Citation Nr: 18151498 Decision Date: 11/19/18 Archive Date: 11/19/18 DOCKET NO. 15-16 639 DATE: November 19, 2018 ORDER New and material evidence having been submitted, the petition to reopen a claim of entitlement to service connection for a low back disorder is granted. Service connection for low back disorder is granted. FINDINGS OF FACT 1. The RO previously denied the Veteran’s claim of entitlement to service connection for a low back disorder in a February 2011 rating decision. The Veteran was notified of the decision but he did not appeal, and that claim is final. 2. Evidence obtained since the February 2011 rating decision is new and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a low back disorder. 3. Resolving all reasonable doubt in the Veteran’s favor, his low back disorder is due to his military service. CONCLUSIONS OF LAW 1. The February 2011 rating decision which denied entitlement to service connection for a low back disorder is final. 38 U.S.C. § 7105(c)(West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. New and material evidence has been received in order to reopen the claim of entitlement to service connection for a low back disorder. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156(a) (2017). 3. The criteria for service connection for a low back disorder are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1974 to December 1986. In support of his claim, the Veteran testified before the undersigned Veterans Law Judge during a videoconference hearing in November 2018. New and Material Evidence Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The 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, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing 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 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. 38 C.F.R. § 3.156(a). New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156 (b). Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156 (c)(1). The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). By way of background, the RO previously considered and denied the Veteran’s claim for service connection for a low back disorder in November 1998, February 2011, May 2012, and February 2014 rating decisions. The Veteran did not file a notice of disagreement with either the November 1998 and February 2011 determinations and new and material evidence was not submitted within one year of the issuance of those decisions. As no further action was pursued, the November 1998 and February 2011 decisions are final. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). At this juncture, the Board notes the Veteran’s argument that the prior November 1998 and February 2011 rating decisions did not have his complete service treatment records when rendering a decision on this claim. However, as the records dating for the period of service from January 1974 to December 1976 did not contain any information regarding a low back disorder and, therefore, are not relevant to the claim precluding the necessity for new and material evidence. See 38 C.F.R. § 3.156 (c)(1) The Veteran filed a petition to reopen this claim in December 2011 and a May 2012 rating decision continued the denial. The Veteran again filed a petition to reopen the claim in February 2013, and a February 2014 rating decision continued to deny the claim. The Veteran filed a notice of disagreement with the February 2014 rating decision and the appeal below ensued. However, in filing the February 2013 petition to reopen, the Veteran contemporaneously filed a statement from his wife that, as discussed below, constitutes new and material evidence relevant to the claim. As this evidence was received within one year of the issuance of the May 2012 rating decision, the Board finds that finality is precluded pursuant to the provisions of 38 C.F.R. § 3.156(b). Therefore, the rating decision currently on appeal is from May 2012. At the time of the more recent February 2011 determination, the evidence included the Veteran’s service treatment records (STRs) dating from December 1976 to December 1986 that failed to show any in-service complaints, treatment, or diagnoses of a low back disorder; VA and private treatment records showing a diagnosis of degenerative disc disease of the lumbar spine; and, the Veteran’s statements in support of his claim. The RO denied the claim as there was no evidence of in-service incurrence or a nexus opinion attributing the diagnosed disorder to the Veteran’s military service. Since the prior final decision in the February 2011 denial, in relevant part, the Veteran has provided a statement from his wife dated in July 2013 attesting to the fact that his back disorder, manifested by pain, has continued since the Veteran’s military service. Additionally, a September 2015 VA medical opinion attributed parachute jumps to large joint pain and injuries. Given that these two pieces of evidence addresses the unestablished facts, in-service incurrence and a nexus, the claim is reopened. Reopening of the claim for service connection for a low back disorder is accordingly warranted. The merits of the claim are addressed below. 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. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran contends that he suffers from a low back disability as a result of his military service. Specifically, he states that as a result of repeated parachute jumps during service while carrying heaving equipment, he suffered injuries to his low back which has resulted in the current disorder. For the reasons discussed below, the Board finds service connection is warranted. The Veteran’s service treatment records fail to show any in-service complaints of, treatment for, or a diagnosis of a low back disorder. However, his military personnel records confirm he is in receipt of a Parachutist Badge. As an initial matter, since separation from service, the evidence of record shows the Veteran has received a diagnosis of degenerative disc disease of the lumbar spine, confirmed by X-ray findings. See February 2014 VA examination. In support of his claim, the Veteran submitted a February 2013 statement from his wife attesting to his multiple in-service parachute jumps and his complaints of back pain since service. Further, the Veteran underwent a VA examination in connection with a different orthopedic disability not presently before the Board. A VA examiner rendered an opinion in September 2015, following a review of the claims file, consideration of the Veteran’s lay statements regarding his orthopedic manifestations, and acknowledgment of the Veteran’s Parachutist Badge, stating that “it is well known than jumps from aircraft are injurious to large joints and the spine. Repetitive jumps can easily cause extensive microtrauma over time to large joints, despite normal jumps (without incidents).” Therefore, based on the clinical statements rendered by the September 2015 VA examiner and the competent and credible lay evidence regarding the Veteran’s continuous complaints of back pain since service, the Board finds that service connection for a low back disorder is warranted. The appeal is granted. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Berry, Counsel