Citation Nr: 18159195 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 16-39 349 DATE: December 19, 2018 ORDER New and material evidence having been received, the service connection claim for degenerative arthritis of the spine is reopened. Service connection for degenerative arthritis of the spine is granted. FINDINGS OF FACT 1. In a February 1997 rating decision, the RO denied the Veteran’s service connection claim for a low back disability, which he did not appeal and it became final. 2. Additional evidence received since the February 1997 rating decision is not cumulative or redundant of the evidence at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claims of entitlement to service connection for a low back disability. 3. Resolving reasonable doubt in the Veteran’s favor, his degenerative arthritis of the spine is at least as likely as not related to his in-service injury. CONCLUSIONS OF LAW 1. The February 1997 rating decision that denied the Veteran’s service connection claim for a low back disability is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 20.1103 (2017). 2. Following the final rating decision in February 1997, new and material evidence has been received to reopen the service connection claim for a low back disability. 38 U.S.C. § 5108, 7105(c) (2012); 38 C.F.R. § 3.156(a), 20.1103 (2017). 3. The criteria for service connection for degenerative arthritis of the spine are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has active service from May 1983 to June 1986. The Veteran testified before the undersigned Veterans Law Judge during a February 17, 2017 hearing. This matter is on appeal from a January 2015 rating decision. 1. New and material evidence to reopen claim for service connection for degenerative arthritis of the spine A decision of the RO becomes final and is not subject to revision on the same factual basis unless an appeal is initiated within one year of the notice of decision, or within 60 days of the issuance of the statement of the case (SOC), whichever is later. 38 U.S.C. § 7105; 38 C.F.R. 19.129, 19.192, 20.302, 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. “New” evidence is evidence not previously submitted to agency decision makers. “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 prior 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). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA need not accept the patently incredible for purposes of reopening. Duran v. Brown, 7 Vet. App. 216 (1994). The Board must consider the question of whether new and material evidence has been received because it goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. Barnett, supra. Further analysis, beyond consideration of whether the evidence received is new and material, is neither required nor permitted. Id. at 1384. See also Butler v. Brown, 9 Vet. App. 167, 171 (1996). In November 1996, the Veteran filed a claim for service connection for a low back disability. In an unappealed February 1997 rating decision, the RO denied service connection, finding that the Veteran did not have a current low back disability. The Veteran did not file a notice of disagreement (NOD), and the February 1997 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. § 3.104, 20.200, 20.302, 20.1103. Since the February 1997 decision, the Veteran has submitted testimony in regard to his in-service injury and medical records that show a current disability, arthritis, that indicate a link between the in-service injury and his current low back disability. This additional evidence is new (as it was not considered by the RO in February 1997) and directly addresses the unestablished fact of a current disability. In tending to substantiate the Veteran’s claim by bolstering one element of a claim for service connection, the new evidence raises the reasonable possibility of substantiating the claim for service connection for that disorder. Therefore, the Board concludes that evidence submitted since the February 1997 rating decision is new and material, and thus the claim for service connection for a low back disability is reopened. 2. Service connection for degenerative arthritis of the spine The Veteran contends that his current low back disability is a result of his in-service injury while lifting a 500-pound bomb. The Board concludes that the Veteran has a current diagnosis of degenerative arthritis of the spine that is related to his in-service injury. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The December 2014 VA examination report shows the Veteran had a current diagnosis of degenerative arthritis of the spine, and the VA examiner opined that the Veteran’s spine disability was less likely than not related to the complaint of back pain in service. The rationale was his arthritis was more likely due to natural age progression that to one remote episode of strain in service. A June 2017 private opinion from Dr. T.J.N. noted a diagnosis of traumatic arthritis of the lower back. Dr. T.J.N. opined it was more likely than not the injury to the Veteran’s lower back in service resulted in a progression of disc disease at L5 and at the very least a significant aggravation of an underlying degenerative condition. Dr. T.J.N. reasoned the Veteran entered service without a back issue, sustained a significant back injury in service, suffered chronic low back pain since the incident in service, and current studies of the lower back are significant for an injury that resulted in traumatic arthritis in the lower back. The December 2014 VA examination report is of less probative value than the June 2017 private opinion because the December 2014 VA examiner did not specifically address the Veteran’s chronic low back pain since the in-service injury. Dr. T.J.N. did not review the Veteran’s service treatment records when forming his June 2017 private opinion; however, he did take into consideration the Veteran’s account of the 1984 in-service injury which is consistent with the service treatment records. Weighing the probative values of these opinions, both for and against service connection, the Board finds that the evidence is at least in equipoise. Therefore, the Board resolves reasonable doubt in the Veteran’s favor and grants service connection for a low back disability. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Kelly A. Gastoukian, Associate Counsel