Citation Nr: 1815781 Decision Date: 03/14/18 Archive Date: 03/23/18 DOCKET NO. 14-44 353 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Columbia, South Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a low back disorder. 2. Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Suzie Gaston, Counsel INTRODUCTION The Veteran served on active duty from September 1978 to April 1999. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a July 2014 rating decision, by the Pittsburgh, Pennsylvania, Regional Office (RO), which reopened the claim for service connection for a low back disorder, but denied the claim on the merits. The Veteran perfected a timely appeal to that decision. Jurisdiction over the case was subsequently transferred to the Philadelphia, Pennsylvania, Regional Office (RO). On July 26, 2016, the Veteran appeared at the RO and testified at a videoconference hearing before the undersigned Veterans Law Judge, sitting in Washington, DC. A transcript of the hearing is of record. At the hearing, the record was held open 90 days in order to allow the Veteran time to submit additional evidence relevant to his claim. Additional evidence was submitted, but this evidence was not accompanied by a waiver of agency of original jurisdiction (AOJ) consideration. However, review of these records reveals that the relevant records were previously on file and/or are redundant of records already on file. There is no prejudice to the Veteran and a remand for the RO's initial consideration of this evidence is not required. 38 C.F.R. § 20.1304 (2017). Regardless of whether the RO has determined that new and material evidence has been received sufficient to warrant reopening previously denied claims, because such a question is a jurisdictional matter, the Board must initially determine whether new and material evidence has been submitted. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). FINDINGS OF FACT 1. In a March 1999 rating decision, the RO denied service connection for a low back disorder; the Veteran did not appeal that decision within one year of notice of thereof. 2. Evidence received since the March 1999 rating decision relates to an unestablished fact necessary to substantiate the claim for entitlement to service connection for a low back disorder. 3. A chronic low back disorder was not manifested in service; arthritis of the lumbar spine was not manifested in the first post service year; and a current back disorder is not attributable to service. CONCLUSIONS OF LAW 1. The March 1999 rating decision, that denied service connection for a low back disorder, is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. § 20.1103 (2017). 2. As evidence received since the final March 1999 rating decision is new and material, the criteria for reopening the claim of entitlement to service connection for a low back disorder have been met. 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 a low back disorder have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual background & Analysis-Claim to reopen S/C-Low back disorder. Unappealed RO decisions are final with the exception that a claim may be reopened by submission of new and material evidence. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Historically, the Veteran initially filed a claim for service connection for a low back disorder (VA Form 21-526) in November 1998. At that time, the record included the Veteran's service treatment records (STRs). These records show that the Veteran was seen in December 1986 for complaints of back pain which developed while playing basketball; the assessment was myalgia. The Veteran was next seen at a hospital in May 1988 with complaints of suffering a back injury 2 days ago; the assessment was muscle pull. He was again seen in June 1993 with complaints of back pain for the past 3 days with organizational activities. He denied any trauma or urinary complaints. The assessment was muscle pain. In November 1995, the Veteran was again seen for complaints of lower back pain for the past week; he denied any trauma to the back. The assessment was low back pain. On the occasion of the retirement examination in November 1998, the Veteran reported a history of recurrent back pain; however, clinical evaluation of the spine was normal. The Veteran was afforded a VA general examination in January 1999. At that time, he reported being in a motor vehicle accident in August 1998; however, he stated that he was having back pain prior to that. The Veteran indicated that he went on sick call; x-rays were done which were fine. The Veteran indicated that he now had low back pain that is in the center across the back intermittent, dull, and achy in nature. X-ray study of the lumbosacral spine was normal. The examiner stated that there was insufficient clinical evidence at present to warrant a diagnosis of any acute or chronic disorder or residuals thereof. By a rating action in March 1999, the RO denied the Veteran's claim of service connection for a low back disorder, based on a finding that the STRs showed treatment for low back pain on several occasions, but there was no permanent residual or chronic disability subject to service connection shown by service medical records or demonstrated on joint exam. The Veteran did not file a notice of disagreement (NOD) with that determination within one year of the notification thereof in May 1999. Consequently, as no timely NOD or new and material evidence was received during the appeal period following the May 1999 notice of determination, that decision became final. See 38 C.F.R. § 3.156 (b); Buie v. Shinseki, 24 Vet. App. 242, 252 (2010); 38 C.F.R. §§ 20.200, 20.201, 20.1103 (2017). New and material evidence is therefore required to reopen the claim of service connection for a low back disorder. See 38 U.S.C. § 5108 (2012); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 C.F.R. § 3.156. The Veteran's request to reopen his claim of entitlement to service connection for low back pain (VA Form 21-4138), was received in October 2010. Submitted in support of the claim were VA treatment reports dated from October 2001 through December 2013. These records show that the Veteran received clinical attention and treatment for complaints of lower back pain with radiation of pain into the lower extremities, with treatment that included physical therapy for chronic low back pain. A VA treatment note, dated in October 2001, reflects an assessment of back pain. A December 2010 physical therapy note reflects an assessment of lumbago. An x-ray study of the lumbar spine in December 2010 revealed mild degenerative changes of the lumbosacral spine. During a follow up evaluation in August 2011, it was noted that the Veteran had had chronic low back pain for more than 5 years; with insidious onset. The Veteran was found to have primarily muscular low back pain, chronic lumbar sprain and segmental hypomobility of the lumbar spine. He had had recent exacerbation of back pain. The assessment was CLBP/ lumbar strain / sprain - DJD muscular tightness with interval Improvement in HS muscle length, no evidence of neuro defeat partial improvement. VA outpatient treatment reports dated from November 2010 to December 2013 show that the Veteran receiving physical therapy for lower back pain. During a clinical visit in August 2012, the Veteran reported that he has had chronic low back pain for the last 30 years; he described the pain as constant and it is associated with intermittent numbness in the lower extremities. The Veteran indicated could not recall why he has chronic lower back pain. The Veteran was being seen to discuss treatment options. In October 2013, the Veteran reported that his back pain began while in Afghanistan as an ammo inspector. He indicated that he currently experiences chronic low back pain that radiates to the left glute and hip. An X-ray study of the lumbar spine, dated in November 2013, revealed mild spondyloarthropathy at L5-S1. The assessment was lumbago. An outpatient treatment report dated in December 2013 reflects an assessment of lower back pain. Of record is the report of an MRI of the lumbar spine, dated March 14, 2014, which revealed mild disc disease at the L4-L5 and L5-S1. Of record is a report from Parkway neuroscience and spine institute, dated in May 2014, indicating that the Veteran was being seen for an evaluation of lower back pain. It was noted that the Veteran has had back pain on and off for 15 to 20 years. There was no injury or incident identified to have caused or aggravated the pain. The Veteran reported that the pain had recently increased; he noted that the pain is located in the lower back area and radiates down the posterior side of both legs. It was noted that an MRI of the lumbar spine revealed mild degenerative changes with no significant stenosis or nerve root compression. In June 2014, the Veteran's file was referred to a DBQ examiner for review and medical opinion. The examiner opined that the Veteran's chronic low back pain with mild degenerative disease L3-4 and L4-5 was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that the Veteran had an exam on January 15, 1999 which revealed a normal back exam and normal x-rays. He also noted that there was no documentation of low back pain or treatment again until 2007. An x-ray in December 2010 revealed mild arthritis which indicates that the arthritis developed sometime after January 1999. The examiner opined that it is therefore, it is less likely than not that his back condition was caused by the acute muscle strains in service. At his personal hearing in July 2016, the Veteran indicated that he was a combat soldier who was required to walk rough terrain and lift heavy equipment; as a result, he developed back pain. The Veteran indicated that he also slept on cold steel at night in a field environment which also caused problems with his back. The Veteran related that he didn't go to sick call for every little incident, but he did seek treatment for back pain. It was also noted that the Veteran was involved in a motor vehicle accident in 1998. The Board finds that the evidence received since the March 1999 rating decision is both new and material. In the instant case, the additional evidence includes a current diagnosis of mild disc disease at the L4-L5 and L5-S1. In the March 1999 rating decision, it was essentially found that there was no evidence of a chronic low back disorder. Thus, evidence of a current disability was not previously of record and the new medical evidence as described above is relevant and establishes a previously unestablished fact-current disability. Accordingly, the Veteran's claim of entitlement to service connection for a low back disorder is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). II. Legal Analysis-S/C low back disorder. The Veteran maintains that his low back disorder had its onset in service, as he explained during the July 2016 hearing. After review of the evidence, the Board finds that service connection is not warranted for a low back disorder, currently diagnosed as disc disease at the L4-L5 and L5-S1. Significantly, while the STRs show that the Veteran received treatment for back pain in December 1986, May 1988, June 1993 and November 1995, and he reported a history of recurrent back pain at discharge in November 1998, clinical evaluation of the spine was reported as normal. The records reflect one report of back pain in October 2001; however there was no finding of a chronic back disorder. An x-ray study of the lumbar spine in December 2010 revealed mild degenerative changes of the lumbosacral spine. During a follow up evaluation in August 2011, it was noted that the Veteran had had chronic low back pain for more than 5 years; with insidious onset. Thus, the first clinical documentation of the onset of a chronic low back disorder is dated in December 2010, more than 10 years after service separation from active duty. (A significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. See generally Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).). Other than the Veteran's assertions, there is no evidence indicating that there is a relationship between the Veteran's current low back disorder and military service. Following a review of the Veteran's claims file in June 2014, a DBQ examiner opined that the Veteran's lumbar spine condition is less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted the history of the Veteran's back symptoms but concluded, with supporting rationale, that his current back disability was not related to his active service. Consequently, the medical opinion evidence is against the claim. The Board acknowledges the Veteran's contention that he has a current low back disorder that is related to his active military service. However, the Board finds the post service medical evidence to be more probative on the nexus question. Therefore the appeal as to this issue must be denied. There is no reasonable doubt to be resolved as to this claim. See 38 U.S.C. § 5107 (b) (West 2015); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER New and material evidence having been submitted, the claim of entitlement to service connection for a low back disorder is reopened. Service connection for a low back disorder is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs