Citation Nr: 18154431 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 15-04 746 DATE: November 29, 2018 ORDER Reopening of entitlement to service connection for degenerative disc disease (DDD) of the lumbar back is granted. Entitlement to service connection for DDD of the lumbar back is denied. FINDINGS OF FACT 1. Entitlement to service connection for DDD of the lumbar back was denied in August 1987 and March 2009 Rating Decisions, which were not timely appealed and became final; new and material evidence was subsequently associated with the claims file. 2. The Veteran’s lumbar DDD has been attributed to post-service causes; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. The criteria for reopening entitlement to service connection for DDD of the lumbar back have been met. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017). 2. The criteria for entitlement to service connection for DDD of the lumbar back have not been met. 38 U.S.C. §§ 1110, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had qualifying service from December 1982 to September 1986. New and Material Evidence (NME) In general, agency of original jurisdiction (AOJ) decisions that are not timely appealed are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.200. However, if new and material evidence is presented or secured with respect to a disallowed claim, the Board shall reopen the claim and review its former disposition. 38 U.S.C. § 5108; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). “New” evidence is that which is not cumulative or redundant of that previously of record; “material” evidence is that which is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claims. 38 C.F.R. § 3.156. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). For the purpose of determining whether evidence is new and material, its credibility is generally presumed. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. NME for Entitlement to Service Connection for DDD of the Lumbar Back Entitlement to service connection for DDD of the lumbar back was denied in an August 1987 Rating Decision, seemingly based on lack of a current disability; a notification letter containing appeal rights was mailed concurrently in August 1987. The Veteran did not timely appeal the denial and it became final. In a November 2008 Statement, the Veteran requested reopening of the claim, which was denied in a March 2009 Rating Decision based on lack of new and material evidence. The Veteran did not timely appeal the denial and it became final. In a November 2012 Statement, the Veteran again requested reopening of the claim, which was denied in an April 2013 Rating Decision based on lack of new and material evidence. The Veteran timely appealed the denial through a June 2013 Report of General Information. Since the prior final denials, new and material evidence was subsequently associated with the claims file. Crucially, since the prior final denials, the Veteran has submitted evidence diagnosing DDD of the lumbar back, contending back injuries during basic training and parachute practice and training, and documenting repeated complaints of chronic lower back pain (which the Veteran contends he has had since service). See Minneapolis VAMC records; Kansas City VAMC records; February 2014 Notice of Disagreement; March 2015 Statement; October 2018 Appellate Brief. This evidence is new, because it was not previously of record, and is material, because longitudinally consistent contentions (presumed credible for purposes of determining whether evidence is new and material) that trace the chronic back pain to service is sufficient to raise a reasonable possibility of substantiating the claim (if the weight of the probative evidence establishes chronicity and continuity of symptomatology). 38 C.F.R. § 3.303(b). Thus, the claim for reopening is granted. Service Connection Direct service connection generally requires 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, 1167 (Fed. Cir. 2004). Secondary service connection may be granted for disabilities which were proximately due to, the result of, or aggravated beyond natural progression by a service-connected disability. 38 C.F.R. § 3.310(a). Although a competent medical opinion is generally required to establish etiology, competent and credible lay evidence of chronicity and continuity of symptomology may also establish etiology. 38 C.F.R. § 3.303(b); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). 2. Entitlement to Service Connection for DDD of the Lumbar Back Of note, the claims file contains a November 2008 Formal Finding of Unavailability of the Service Medical Records and an October 2018 Appellate Brief, in which the representative contends, in pertinent part, that the Veteran’s lay statements should be afforded greater weight due to the absence of his service medical records. However, the service medical records were associated with the claims file in April 1987 after he filed a March 1987 application for benefits. Thus, these records are available and have been reviewed for the claims herein. The October 1982 enlistment examination indicated no pertinent back abnormalities (it only noted a vision defect). A May 1978 treatment note revealed that the Veteran had a lumbar strain. An October 1983 treatment note revealed that the Veteran had back pain for the week following an airborne operation with a hard landing and the provider’s impression seemingly indicated that the Veteran had aggravated his strained back. A June 1986 examination revealed the Veteran’s reports of recurrent lower back pain. The Veteran separated in September 1986 and filed a March 1987 application for benefits, in which he reported a back condition. In May 1987, the Veteran was afforded a VA examination. The examiner documented the Veteran’s report that he was treated on April 15, 1987, for a pulled back muscle, but that he had no back problems since April 22, 1987. The examiner’s impression was muscular back pain, but x-ray reports revealed that the lumbar spine was within normal limits and without abnormalities. Several Minneapolis VAMC treatment records document back pain, but its cause has varied. A December 2005 Minneapolis VAMC treatment record noted upper back pain since Tuesday after lifting a chair rack. A May 2007 Minneapolis VAMC treatment record noted lower back strain and pain occurring four days prior while tearing down a stage at the Target Center. A July 2007 Minneapolis VAMC treatment record noted upper back pain after getting shocked by wires while working at the Target Center. A February 2010 Minneapolis VAMC treatment record noted a clinical history of lower back pain since May 2009 after a motor vehicle accident. March 2013 Kansas City VAMC treatment records document ongoing back pain and a 2012 MRI significant for DDD of the L1-L2 and L4-L5. In a July 2013 Kansas City VAMC treatment record, the Veteran contended that his chronic low back pain began in basic training; the provider noted that the Veteran’s obesity is contributing to his chronic low back pain. In his February 2014 Notice of Disagreement, the Veteran again contended that his back problems originated from service and asserted that he had not had any other type of back injury since leaving the military. However, that assertion is inconsistent with the aforementioned treatment records, showing several back injuries post-service, and renders the Veteran’s lay assertion incredible. In March 2015, the Veteran was afforded another VA examination. The examiner documented the Veteran’s reports of a lumbar strain in service and chronic low back pain and spasms. However, the examiner found that the Veteran’s lumbar DDD was less likely than not incurred in or caused by the in-service injuries. The examiner explained that there was about a 21-year gap between service and the 2007 lumbar strain. Further, the examiner explained that the in-service injuries were not severe enough to result in the development of subsequent DDD and noted that the 1987 x-ray was within normal limits and that the Veteran also had post-service back injuries. In the October 2018 Appellate Brief, the Veteran disagreed with the March 2015 VA opinion; however, the Veteran has not presented evidence supporting his claim, apart from his own lay opinion, which is incredible and, thus, of lower probative value than the March 2015 VA examiner’s opinion. The lumbar DDD did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established because the lumbar DDD has been attributed to intercurrent causes; and the disability is not otherwise etiologically related to an in-service injury, event, or disease. Thus, service connection must be denied. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Daus, Associate Counsel