Citation Nr: 18158036 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 16-29 098 DATE: December 14, 2018 ORDER New and material evidence having been received, the appeal to reopen the claim for entitlement to service connection for a low back condition, to include vertebrae fracture residuals (hereafter referred to as a “low back condition”), is granted. Entitlement to service connection for a low back condition is denied. FINDINGS OF FACT 1. A May 1979 Rating Decision denied service connection for a low back condition. The Veteran did not appeal the Rating Decision of the Department of Veteran Affairs (VA) Regional Office (RO) to the Board of Veterans’ Appeals (Board), and that decision became final. 2. An August 2009 Rating Decision denied the Veteran’s request to reopen his claim for entitlement to service connection for a low back condition. The Veteran did not appeal that Rating Decision, and that decision became final. 3. The evidence associated with the claims file since the August 2009 Rating Decision includes evidence that relates to an unestablished fact necessary to substantiate the claim, is not cumulative or redundant of the evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating the claim for service connection for a low back condition. 4. The preponderance of the evidence is against finding that the Veteran has a low back condition due to a disease or injury in service, to include specific in-service event, injury, or disease. CONCLUSIONS OF LAW 1. Evidence received since the August 2009 Rating Decision is new and material, and reopening of the Veteran’s claim for entitlement to service connection for a low back condition is warranted. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(a), (c), 20.1103. 2. The criteria for service connection for a low back condition are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1978 to May 1978. This matter comes before the Board on appeal from an April 2012 Decision Letter by the VA RO in Cleveland, Ohio. In February 2017, a Board hearing was conducted in conjunction with the VA RO in Cleveland, Ohio, and the satellite office in Cincinnati, Ohio. A transcript of this hearing is contained within the electronic claims file. On appeal, the Veteran contends that his low back condition is a result of a physical assault he sustained in service by his drill sergeant. New and Material Evidence VA may reopen a claim that previously has been denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers, and material evidence is 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 of record at the time of the last final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of the claim on any basis, whether a decision on the underlying merits or a petition to reopen. Evans v. Brown, 9 Vet. App. 273, 283 (1996). In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence generally is presumed. Cox v. Brown, 5 Vet. App. 95, 98 (1993); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regarding the newly submitted evidence, the Court has held that 38 C.F.R. § 3.156(a) must be read as creating a low threshold, which suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 117–18 (2010). As a preliminary matter, the Board notes that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant, official Service Treatment Records (STRs) that existed and had not been associated with the claims file when VA first decided the claim, then VA will reconsider the claim de novo. 38 C.F.R. § 3.156(c). In a previous June 2009 Rating Decision, the RO denied the Veteran’s request to reopen his claim for entitlement to service connection for a low back condition. That Rating Decision, however, contained a note stating that some of the Veteran’s STRs were unavailable for review. The August 2009 Rating Decision contained that same note. The remainder of the Veteran’s STRs were associated with the claims file in April 2014, calling into question the finality of the August 2009 Rating Decision under 38 C.F.R. § 3.156(c). The June 2009 Rating Decision indicated that it had available for review STRs from October 17, 1977, to February 21, 1978. The in-service assault that the Veteran alleges was the cause of his current low back condition occurred in January 1978. The STRs from February 21, 1978, until the Veteran’s separation relates to the care and treatment unrelated to the low back, and are primarily focused on mental health. Because that is not an issue before the Board, these STRs are not relevant to the issue on appeal. Thus, the newly associated STRs do not toll the finality of the August 2009 Rating Decision. See 38 C.F.R. § 3.156(c). Thus, the Board will analyze for newness and materiality only the evidence submitted since the most recent final decision. See Evans, 9 Vet. App. at 283. In May 1979, the Veteran was denied entitlement to service connection for a low back condition. Between the first Rating Decision in May 1979 and the most recent final Rating Decision in August 2009, there have been many other final decisions. Rating Decisions from December 1996, January 1997, and December 1999 all denied reopening the Veteran’s claim for a low back condition. The latter was affirmed by a prior Board Decision in June 2001. A Rating Decision in April 2009 reopened the Veteran’s claim but subsequently denied it for failure to establish a medical nexus between his condition and service. A June 2009 Rating Decision denied the Veteran’s request to reopen his claim. The August 2009 Rating Decision continued the denial of the reopening the Veteran’s claim because he failed to submit new and material evidence to establish that his current low back condition occurred in or was related to service. The evidence of record at the time of this decision was STRs from October 17, 1977, to February 21, 1978; a newspaper article received September 13, 1978; X-ray films received January 16, 1977; a report from Dr. R. F. dated September 27, 1996; pages from an old claims file; a June 5, 2008, statement from Dr. S.S.; a statement from the Veteran received on June 29, 2009; a statement from the Veteran’s aunt, L.B., received on June 29, 2009; and private treatment records from June 2008 to July 2009 from the offices of Dr. J.B. The evidence submitted since the August 2009 Rating Decision consists of the following: the same copies of pages from an old claims file; the same article previously submitted; a resubmission of L.B.’s statement; the remaining STRs; lay statements from the Veteran; private treatment records; a VA examination; VA Medical Center (VAMC) records; and statements from two private doctors. Some, but not all, of the evidence submitted since the August 2009 Rating Decision is new and material evidence. Specifically, a note from Dr. J.B., signed in July 2009, but not listed as evidence reviewed in the August 2009 Rating Decision, was received by the VA in May 2012. That note states that the Veteran has been seen in Dr. J.B.’s office since May of 2008 and that the Veteran informed Dr. J.B. that the Veteran sustained back injuries via an assault while in service. Dr. J.B. states that clinical findings are consistent with the Veteran’s story. In May 2017, Dr. M.A. stated via letter that he spoke to the Veteran about the Veteran’s injuries that the Veteran sustained while in service and that he believes that the Veteran has a legitimate claim to disability benefits based on that injury. These two statements are new and material evidence. Both of the doctors’ opinions are new, i.e. they previously were not reviewed by agency decision makers. These statements go to an unestablished fact (a medical nexus between the Veteran’s service and his current low back disability), and, presuming the credibility of each, reasonably could substantiate the Veteran’s claim for entitlement to service connection. Thus, the Veteran’s claim will be reopened, and the Board will address the merits. See Shade, 24 Vet. App. at 117–18; Justus, 3 Vet. App. at 513; 38 C.F.R. § 3.156(a). Service Connection To establish service connection, there must exist medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); 38 C.F.R. § 3.303(a). Once a claim has been reopened based on new and material evidence, the Justus presumption of credibility detaches, and the Board then must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331, 1335–37 (Fed. Cir. 2006). 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(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Turning to the evidence of record, the STRs reflect no complaints, diagnosis, or treatment related to the low back or thoraco-lumbar spine. The records related to the Veteran being kicked in the head in January 1978 are acknowledged. However, physical examination on January 18, 1978, revealed no deformity of the back; and physical findings were essentially negative, with no evidence ot trauma associated with the contemporaneous complaint of pain to the top of the head. Post-service treatment records from Dr. S.S. span from July 2010 to September 2010 and document the treatment of the Veteran for various conditions, including his back. These records do not contain an etiological opinion as to the Veteran’s low back condition. The May 2011 VA examination report reflects physical examination of the Veteran, and includes a review of the medical records, and recites the Veteran’s complaints and history. Associated with this report is a contemporaneous radiology report containing the following impression: “Mild degenerative changes in the mid and lower thoracic spine. Suspected osteoporosis . . . Mild degenerative in the lower lumbar spine.” In regard to this diagnosis, the examiner opined that to the beating in-service appeared to manifest muscle bruises only; and that such bruises healed without residuals and that they did not result in the thoracolumbar findings on the radiology report. The Veteran’s VAMC records span from August 1999 to April 2016. These records document ongoing treatment for the Veteran and, on some occasions, document that the Veteran is experiencing back pain. The evidence of record does not establish that the Veteran’s low back condition etiologically is related to the in-service assault he sustained. As to the etiology of the Veteran’s low back condition, the Board finds most probative the May 2011 VA examination. There, the examiner clearly stated that the Veteran mild degenerative changes in the thoracolumbar spine were not indicative traumatic, but were suggestive of mild generalized osteoporosis. The examiner noted that the Veteran experienced bruising from the in-service assault that healed without residual complications. The Board is satisfied that the VA examiner conducted a thorough examination and provided a detailed rationale for his conclusion. The Board affords the statement from Dr. J.B. little probative value in determining whether the assaulted is related to the Veteran’s low back condition. Dr. J.B. stated that the Veteran himself informed Dr. J.B. that the Veteran sustained back injuries via an assault while in service. However, Dr. J.B.’s statement does not indicate the of the opinion other than the Veteran’s statement. This statement reaches the low threshold established in Shade for the purposes of reopening the Veteran’s claim, but, as previously noted, the credibility of new and material evidence is not presumed once the claim is reopened, and the Board is required to weight the evidence. See Buchanan, 451 F.3d at 1335–37. Unlike the May 2011 VA examination report, Dr. J.B. did not include discussion of the STRs or recent radiological studies indicating no evidence of prior vertebrae fractures or other evidence of trauma. Thus, given that Dr. J.B.’s statement is predicated on the Veteran’s recitation of events and does not include any detailed rationale to support his opinion, the Board affords Dr. J.B.’s statement little probative value. Dr. M.A., on the other hand, states that he reviewed data from the military and the private sector in forming his opinion that the Veteran has a valid claim for disability benefits. That opinion, however, is conclusory and provides no rationale. Merely stating that he believes the Veteran is entitled to benefits is not sufficient, especially when the Board compares that conclusory statement to the thorough VA examination report previously discussed. When comparing the two, the Board affords little probative value to Dr. M.A.’s letter. Again, the VA examiner reviewed the Veteran’s claims file, previous X-rays, conducted an in-person examination, and provided a detailed analysis and opinion as to the degenerative changes occurring in the Veteran’s thoracolumbar spine, which is described as mild and from no-traumatic causes. It is emphasized that the VA examiner that there was no evidence of any vertebrae fracture. Dr. M.A.’s letter contains no comparable discussion of the Veteran’s low back condition and provides no elaboration for the Board on the issue before it. Thus, in comparing the VA examination and Dr. M.A.’s letter, the Board affords Dr. M.A.’s letter little probative value. See Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996) (general and inconclusive statement about the possibility of a link between current disability and service injury is insufficient); See also Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) The records from Dr. S.S. and the VAMC records merely document the continued care and treatment of the Veteran for various conditions, including his back. These records contain no etiological opinion. Therefore, these records hold no probative value in determining the etiology of the Veteran’s current low back condition. Likewise, the Veteran’s lay statements from December 2010 and May 2012 have little probative value. In the former, the Veteran merely reiterates that his drill sergeant assaulted him. In the latter, the Veteran merely demands backpay and a pension. They do not address the issue of medical nexus and are not relevant or probative to the issue on appeal. Thus, the Board finds the May 2011 VA examination more probative of the issue on appeal. The Board finds that the Veteran’s current low back condition is not attributable to the Veteran’s in-service assault etiologically is not related to his current condition. Therefore, the Veteran has not met his burden of establishing the required elements for service connection. See Romanowsky, 26 Vet. App. at 293; 38 C.F.R. § 3.303(a). Because a preponderance of the evidence weighs against the Veteran’s claim for entitlement for service connection for a low back condition, the Veteran’s appeal is denied. The Board is unable to find an approximate balance of the positive and negative evidence submitted to warrant for the Veteran a favorable decision. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Trevor T. Bernard, Associate Counsel