Citation Nr: 18155951 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 14-08 299 DATE: December 6, 2018 ORDER 1. New and material evidence having been received, the claim of service connection for residuals of a low back injury is reopened. 2. Service connection for a chronic degenerative low back disability with disc herniation is granted.   FINDING OF FACT The Veteran’s chronic degenerative low back disability with disc herniation is related to service. CONCLUSION OF LAW The criteria for service connection for a chronic degenerative low back disability with disc herniation have been met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1987 to June 1994. The case is on appeal from an August 2011 rating decision. In December 2016, the Veteran testified at a Board hearing. I. New and Material Evidence 1. Whether new and material evidence has been submitted to reopen a claim of service connection for residuals of a low back injury. By a March 1995 rating decision, a claim of service connection for a back injury was denied. The Veteran was notified of the decision by letter later that month, which was mailed to the then current mailing address of record. Thereafter, nothing further regarding the claim was received until the present claim to reopen in August 2010. No new evidence or notice of disagreement was received by VA within one year of the issuance of the March 1995 rating decision. As the Veteran did not appeal the decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Board finds that new and material evidence has been submitted so that the previously denied claim of service connection for residuals of a low back injury is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). See also November 2010 VA Examination Report; July 2012 Veteran Statement; Dr. J. L. November 2016 Letter; December 2016 Board Hearing Testimony. II. Service Connection 2. Service connection for low back disability. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Facts and Analysis The Veteran is seeking service connection for residuals of a low back injury. In this regard, during the December 2016 Board hearing, the Veteran reported that during service in 1990 he fell fifteen or twenty feet down a hill and landed on his back, his back bent backwards, and he was given Motrin to treat the injury. He also reported experiencing back pain off and on for the remainder of his service. The Veteran’s service treatment records (STRs) show that he was treated for low back pain after falling and twisting his back in March 1990. Subsequently, he was treated for low back pain again in October 1990. Then, he was treated for back pain in September 1992 when he reported experiencing pain for seven days after pulling a muscle while lifting a desk. The treatment provider noted a possible lower back muscle strain at such time. The Veteran denied experiencing recurrent back pain and was not found to exhibit any back disorders during his March 1994 separation examination. The Veteran was examined by VA in regard to his prior low back claim in August 1994. During the examination, the Veteran reported that when he injured his back during service he was given a short break from duty and the injury resolved. He also denied his back was hurting during the examination and reported that it does not hurt unless he stands for eight hours or more. The examiner found that the Veteran’s back was straight and without tenderness over the spinus process from the cervical to the coccygeal area and that there was no evidence of pain or paraspinus muscle spasm. He further found that x-rays of the Veteran’s lumbosacral spine showed no significant abnormality. The Veteran was examined again by VA in regard to this claim in November 2010. The examiner performed an x-ray of the Veteran’s lumbar spine and reported findings of minimal disc space narrowing; minimal multilevel osteophytosis and degenerative changes of the articular facets; no definite spondylolisthesis or spondylolysis seen; unremarkable sacroiliac joints; and mild curvature of the lower lumbar spine convex to the left. The examiner concluded that the Veteran has a moderate low back condition which is degenerative in nature and is likely not caused by an in-service injury. Subsequently, in July 2012 the Veteran submitted a statement in which he reported undergoing spinal surgery and that magnetic resonance imaging (MRI) was not done during the August 1994 examination and, thus, the examiner was unable to diagnose the soft tissue damages present at such time. The Veteran also submitted private medical records at this time which contain findings made following a July 2012 MRI of his lower back. The treating physician found that the Veteran had a herniated disc fragment and central disc protrusion in his lumbar spine. Then, in December 2016, the Veteran submitted a November 2016 letter from a private physician which states that the Veteran’s lower back disorder may be related to his in-service lower back injury. In November 2018, the Board obtained an expert medical opinion from the Veterans Health Administration (VHA) written by a Chief of Neurology at a VA hospital. The physician noted that the Veteran reported experiencing flare-ups of lower back pain following his in-service fall while hiking during the remainder of his military service. He also noted that the Veteran was treated for back problems from 1998 to 2008 and from 2008 to 2010. The physician reported that mild lumbosacral spine degenerative changes were found in November 2010 and that the Veteran underwent surgery in July 2012 for low back disc protrusion. He found the Veteran’s reports of chronic lumbar spine symptoms after his in-service fall to be credible. The physician also explained that he could not rule out that the Veteran’s in-service fall weakened his low back joints and resulted in later disc herniation. He concluded that the Veteran is eligible for service-connection for low back disability residual to his in-service injury. The Board finds that the evidence is at least in equipoise regarding whether or not the Veteran’s chronic degenerative low back disability with disc herniation is due to service. In this regard, the Veteran has competently and credibly reported onset of chronic low back pain after an in-service fall. In addition, his STRs confirm that he experienced a low back injury after falling during service. The Veteran’s reports are also supported by his initial filing of a claim of service connection for a low back injury just after discharge. Furthermore, the November 2018 VHA physician found the Veteran’s reports of ongoing back pain after the fall credible and that a relationship between his in-service fall and his current diagnosed chronic degenerative low back disability with disc herniation could not be ruled out. (Continued on the next page)   Resolving reasonable doubt in the Veteran’s favor, the Board finds that Veteran’s chronic degenerative low back disability with disc herniation is related to service. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Accordingly, service connection is warranted for this condition. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Jimerfield, Associate Counsel