Citation Nr: 1802691 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-24 455 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for a back condition. 2. Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Jan Dils, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Maddox, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1980 to August 1983. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina which denied reopening the Veteran's claim for a back condition finding that the evidence submitted was not new and material. In October 2011, the Veteran filed her notice of disagreement, and in June 2014 was issued a statement of the case and perfected her appeal to the Board. In October 2017, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A copy of the transcript is of record. FINDINGS OF FACT 1. In an August 2005 decision, the Board denied service connection for a back condition. 2. Evidence received since the August 2005 decision relates to an unestablished fact necessary to substantiate the claim for a back condition and raises a reasonable possibility of substantiating the claim. 3. The evidence is at least evenly balanced as to whether the Veteran's back disability is related to service. CONCLUSIONS OF LAW 1. The August 2005 Board decision that denied entitlement to service connection for a back condition is final. 38 U.S.C. § 7104(a) (2012); 38 C.F.R. §§ 20.1100(a), 20.1104 (2017). 2. Evidence received since the August 2005 Board decision is new and material and the criteria for reopening of the claim for entitlement to service connection for a back condition have therefore been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for a back disability have been met. 38 U.S.C. §§ 1101, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Reopening Prior to the filing of the current claim of entitlement to service connection for a back condition, the Board previously disallowed a claim of service connection for a back condition in August 2005. Generally, a claim which has been disallowed by the Board is final and may not thereafter be reopened and allowed. 38 U.S.C. § 7104(b) (2012); 38 C.F.R. §20.1100 (2017). If an AOJ decision is appealed to the Board and the Board issues a decision, that Board decision subsumes the underlying decision. 38 C.F.R. § 20.1104 (2017). Unless the Chairman of the Board orders reconsideration of a Board decision, the Board decision is final on the date of mailing stamped on the face of the decision. 38 U.S.C. § 7103(a); 38 C.F.R. § 20.1100. Except as provided by 38 U.S.C. § 5108, a claim that has been disallowed by the Board may not thereafter be reopened and allowed and a claim based on the same factual basis may not be allowed. 38 U.S.C. § 7104 (b). The exception to this rule of not reviewing the merits of a finally disallowed claim is 38 U.S.C. § 5108, which 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. The regulation that implements 38 U.S.C. § 5108 defines "new and material evidence" as evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of evidence previously of record, and which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2017). In determining whether evidence is "new and material," the credibility of the evidence in question must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. See id. at 118. The August 2005 Board denial of service connection for the back condition was based, in part, on the fact that there was no evidence relating the Veteran's current back disability to service. The evidence received since the August 2005 denial includes a December 2011 private physician statement which indicates that the Veteran's back condition began in service and has continued since service. As this new evidence relates to the bases for the prior denial and raises a reasonable possibility of substantiating the claim, reopening of the claim for entitlement to service connection for a back condition is warranted. II. Service Connection The Veteran contends that her back disability started while she was in basic training, and was exacerbated by active duty service when she was lifting heavy boxes. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §1131; 38 C.F.R. § 3.303 (a). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran's service treatment records are silent for any complaints or treatment for a back condition upon entrance into service as her medical history and medical examination reports note no back conditions. She testified that she participated in sports in high school and never had any issues with her back upon entrance into service. The first mention of a back issue is noted in January 1981 service treatment records where the Veteran was treated for lower back pain, and service treatment records from October 1981 notes treatment for back pain which occurred while the Veteran was lifting heavy boxes. The Veteran indicated on her discharge report of medical history that she did not suffer recurrent back pain. Treatment records from December 1992 indicate the Veteran reported for outpatient treatment, complaining of back pain and hematuria. During treatment, the Veteran reported that she was in a "head on" motor vehicle collision in a parking lot in late November 1992. The Veteran noted severe back pain in the time shortly after the collision and was given ice, muscle relaxants and pain medication. The Veteran attended a consultation in January 1993. The November 1992 motor vehicle accident was noted and she reported no change in symptoms. The Veteran indicated experiencing pain when standing or sitting for 15 to 20 minutes, and said she was unable to get comfortable when lying down. X-rays were negative and the Veteran reported no history of back pain prior to the recent accident. In March 1993, the Veteran received outpatient treatment for complaints of intermittent lower back pain. She noted the November 1992 car accident and indicated she was currently on a prescription for 800 milligrams of Motrin. Other treatment records from September 1993 indicate persistent lumbar spine pain, which was worse when the Veteran engaged in heavy lifting. By letter dated June 2002, the Veteran described the severity of her back condition, and noted that the pain from her back caused migraines and increased blood pressure. She reiterated such contentions in her November 2002 notice of disagreement. The Veteran wrote that she had to obtain waivers prior to entering service, for her light weight, flat feet, and crooked spine. In July 2003 the Veteran underwent a VA examination, which included review of the claims file. On examination, the Veteran reported that her back problem was "light" and consistent with her overuse injury from loading trucks in the military. She acknowledged that she did not have a disabling problem in the 1980's and that she was able to work until four years before the examination. She further acknowledged that the motor vehicle accident in November 1992 exacerbated her prior intermittent back problems. The Veteran indicated that she took shots for her lower back pain from 1991 to 1993. The examiner diagnosed chronic back pain since 1992 and stated that there was no evidence that the back strain, treated once while in service, had deteriorated to cause the Veteran's current disability. A December 2011 statement was submitted by the Veteran's private physician who stated that the Veteran was injured in a motor vehicle accident in November 1992 which caused her to develop lower back pain which is worse than it was prior to the accident. The physician noted that the Veteran had scoliosis at the time of induction into the military with mild occasional back pain, and that the pain since the accident was so severe that she was treated every six weeks from 1992 to 1996. The physician concluded that the Veteran's back pain is as likely as not related to the motor vehicle accident which caused permanent aggravation of her pre-existing back pain. However, the physician mistakenly attributed the motor vehicle accident to active duty service. In January 2016, the Veteran underwent treatment for her chronic back pain. The physician noted that the Veteran was uncomfortable and emotional due to the pain which was distal lumbar back pain with radiation of the left lower back. She was diagnosed with acute exacerbation of chronic low back pain and was discharged with medication to treat the pain. During her October 2017 video conference hearing, the Veteran testified that she initially hurt her back in service, and started receiving treatment after discharge while she was in Germany with her then-husband approximately 3 months after her discharge. She testified that she continued with injections and treatments for her pain when she moved from Germany to Georgia, and that her accident in 1992 worsened her back pain. The Veteran also stated that she did not indicate the amount of pain she was suffering while in the service because she did not want to be discharged as her home situation was not ideal. The Veteran submitted an addendum opinion from the same physician who provided the December 2011 statement with respect to the etiology of the claimed back disability. The Veteran's representative explained that the physician misread the Veteran's file and was mistakenly under the impression that the motor vehicle accident took place during the Veteran's service. Therefore, the Veteran reached out to the physician and he provided a new opinion after considering the correct information. In his addendum opinion, the physician noted that the Veteran injured her back during drills and lifting and was treated for her back condition since discharge. He opined that her current back disability was as likely as not related to military service as it started in service and continued thereafter. After weighing the evidence, the Board finds that based on the competent and credible evidence of back pain continuing since service, including the Veteran's assertions of the continuing back pain supported by evidence of reports of such continuing pain to healthcare providers, a sufficient nexus has been established between the Veteran's current back condition and her in-service back injury. While the Veteran stated that she did not suffer a disabling back condition in the 1980s, she acknowledged that she did receive treatment for a back condition related to service while in Germany and Georgia which became more severe after her motor vehicle accident. Moreover, while the private physician noted that the Veteran was diagnosed with scoliosis which pre-existed induction into service, the Veteran's medical examination report does not note scoliosis upon entrance. Therefore the Veteran is presumed to have been in sound condition with regard to her back upon entry into service and there is no clear and unmistakable evidence of preexistence and lack of aggravation rebutting this presumption. 38 U.S.C. § 1111 (2012). In addition, the private physician explained the reasons for his conclusion that the current back disability is related to service based on an accurate characterization of the evidence of record. His opinion is therefore entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The evidence is thus at least evenly balanced as to whether the Veteran's current low back disability is related to her in-service back injury. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for a low back disability is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Board notes that the issue of whether pain alone can constitute disability for VA compensation purposes, and more generally the nature of the current disability requirement, is currently before the Federal Circuit. See Saunders v. Shulkin, No. 17-1466 (Notice of Docketing filed Jan. 1, 2017). To the extent that there is no specifically diagnosed back disorder, the Board will not require such a diagnosis while the law and regulations have not been interpreted to include such a requirement. See Joyner v. McDonald, 766 F.3d 1393, 1396, n. 1 (Fed. Cir. 2014) (specifically declining to reach the question of whether pain alone can constitute a disability under 38 U.S.C.A. §§ 1110 and 1131); Sanchez-Benitez v. Principi, 259 F.3d 1356, 1362 (Fed. Cir. 2001) ("Mr. Sanchez-Benitez presents an interesting, indeed perplexing, question, but not one that we need or can decide in this appeal"). ORDER The application to reopen a claim for entitlement to service connection for a back condition is granted. Entitlement to service connection for a back disability is granted. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs