Citation Nr: 18149236 Decision Date: 11/09/18 Archive Date: 11/08/18 DOCKET NO. 16-37 065 DATE: November 9, 2018 ORDER New and material evidence having been received, the claim for service connection for back pain is reopened. Service connection for residuals of an in-service motor vehicle accident (MVA) manifested as chronic back pain are granted. FINDINGS OF FACT 1. A June 2006 rating decision denied service connection for back pain; the Veteran was notified of the rating action and of his appellate rights. The Veteran did not perfect an appeal on this issue, and new and material evidence was not submitted within one year of the decision. 2. The evidence received since the June 2006 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for residuals of an in-service motor vehicle accident manifested as chronic back pain, and raises a reasonable possibility of substantiating the claim. 3. The Veteran has been shown to experience residuals of a MVA manifested as chronic back pain, which began during his active service. CONCLUSIONS OF LAW 1. The June 2006 rating decision that denied service connection for a left knee disability is final. 38 U.S.C. § 7105(c) (2000); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2005). 2. New and material evidence has been received to reopen the previously denied claim for service connection for a back disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for residuals of an in-service motor vehicle accident manifested as chronic back pain have been met. 38 U.S.C. §§ 1131; 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from May 1985 to April 1989. New and Material Evidence Generally, a final decision issued by the agency of original jurisdiction may not thereafter be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105(c), (d)(3). However, if new and material evidence is presented or secured with respect to a claim that has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. Here, the claim for service connection for residuals of an in-service motor vehicle accident manifested as chronic back pain was most-recently finally denied in a June 2006 rating decision on the basis that there was no medical evidence that the Veteran had a current diagnosed back condition. The June 2006 rating decision became final. The pertinent evidence received since the June 2006 denial includes medical treatment records for a back condition following a post-service MVA and a letter from a private physician opining that the Veteran suffered chronic back pain related to his active service. The newly submitted evidence pertains to the Veteran having a current back disability, which is an unestablished fact necessary to substantiate the claim. Thus, as this material was also not previously reviewed by adjudicators, these records regarding the Veteran having a current back condition constitute both new and material evidence. Thus, new and material evidence has been received, particularly pertaining to evidence of a current disability, and the claim for service connection for a back disability is reopened. Service Connection 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. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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 (Fed. Cir. 2004). The Veteran has claimed that he is entitled to service connection for chronic back pain, as such was first manifested during active service following his involvement in a MVA. A review of the Veteran’s service treatment records shows that he was involved in a MVA in September 1988 in Tokyo, Japan while in service, and he was treated multiple times after the accident for low back pain, which was even noted as “chronic” by a medical provider in October 1988. He also noted on a separation report of medical history in February 1989 that he had a history of recurring back pain, which was further described as chronic mechanical low back pain aggravated by lifting. As such, the in-service element of the Veteran’s claim is not at issue here. Further, as discussed below, the Board finds that the Veteran has also shown the other two elements needed to substantiate his claim for service connection, those of a current disability and of a medical nexus linking the disability to the in-service MVA. The Board finds highly probative the opinion submitted by the Veteran dated May 2018, written by a medical doctor who reviewed the Veteran’s service treatment and post-service medical records. Dr. S.M., M.D. wrote that the Veteran experiences chronic back pain which as likely as not originated in service. To that effect, Dr. S.M. noted that the Veteran was involved in a MVA in service in September 1988, after which he began to suffer chronic back pain. Dr. S.M. summarized the Veteran’s service treatment records showing treatment for low back pain following the in-service MVA, and wrote that these records showed that the Veteran had a chronic back disability originating from the time of the 1988 MVA, and it was persistent at the time of the Veteran’s discharge from service. Dr. S.M. further noted that a service treatment record stating that an x-ray was taken after the Veteran’s 1988 MVA and was “negative” for fractures was only recorded historically, and there was no separate record of the x-ray having been reviewed for pathologies other than overt vertebral fractures by a radiologist. This fact, he stated, in addition to the fact of chronicity of the Veteran’s back complaints, suggested an undetected, though more significant, back problem, either muscular or skeletal. The Board notes that the record reflects that the Veteran was involved in a second MVA sometime in 2013 (years after separation from service), which caused a vertebral fracture, as noted in an August 15, 2013 private treatment record assessing a wedge, compression fracture of the T11-T12 vertebral body. Subsequent VA treatment records from 2016-2017 also discussed the Veteran’s reports of having been involved in a MVA a few years prior, which resulted in a vertebral fracture causing low back pain. Dr. S.M.’s opinion explicitly noted and considered the Veteran’s vertebral fracture stemming from the MVA post-service, and still concluded that the Veteran suffered from chronic back pain which originated in service. There is no medical nexus opinion in the file which disputes Dr. S.M.’s positive nexus and statement describing the Veteran’s chronic back pain. As such, the weight of the evidence supports a finding that the Veteran has a chronic back pain condition which began after his in-service MVA in September 1988. Thus, the elements have been met for service connection and the Veteran’s claim is allowed. Further, in granting service connection for the Veteran’s chronic back pain, the Board notes that, to the extent that the residuals of the Veteran’s post-service MVA which resulted in vertebral fractures can be separated from the residuals of his in-service MVA, the RO should assign the Veteran’s disability rating for his service-connected lower back condition based on the residuals of his in-service MVA only. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Davidoski, Associate Counsel