Citation Nr: 18159015 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 16-06 548 DATE: December 19, 2018 ORDER The application to reopen the claim to entitlement to service connection for residuals of a low back injury is granted. Entitlement to service connection for lumbar spine degenerative disc disease (DDD) is granted. FINDINGS OF FACT 1. In a July 1994 rating decision, the RO denied service connection for lower back injury. The Veteran neither appealed this decision nor submitted new and material evidence within the one-year period. 2. Evidence received since the July 1994 rating decision relates to the basis of the prior denial. 3. The preponderance of the evidence shows that the Veteran’s lumbar spine DDD is related to service. CONCLUSIONS OF LAW 1. The July 1994 rating decision that denied the claim of entitlement to service connection for lower back disability is final. 38 U.S.C. § 7105(d)(3); 38 C.F.R. §§ 3.156(b), 20.202, 20.1103. 2. Evidence received since the July 1994 decision is material and the criteria for reopening the claim for entitlement to service connection for lower back disability have therefore been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for lumbar spine DDD are met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from May 1990 to February 1994. This case comes to the Board of Veterans’ Appeals (Board) on appeal of a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) which denied the Veteran’s application to reopen her claim for service connection for lower back disability. In May 2013, the Veteran filed her notice of disagreement (NOD) and, in December 2015, was issued a statement of the case (SOC). The Veteran timely perfected her appeal (via VA Form 9) in February 2016. New and Material Evidence Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA will reopen the claim and review it on the merits. The implementing regulation also provides that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). 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). In order to reopen a previous and final disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. See Evans v. Browns, 9 Vet. App. 273 (1996). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). 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). Moreover, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted 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 the VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The Veteran’s claim for service connection for lower back disability was denied in a July 1994 rating decision on the basis that the medical evidence demonstrated no chronic low back strain related to the resolved low back muscular strain that was treated during service. She did not appeal that decision nor was new and material evidence associated with the record within one year of its issuance. Accordingly, the July 1994 rating decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. The evidence received since the July 1994 rating decision includes lay statements indicating worsening, numerous medical records, and a November 2018 medical opinion. As this new evidence is related to the basis of the prior final denial and relates to an unestablished fact necessary to substantiate the claim, the evidence received since July 1994 is new and material and reopening for the claim of service connection for lower back disability is warranted. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran contends that her low back disability is a result of in-service heavy lifting. Medical records since 2012 show a consistent diagnosis of lumbar spine DDD. Thus, the current disability element is established. The Veteran served in damage control as a fire fighter and repairwoman while in service; repairing, welding and fabricating ship parts. This often required the Veteran to lift heavy objects, such as large canisters as described in a June 2016 statement, which resulted in lower back pain. The Veteran first noted lower back pain in 1993 and recurring lower back pain was noted on her separation examination in January 1994. The Veteran’s statements in this regard are competent and credible. Thus, the in-service injury element is established. Regarding nexus, although X-rays were negative on the January 1994 separation examination, a May 1994 VA examination report contains a diagnosis of lumbar strain. In addition, the record contains a September 2018 medical opinion from the medical director of Kindred Hospital at the Cleveland Clinic concluding after a full review of the Veteran’s claims file that it is much more likely than not that her lower back injury is directly causally related to her cumulative trauma suffered during her military service. The physician provided a thorough rationale as well, noting that the Veteran suffered multiple repetitive musculoskeletal traumas to her lower and mid back from lifting, twisting while lifting, torqueing, bending and carrying heavy loads of material while doing repairs, fabrication and welding on the ships she was stationed upon. Moreover, the physician stated, repetitive soft tissue injures such as strains of muscles, tendons and ligaments are more likely than not to cause degenerative disc disease and spinal column malformations, thus leading to a viscous cycle of more soft tissue disease and more disc and bony disease. Because this physician provided a thorough rationale and based his opinion in a review of all of the claims file, the opinion is afforded substantial probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Additionally, the record contains a chronology of medical evidence starting in 2011 illustrating the worsening of the Veteran’s lower back symptoms, including increased pain radiation, frequent medication adjustments, steroid injections and a handful of new related diagnoses, including the diagnosis of degenerative disc disease following a 2012 MRI. Lay statements from the record also indicate continuity of symptoms complementing the medical evidence. (Continued on the next page)   For the foregoing reasons, the preponderance of the evidence is in favor of a relationship between the Veteran’s lumbar spine DDD and service. Entitlement to service connection for this disability is therefore warranted. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD JR Cummings, Associate Counsel