Citation Nr: 18148411 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 15-37 236 DATE: November 7, 2018 ORDER The claim for entitlement to service connection for a low back disability is reopened. Entitlement to service connection for degenerative disc disease of the lumbar spine is granted. FINDINGS OF FACT 1. A June 2011 rating decision denied a claim to reopen a claim for service connection for a low back disability based on a finding that new and material evidence had not been presented; the Veteran did not appeal the decision or provide new and material evidence within one year, and the decision became final. 2. Since the last final denial, the Veteran submitted statements regarding ongoing low back symptomatology since service that constitute new and material evidence showing nexus to service. 3. The Veteran began experiencing back pain in service and has had a continuity of symptomatology since service with a current diagnosis of degenerative disc disease. 4. The Veteran has a current degenerative disc disease diagnosis in the same area of the back in which he has experienced ongoing pain since service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen a claim for service connection for a low back disability. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.156. 2. The criteria for service connection for degenerative disc disease of the lumbar spine are met. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from June 1971 to June 1975. The Board thanks the Veteran for his service. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision. The Veteran requested a hearing before the Board on his October 2015 Form 9. However, in September 2017 he submitted a statement saying: “This serves to request that the Board of Veterans’ Appeals Hearing scheduled … in the above referenced matter be withdrawn.” Therefore, the hearing request is withdrawn, and the Board now proceeds to final appellate review of this case. The Board acknowledges that new medical evidence has been associated with the claims file since certification to the Board in May 2016. In a September 2018 statement, the Veteran waived consideration by a Department of Veterans Affairs (VA) Regional Office (RO) for any additionally received evidence. New and Material Evidence A claim which has been finally denied in an unappealed rating decision generally may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). An exception to this rule exists when new and material evidence is secured with respect to a claim which has been disallowed, in which case the Secretary shall reopen the claim and review the prior disposition. 38 U.S.C. § 5108. The Veteran’s claim for a low back disability was previously denied by the RO in an August 2004 rating decision because there was no evidence of ongoing or chronic low back symptomatology following service, and the evidence showed the Veteran was in a motor vehicle accident in December 2003 which resulted in low back pain. Evidence of record at the time of the decision included the Veteran’s service treatment records (STRs) and a private medical treatment report from December 2003. The Veteran did not appeal the decision, nor was new and material evidence received within one year. Accordingly, the rating decision became final. The Veteran sought to reopen his claim in October 2010. The RO issued a rating decision in June 2011 which denied the Veteran’s request to reopen his claim for entitlement to service connection “because the evidence submitted is not new and material.” Additional evidence of record at the time included VA treatment records dated November 2010 through May 2011. The RO found that the records continued to show that the Veteran has a current back disability, but failed to show a relationship to service. The Veteran again did not appeal the decision or associate new and material evidence with the file within one year, and the June 2011 decision also became final. In the Veteran’s June 2014 Notice of Disagreement (NOD), he stated that he has been experiencing back pain ever since injuring himself during basic training. Further, a letter from the Veteran’s doctor received in July 2014 (dated September 2011) states that physical evidence shows “he has had problems in his back for a substantial time.” Particularly when considered with evidence already of record at the time of the final denials, the Board finds that these statements serve as new and material evidence sufficient to reopen the Veteran’s claim for service connection because they address the unestablished element from the prior final denials of whether the Veteran’s current low back disability is related to his in-service complaints of low back pain. Service Connection The Veteran asserts that he injured his back during basic training in the Marine Corps, and that he has continued to experience low back pain ever since. In order to establish service connection for a claimed disorder, the following must be shown: (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). Service connection may also be awarded on a presumptive basis for certain chronic diseases, to include arthritis, listed in 38 C.F.R. § 3.309(a), that manifest to a degree of 10 percent within one year of service separation. Id. §§ 3.303(b), 3.307. Service connection may be awarded on the basis of continuity of symptomatology for those conditions listed in 38 C.F.R. § 3.309(a) if a claimant demonstrates (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.303(b). In both his July 2014 NOD and his August 2015 Form 9, the Veteran asserted that he injured himself during basic training in the Marine Corps and that he has “been suffering from this condition ever since.” Though he indicated injury was “never addressed or treated in Service[,]” the Board notes that there are two relevant entries in the Veteran’s STRs. In July 1974, the Veteran complained of low back pain radiating down his right leg, which had been occurring over a two-day period. He denied the pain being associated with any recent trauma or heavy lifting. Then, in April 1975, the Veteran complained of low back pain, again without associated trauma or heavy lifting, which the doctor indicated was located at the S-1 joint. The doctor noted the Veteran had done a lot of sit ups the day before, and that there was not any radiation of pain on that occasion. VA treatment records associated with the claims file begin in November 2010. In November 2010, the Veteran complained of low back pain radiating to his hip joint and knee, and reported that it has been occurring since he fell off an obstacle course in service. In February 2011 he reported that the pain “used to be minimal and exacerbate off and on” with walking or running, but that in the prior year the pain had begun to remain in the moderate to severe range. The same entry noted x-ray findings that the Veteran had a “mildly degenerative left hip and SI joint.” The Veteran continued to complain of worsening low back pain. In July 2011, an MRI revealed the Veteran had “severe lumbosacral spondylosis with mild L1-2, L3-4 and L5-S1 spinal canal stenosis” and “multilevel degenerative disc disease” with associated nerve impingement. A letter from the Veteran’s neurosurgeon dated September 2011 stated “he has had problems in his back for a substantial time in that he has bulging discs … that are calcified suggesting the longevity. He has degenerative disc disease at … most of the discs in his lumbar spine[.]” There are no negative nexus opinions of record, and the evidence is generally consistent regarding the onset of the Veteran’s pain across the Veteran’s statements to the VA and to his medical providers. To the extent the Veteran provided shorter-term periods of pain onset, it appears from context the Veteran was referencing onset of more severe symptoms, consistent with other evidence in the medical record. The Board notes that the Veteran’s lay statements are supported by STR records of low back pain consistent with the Veteran’s description of his symptoms, supporting statements in the medical record consistent with the Veteran’s lay statements, and medical evidence that the Veteran’s back condition has existed “for a substantial time.” Accordingly, the Board finds the Veteran’s lay statements of ongoing symptomatology since service to be of significant probative value. As referenced above, the record does contain referenced to a motor vehicle accident that occurred in December 2003, after which the Veteran complained of lower back pain. The Board notes that there is only a single entry related to the motor vehicle accident, which took place the day following the accident and does not appear to have taken place at an urgent care or emergency room. There is no evidence of record to show that the Veteran ever required further follow-up care related to any of the reported injuries in that motor vehicle accident. Accordingly, and when considered in relation to all of the other evidence of record, the Board finds that the incident does not weigh against the probative value of the Veteran’s statements regarding his ongoing low back pain following discharge and prior to the motor vehicle accident. Finally, the Board acknowledges evidence in the record that the Veteran may have had spinal meningitis as a child, based on the Veteran’s own reports to physicians. These reports raise the issue of whether the Veteran’s back disability was a pre-existing condition, and therefore must be addressed. A veteran will be presumed sound when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service. 38 U.S.C. § 1132; 38 C.F.R. § 3.304(b). When no preexisting condition is noted upon entry into service, a veteran is presumed to have been found sound upon entry. The burden then falls on the Government to rebut the presumption of soundness by clear and unmistakable (obvious or manifest) evidence “both that (1) the veteran’s disability existed prior to service and (2) that the pre-existing disability was not aggravated during service.” Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If this burden is met, then the veteran is not entitled to service connection benefits. However, if the Government fails to rebut the presumption of soundness, the veteran’s claim is one for service connection. Id. In this case, the Veteran did not have any back conditions or meningitis noted on his entrance medical examination or his entrance report of medical history. Accordingly, the presumption of soundness applies. The Veteran reported to a military physician in July 1974 that he “had something wrong with him” when he was five or six years old and “thought” it was spinal meningitis. The Veteran’s neurosurgeon noted in his July 2011 letter that the Veteran had meningitis as a child, and that an MRI with contrast was needed to check for scarring that might be causing some of his back issues. The above two notations are not sufficient to overcome the presumption of soundness. First, even if the Veteran did have meningitis at five years old, it does not mean that he had back pain prior to entering service in 1971. Results of the Veteran’s follow-up MRI would cast doubt on whether the meningitis did cause the Veteran’s back problems, since the MRI did not appear to reveal any scarring. Further, since the Veteran began complaining of back pain in service, but did not report it at entry, there is not clear and unmistakable evidence that the Veteran did not experience an aggravation of a pre-existing back disability that may have existed. Accordingly, the Board finds that the presumption of soundness is not overcome, and this claim remains one for service connection. Accordingly, resolving any reasonable doubt in favor of the Veteran, entitlement to service connection for a low back disorder is warranted based on continuity of symptomatology. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Anderson, Associate Counsel