Citation Nr: 18159987 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 16-49 981 DATE: December 20, 2018 ORDER Reopening of a previously denied claim for service connection for low back disability is granted. Entitlement to service connection for low back disability is granted. FINDINGS OF FACT 1. Evidence received since a February 2015 rating decision denying service connection for low back disability addresses the claimed relationship between events in service and current low back disability. 2. Low back injuries, including strain, during service produced chronic and recurrent low back disorders that continued after service. CONCLUSIONS OF LAW 1. Evidence received since the February 2015 rating decision is new and material to a claim for service connection for low back disability. 38 U.S.C. §§ 5108, 7104, 7105 (2012); 38 C.F.R. § 3.156 (2017). 2. Low back disability was incurred in service. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Reopening of a previously denied claim for service connection for low back disability The Veteran is seeking to reopen a previously denied claim for service connection for low back disability. He contends that low back disability began in service or is secondary to his service-connected posttraumatic stress disorder (PTSD). Service connection may be established on a direct basis for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Aggravation of a non-service-connected disease or injury by a service-connected disability may also be service-connected. 38 C.F.R. § 3.310(b). In October 2014 the Veteran submitted a claim for service connection for PTSD and a back disorder. In a February 2015 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) denied granted service connection for PTSD, and denied service connection for a back disorder. A rating decision becomes final when a claimant does not file a notice of disagreement (NOD) within one year after a decision is issued. 38 U.S.C. § 7105. A rating decision also becomes final if a claimant files a timely NOD, but does not file a timely substantive appeal. 38 U.S.C. § 7105. A final decision on a claim that has been denied shall be reopened if new and material evidence with respect to that claim is presented or secured. 38 U.S.C. §§ 5108, 7104(b). The United States Court of Appeals for Veterans Claims (Court) has ruled that, if the Board determines that new and material evidence has been submitted, the case must be reopened and evaluated in light of all of the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New and material evidence received within a year after the rating decision will be considered as having been filed in connection with the claim. 38 C.F.R. § 3.156(b). If service department records not previously associated with the claims file are received, VA will reconsider the claim. 38 C.F.R. § 3.156(c). The Veteran did not submit a timely NOD with the February 2015 rating decision. That decision became final. In May 2016 the Veteran submitted a request to reopen a claim for service connection for a back disability, including as related to his PTSD. In a June 2016 rating decision, the RO denied service connection for a back disability. The Veteran appealed the June 2016 rating decision. To reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the last time that the claim was finally disallowed on any basis (not only since the last time that the claim was disallowed on the merits). Evans v. Brown, 9 Vet. App. 273 (1996). The only final disallowance on any basis of the Veteran’s claim for service connection for back disability is the February 2015 rating decision. The Board will consider whether new and material evidence has been submitted since that decision. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing 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 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). The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, supra, at 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). The evidence in the Veteran’s claims file in February 2015 includes his medical records from during and after service, and the report of a February 2015 VA examination. His service medical records show treatment in March 1976 for low back pain after skiing. The treating clinician’s impression was low back strain. In the 2015 VA examination, K. S., M.D., found that the Veteran had lumbosacral degenerative disc disease (DDD) and spondylosis. Dr. S. expressed the opinion that it is less likely than not that his back disorder is related to the injury in service in March 1976. He opined that the 1976 injury would have resolved before his separation from service. The evidence added since February 2015 includes more recent medical records. In February 2017, D. J. L., M.D, a VA physician who has treated the Veteran, expressed the opinion that there is a greater than 50 percent probability that the Veteran’s DDD is due to acute and recurrent injuries during his active duty, including a March 1976 injury from skiing, and multiple recurrent injuries from lifting in his duties as a surgical assistant. Dr. L.’s opinion in favor of a connection between back injury in service and current back disability is relevant evidence that was not addressed in February 2015. The opinion enables rather than precludes reopening of a claim for service connection for back disability. The opinion thus constitutes new and material evidence. The Board grants reopening of the claim. 2. Entitlement to service connection for low back disability Having reopened the Veteran’s claim for service connection for a back disability, the Board will consider the service connection claim on its merits. As noted above, the Veteran contends that his low back disability began in service or is secondary to his PTSD. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran served on active duty from January 1975 to December 1977. His service records show that he served as an operating room technician, and was assigned to military hospitals. In March 1976, he had a treatment visit to address low back pain. He stated that at work that day he pulled a muscle and had onset of low back pain. A clinician noted tenderness, difficulty with flexion, and muscle spasm. The clinician prescribed medication. The next day the Veteran was seen for ongoing low back pain. A clinician listed an assessment of low back strain. The clinician prescribed physical therapy. The Veteran reported that he skied the weekend before he awoke with low back pain. The physical therapist noted obvious muscle spasm. On examination in December 1977, for separation from service, the examiner marked normal for the condition of the Veteran’s spine. The assembled service medical records do not include any completed medical history form from the time of separation from service. Evidence from recent years addresses the condition of the Veteran’s low back during and after service. In VA treatment in June 2014, he reported that during service he experienced low back pain after skiing, playing football, and moving patients. He related intermittent low back pain from service through the present. From June 2014 forward, lists of his problems include chronic back pain. In the report of the February 2015 VA examination, Dr. S. opined that the March 1976 back injury in service likely would have resolved over the following months, such that it is less likely than not that his current back disorder is related to the 1976 injury. In VA treatment in April 2015, the Veteran reported a history of low back pain. In March 2016, he related chronic intermittent low back pain since service. In May 2016, he had an MRI of his lumbar spine. He reported chronic low back pain, with history of an injury from lifting in 1975, and of worsening pain over the six months preceding the 2016 MRI. The MRI showed DDD and mild neuroforaminal stenosis. In VA treatment in May 2016, Dr. L. noted the lumbar spine MRI results. In October 2016, the Veteran reported having back pain off and on since 1976. He related a recent exacerbation with a household move. A treating primary care physician, R. M., M.D., stated that the current low back pain appeared to be an acute exacerbation of a chronic injury sustained in service. In February 2017, Dr. L. found a greater than 50 percent probability that the Veteran’s DDD was due to acute and recurrent injuries during his active duty, including a March 1976 injury from skiing, and multiple recurrent injuries from lifting patients. Physicians have reached differing conclusions as to the likelihood that the Veteran’s current back disability is related to injury in service. Dr. S., who opined against a connection, reviewed the claims file. He mentioned only a skiing injury in service, and not any effects from lifting and moving patients. Drs. L. and M. accepted and supported a connection. They each treated the Veteran, and noted his accounts of sports and lifting injuries in service. The three physicians’ opinions each have persuasive weight. Dr. S.’s opinion is not clearly more persuasive than those of Drs. L. and M. The positive and negative weight of the evidence is approximately balanced. Giving the benefit of the doubt to the Veteran, the Board accepts that injuries and activities during service had effects on his low back that continued after service. The Board therefore grants service connection for the low back disability. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. J. Kunz, Counsel