Citation Nr: 18150456 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-11 937 DATE: November 15, 2018 ORDER The application to reopen a claim of entitlement to service connection for a low back disability is granted. Entitlement to service connection for degenerative disk disease (DDD) of the lumbar spine (low back disability) is granted. FINDINGS OF FACT 1. In an August 2011 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for a low back disability. The Veteran did not appeal this decision and new and material evidence was not received within one year after it was issued. 2. Evidence received since the August 2011 rating decision relates to an unestablished fact and raises a reasonable possibility of substantiating the claim for service connection for a low back disability. 3. The evidence is at least evenly balanced as to whether the Veteran’s low back disability had its onset in service. CONCLUSIONS OF LAW 1. The August 2011 rating decision that denied the Veteran’s claim for entitlement to service connection for a low back disability is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 2. Since the August 2011 rating decision, new and material evidence has been received to reopen the claim of entitlement to service connection low back disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for a low back disability are met. 38 U.S.C. §§, 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1954 to January 1956. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO confirmed and continued the previous denial for service connection for a low back disability. In November 2018, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has not yet been associated with the fil; however, one is not necessary for a decision on the claim. This appeal has been advanced on the Board’s docket. U.S.C. § 7107 (a)(2); 38 C.F.R. § 20.900 (c). New and Material Evidence Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA will reopen the claim and review it on the merits. The implementing regulation also provides that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). 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). Regardless of whether the RO determined new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board’s jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Jackson v. Principi, 265 F.3d 1366, 1369 (2001) (the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board). Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a low back disability. In an August 2011 rating decision, the RO denied the Veteran’s original claim of service connection for a low back disability, on the basis that there was no low back injury during service and that there was no evidence of low back pain during service or worsened during service. The Veteran did not appeal that decision, nor was new and material evidence associated with the record within one year of its issuance. Accordingly, the August 2011 rating decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. The relevant evidence of record at the time of the August 2011 rating decision consisted of the Veteran’s service treatment records (STRs) and VA treatment records. Specifically, the Veteran’s STRs included a January 1954 enlistment and January 1956 separation examination reports that showed normal clinical evaluation of the spine. His VA treatment records included a problem list noting low back pain. In June 2013, the Veteran submitted an application to reopen his previously denied claim of entitlement to service connection for a low back disability. Relevant evidence received after the August 2011 rating decision includes the Veteran’s statements, June 2014 and March 2016 letters from the Veteran’s private treating physician, and private treatment records. In particular, the Veteran reports that he had had low back pain in and since service. Moreover, the private treatment records show a diagnosis of DDD of the lumbar spine and the Veteran’s private treating physician found that the Veteran injured his low back during service and that he has had low back pain since service. See private treatment report dated October 1996 and private physician’s letters dated June 2014 and March 2016. The Veteran is presumed credible in his reports for the limited purpose of reopening the claim. Justus, 3 Vet. App. at 513. In sum, the evidence shows that since the August 2011 rating decision, the Veteran has a current low back disability and that it may be due to his military service. Importantly, the new reports about the Veteran’s low back injury during service and continuity of symptomatology since service relate to unestablished facts necessary to substantiate the claim, and raise a reasonable possibility of substantiating the claim. See Shade, 24 Vet. App. at 117. Therefore, the criteria for reopening the claim for service connection for a low back disability are met. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first 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). Entitlement to service connection for a low back disability. The Veteran claims that his low back disability is related to his military service and that he has had back pain in and since service. See, e.g., Veteran’s notice of disagreement dated June 2014. Specifically, he reports that he injured his back during service due to carrying 105 howitzer shells for long distances. See, e.g., Veteran’s VA Form 9 dated March 2016. For the following reasons, entitlement to service connection for a low back disability is warranted. The medical evidence of record demonstrates a current low back disability, namely DDD of the lumbar spine. See private treatment report dated March 2014 Thus, a current disability has been established. The Veteran’s DD Form 214 reveals that his military occupational specialty (MOS) was a light vehicle driver and that he was assigned to the infantry division. Although the Veteran’s STRs do not document complaints of low back pain or diagnosis thereof, the Veteran reports that he injured his back during service due to carrying 105 howitzer shells for long distances and that he has had low back pain in service. During private treatment visits, the Veteran reported that he injured his back during service and that his low back pain began during his military service. See private treatment record dated March 2014 and the Veteran’s private treating physician’s statements dated in June 2014 and March 2016. As the Veteran’s statements have remained consistent throughout the appeal regarding the onset of his low back pain, and there is no evidence to the contrary, his statements are competent, credible, and consistent with the circumstances of his service. See Fed. R. Evid. 803(4) (noting that statements made to physicians for the purposes of diagnosis and treatment are exceptionally trustworthy and not excluded by the hearsay rule because the declarant has a strong motive to tell the truth in order to receive proper care); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (“[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board’s reasons”)). See also 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). Therefore, the in-service injury element has been met. This case turns on the remaining element of service connection, which is whether the Veteran’s low back disability is related to his military service. The evidence of record contains three statements (from two of the Veteran’s private treating physicians) that indicate that the Veteran’s diagnosed low back disability had its onset during service and that it has continued since. Specifically, in a March 2014 private treatment record, the Veteran’s private treatment provider noted the Veteran’s DDD of the lumbar spine diagnosis and that the Veteran has “a long standing history of back pain since his military service days.” Also, in June 2014 and March 2016 statements, the Veteran’s private physician interviewed the Veteran, reviewed the claims file and opined that his low back disability began during service, he injured his low back during service, and that he has had back pain since service. With the June 2014 statement, the private physician provided medical literature that suggests a relationship between veterans and a higher risk for low back disabilities. In addition, the June 2014 statement included a detailed rationale with a summary of the Veteran’s low back treatment with an explanation indicating that during Veteran’s MOS, he suffered repetitive bouncing and loading which caused a compression of his lumbar intervertebral disc. With the March 2016 statement, the private physician included an October 1996 private treatment record and a rationale (in an undated handwritten summary regarding the Veteran’s in-service low back injury). Specifically, the October 1996 private treatment record letter noted a diagnosis of spinal disc disease secondary to military service in 1950. The physician’s rationale reflected that the Veteran injured his low back during service twice, once while carrying 105 howitzer shells and then again carrying heavy ration loads. The March 2014 private treatment record and the June 2014 and March 2016 statements, taken as whole, are entitled to significant probative weight, as the physicians explained the reasons for conclusions based on an accurate characterization of the evidence of record. Importantly, the June 2015 and March 2016 physician provided detailed rationales that include how the Veteran’s in-service injury caused his current low back disability and provided medical literature to support the rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). In sum, the competent and credible evidence of record establishes that the Veteran had low back pain and problems in service and that his low back disability has been ongoing since service. There is no evidence to the contrary. The evidence is therefore at least evenly balanced as to whether the Veteran’s low back disability had its onset in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for low back disability is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Castillo, Associate Counsel