Citation Nr: 18145311 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 15-28 280 DATE: October 26, 2018 ORDER New and material evidence having been received, the petition to reopen the claim for service connection for a lumbar disability, is granted. Service connection for a lumbar disability is granted. FINDINGS OF FACT 1. In a January 2003 rating decision, the RO denied the claim for service connection for a lumbar disability. The Veteran did not appeal, and no new and material evidence was received within a year of the rating decision’s issuance. 2. Additional evidence received since the January 2003 decision is new and related to an unestablished fact necessary to substantiate the claim of service connection for a lumbar disability. 3. The Veteran’s lumbar disability is related to his in-service fall. CONCLUSIONS OF LAW 1. The January 2003 rating decision that denied service connection for a lumbar disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.1103. 2. The evidence received since the January 2003 rating decision is new and material, and the claim for service connection for a lumbar disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for a lumbar disability are met. 38 U.S.C. §§ 1110, 5103, 5107(b); 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from April 1943 to January 1946. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board videoconference hearing in October 2018. New and Material Evidence Where a claim has been finally adjudicated, new and material evidence is required in order to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also, Wakeford v. Brown, 8 Vet. App. 239, 239–40 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Where new and material evidence is received within one year after the initial denial, the denial is not final, and the claim remains pending. 38 C.F.R. § 3.156(b). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA’s duty to provide a VA examination is triggered. Id. In a January 2003 rating decision, the RO denied service connection for a back disability. The RO determined that the Veteran’s back disability was not related to his right foot disability and was not documented in his service treatment records. The Veteran did not appeal, and the decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 3.156(b). Since the final denial, the Veteran has submitted a December 2014 private medical opinion relating his lumbar disability to his in-service injury. This evidence is new and material to the Veteran’s claim as it addresses the nexus between the Veteran’s lumbar disability and his in-service injury. As such, the claim is reopened. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be 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) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability, which is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57–58 (1990). Entitlement to service connection for a lumbar disability, to include as secondary to service-connected disabilities. The Veteran asserts service connection for a lumbar disability, to include as due to his service-connected foot disability. The Veteran has a current diagnosis of lumbar stenosis. His service treatment records indicate that he experienced a fall in service where he injured his foot. The Veteran has since submitted lay testimony that he also injured his back in the fall, but had been more focused on the more severe injury at the time — his foot injury. He also explained that he began to notice back pain shortly after exiting service. He is competent to report that he experienced back pain after service. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board finds that his lay statements are credible and competent and are entitled to probative weight as they are internally consistent and consistent with other evidence of record. The Veteran has submitted a private medical opinion that addresses his lumbar disability. The physician provided that the Veteran’s original injury in service more likely than not lead to his arthritis of his lumbar spine that resulted in spinal stenosis. The Board finds this opinion to be highly probative because of the physician’s detailed history of the Veteran as well as accurately accounting for the Veteran’s injury in service. After review of the competent and probative evidence, the Board finds that service connection for the Veteran’s lumbar disability is warranted. The Board notes that the Veteran’s private physician has provided a positive nexus opinion that relates his in-service injury to his current lumbar disability. Moreover, the Board has found the Veteran to be competent and credible as to his in-service injury as well as that he noticed back symptoms shortly after service. As such, the Board affords the Veteran the benefit of the doubt and finds that service connection for a lumbar disability is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Morales, Associate Counsel