Citation Nr: 18141783 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 14-41 805 DATE: October 11, 2018 ORDER Having received new and material evidence, the Veteran’s claim for entitlement to service connection for a back condition is reopened. Entitlement to service connection for a back condition is granted. FINDINGS OF FACT 1. In a February 1995 rating decision, service connection for a back condition was denied. The Veteran did not perfect an appeal from this denial, nor was new and material evidence received within one year. 2. Evidence received since the February 1995 rating decision is not cumulative or redundant, and raises a reasonable possibility of substantiating the Veteran’s claim for service connection for a back condition. 3. The most probative evidence of record shows the Veteran’s back condition is etiologically related to service. CONCLUSIONS OF LAW 1. The unappealed February 1995 rating decision is final. 38 U.S.C. §§ 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. New and material evidence sufficient to reopen the Veteran’s claim for service connection for a back condition has been received. 38 U.S.C. § 5108(a) (2017); 38 C.F.R. § 3.156(a) (2017). 3. The criteria for service connection for a back condition are met. 38 U.S.C. §§ 1110, 5107(b) (2017); 38 C.F.R. §§ 3.102, 3.303(a) (2017). REFERRED ISSUE For the reasons discussed more below, the Board is reopening and granting this claim. However, after the Board hearing, in July 2018, the Veteran filed a motion that the 1994 and 1995 rating decisions were clearly and unmistakably erroneous (CUE). The Board does not have jurisdiction to consider his CUE motion because the RO has not adjudicated it. The findings below as to finality apply only to the legal conclusions that the 1995 decision was not appealed and no new and material evidence was received within one year. The Board makes no conclusions whatsoever about the Veteran’s pending CUE motion. Since a grant of service connection is possible at this time, it would not be advantageous to the Veteran for the Board to delay action on this appeal so the RO could consider his CUE motion. Therefore, the Board instructs the RO to adjudicate the Veteran’s pending CUE motion when implementing the grant of service connection herein, as resolution of the CUE motion would ultimately affect the proper effective date for the grant of service connection. If the RO denies the CUE motion and the Veteran is dissatisfied with the effective date the RO assigns, then he should file a notice of disagreement and/or an appeal to the Board. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from March 1992 until October 1993. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a November 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). A hearing was held before the undersigned Veterans Law Judge in May 2018. To the extent that the electronic claims file contains relevant evidence received since the October 2014 Statement of the Case, the Veteran’s representative waived initial review by the Agency of Original Jurisdiction in a July 2018 letter to the Board. Neither the Veteran nor his representative has raised any issues with the duty to notify, the duty to assist, or the conduct of his Board hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board … to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist or Bryant hearing deficiency argument). Thus, the Board need not discuss any potential issues in this regard. 1. New and Material Evidence – Back Condition A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108 (2012). The preliminary issue before the Board is whether new and material evidence sufficient to reopen this claim has been submitted. Evidence is “new and material” if it (1) has not been previously submitted to agency decision makers; (2) relates to an unestablished fact necessary to substantiate the claim; (3) is neither cumulative nor redundant of evidence already of record at the time of the last prior final denial of the claim sought to be opened; and (4) raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2017). 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 VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. When determining whether the claims should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). If the Board determines that the evidence is “new and material,” it must reopen the claim and evaluate the merits of the claim in view of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). The Veteran’s claim of entitlement to service connection for a back condition was denied in a February 1995 rating decision which found the evidence of the record at the time showed that the Veteran was seen and treated for a back strain while in service. The RO found that evidence failed to show the Veteran’s back tenderness and pain shown on a current VA examination was caused by, or aggravated by, an in-service event or injury. That rating decision became final because no timely notice of disagreement was filed, and no new and material evidence was received within one year following the notification of that decision. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 29.1103 (2017). [Again, a motion for CUE will be adjudicated by the RO at a later date.] In July 2011, the Veteran filed another claim for service connection. Evidence received since the February 1995 denial includes: a February 2012 statement from the Veteran describing the incident in which he hurt his back and subsequent symptoms and treatment, as well as an additional lay statement from his mother, additional medical records, a September 2014 VA examination, and a 2018 private medical record which directly addresses nexus. In his lay statement, the Veteran describes the circumstances of his lower back during service, and he also explained his symptomatology from his in-service injury to the present day. This statement reflects an in-service injury and details which were not previously of record. The evidence is new, as it was not previously considered in the prior final rating decision, and is material as it raises questions regarding the unestablished fact of an in-service injury and a nexus between the Veteran’s active duty service and current back condition. The Board concludes that the newly submitted evidence satisfies the low threshold requirement for new and material evidence. Shade, 24 Vet. App. At 117-118. Accordingly, the Veteran’s claim for sprain, lower thoracolumbar area is reopened. 2. Entitlement to Service Connection for a Back Condition 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. § 1131; 38 C.F.R. § 3.303(a). In general, service connection requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of 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). Compensation based on secondary aggravation will be awarded only for the degree of disability over and above the degree of disability prior to aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). 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). Service connection may be established on a presumptive basis for chronic diseases listed under 38 C.F.R. § 3.309(a) if chronic symptoms of the disease were shown in service; the disease was manifested to a compensable degree with a presumptive period, usually one year after service separations; or continuous symptoms of the disease were manifested since service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); see also Walker v. Shinseki, 708 F.3d 1131 (Fed. Cir. 2013). Because arthritis is a chronic condition under 38 C.F.R. § 3.309(a), the presumptive service connection provisions are applicable. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran contends that he is entitled to service connection for a back condition because it was caused by an injury incurred during active service. He has reported that while serving in Germany, he injured his lower back lifting desks into a truck and felt a pop while turning the wheel of the truck to drive away. See Veteran’s June 2018 Statement in Support of Claim. In this statement, he describes the incident which sent him to the aid station. The Veteran and a fellow serviceman were tasked to dispose of a number of large steel desks; they had just loaded three of those desks into a five-ton truck when the Veteran began to drive to a disposal site. As he began to pull away, while turning the wheel to the left, the Veteran felt a pop in his lower back. The pain was so intense, he laid on the post’s tarmac until he could report to the aid station. Over the next couple of months, the Veteran was unable to seek definitive medical care, as he was nearing out-processing. Id. The Veteran has been diagnosed with moderate neuroforaminal narrowing at L4-L5 and mild neuroforaminal narrowing L3-L4 with left sciatica since September 2014 and arthritis. See September 2014 VA examination. Therefore, the first element of service connection, a current disability, has been satisfied. As to the second element, the Board acknowledges that the Veteran was seen at his post aid station in Germany. The SF600 in the Veteran’s service treatment record is undated; however, it states that the Veteran had a possible sprain to his lower thoracolumbar fascia and he was referred to a higher medical authority. On the same SF600, the next medical provider noted that the pain was localized to T4-7 and he was diagnosed with a thoracic spine sprain. As there are service treatment records showing that the Veteran visited the aid station, as he reported in his lay statement, and the SF600 states the Veteran reported that he hurt his back by lifting a desk, the Board finds the Veteran suffered an in-service injury. The remaining issue for the Board’s consideration is whether a causal relationship or nexus between the present disability and the injury incurred during service exists. The Veteran first applied for service connection for his lower back in October 1993, the same month he separated from active duty service. The Veteran was afforded a VA examination in October 1994, one year after his separation from active duty service. At this examination, the Veteran exhibited mild to moderate amounts of tenderness from his L1 to L5 vertebrae with forward flexion and backward extension, although he exhibited normal flexion ranges. He was diagnosed with chronic lumbosacral strain. Records from an urgent care clinic beginning June 2005 through September 2007 show the Veteran was seen three times for pain related to his back injury. Treatment plans included chiropractic care and prescription pain relievers. During a visit to the chiropractor in June 2005, the Veteran mentioned this instance of pain began earlier that month, but that he had had additional episodes of pain in 1993 and 1997. X-Rays done at this clinic in June 2005 were normal. In urgent care records from June 2011, the Veteran complained of moderate sharp, spasmodic and shooting pain. The Veteran informed the medical provider that he had no similar problems in the past; however, the Veteran clarified that he had been having back pain for 20 years, but the radiating pain down his left leg presented approximately five days earlier. At this visit, the Veteran was diagnosed with sciatica and recommended to follow up with a primary care provider. The medical evidence shows a continuity of symptoms of a back injury from the date of injury to the present day. After the Veteran’s first claim was denied, he did not reapply for VA compensation benefits until 2011. However, in the interim time period, he not only continued to seek treatment for intermittent back issues, but he also provided a history of additional episodes of back pain in 1993 and 1997. The fact that he did so long before re-applying to VA for benefits lends additional credibility to his statements now about continuity of symptoms after service. The Board also acknowledges a June 2018 private treatment record based on additionally reviewed medical records and other provided documents at the request of the Veteran. In this record, the physician opines that “it is more likely than not that [Veteran’s] current diagnoses of sciatica and chronic lower back pain... are a direct causal result of an event during his military service.” The physician explains that his opinion is due to the documentation of injury during the Veteran’s military service, which has resulted in the Veteran’s persistent lower back sprain and has caused associated pain, and which over time, has contributed to foraminal narrowing and disc bulging in his lumbar spine. The examiner concludes his opinion by stating that the Veteran’s description of the inciting incident provides the most conservative explanation for the onset, persistence, chronicity, and severity of his lower back conditions, and that there are no more likely causes. As there was no evidence available for his review that suggested that the pain from the Veteran’s reported lifting incident ever resolved, nor is there any evidence available that suggested an alternative cause for a new occurrence of lower back pain, the examiner further explained that the Veteran’s injury in August or September 1993 was likely more serious than was initially documented and contributed to the Veteran’s foraminal narrowing and disc bulging. “[Veteran] clearly describes feeling a ‘pop’ at the time of the event in question, consistent with such a mechanism of injury.” As the physician is a medical doctor, the Board finds the examiner competent to render a medical opinion. Additionally, the physician reviewed the Veteran’s available VA medical treatment records, as well as the Veteran’s personal statement. Therefore, the Board finds this report to be competent and credible. The Board considers this evidence to be highly probative as its conclusion is factually accurate and fully articulated, and it gives sound reasoning for the conclusion. Moreover, it is consistent with the evidence of record, to include the Veteran’s consistent reports of back pain since service. The Board acknowledges a September 2014 VA examination, for which the Veteran appeared for an in-person examination. The examiner noted that he had reviewed the Veteran’s VA claims file and opined that it is less likely as not that the Veteran’s low back condition was incurred in or was caused by his lower back condition that occurred during military service. The examiner gave the following rationale: “Review of STR had documentation for low back sprain and thoracic spine sprain from lifting on SF 600 but date missing. There was no [follow up] appointment to indicate chronicity. Besides the documentation in STR for thoracic sprain and the [V]eteran currently is diagnosed with lumbar spine stenosis with left sciati[c]a fr[o]m L4-L5 condition-unrelated to the thoracic area of the spine.” The Board finds the evidence of record to be in equipoise. Both the VA examiner and the private examiner are competent and both reviewed the record and provided explanations for their opinions. There is no valid reason to weigh one opinion more heavily than the other. Therefore, for the reasons discussed above and resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence establishes that the Veteran’s back condition is related to service. Therefore, service connection for a back condition is granted. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Parker Reynolds, Associate Counsel