Citation Nr: 19100719 Decision Date: 01/04/19 Archive Date: 01/03/19 DOCKET NO. 17-05 555A DATE: January 4, 2019 ORDER As new and material evidence has been received, the Veteran’s claim for entitlement to service connection for arthritis of the back is reopened. Entitlement to service connection for a back disability is granted. FINDINGS OF FACT 1. A February 2005 rating decision denied the Veteran’s claim for entitlement to service connection for arthritis of the back. The Veteran was notified of that decision, but did not initiate an appeal, and new and material evidence was not received within one year of the notice of that rating decision. 2. Some of the evidence received since February 2005, when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for arthritis of the back. This evidence includes an August 2015 positive nexus opinion from M.M.P., DC. 3. The evidence currently of record shows that the Veteran’s current back disability was aggravated by her military service. CONCLUSIONS OF LAW 1. The February 2005 rating decision, which denied the Veteran’s claim of entitlement to service connection for arthritis of the back, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103 (2017). 2. The evidence received since the February 2005 rating decision is new and material, and the claim of entitlement to service connection for arthritis of the back is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for a back disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 2004 to July 2004. This appeal comes to the Board of Veterans’ Appeals (Board) from an April 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Service connection is granted on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). In this case, the Veteran contends that she has a current disability of the back, which she contends was aggravated by her military service. The Veteran’s service treatment records document the Veteran injured her back in a motor vehicle accident prior to her military service. However, they also show she reported increased pain following training during service including pushups in contrast to normal findings on the Veteran’s entrance examination. In a July 2004 opinion prior to the Veteran’s separation from service, M.R.C., PA-C and a concurring staff physician, M.N.W., indicated that the Veteran’s back disability was not permanently aggravated by training beyond the normal progression of the ailment. The Board affords the opinions some probative weight but notes they do not include detailed rationale with adequate reference to pertinent lay statements and other relevant evidence. An October 2004 VA examiner attributed the etiology of the Veteran’s lumbar spine arthritis to the pre-service accident, but the VA examiner did not specifically address the Veteran’s claim of aggravation. The Veteran’s chiropractor has indicated that her current back disability was at least as likely as not aggravated by her active duty service. See August 2015 statement by M.M.P., DC. The Board affords M.M.P.’s opinion more probative value than the earlier opinions as it is consistent with the Veteran’s reports of pain following training in the service treatment records in the context of the normal entrance examination findings. Affording the Veteran the benefit of the doubt, the Board finds her back disability was aggravated by her military service. Accordingly, entitlement to service connection for a back disability is granted. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Duffy, Associate Counsel