Citation Nr: 20004898 Decision Date: 01/22/20 Archive Date: 01/21/20 DOCKET NO. 19-07 139 DATE: January 22, 2020 ORDER New and material evidence having been submitted, a claim of entitlement to service connection for thoracolumbar strain and lumbar degenerative disc disease is reopened. Entitlement to service connection for thoracolumbar strain and lumbar degenerative disc disease (claimed as lower back pain) is granted. Entitlement to service connection for degenerative disc disease, cervical spine (claimed as cervical spine strain) is granted. FINDINGS OF FACT 1. Unappealed February 2011 and May 2013 rating decisions denied service connection for lower back pain. 2. The evidence received since the May 2013 rating decision relates to an unestablished fact necessary to substantiate the underlying claim of service connection for lower back pain. 3. Resolving reasonable doubt in the Veteran’s favor, his lower back pain is etiologically related to service. 4. Resolving reasonable doubt in the Veteran’s favor, his cervical strain is etiologically related to service. CONCLUSIONS OF LAW 1. New and material evidence sufficient to reopen the previously denied claim of service connection for lower back pain has been received. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a), 3.159, 3.304, 20.1103. 2. The criteria for entitlement to service connection for thoracolumbar strain and lumbar degenerative disc disease (claimed as lower back pain) have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for entitlement to service connection for cervical spine strain have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 2000 to June 2004. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). New and Material Evidence 1. Lower back pain In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). 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. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156 (b). Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156 (c)(1). The February 2011 and May 2013 rating decisions by the RO denied service connection for lower back pain, finding that the in-service back pain resolved during service and that there is no nexus between the current lower back pain and the back pain experienced in service. The Veteran did not submit a notice of disagreement for either rating decisions. The rating decisions are thus final based on the evidence then of record. See 38 U.S.C. § 7105 (c); 38 C.F.R. § 20.1103. Then, in March 2018, the Veteran submitted a claim to reopen the issue of the lower back pain. There was no new evidence before March 2018. The RO found that new and material evidence was submitted. The RO reasoned that the private medical opinion linking the Veteran’s current disability to his time in service raised a reasonable possibility of substantiating a claim. The Board agrees and also finds that the Veteran has submitted new and material evidence that raises a reasonable possibility of substantiating the claims. At the time of the February 2011 and May 2013 rating decisions the evidence of record included service treatment records (STRs) and VA treatment records that indicated that there was no link between the one back complaint in service and the Veteran’s current disability. Evidence submitted with and since the claim to reopen the service connection claim in March 2018 includes VA treatment records and a private medical opinion. The Board finds that new and material evidence has been presented for the issue of lower back pain. The evidence since the claim to reopen is new because they were not previously identified and/or submitted to VA. Additionally, there is evidence in VA treatment records that the Veteran has a current ongoing lower back disability. Moreover, the private medical opinion links the Veteran’s current disability to his time in service. The evidence is material because it relates to unestablished facts necessary to substantiate the claims. Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the last final decision. See 38 C.F.R. § 3.156 (a). Moreover, when considering the new evidence in conjunction with the evidence already of record, it raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. Accordingly, for all of the above reasons, the Veteran’s claim is reopened. Service Connection Establishing service connection generally requires (1) evidence of 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, 281 F.3d 1163, 1167 (Fed. Cir. 2004). Once the evidence has been assembled, it is the Board’s responsibility to evaluate the evidence. 38 U.S.C. § 7104 (a). The Secretary shall consider all information and evidence of record in a case before the Board with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.102, 4.3. 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. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (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 all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for lower back pain 3. Entitlement to service connection for cervical spine strain The Veteran contends that he experiences lower back pain and has a cervical spine strain due to his time in service. Specifically, that he fell in 2001 and sustained a fractured coccyx and that he injured his upper back with a fall on ice in 2003. The Veteran’s STRs indicate that in February 2003 the Veteran fell on ice and suffered from a thoracic back strain. He fell on ice in the morning and had pain since then in his left upper back. He tried Tylenol for the pain, but it did not help. The Veteran reported that the pain increases and gets worse when he moves his neck to the left. In a subsequent medical note in February 2003, the Veteran is advised not to lift anything over 25 pounds due to his neck and upper back injury. In the Veteran’s March 2004 separation examination, the Veteran did not report any problems with his back or neck. When asked specifically if he suffered from any injury or illness while on active duty for which he did not seek medical care, the Veteran checked “No.” There is no indication that the Veteran suffered from a back injury in 2001 or at any other time during service Post-service VA treatment records indicate that the Veteran has a cervical spine strain, thoracolumbar strain, and lumbar degenerative disc disease. The first time the Veteran complained of back pain post-service was in November 2009 for mid-back pain that was present for three months. The Veteran was afforded a VA examination in January 2011 where he complained of flare-ups of severe lower and mid-back pain. The Veteran reported that the onset of this pain was in 2003. He reported sharp, constant, and daily pain, but explained that he has no limitation in walking. The examiner observed that the Veteran has normal gait and no objective evidence of pain on active range of motion following repetitive motion. The X-ray results of the lumbar and thoracic spine in February 2010 came out negative. However, the examiner diagnosed the Veteran with lumbar and thoracic strain. The Veteran further reported that he has had lower and mid-back pain for about seven years. The pain is daily and is brought on by bending, coughing, sneezing, and lifting. He reported that since onset it has become progressively worse. The examiner opined that the Veteran’s lumbar and thoracic spine disabilities are not related to events that occurred in service. The examiner explained that the Veteran was seen in-service in 2003, but that there were no further entries concerning a back disability in the STRs. The examiner also noted that the first post-separation note concerning his back disability is in November 2009. He was afforded another VA examination in June 2012 where he was diagnosed with lumbar degenerative disc disease with an onset date of 2012. The Veteran reported that he injured his lower back in service in 2001 and that when he sought medical attention it was treated as a sprain. He claims that the pain has never resolved and now has constant pain in his low back. He denied any interval injury, radicular pain in the legs, lower extremity numbness or weakness, or interval surgery, injection, or other treatment. In this examination, arthritis was not documented from imaging studies. In another VA examination in April 2013, the Veteran was diagnosed with thoracolumbar strain with a diagnosis date of 2001 and with lumbar degenerative disc disease with a diagnosis date of 2011. The Veteran claims that he fell and sustained a fractured coccyx in service in 2001 and that he injured his upper back with a fall on ice in 2003. He explained that he has more upper back pain than lower back pain. The examiner opined that the Veteran’s back disability was less likely than not incurred in or caused by service since the Veteran was seen and treated for a low back strain and thoracic back strain on two occasions while on active duty in 2001 and 2003. The examiner further reasoned that there was no evidence of chronicity of symptoms or continuity of care for a back condition related to service. In the April 2018 VA examination, the Veteran was diagnosed with degenerative disc disease of the cervical spine with a diagnosis date of March 2018. The Veteran reported that while he was in Korea he tripped over a ramp and injured his neck and head with the fall during a power outage. He has an increase in neck pain, has cracking sounds in his neck, and wakes up stiff in the mornings. X-ray results show cervical degenerative disk that is mild to moderate for C5-C6 and minimal at C6-C7. It also showed moderately advanced degenerative change at the L5-S1. The examiner opined that the cervical strain is less likely than not incurred in or caused by service since the Veteran did not have any noted current diagnosis of cervical strain in review of his medical records. The examiner explained that the Veteran was diagnosed with a thoracic back strain in 2003, but that nothing was diagnosed for the neck condition. There were no complaints for a cervical neck strain noted in the physical in April 2004. The recent cervical degenerative disc disease would be a new condition which is normally noted to be related to the normal aging process and would not be related to a one-time complaint of neck pain during his military service. (Continued on the next page)   In April 2018, the Veteran submitted a private medical opinion diagnosed the Veteran with neck pain related to the underlying cervical spondylosis and low back pain related to the underling lumbar spondylosis. The examiner thought that within a reasonable degree of medical certainty of at least greater than 50 percent chance that some of the changes and the symptoms he is experiencing currently could be related to the injury noted in 2003. The examiner reviewed the Veteran’s STRs. After evaluating the probative value of the evidence both for and against the claim, the Board is ultimately unable to assign greater probative value to either set of evidence. The Board highlights that even though the VA examiners claim that it is less likely that the Veteran’s current disability was related to the Veteran’s back injuries in service, the Veteran’s private physician who has treated him for years claims elsewise. Moreover, while the January 2011 VA examiner opined that since there was only one back complaint in service and nothing since then, it was unlikely that the Veteran’s current disability was related to the back disability in service, there was no additional reasoning of why the Veteran’s current disability could not be a residual of his injury in service. This is in direct conflict with the private medical opinion from April 2018. Both examiners reviewed the Veteran’s STRs and came up with opposing opinions. The VA examiner in the April 2018 examination attributed the Veteran’s cervical degenerative disc disease to the normal aging process when the Veteran is still relatively young. Also, while there is no evidence of a back injury in 2001 in the Veteran’s STRs, the private examiner opined that both back disabilities are attributed to the 2003 injury. In light of evidence both for and against the claim, the evidence in this case is at least in equipoise. Thus, resolving reasonable doubt in the Veteran’s favor, service connection for lower back pain and for cervical spine strain is warranted. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Imam The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.