Citation Nr: 18152914 Decision Date: 11/26/18 Archive Date: 11/26/18 DOCKET NO. 18-23 584 DATE: November 26, 2018 ORDER Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a low back disability is granted. Entitlement to service connection for a low back disability, to include arthritis of the lumbar spine, is granted. FINDINGS OF FACT 1. The Veteran’s claim for service connection for a low back disability was denied in a January 1992 rating decision that was not timely appealed, nor was any new and material evidence submitted within the appeal period; that decision is final. 2. Additional evidence received since the January 1992 rating decision is new, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 3. The Veteran has experienced low back pain related to arthritis of the lumbar spine since his active military service. CONCLUSIONS OF LAW 1. New and material evidence has been received since the January 1992 rating decision; thus, the criteria for reopening the previously denied claim of entitlement to service connection for a low back disability have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 2. The criteria for entitlement to service connection for a low back disability, to include arthritis of the lumbar spine, are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a) (2017). INTRODUCTION The Veteran served on active duty from August 1963 to May 1983. In October 2018, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board Hearing in St. Petersburg, Florida. The transcript from the hearing has not yet been associated with the file, as the appeal is being granted under the Board’s “One Touch” program. The hearing transcript will still be processed and associated with the claims file in the ordinary course of business. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a low back disability Generally, a claim that has been denied in a final decision may not thereafter be reopened and allowed. 38 U.S.C. § 7104(b) (2012). However, if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary must reopen the claim and review its former disposition. 38 U.S.C. § 5108. 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). The U.S. Court of Appeals for Veterans Claims (Court) has expressed that 38 C.F.R. § 3.156(a) is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). The Veteran’s claim for service connection for a low back disability was initially denied in a January 1992 rating decision on the basis that record failed to demonstrate a current disability subject to service connection. The January 1992 rating decision became final, as the Veteran did not appeal the denial or submit any pertinent evidence within the appeal period. Thereafter, the Veteran initiated a claim to reopen his previously denied claim. Medical evidence submitted or secured after the January 1992 rating decision, notably a November 2017 VA examination report reflects a current diagnosis of degenerative arthritis of the lumbar spine. The Board finds this evidence to be new and material, as it relates to unestablished facts, and raises a reasonable possibility of substantiating the Veteran’s claim. See 38 C.F.R. § 3.156(a). Thus, reopening of the Veteran’s claim of entitlement to service connection for a low back disability is warranted. 2. Entitlement to service connection for a low back disability Service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Further, 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). The law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a compensable degree within one year after the date of separation from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1111, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Where a chronic disease is shown as such in service or within the presumptive period, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If the condition noted during service or within the presumptive period is not shown to be chronic, a showing of continuity of symptomatology after service is required to establish service connection. 38 C.F.R. § 3.303(b). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Veteran seeks service connection for a low back disability, which he contends originated during service and has continued to the present. Specifically, he alleges his low back disability is related to a July 1971 low back injury. Further, the Veteran stated that the duties of his active service entailed frequent heavy lifting, which also contributed to his current low back disability. The medical evidence of record reflects a current low back disability, diagnosed as degenerative disc disease, degenerative arthritis of the lumbar spine, degenerative joint disease, and osteoarthritis. The service treatment records (STRs) confirm the Veteran had a low back injury in July 1971, which was diagnosed as a back strain. Further, his DD-214 shows his military occupational specialty (MOS) were Aviation Machinist Mate and Systems Organizational Maintenance Technician, which are reasonably expected to involve some degree of heavy lifting. Thus, the current disability and in-service event criteria are supported by the record. At his October 2018 hearing, the Veteran and his son testified that the Veteran experienced constant back problems during his active military service, which continue to the present. The Veteran stated that although he had constant back pain, he had to take care of his wife, who had two open heart surgeries. Further, the Veteran stated he could not seek medical care for himself because he had to give his full attention to the care of his wife. Notwithstanding, he treated his back symptoms with analgesics. The Board observes the Veteran’s STRs reflect multiple reports of a low back condition. In his May 1969 reenlistment physical examination, the Veteran reported recurrent back pain and swollen or painful joints. An August 1971 hospitalization report indicated the Veteran had an acute low back pain in July 1971, after which he was hospitalized for ten days and diagnosed with back strain. On that occasion, the treating physician noted the Veteran denied any back problems prior service. Further, an August 1971 treatment record shows a report of low back pain worsened by prolonged standing, which was diagnosed as a sacroiliac joint strain. In October 1974, the Veteran again reported low back pain, noting that he had been doing heavy lifting. On that occasion, he was diagnosed with a muscle strain and placed in light duty for seven days. Subsequently, in February 1975, the Veteran reported being involved in a motor vehicle accident and experiencing low back pain. Contemporary X-rays suggested a diagnosis of lumbosacral strain. Similarly, a February 1980 treatment report reflects the Veteran experienced low back pain associated with weight-bearing. Thereafter, in his April 1983 separation exam, the Veteran reported having recurrent back pain. Moreover, regarding the Veteran’s low back symptoms, the examiner noted a diagnosis of mechanical low back pain and degenerative joint disease. Private chiropractic treatment records dated July 1991 reflect the Veteran reported experiencing low back pain since 1971, noting that his pain was aggravated by heavy lifting and jumping. The Board notes that lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997). The Veteran was afforded a VA examination in December 1991. The examiner noted the Veteran experienced low back pain predominantly during prolonged standing and heavy lifting. X-rays of the lumbar spine revealed early degenerative changes of the spine with small marginal osteophytes. The examiner provided a diagnosis of chronic intermittent low back pain. The Veteran underwent an additional examination in November 2017. On that occasion, the examiner noted a diagnosis of degenerative arthritis of the lumbar spine. However, the examiner opined the Veteran's degenerative arthritis lumbar spine was less likely than not caused by or a result of the Veteran’s back strain during service. As rationale for this opinion, the examiner stated that the record was silent for a chronic lumbar spine condition during service. Further, the examiner noted that based on a review of the medical records, the Veteran’s low back condition was diagnosed 27 years after military retirement. Upon a review of the record and having resolved all reasonable doubt in favor of the Veteran, the Board finds service connection is warranted for the Veteran’s low back disability. 38 C.F.R. § 3.303(b). The Veteran’s chronic low back symptoms and lumbar degenerative joint disease were noted during service. Moreover, the credible lay and medical evidence of record indicate the Veteran’s low back symptoms continued after service and to the present. As to the November 2017 VA examiner’s opinion that the Veteran’s low back disability was not related to his active service, the Board finds this opinion to be inadequate for adjudication purposes. The examiner failed to provide an adequate rationale for the proffered opinion and failed to address the findings of mechanical low back pain and lumbar degenerative joint disease, which were noted in the Veteran’s separation physical examination, as well as the December 1991 VA examination report, with attention to the radiological findings of degenerative changes of the lumbar spine. The Board notes that to be considered adequate, a medical examination report must contain not only clear conclusions and supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In addition, a medical examiner is not free to simply ignore a veteran’s lay statements recounting symptoms or events and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records. Dalton v. Nicholson, 21 Vet. App. 23 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). (Continues on the next page)   In sum, the Board is satisfied that the evidence in favor and against the Veteran’s claim is at least in equipoise. Therefore, service connection is granted for the Veteran’s low back disability, to include arthritis of the lumbar spine. 38 C.F.R. §§ 3.102, 3.303(b). T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Martinez, Associate Counsel