Citation Nr: 1805341 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 13-05 672 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUES 1. Whether there is new and material evidence to reopen the Veteran's claim for entitlement to service connection for hypertension. 2. Whether there is new and material evidence to reopen the Veteran's claim for entitlement to service connection for bilateral hearing loss. 3. Whether there is new and material evidence to reopen the Veteran's claim for entitlement to service connection for a low back disorder, claimed as degenerative disc disease of the lumbosacral spine. 4. Entitlement to service connection for a low back disorder, claimed as degenerative disc disease of the lumbosacral spine. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Douglas M. Humphrey, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1977 to July 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction for this appeal currently resides with the RO in San Juan, Puerto Rico. A Video Conference Board Hearing was held before the undersigned Veterans Law Judge in March 2017. A transcript of that hearing is of record. FINDINGS OF FACT 1. In his testimony at a March 2017 Video Conference Board Hearing, the Veteran, acting through his representative, withdrew the issues of whether new and material evidence has been submitted to reopen claims for entitlement to service connection for hypertension and bilateral hearing loss. 2. A March 1998 Board decision denied entitlement to service connection for a low back disorder based on the finding that a current disability was not demonstrated or shown to be related to active service; the Veteran did not perfect an appeal of that Board decision to the U.S. Court of Appeals for Veterans Claims. 3. Evidence added to the record since the March 1998 Board decision is not previously of record, is not cumulative of other evidence of record, and raises a reasonable possibility of substantiating the claim for entitlement to service connection for a low back disability. 4. The Veteran's degenerative disc disease of the lumbosacral spine has been shown to be etiologically related to his active service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of substantive appeals of the issues of whether new and material evidence has been submitted to reopen claims for entitlement to service connection for hypertension and bilateral hearing loss have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2017). 2. The March 1998 Board decision denying entitlement to service connection for a low back disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.1103, 20.1104 (2017). 3. New and material evidence has been received; the claim for entitlement to service connection for a low back disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 4. The criteria for service connection for degenerative disc disease of the lumbosacral spine have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309(a), 3.310(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Dismissed Appeals The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the veteran or by his or her authorized representative, and except where withdrawn on record at a hearing, must be in writing. 38 C.F.R. § 20.204. With regard to the issues of whether new and material evidence has been submitted for claims for entitlement to service connection for hypertension and bilateral hearing loss, those issues were withdrawn on record by the Veteran's representative at his Video Conference Board Hearing in March 2017. Transcript at p. 2. That oral statement from the Veteran's representative during his hearing, memorialized in writing in the transcript, satisfies the requirements for the withdrawal of a substantive appeal. See Tomlin v. Brown, 5 Vet. App. 355 (1993). There remain no allegations of errors of fact or law for appellate consideration as to the issues of whether new and material evidence has been submitted for claims for entitlement to service connection for hypertension and bilateral hearing loss; therefore, the Board does not have jurisdiction to review those appeals and they are dismissed. II. Petition to Reopen Claim Irrespective of whether an RO reopens a Veteran's claim, the Board must decide whether the Veteran has submitted new and material evidence to reopen a claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed Cir 2001). Generally, a claim that 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). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means evidence not previously submitted to agency decision-makers. Material evidence means existing 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 prior 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). The regulation does not require new and material evidence as to each previously unproven element of a claim and creates a low threshold for reopening claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of new evidence is presumed; its weight is not presumed. Justus v. Principi, 3 Vet. App. 510 (1992). A January 1995 rating decision denied service connection because the Veteran did not have a diagnosis for a low back disorder. The RO noted the Veteran's complaints of back pain during his active service, but an x-ray examination taken as part of an October 1994 VA medical examination did not show any degenerative abnormalities, such as degenerative disc disease. The Veteran appealed that decision. In a March 1998 decision, the Board denied service connection for a low back disorder. The Board determined that there was no evidence of a current disability of the low back or that he had any residuals of documented in-service low back pathology. The Veteran did not appeal the Board's decision to the U.S. Court of Appeals for Veterans Claims. Accordingly, the Board's 1998 decision became final. The evidence received since the March 1998 Board decision includes a December 2009 letter from Dr. L.P., one of the Veteran's treating physicians, stating that the Veteran's low back disorder was evident in service and otherwise etiologically related to the Veteran's active service. The credibility of Dr. L.P.'s letter is presumed for purposes of reopening the Veteran's claim. There is also evidence of a currently diagnosed disability of the lumbar spine. The letter and medical evidence showing are current diagnosis are both new and material. There were not of record as of earlier decision; and, taken together, they suggest a nexus between the Veteran's currently diagnosed degenerative disc disease and his active service. Thus, the Veteran's petition to reopen his claim for entitlement to service connection is granted. III. Entitlement to Service Connection Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active duty service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to establish service connection, the evidence 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 current disability and the in-service disease or injury (or in-service aggravation). Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the Veteran shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). As for the first element of Shedden, a review of the record shows that the Veteran has been diagnosed as having degenerative disc disease. Of note, the Veteran received a magnetic resonance imaging (MRI) examination in June 2009 that intervertebral disc bulging at L2-L3 through L5-S1, spinal stenosis at L4-L5, and neural encroachment. As for element two of Shedden, service treatment records document an extensive history of treatment for low back symptomatology beginning in July 1986. At that time, the Veteran gave a three-year history of low back pain. The initial assessment was probable stress induced anterior compartment syndrome. An evaluation in December 1986 noted discomfort at 40 degrees of flexion. X-rays taken in May 1987 sacralization of the L5 vertebra. A June 1987 X-ray revealed dextroscoliosis as well as sacralization of the L5. Marked lordosis was observed in the latter part of 1987. A February 1988 CT series revealed asymmetry of the low back and a bulge of the L4-5 intervertebral disc without evidence of herniation. A report from March 1988 indicated that the Veteran was diagnosed as having neurogenic low back pain, and that he had been placed on a 30-day limited profile for the same. The question of there being L5 nerve root compression was raised in April 1988. Another "lifting injury" to the low back was reported in December 1988. When the Veteran was evaluated pending service discharge in march 1994, the summary of defects included "low back pain." The first two elements of service connection are satisfied. Thus, entitlement to service connection turns on whether there is a nexus between the Veteran's current disability and those in-service events. There are favorable and unfavorable medical opinions addressing this question. In December 2009, Dr. L.P., one of the Veteran's treating physicians, reviewed the Veteran's service treatment records and opined that it was "as likely as not or at least possible that" the Veteran's low back disorder was related to his active service. Dr. L.P. noted that it was "obvious" that the Veteran had back pain while on active duty and noted an abnormal computed tomography (CT) scan of the lumbosacral spine in February 1988. In June 2012, the Veteran received a VA examination for his low back disorder. The VA examiner diagnosed the Veteran with lumbar degenerative disc disease. The VA examiner reviewed the Veteran's claims file, to include service treatment records, and VA medical center treatment records. The VA examiner concluded that the Veteran's low back disorder was less likely as not caused by or the result of the Veteran's active service. The VA examiner noted the Veteran's complaints of low back pain, and in light of the diagnoses, characterized the in-service back issues as acute and transient. Reference was also made to an X-ray examination performed in October 1994, which was a part of his original claim, that showed no degenerative changes or abnormalities in the Veteran's lumbar spine. The VA examiner further noted that degenerative disc disease was a normal part of the aging process for persons of the Veteran's age. The Board concludes that the positive nexus opinion stated in the December 2009 letter from Dr. L.P. is at least as probative as the negative opinion from the June 2012 VA examination. Dr. L.P.'s opinion is based on a thorough review of the Veteran's service treatment records, to include objective, diagnostic evidence of abnormalities in the Veteran's lumbosacral spine while he was on active service. Dr. L.P.'s opinion is also based on physical examinations of the Veteran performed over the course of approximately two years of treatment. However, Dr. L.P.'s opinion did not address the October 1994 x-ray showing no degenerative changes in the Veteran's back. The June 2012 VA examination was based on a review of the Veteran's claims file, to include his service treatment records, and a physical examination of the Veteran. Like Dr. L.P.'s opinion, the VA examiner's report includes some omissions. For instance, the VA examiner did not rationalize the Veteran's statements regarding the in-service back injuries, did not consider the Veteran's periods of limited duty due to back pain, did not address the diagnosis of neurogenic low back pain, and did not address the abnormal CT scan identified in Dr. L.P.'s opinion. In light of the record and governing legal authority, the Board finds that the evidence is, at the very least, in equipoise on the question of a nexus. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The benefit-of-the-doubt rule applies and the requirement of a nexus is thereby met. Entitlement to service connection for degenerative disc disease of the lumbosacral spine is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. ORDER Petition to reopen claim for entitlement to service connection for hypertension is dismissed. Petition to reopen claim for entitlement to service connection for bilateral hearing loss is dismissed. Petition to reopen claim for entitlement to service connection for a low back disorder is granted. Entitlement to service connection for lumbar degenerative disc disease of the lumbosacral spine is granted. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs