteran had severe multilevel degenerative changes in his lumbar spine with narrowing and spinal nerve impingement. As the evidence is at least in relative equipoise, resolving all reasonable doubt in the Veteran's favor, the Board concludes that service connection for degenerative disc disease has been established. 38 U.S.C. §5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Headaches The Veteran is seeking service connection for postconcussion syndrome. The Board finds service connection is warranted for postconcussion syndrome because he satisfies the three required elements. First, the Veteran has a current diagnosis for postconcussion syndrome with headaches. See December 2016 Letter from Dr. D.W. Accordingly, the Veteran satisfies the first element - a current disability. Second, the Veteran relates his postconcussion syndrome to service. See November 2016 statement. He stated that he was hit in the face with a crescent wrench and he has experienced headaches since then. He is competent to report his experience as he would have personally observed the pain. The Board has no reason to doubt the credibility of his statements. Accordingly, he satisfies the second element - in-service injury or occurrence. Third, the Board finds the evidence is at least in equipoise as to whether the Veteran's postconcussion syndrome is related to service. In November 2013, the Veteran reported that his headaches began in service after being hit with a crescent wrench and being knocked unconscious. See November 2013 treatment records. In December 2016, the Veteran submitted a nexus opinion from his doctor that concluded it was at least as likely that his current postconcussion syndrome with headaches resulted from head injuries during service. The Veteran's in-service head injuries resulted in a concussion and loss of consciousness, which contributed to the Veteran's ongoing headaches. The doctor explained that the Veteran had persistent problems with recurrent headaches that had escalated in severity and frequency despite treatment. Pursuant to the "benefit-of-the-doubt" rule, where there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. 38 U.S.C. §5107 (West 2012). Thus, the Board finds that the aforementioned evidence is sufficient to place the relevant evidence, at a minimum, in a state of equipoise as to whether the Veteran's postconcussion syndrome initially manifested during service. The Board therefore concludes that, with the benefit of the doubt resolved in the Veteran's favor, a grant of service connection for his postconcussion syndrome is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) ("[T]he 'benefit of the doubt' standard is similar to the rule deeply embedded in sandlot baseball folklore that 'the tie goes to the runner' . . . . [I]f . . . the play is close, i.e., 'there is an approximate balance of positive and negative evidence,' the veteran prevails by operation of [statute]."). ORDER New and material evidence having been received, the appeal to reopen the claim for service connection for degenerative disc disease is granted. New and material evidence having been received, the appeal to reopen the claim for service connection for postconcussion syndrome is granted. Service connection for degenerative disc disease is granted. Service connection for postconcussion syndrome is granted. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs