Citation Nr: 1805570 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 14-99 786A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a lumbar spine disability. 2. Entitlement to service connection for a lumbar spine disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran served on active duty from September 1955 to January 1985. His decorations include Republic of Vietnam Gallantry Cross with Palm and AF Outstanding Unit Award with a Valor Device with three Oak Leaf Clusters. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Jurisdiction was subsequently transferred to the Houston, Texas RO. On October 2017, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing. A transcript of the hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. In an unappealed decision, dated in October 2010, the RO denied a claim for service connection for a lumbar spine disability on the basis that the disability neither occurred in nor was caused by service. 2. The evidence received since the RO's October 2010 decision, which was not previously of record, and which is not cumulative of other evidence of record, raises a reasonable possibility of substantiating the claim. 3. Giving him the benefit of the doubt, the Veteran has a lumbar spine disability, currently diagnosed as degenerative disc disease of the lumbar spine, that is etiologically related to his service. CONCLUSIONS OF LAW 1. The October 2010 rating decision that denied service connection for a lumbar spine disability, is final. 38 U.S.C. § 7105 (2012), 38 C.F.R. §§ 3.160 (d), 20.201, 20.302, 20.1103 (2017). 2. New and material evidence has been received since the RO's October 2010 decision; the claim for service connection for allergies and a lumbar spine disability, is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. Giving him the benefit of the doubt, the Veteran has a lumbar spine disability, currently diagnosed as degenerative disc disease of the lumbar spine that is etiologically related to his service. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence The Veteran most recently filed a request to reopen his claim for entitlement to service connection for a lumbar spine disability in May 2012. At the time of his last final denial, evidence of record included service treatment records, VA treatment records, private treatment records, and a VA examination report and opinion. Since the last final denial, evidence added to the record includes additional VA treatment records, VA examination, private medical opinion, and an October 2017 hearing transcript. Based on a review of this new evidence, and the low standard for reopening claims, the Board finds that the new and material criteria under 38 C.F.R. § 3.156 (a) have been satisfied, and the claim for service connection for a lumbar spine disability is reopened. II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.§ 1110; 38 C.F.R. § 3.303 (a). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran contends that he has a lumbar spine disability related to combat flying in tactical aircraft during service. He flew fighter aircraft from 1956 to 1969 during which he was subjected to positive and negative G-force pressure. The STRs include an April 1965 which indicates sudden onset pain the lower thoracic spine. The impression was muscle strain. A March 1966 note indicates a recurrence of thoracic pain. A November 1977 note indicates a complaint of lower back pain. The evidence of record includes an August 2010 VA spine examination which indicates a diagnosis of degenerative disc disease of the lumbar spine which the examiner opined was less likely as not related to service or his duties as a combat pilot. The rationale, in part, was that the back conditions in service did not involve the lumbar spine. Due to the long period of time between the G-force pressure and onset of back pain, the absence of lumbar spine problems while in service, and the more common etiologies of obesity and aging, the examiner opined that it is unlikely that his current lumbar spine disability is due to the in-service back findings. On July 2013 VA back conditions Disability Benefits Questionnaire examination, the examiner diagnosed age-appropriate degenerative arthritis of the lumbar spine. No medical opinion accompanied the examination report. The record also includes that October 2013 private opinion of Dr. C.W.M. who opined that it is very possible that the Veteran's chronic lumbar spine disability is related to a repetitive deceleration type of injury in someone who was changing direction at a high rate of speed and pulling forces up to G6. The physician further opined that the Veteran's chronic degenerative injury could certainly be due to the kind of stresses, stressors, and injuries that he sustained during service as a fighter pilot. In light of the Veteran's currently diagnosed degenerative disc disease of the lumbar spine, post-service treatment for his lumbar spine disability, and the private and VA medical opinions of record, and his October 2017 testimony, the Board gives the Veteran the benefit of the doubt and finds that entitlement to service connection for a lumbar spine disability is warranted. The nature and extent of this disability (degenerative disc disease of the lumbar spine) caused by the Veteran's service is not currently before the Board. ORDER The claim for service connection for a lumbar spine disability is reopened. Service connection for a lumbar spine disability, currently diagnosed as degenerative disc disease of the lumbar spine, is granted. ____________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs