Citation Nr: 18153197 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-03 991 DATE: November 27, 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. Service connection for a low back disability, to include degenerative disc disease 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 September 2010 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 September 2010 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’s low back disability is related to his active military service. CONCLUSIONS OF LAW 1. New and material evidence has been received since the September 2010 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 service connection for a low back disability, to include degenerative disc disease of the lumbar spine, are met. 38 U.S.C. §§ 1110 wartime, 1111, 1131, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). INTRODUCTION The Veteran served on active duty from November 1966 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. Although the RO considered the April 2015 decision as the proper rating decision on appeal, the Board finds that the current appeal stems from the May 2013 rating decision. The RO failed to construe the March 7, 2014 statement as a notice of disagreement (NOD). Accordingly, the correct rating decision on appeal is the May 2013 rating decision. See 38 C.F.R. § 20.201 (2017). In November 2018, the Veteran testified before the undersigned Veterans Law Judge at a video conference hearing. 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 Service Connection 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). The Veteran’s claim for service connection for a low back disability was initially denied in a September 2010 rating decision on the basis that the record failed to demonstrate a current disability subject to service connection. The September 2010 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 September 2010 rating decision, notably a June 2012 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. 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). To establish a right to compensation for a present disability, a veteran must show: (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. Holton v Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Where a Veteran is seeking service-connection for any disability, due consideration shall be given to the places, types, and circumstances of the Veteran’s service, as shown by his or her service record, the official history of each organization in which the Veteran served, his or her medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154 (a). 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). The Veteran seeks service connection for a low back disability, which he contends originated in service and continues to the present. Specifically, he alleges his current low back disability is a result of jumping out of helicopters at heights of five to ten feet above the ground during his military service in Vietnam, noting that he also had to carry backpacks that weighed up to 100 pounds. The medical evidence of record reflects a current low back disability, diagnosed variously as lumbar stenosis, lumbar somatic dysfunction, lumbar segmental dysfunction, degenerative disc disease of the lumbar spine, and degenerative arthritis of the lumbar spine. At the outset, the Board notes Service Treatment records (STRs) do not reflect a low back injury or treatment for such condition. Notwithstanding, at his November hearing, the Veteran testified his duties as an Infantryman entailed jumping off helicopters on a regular basis. He also stated that after jumping off the helicopters he would experience back pain and stiffness, as well as numbness in his legs. In his March 2014 statement, the Veteran described an incident that occurred in June 1967, while being transported by helicopter to Quy Nhon, Vietnam. The Veteran recalled that as they were trying to land, the helicopter shook and he and his fellow soldiers thought they we were getting fired at and jumped off the helicopter at a height of five to six feet above the ground. Further, he stated that although he experienced low back pain during his active service, he did not have time to be seen by a doctor because he was serving in a combat zone. The Veteran’s statements are supported by a January 2016 letter submitted by a fellow soldier who served with the Veteran in Vietnam. The fellow soldier stated that during their service in Vietnam, their main mode of transportation was helicopters, noting that once they reached their destination, they had to get off the helicopters as fast as they could, which required jumping at heights of up to 15 feet above the ground while carrying their weapon, as well as packs that weighed up to 100 pounds. Further, the fellow soldier stated that while some soldiers injured themselves upon landing, they would not be evacuated unless they could not walk. In this regard, he recalled the Veteran suffered an injury after jumping from a helicopter but was told to work through it. The Veteran’s DD-214 confirms he had service in Vietnam and has received multiple awards and decorations for his service, including the Air Medal, Combat Infantryman Badge, and Vietnam Service Medal with three Bronze Service Stars. Additionally, he is competent to report the above-described events and symptoms. Moreover, the Board finds no reason to question the Veteran’s veracity. Thus, upon consideration of the time, place, and circumstances of the Veteran’s service, the Board believes there is sufficient evidence to concede his in-service back injury. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Having met the current disability and in-service event criteria, the Veteran’s claim hinges on whether a nexus exists between these criteria. In a January 2012 statement, Dr. D.J.G., the Veteran’s chiropractor, opined it was at least as likely as not that the Veteran’s back condition was a result of jumping out of helicopters at heights of five to ten feet above the ground while wearing a full pack and ammunition during his military service in Vietnam. Subsequently, in August 2014, Dr. D.J.G. opined it was more likely than not, and most probable, that the Veteran’s condition had an etiology of trauma sustained from activities during military service. In support of this opinion, the physician stated the Veteran’s condition appeared to be greater than the expected severity for his demographics. Similarly, in a February 2014 statement, Dr. P.D.P., the Veteran’s physician opined his degenerative disc disease of the lumbar spine was more likely than not secondary to multiple jumps from helicopters during his service in Vietnam. Upon a review of the evidence of record and having resolved all reasonable doubt in favor of the Veteran, the Board finds all three elements of service connection have been demonstrated by the credible lay and medical evidence of record. As such, service connection is warranted for the Veteran’s low back disability. The Board acknowledges the June 2012 and January 2015 VA examiners opined the Veteran’s low back disability was not as likely as not related to his active military service. However, the Board finds these opinions to be of limited probative value, as the examiners dismissed the Veteran’s lay statements regarding relevant events and symptoms during service and based their negative nexus opinions on the lack of corroborating medical evidence. 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). Moreover, the examiners failed to provide an adequate rationale for the proffered opinions; notably, the January 2015 examiner failed to adequately address the opinions provided by Dr. D.J.G. and Dr. P.D.P. 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 sum, the Board finds the evidence in favor and against the Veteran’s claim is at least in equipoise, and as such, service connection is granted for his low back disability. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Martinez, Associate Counsel