Citation Nr: 18155552 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 15-13 506 DATE: December 4, 2018 ORDER New and material evidence having been received, the claim for service connection for a low back disability (diagnosed as degenerative joint disease of the lumbar spine) is reopened. Service connection for a low back disability is granted. FINDINGS OF FACT 1. The Veteran’s claim for service connection for a low back disability was most recently denied by an October 2004 rating decision; the Veteran did not appeal the decision and documentation constituting new and material evidence was not actually or constructively received within the one-year appeal period. 2. Additional evidence received since the October 2004 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for a low back disability, and raises a reasonable possibility of substantiating the claim. 3. The evidence is at least in equipoise that the Veteran’s low back disability was caused by an injury from a parachuting accident while in service. CONCLUSIONS OF LAW 1. The October 2004 decision declining to reopen a claim of service connection for a low back disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103. 2. New and material evidence has been received to reopen the Veteran’s claim for service connection for a low back disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for a low back disability are met. 38 U.S.C. § 1110, 1112, 1113, 5107; 38 C.F.R. § 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from November 1973 to September 1975. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2015, the Veteran requested a videoconference hearing for his appeal. The Veteran withdrew this request in a June 2018 correspondence through his attorney. Accordingly, the Board finds that this request for a hearing is withdrawn. 1. New and material evidence A July 1984 rating decision denied the Veteran’s claim seeking service connection for a low back disability essentially based on a finding that the Veteran’s low back disability was not related to treatment received in service. The Veteran did not appeal the decision, nor was any new and material evidence actually or constructively received within a year following the decision; therefore, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. In October 2004, the RO denied the Veteran’s petition to reopen his claim of service connection for a back condition after finding that the Veteran had not submitted new and material evidence; the RO thereafter notified the Veteran of its decision and of his appellate rights. The Veteran did not appeal the decision, nor was any new and material evidence actually or constructively received within a year following the decision; therefore, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Id. In determining whether evidence is new and material, the credibility of the new evidence must be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Once the case is reopened, the presumption as to the credibility no longer applies. Justus, 3 Vet. App. at 513. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118 (2010). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. The RO reopened the Veteran’s claim in a March 2015 statement of the case. Regardless of the RO’s determination as to whether new and material evidence has been received, 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 claim and to adjudicate the claim de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett, 83 F.3d at 1383). In October 2012, a private physician noted that the Veteran’s low back pain was a “direct result of his military service.” The Veteran also submitted additional evidence in the form of lay testimony at a January 2013 Decision Review Officer (DRO) hearing that described the in-service event in greater detail. As explained above, the Board is obligated to presume that this statement is credible for the purpose of reopening the claim. This new evidence relates to the etiology, the lack of which is why the claim was previously denied. Accordingly, this evidence relates to an unestablished fact and raises a reasonable possibility of substantiating the claim. Thus, it is new and material, and the Veteran’s claim is reopened. 2. Entitlement to service connection for a low back disability The Veteran contends that his low back disability was caused by a parachuting accident that occurred in service. 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; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran has received treatment for ongoing low back pain for several years. In March 2011, the Veteran was diagnosed with degenerative joint disease of the lumbar spine with bulging discs. The record therefore supports a finding that the Veteran has a current low back disability. Accordingly, the first element of service connection is satisfied. As to the second element, the Veteran reports that during a parachuting exercise his parachute failed to properly deploy. As the Veteran describes it, his body hit the C-141 aircraft after his parachute failed. The Veteran reports that he heard a loud crunching sound when his body hit the aircraft but that he survived the incident. The Veteran’s report of a parachuting accident is facially plausible, as the Veteran’s service records reflect that he served in the 82nd Airborne Division and was awarded a Parachute Badge. However, there is virtually no evidence of record at the time of the alleged incident that specifically references a back injury from a parachuting accident. The record contains no incident report, and references of a back injury from a parachuting accident appear several years after service in the form of lay statements well after the fact. To find that the evidence is at least in equipoise that the incident happened as described by the Veteran, the Board must find the Veteran’s account of the incident to be credible. Generally, the credibility of a statement can be reasonably doubted when the claimant is an interested party who stands to benefit from making the claim and no positive evidence of the incident existed at the time it was alleged to have happened. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Veteran’s service treatment records establish that the Veteran reported back pain in service. However, the cause of the pain is attributed to a variety of sources, and none of these were reported as a parachuting incident. For example, the Veteran’s service treatment records from August 1974 show that the Veteran reported “pain in [the] lower part of [his] back” after he “pick[ed] up a heavy object” and “prob[ably] pull[ed a] musc[le.]” This reported pain was also noted in a September 1974 service treatment record, and this record stated that the back pain occurred after the Veteran was lifting 30 pound generators. In August 1975, the Veteran’s service treatment records show that the Veteran had a swollen ankle from a parachuting jump, but this record does not describe what occurred and does not reference any back injury sustained from the jump. As referenced above, the first instance of evidence that specifically references a parachuting accident appears years after separation. Private treatment records from April 1984 show that the Veteran was hospitalized for 8 days after experiencing psychiatric issues. The records state that the Veteran “was admitted because he was very tense, anxious, edgy and upset.” During this hospitalization, the Veteran reported that: [H]e once had an incident where his parachute did not open in time. He hit the back of the jet and has problems with his back and left knee ever since. His nerves have also been significantly bad since that time. He became phobic of parachute jumps and did not wish to jump anymore but because of the nature of his job he has had to jump again. He started feeling more and more nervous, edgy and panicky, started having recurrent nightmares when he would feel as if something awful was going to happen to him. He was also having recurrent dreams and he felt through the dream he may die, so he started getting up in the middle of his sleep, panicky, hyperventilating, his heart beating fast, smother and choking feeling. Still he has continued to have the same nightmare where he sees himself falling but doesn’t want to see the dream completed. The Veteran also reported that his wife “tends to wake him up from the middle of his sleep so that he does not have to go through with this dream.” This account provides support to the Veteran’s claim because he was describing the incident to receive treatment for his psychiatric issues, and statements made for the purpose of obtaining medical treatment are exceptionally trustworthy, as the declarant has a strong motive to tell the truth in order to receive proper treatment. See White v. Illinois, 502 U.S. 346, 356 (1992). The Veteran has also consistently recounted the accident, as shown in a May 2012 VA examination and during a January 2013 hearing at the RO in which the Veteran stated that he hit his tailbone after jumping out of a C-141 aircraft. Having reviewed the record, the Board finds that the Veteran’s report of a parachuting accident while in service is credible despite the sparse contemporaneous supporting evidence. The Board therefore finds that the second element of service connection is satisfied. The final issue on appeal is whether the in-service injury described by the Veteran is causally related to his current low back disability. In an October 2012 opinion, private physician J.M.D. noted that the Veteran’s “low back pain … [is] a direct result of his military service.” The examiner provided a thorough account of the Veteran’s medical history and considered the in-service event. The examiner considered the nature of the parachuting accident and stated that the Veteran “landed on his tailbone in an extremely hard fashion and that he had low back pain at the time of discharge.” The examiner noted that the Veteran began to have symptoms of low back pain after the incident. The examiner’s reasoning and thorough consideration of the Veteran’s medical history leads the Board to find that this opinion is highly probative on the issue of causation. During a February 2013 VA medical examination, the examiner stated that the Veteran’s low back disability was less likely than not incurred in or caused by an in-service event. The examiner’s reasoning primarily relied on assessing the nature of the Veteran’s work experience after service, and the examiner stated that “the Veteran worked for at least 17 years in very physical labor jobs after leaving the military.” The Veteran disputes the examiner’s characterization of his post-service work and stated through his attorney that he worked as a roof bolster in coal mines where he ran equipment and did not do any heavy lifting. While it is true that the Veteran is an interested party who stands to benefit from characterizing his work history this way, this incentive alone is not a reason to discount his characterization of this work. See Cartright, 2 Vet. App. at 25. The Veteran is in the best position to describe the nature of his own work history, and there is no evidence of record that runs contrary to the Veteran’s characterization. Accordingly, as the opinion is based on an inaccurate factual premise regarding the Veteran’s work history, the Board assigns little to no probative value to the February 2013 medical opinion. As such, the Board places greater weight of probative value on the October 2012 opinion of Dr. J.M.D. regarding whether there is a relationship between the Veteran’s service and his current low back disability. The Board finds that the evidence is at least in equipoise, resolves any doubt in favor of the Veteran, and concludes that entitlement to service connection for a low back disability is warranted. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. H. White, Associate Counsel