Citation Nr: 18148509 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 17-06 843 DATE: November 7, 2018 ORDER New and material evidence to reopen the claim for entitlement to service connection for a low back disorder has been received and the claim is reopened. Entitlement to service connection for low back arthrosis L4-L5 and L5-S1 is granted. FINDINGS OF FACT 1. A November 2001 rating decision denied entitlement to service connection for a low back disorder. Evidence received subsequent to November 2001 does, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the Veteran’s claim of entitlement to service connection for a low back disorder. 2. Resolving reasonable doubt in the Veteran’s favor, low back arthrosis L4-L5 and L5-S1 is at least as likely as not related to an in-service injury. CONCLUSIONS OF LAW 1. Evidence received since the November 2001 rating decision is new and material, and the Veteran’s claim of entitlement to service connection for a low back disorder is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a) 2. The criteria for service connection for low back arthrosis L4-L5 and L5-S1 have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1955 to March 1957. A hearing was not requested. 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a low back disorder Pursuant to 38 U.S.C. § 7104 and 38 C.F.R. § 3.105, a final decision by the Board may not thereafter be reopened and allowed, in the absence of clear and unmistakable error (CUE), except as provided by 38 U.S.C. § 5108, which indicates that “[i]f new and material evidence is presented or secured with respect to a claim, which has been disallowed, the [VA] shall reopen the claim and review the former disposition of the claim.” Therefore, once a Board decision becomes final under § 7104, in the absence of CUE, and absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by VA. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.105. A claimant may reopen a finally-adjudicated claim by submitting new and material evidence. Material evidence means existing evidence that, by itself or when considered with the 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 of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim, triggering an alternative theory of entitlement, or triggering the Secretary’s duty to assist by providing a medical opinion. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In November 2001, the RO denied a claim of entitlement to service connection for a low back disorder. Part of the rationale for that denial was that there was no evidence of a current disorder or of an in-service incidence. Since that time, the Veteran has submitted a September 2013 claim form describing his in-service injury and a December 2013 statement from a friend, which corroborates his in-service injury. The Veteran has also submitted a December 2013 private medical opinion (received 4/3/14) indicating a current diagnosis of low back arthrosis at L4-L5 and L5-S1. This evidence was not of record at the time of the prior decision, relates to facts necessary to support the Veteran’s claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. The criteria for reopening the Veteran’s claim have been met. 2. Entitlement to service connection for low back arthrosis L4-L5 and L5-S1 Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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) 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). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). These elements are satisfied with respect to the Veteran’s claim. The first element is satisfied, in that a June 2015 VA back examination indicates a current diagnosis of arthrosis L4-L5 and L5-S1. Regarding the second element, the Veteran’s September 2013 claim form describes an in-service injury in which he had to suddenly jump out of a truck during an emergency situation. This in-service injury is corroborated in a December 2013 statement from a friend. The Veteran’s service treatment records have been reported as lost in an accidental 1973 fire at the National Personnel Records Center. See November 2001 request for information. Where a veteran’s service treatment records are “presumed destroyed,” the Board’s “obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule is heightened.” O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Giving the Veteran the reasonable benefit of the doubt in light of his consistent testimony and partial corroboration, the Board finds that the second element of service connection is satisfied. The nexus element is also satisfied. A December 2013 private medical opinion (received 4/3/14) reviews the Veteran’s entire medical history, describes the Veteran’s current symptoms, and concludes that the Veteran’s low back disorder is “secondary to a [s]ervice-connected injury, specifically jumping off a half-track in 1955” during service. The private doctor also specifically noted post-traumatic arthrosis seen at L4-5 and L5-S1. This medical opinion is probative because it is based on a review of the record and contains clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301–02 (2008). This evidence supports the existence of a nexus between the Veteran’s current back disorder and an in-service injury. The Board has considered the June 2015 VA medical opinion, which concludes that the Veteran’s back disorder is less likely than not related to service. The rationale for this opinion, in its entirety, reads as follows: “Cannot connect the lumbar spine condition with the 1955 injury due to lack of supporting documents (medical records).” However, the conclusion of a medical opinion cannot be premised on the lack of evidence in service treatment records while ignoring lay statements regarding symptomology. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). This is particularly true where, as here, the Veteran’s service treatment records are reported to have been lost in a fire. Under such circumstances, a heightened consideration of the benefit-of-the-doubt rule is required. See O’Hare, 1 Vet. App. at 367. As the December 2013 private medical opinion considers the Veteran’s corroborated lay testimony about in-service injury, the December 2013 private medical opinion has a stronger rationale and is entitled to greater weight. Because the evidence supports the existence of nexus between a current back disorder and service, the Veteran is entitled to service connection for low back arthrosis L4-L5 and L5-S1. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel