Citation Nr: 18145362 Decision Date: 10/30/18 Archive Date: 10/26/18 DOCKET NO. 15-36 373 DATE: October 30, 2018 ORDER As new and material evidence has been received, the petition to reopen the claim of entitlement to service connection for a low back disability is granted. Service connection for a low back disability is granted. FINDINGS OF FACT 1. An unappealed February 2011 rating decision denied service connection for a low back disability is final. 2. Evidence received since the February 2011 final rating decision raises a reasonable possibility of substantiating the service connection claim for a low back disability. 3. Resolving any doubt in the Veteran’s favor, the evidence is at least in equipoise that the Veteran’s low back disability, diagnosed as spondylitic changes and degeneration of the lumbar spine, is related to his service. CONCLUSIONS OF LAW 1. The February 2011 rating decision that denied service connection for a low back disability is final. See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. Evidence received after the last final rating decision is new and material to the claim for service connection for the low back disability, and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The criteria for service connection for a low back disability are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1962 to November 1965. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from a January 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran testified before the undersigned Veterans Law Judge via a videoconference hearing. This decision is being processed under the Board’s “one-touch” program. A transcript of the hearing will be associated with the claims file at a later date. 1. Petition to Reopen Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302 (2017). An exception to the finality rule is found in 38 U.S.C. § 5108, which provides that, if new and material evidence is received with respect to a claim which has been disallowed, VA shall reopen the claim and review the claim’s former disposition. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Here, the RO denied the Veteran’s service connection claim for a low back disability in a February 2011 rating decision, finding that there was no evidence of a nexus between his back disability and his active service. The evidence considered at the time included the Veteran’s VA Form 21-526 Application for Compensation and Pension, the Veteran’s statements made in an informal claim for service connection for a low back disability, service treatment records, a January 2011 VA examination report, and VA treatment records. The Veteran did not appeal the decision, and new and material evidence was not received within one year of the decision. Thus, the February 2011 rating decision became final. See 38 U.S.C. § 7105 (d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Relevant evidence received since the February 2011 final denial of the claim includes March 2013 and September 2015 medical opinions from the Veteran’s treating physicians at VA providing positive nexus opinions between the Veteran’s low back disability and his military service. This new evidence relates to the unestablished element of a nexus in the prior denial. The additional evidence received since the February 2011 final denial is therefore new and material. The criteria for reopening the claim for service connection for a low back disability are therefore met. 2. Service connection for a low back disability is granted. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease incurred in service. 38 C.F.R. §3.303(d). Establishing service connection generally requires (1) medical 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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Arthritis is considered by VA to be a “chronic disease” listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). This rule does not mean that any manifestation in service will permit service connection. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). A layperson is competent to report on the onset and continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As decided above, the Board reopened the Veteran’s claim for service connection for a low back disability. The Board finds no prejudice in now analyzing the merits of the claim, as the Board’s determination is completely favorable to him. Turning to the evidence of record, the Veteran is currently diagnosed with a low back disability, specifically degeneration of the lumbar spine represented by evidence of spondylitic changes shown on x-ray studies. See March 2013 VA treatment records and a September 2015 medical opinion. The Veteran’s November 1962 medical examination at enlistment reports a clinically normal spinal and musculoskeletal examination. Service treatment records show the Veteran was treated during service at the emergency room for a back injury that occurred during an August 1965 jump. At that time, he reported pain in the flank areas of his low back bilaterally. On physical examination, the Veteran did not have leg pain, numbness, paresthesias, or straight leg raise signs. Deep tendon reflexes were normal and equal, bilaterally. X-ray studies were negative. However, on reexamination a few days later, the Veteran was placed on a two-week profile for an acute back sprain. The Veteran was treated with heat, physical therapy, and medication two more times in August 1965. The final August 1965 service treatment record related to the low back injury noted a “mild lumbar strain.” The Veteran’s examination on discharge in September 1965 reported that the Veteran had a back injury from a jump in service, but no further assessments were made. The Veteran was discharged from service in November 1965. VA treatment records dated November 2003 report that the Veteran was a new patient seeking to establish primary care at VA. On physical examination by a nurse practitioner, a negative musculoskeletal examination was reported. However, a separate entry in a November 2003 VA nurse intake note, the Veteran had chronic low back pain that was controlled with medication and/or treatment. In December 2005, January 2007, January 2008 and January 2009, the Veteran was examined by a VA nurse practitioner but no spinal or CVA tenderness was found. The Veteran sought follow-up treatment from VA for recurrent symptomatic back pain in February 2010 and August 2010. In August 2010, the Veteran declined medications as he was concerned with the potential long-term effects and continued to treat his symptoms with stretching exercises. On physical examination, the VA physician noted the Veteran had decreased lumbar spine flexion, paralumbar muscle tightness, and a negative straight leg raise test. The Veteran submitted an informal claim for service connection for a low back disability in August 2010 followed by a formal application for service connection for a low back disability in the following month. The Veteran reported that he was injured in service on August 10, 1965 at Fort Campbell, Kentucky. He stated that while participating in routine airborne training exercises, he jumped from a plane at 1100 feet and fell four times faster than normal. He was taken by stretcher to the emergency room at Fort Campbell, was examined, and afforded x-ray studies. He reported he was diagnosed with a back sprain and given light duty until he was discharged from active service in November 1965. The Veteran had constant back pain, and he attributed the pain to two or three compressed fractured vertebrae. His pain was constant when lying down or when staying in one position for too long. He also indicated that he experienced low back pain beginning in active duty and continuously since discharge from service. The Veteran was afforded a VA compensation examination in January 2011 for the low back disability. The examiner, a physician, reported the Veteran had an injury during service from a malfunctioning parachute, as documented by the Veteran’s service treatment records. The Veteran again reported that he had low back pain ever since the injury during service. The Veteran indicated he made over 100 jumps in service, and he jumped at least once every three months to keep his airborne pay. The examiner noted that no medical records were associated with the claims file until the Veteran began care at VA in 2003, and the VA treatment records did not note back pain or abnormal findings regarding the Veteran’s back until February 2010. The Veteran also reported that he was afforded x-ray studies in 1980, which showed a fracture, and he sought chiropractic treatment in 1997. The Veteran’s post-discharge employment included 18 months as a well driller and 40 years as a truck driver, which also required the unloading of items of various weights. The examiner reported the Veteran had not been involved in any motor vehicle accidents or had any workman’s compensation claims. The Veteran had a dull aching pain in his low back that seemed worse at night. Reduced flexion to 20 degrees with normal extension in the lumbar spine was noted. The Veteran was diagnosed with mechanical low back pain without sciatica. The examiner concluded that the Veteran’s low back disability was less likely than not related to service because of the large gap in the medical records between the inservice injury and the February 2010 VA treatment record that first reported back pain after service. Further, the examiner found it was more likely than not that his low back pain was due to the physical lifting required at his post-service employment. The examiner noted there was no low back pain chronicity in the medical records until 2010. VA treatment records dated in May 2011 reported the Veteran had back pain controlled with stretching. His computerized problem list included degeneration of the lumbar spine or lumbosacral intervertebral disc. In September 2011 and January 2013, the Veteran again reported chronic low back pain that was controlled with medication and/or treatment. The Veteran was examined by a VA physician in March 2013. The physician reported the Veteran was seeking service connection for a low back disability that was related to an injury in service. The Veteran sought treatment for his back pain through chiropractic care, physical therapy, and other conservative measures. On physical examination, the Veteran had a slight decrease in lordosis with paralumbar discomfort on palpation. The Veteran had full flexion and left and right rotation in his lumbar spine. Deep tendon reflexes were between 0 and 1+. X-ray studies were afforded to the Veteran, and the impression was he had spondylitic changes of the lumbar spine. The assessment was of chronic low back pain. The physician noted he would prepare a letter concluding the Veteran’s low back disability was related to the back injury during service. The Veteran submitted a March 2013 letter from his treating VA physician in April 2013 in support of his claim. The VA physician reviewed the Veteran’s medical records, including his service treatment records and the January 2011 VA examination report. The VA physician also considered the Veteran’s lay statements regarding the injury during service and his reports of continuous pain since the injury. The VA physician conducted an updated physical examination in March 2013 and obtained current radiographs of the Veteran’s lumbar spine, as discussed above. The physician concluded that the Veteran’s chronic low back pain was more likely than not related to the injury he sustained during service. The Veteran was afforded another VA examination in November 2013. The examiner, a physician’s assistant, reported the Veteran did not currently have a diagnosis and had never been diagnosed with a thoracolumbar spine disability. The Veteran reported that he was a retired truck driver after 40 years of employment. He reported being in 12 motor vehicle accidents, including one rollover accident, and being in one motorcycle accident. The Veteran denied a history of fractures. He was able to stand for up to one hour and walk approximately two miles. The Veteran stated that he had an injury due to a faulty parachute in 1965, was treated in service, diagnosed with a back strain, and discharged from service three months later. The Veteran had normal range of motion without objective evidence of pain and normal range of motion without objective evidence of pain on repetitive motion testing with three repetitions. No pain, weakness, fatigability or incoordination was found. The examiner conceded the Veteran experienced physical stresses related to his parachute jumping during service. The examiner reviewed the medical records associated with the claims file and found the first report of low back pain was in February 2003. Imaging studies were conducted in February 2010 and the current diagnosis on file was noted to be degeneration of lumbar spine or lumbosacral intervertebral disc. The examiner concluded that the March 2013 x-ray studies showed spondylitic changes were due to the natural progression of the condition due to aging, and that they were not related to service. The examiner based this conclusion solely on the fact that there were no medical records associated with the claims file for 44 years. He also speculated that the March 2013 positive nexus opinion submitted to VA in April 2013 was not likely based on a review of the complete service treatment records, and instead, was likely based only on the Veteran’s statements. Finally, the examiner indicated that, per the medical literature, the Veteran’s spondylitic changes were solely due to the aging process, and they were found incidentally on routine examination. Further, no spondylitic changes were noted on x-ray studies during service. The Veteran submitted a statement in January 2014 in which he described the accident in service when his parachute malfunctioned, causing him to descend at a rate four to five times faster than normal. The Veteran also reported that while he led an active lifestyle after discharge from service, his back pain began in August 1965 and had been present since that time. Further, he credited staying physically active to being able to endure the pain for the past 49 years. The Veteran served as a medic during his active service. He reported he lived with a constant pain level of 7 on a pain scale of 1 to 10 with 10 being the most painful. He could not sleep for more than two hours at a time without changing positions. He purchased a “Sleep Number” bed to help alleviate his back pain. The Veteran was treated at VA in January 2014 for low back pain, rated as a 7 out of 10 on a 10-point pain scale with 10 representing the most pain. The low back pain was noted as chronic and controlled by medication and/or treatment. In January 2015, the Veteran reported his chronic low back pain was a 6 on the 10-point pain scale. VA treatment records dated July 2015 report the Veteran’s continued complaint of low back pain believed to be due to an old injury from jumping in service. The Veteran submitted an additional medical opinion dated September 2015, received by VA in October 2015, from another VA physician. The physician noted that the Veteran’s current diagnosis was degeneration of the lumbar spine or lumbosacral invertebral disc. The physician concluded that based on the Veteran’s history and current symptoms, it was “certainly plausible” that his low back pain was connected to the injury sustained in service. This conclusion was based on a review and recitation of the Veteran’s service treatment records, treating him, considering his contentions, and reviewing his VA treatment records. Additionally, the Veteran reported that while employed as a truck driver, he found that he was able to mitigate his back pain by sitting in an erect position. However, despite taking these measures, he continued to have low back pain beginning in service and continuing since discharge from service. The Board finds the evidence is at least in equipoise that the Veteran’s low back disability had its onset or is otherwise related to the low back injury during service. Weighing in favor of the claim are two medical opinions from the Veteran’s treating physicians at VA and the Veteran’s competent and credible statements that his back pain began during service and continued after discharge from service. First, the Board recognizes that the Court has not fully embraced a “treating physician rule” under which a treating physician’s opinion would presumptively be given greater weight than that of any other examiner. See Winsett v. West, 11 Vet. App. 420, 424-25 (1998). Regardless, the length of a medical professional’s opportunity or opportunities to examine a claimant may be considered in assigning probative weight. In this case, the Board finds the March 2013 and September 2015 medical opinions to be highly probative. Both physicians based their opinions on his service treatment records, his credible contentions, their relationship with the Veteran as his treating physician, and his post-discharge treatment records. These opinions are competent and credible, and the Board assigns them more probative weight. Additionally, the Veteran’s consistent contention of record is that, despite the lack of post-service treatment records until November 2003 for low back pain, his low back pain began when his parachute malfunctioned during service and has continued since that time. Moreover, the Board takes into consideration that the Veteran served as a medic during service, and while he does not have specific medical expertise in back injuries, he does have a greater basis of medical knowledge than the average person. The Board finds his statements to be competent, credible, and highly probative. Weighing against the claim are the January 2011 and November 2013 VA examinations and the lack of medical records between service and the November 2003 VA treatment records. The January 2011 VA examination is less probative than the positive opinions of record as it is based primarily on an incorrect factual basis. Indeed, the crux of the examiner’s opinion lies on the belief that the Veteran did not seek treatment for back pain after service until February 2010, when in fact, the Veteran’s low back pain is documented as early as November 2003 in the VA treatment records. The November 2013 VA examination report is also less probative than the positive opinions of record. First, the November 2013 VA examination report noted the Veteran had never been diagnosed with a low back disability, but then later reported he was diagnosed with degeneration of lumbar spine or lumbosacral intervertebral disc by February 2010 and March 2013 x-ray studies. These facts are internally inconsistent and inconsistent with the other medical evidence of record. Additionally, the November 2013 VA examiner did not consider the Veteran’s credible contentions, and instead based the conclusion solely on the lack of medical treatment records for 44 years after discharge from service. Finally, while the examiner cited generally that the medical literature supported the physician’s conclusion, no specific medical literature was identified. Thus, the Board finds the January 2011 and November 2013 VA medical opinions to be less probative than the positive medical opinions of record and assigns them less weight. After considering the evidence of record, both lay and medical, the Board finds that service connection for a low back disability is warranted. To summarize, the Board finds that the Veteran has been diagnosed with a low back disability, and the Veteran’s reports of low back pain since the parachute accident in service are competent and credible. Further, the March 2013 and September 2015 favorable medical opinions are highly probative, and they outweigh the probative value of the negative VA opinions of record. Thus, resolving any reasonable doubt in favor of the Veteran, the Board finds the evidence is at least in equipoise and grants service connection for a low back disability S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Harper, Associate Counsel