Citation Nr: 18123711 Decision Date: 08/03/18 Archive Date: 08/02/18 DOCKET NO. 14-29 537 DATE: August 3, 2018 ORDER New and material evidence has been presented, and the claim for service connection for thoracic kyphosis, lumbar scoliosis and degenerative disc disease of the lumbar spine, is reopened; the appeal is granted to this extent only. FINDINGS OF FACT 1. In an unappealed rating decision issued in February 2004, the RO denied the Veteran's claim for service connection for degenerative disc disease of the lumbar spine. 2. The evidence associated with the claims file subsequent to the February 2004 denial includes evidence that relates to an unestablished fact necessary to substantiate the claim for service connection, is not cumulative or redundant of the evidence previously of record and raises a reasonable possibility of substantiating the claim for service connection for thoracic kyphosis, lumbar scoliosis and degenerative disc disease of the lumbar spine. CONCLUSION OF LAW New and material evidence has been received to reopen a claim for service connection for thoracic kyphosis, lumbar scoliosis and degenerative disc disease of the lumbar spine. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1970 to January 1971. The Veteran testified before undersigned Veterans Law Judge at Video Conference hearing in May 2018. The hearing transcript is of record. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a back disability and if so, whether the reopened claim should be granted Claim to Reopen As a general rule, a previously denied claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. When a claimant seeks to reopen a final decision, the first inquiry is whether the evidence obtained after the last disallowance is "new and material." Under 38 C.F.R. § 3.156 (a), new evidence means 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 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 submission of "new and material" evidence is a jurisdictional prerequisite to the Board's review of such an attempt to reopen a claim. Absent the submission of evidence that is sufficient to reopen the claim, the Board's analysis must cease. See Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). The United States Court of Appeals for Veterans Claims has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim, in the final sentence of 38 C.F.R. § 3.156 (a), does not create a third element in the reopening process, but is a component of the question of what is new and material evidence, rather than a separate determination to be made if evidence is new and material. See Shade v. Shinseki, 24 Vet. App.110, 117 (2010) (noting that 38 U.S.C. § 5108 requires only new and material evidence to reopen). Shade further holds that 38 C.F.R. § 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]" Id. Further, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather, the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id. See also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Simply stated, the standard is low, but it is a standard that needs to be met. When determining whether a claim should be reopened, the credibility of the newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510 (1992). If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). Once evidence is deemed new and material, the Board can proceed to review the claim based on the merits and the entire evidence of record. Analysis In November 1976, the RO denied service connection for a low back condition, based on a finding that the Veteran had a constitutional or developmental abnormality, which is not a disability under the law. The RO also noted that the service records showed no diagnoses other than kyphosis and no permanent aggravation of the disability was indicated. In June 2003, the Veteran filed a claim for service connection for degenerative joint disease of the low back. In a February 2004 rating decision, the RO denied service connection for degenerative disc disease of the lumbar spine, based on a finding that there was no objective medical evidence of a current chronic back condition that was either incurred in or aggravated by military service. The Veteran did not file an appeal and the decision became final. In November 2011, the Veteran filed a petition to reopen his claim of entitlement to service connection for a low back disability. The pertinent evidence added to the record since the February 2004 denial, shows that During VA treatment in 2015 and during his May 2018 Video Conference hearing, the Veteran reported that he first injured his back when he was 9 years old, that he has had back pain since that time, and that his back pain was made worse during military service. The Board finds that these reports from the Veteran are new, in that although the Veteran has previously reported back pain prior to military service, he never indicated that he actually injured his back prior to service, and the assumption was that his pre-existing back pain was due to congenital kyphosis (diagnosed by x-ray in 1969 and 1970) or scoliosis. Therefore, his reports are not cumulative or redundant of evidence already of record. Furthermore, the testimony relates to a fact necessary to substantiate the claim, i.e. whether the Veteran's preexisting low back condition was aggravated during active service, and raises a reasonable possibility of substantiating the claim. The reports thereby satisfy the low threshold requirement for new and material evidence; and, the claim is reopened. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The additional evidence demonstrates that further development is required before the claim may be considered on the merits. REMANDED The reopened claim of entitlement to service connection for thoracic kyphosis, lumbar scoliosis, degenerative disc disease of the lumbar spine, is remanded. REASONS FOR REMAND The reopened claim of entitlement to service connection for thoracic kyphosis, lumbar scoliosis, degenerative disc disease of the lumbar spine, is remanded. At the time of the service entrance examination, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are considered as "noted." 38 C.F.R. § 3.304 (b). When determining whether a defect, infirmity, or disorder is "noted" at entrance into service, supporting medical evidence is needed. Crowe v. Brown, 7 Vet. App. 238 (1994). Congenital or developmental defects are not diseases or injuries within the meaning of the applicable legislation. 38 C.F.R. 3.303 (c), 4.9 (2017). Service connection may, however, be granted for disability due to in-service aggravation of such a condition due to superimposed disease or injury. See VAOPGCPREC 82-90 (July 18, 1990); VAOPGCPREC 67-90 (July 18, 1990). When the veteran is presumed sound at entrance, the burden then falls on VA to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The Veteran contends that his pre-existing low back disability (curvature of the spine/scoliosis) was aggravated during active military service. Service treatment records show that during his pre-induction examination in January 1968, the Veteran gave a history of back trouble during the previous 5 years. The examining physician diagnosed low back strain. Service records note that X-rays from 1969 and 1970 show mild kyphosis. He continued to complain of back pain throughout active duty and in May 1970, he was diagnosed with low back pain syndrome with minimal objective findings. At that time, he gave a history of back pain since he was young and reported that he had been told that he had a deformity of the back, and advised not to do any hard work. He continued to complain of back pain at separation in October 1970. As noted above, VA treatment records show that the Veteran has continued to be treated for chronic back pain, which he claims has existed for years and was aggravated in service. During VA treatment in 2015 and during his May 2018 Video Conference hearing, the Veteran reported that he first injured his back when he was 9 years old, that he has had back pain since that time, and that his back pain was made worse during military service. Medical evidence of record shows that the Veteran has been diagnosed, based on x-ray findings, with thoracic kyphosis, lumbar scoliosis and degenerative arthritis of the lumbar spine. They also show that he injured his back in 2004. The Veteran was afforded a VA examination in October 2003. He complained of arthritis in the low back with a fusing disc and scoliosis. The examiner noted that x-rays of the thoracic spine showed compression deformity of T9 and scoliosis. He was diagnosed with a lumbosacral strain and scoliosis. The examiner did not give an opinion on the etiology of the diagnosed back disabilities. No medical opinion currently of record addresses the etiology of any currently diagnosed back disability, including whether the Veteran's diagnosed kyphosis and scoliosis are congenital or developmental defects or diseases subject to service connection, and if they are diseases subject to service connection, whether they clearly and unmistakably preexisted service, and if so, whether there is clear and unmistakable evidence that they were not aggravated (permanently worsened beyond their natural progression) during service. The Veteran is hereby notified that it is the Veteran's responsibility to report for any examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of a claim. 38 C.F.R. §§ 3.158 and 3.655 (2017). The matters are REMANDED for the following action: 1. Updated treatment records should be obtained and added to the claims folder/efolder. 2. Following completion of the above, schedule the Veteran with an appropriate clinician for a VA examination to determine the nature and etiology of any currently diagnosed back disability. The examiner should review the claims folder and acknowledge such review in the examination report or in an addendum, and any indicated studies should be performed. The examiner should diagnose all back disabilities found. Based on the information contained in the claims file, including this remand, the examiner is to answer the following questions: a) The examiner should opine whether any back disability is a congenital abnormality. If so, the examiner should explain whether the condition is a congenital defect or congenital disease? b) If the examiner identifies a congenital defect, then the examiner should express an opinion as to whether it is at least as likely as not (50 percent or greater probability) that there is any superimposed disease or injury in connection with the congenital defect, and if so, whether it is at least as likely as not (50 percent or greater probability) that any identified superimposed disease or injury is related to active service. c) If the examiner finds a congenital disease, then the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any congenital disease was incurred in active service. d) If the examiner finds a congenital disease, then the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any congenital disease was aggravated (permanently worsened beyond the natural progress of the disorder) by active service. For any back disability not found to be either a congenital defect or disease, the examiner should answer the following questions: a) Is the evidence both clear and unmistakable (i.e., it is undebatable) that the back disability existed prior to the Veteran’s entrance into active duty in April 1970? The examiner should identify the evidence which establishes the clear and unmistakable preexistence of the disorder. b) If a back disability preexisted military service, the examiner must also indicate whether it is clear and unmistakable that the back disability was not aggravated by service (i.e. did not increase in severity during service beyond the natural progress of the disorder), and explain what evidence supports that conclusion. c) If the evidence does not demonstrate clearly and unmistakably that a back disability existed prior to the Veteran's military service, then is it at least as likely as not that any currently diagnosed back disability had its onset on, or is otherwise related to service? The examiner is advised that the Veteran is competent to report injuries as well as symptoms, and that his reports must be considered in formulating the requested opinion. The examiner is also advised that the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. The examiner should provide a rationale for all opinions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. (Continued on the next page)   3. Readjudicate the Veteran’s claim for service connection. If the benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and provide an appropriate period of time to respond. The case should then be returned to the Board for further appellate review, if in order. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Fatima Yankey, Counsel