Citation Nr: 1807982 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-24 763 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim for entitlement to service connection for lumbago. 2. Entitlement to service connection for a low back condition. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Ware, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from August 2004 to January 2005 and from November 2005 to October 2007. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The case is now under the jurisdiction of the RO in Milwaukee, Wisconsin. In January 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the record. FINDINGS OF FACT 1. In an October 2008 rating decision, the RO denied entitlement to service connection for lumbago. The Veteran did not file a Notice of Disagreement nor perfect his appeal. Additionally, new and material evidence was not submitted within one year of the October 2008 rating decision. 2. The evidence received since the October 2008 rating decision is not cumulative or redundant of the evidence of record at the time of the prior denial and relates to an unestablished fact necessary to establish the claim of entitlement to service connection for lumbago. 3. The Veteran's low back condition manifested in service and is attributable to service. CONCLUSIONS OF LAW 1. The October 2008 rating decision denying service connection for lumbago is final. 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2017). 2. New and material evidence has been received and the claim of entitlement to service connection for lumbago is reopened. 38 C.F.R. §§ 3.156 (2017). 3. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for a low back condition have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As an initial matter, in an October 2008 rating decision, the RO denied entitlement to service connection for lumbago. The Veteran did not perfect his appeal or submit new and material evidence within one year of the October 2008 rating decision. Therefore, the decision became final. The Board finds that the evidence received since the October 2008 rating decision is both new and material to the claim. See 38 C.F.R. § 3.156, 20.302, 20.1103. See also October 2008 Dr. J.G.'s Letter; April 2013 VA medical opinion. Accordingly, the claim of entitlement to service connection for lumbago is reopened and will be considered on the merits. Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). First, there is evidence of a current disability. The Veteran has degenerative arthritis of the lumbar spine. See December 2012 VA Examination Report; see also private treatment records. Second, there is evidence of an in-service event, disease, or injury. Specifically, the Veteran stated that he hurt his back falling from a turret on an avenger unit. Later, his back began to bother him while carrying equipment and during ruck marches. See January 2017 Transcript of Hearing at 4-5. Service treatment records also document complaints of lumbago in 2004 and 2007. Third, the Board finds that the evidence is at least in equipoise as to whether the Veteran's low back condition is related to service. Although there is evidence against the claim, an April 2013 VA examiner opined that arthrosis in the facet joints at L5-Sl bilaterally were more likely than not associated with the Veteran's service complaints of back pain. In support of this opinion, the VA examiner reviewed the Veteran's current medical condition and medical history, and relied on his own medical expertise, knowledge, and training. Thus, the Board finds that, in addition to the evidence discussed above, the benefit-of-the-doubt rule applies and service connection for a low back condition is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49, 55-56 (1990) ("[T]he 'benefit of the doubt' standard is similar to the rule deeply embedded in sandlot baseball folklore that 'the tie goes to the runner'.... [I]f ... the play is close, i.e., 'there is an approximate balance of positive and negative evidence,' the veteran prevails by operation of [statute]."). ORDER New and material evidence having been submitted, the claim of entitlement to service connection for lumbago is reopened. Service connection for a low back condition is granted. ____________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs