Citation Nr: 20021297 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 18-54 355 DATE: March 25, 2020 ORDER New and material evidence has been received to reopen a claim of entitlement to service connection for a lumbar spine disability. Entitlement to service connection for a lumbar spine disability is granted. FINDINGS OF FACT 1. The Veteran’s claim for service connection for a lumbar spine disability was previously considered and denied in a November 1997 rating decision; he did not appeal that decision and documentation constituting new and material evidence was not actually or constructively received within the one-year appeal period. 2. Additional evidence received since that November 1997 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate this claim of entitlement to service connection for a lumbar spine disability, and raises a reasonable possibility of substantiating this claim. 3. It is just as likely as not the Veteran’s lumbar spine disability is the result of an injury during his military service. CONCLUSIONS OF LAW 1. The November 1997 rating decision earlier considering and denying service connection for a lumbar spine disability is final and binding based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.201, 20.302, 20.1103. 2. But there is new and material evidence since that decision to reopen this claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. Resolving all reasonable doubt in the Veteran’s favor, the criteria are met for the grant of service connection for a lumbar spine disability. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1987 to May 1997. This appeal is before the Board of Veterans’ Appeals (Board) on appeal from a May 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In his November 2018 Substantive Appeal to the Board, on VA Form 9, the Veteran indicated he was appealing for service connection for a lumbar spine disability but also for tinnitus. The tinnitus claim also had been addressed in the May 2017 rating decision, but he did not initiate a timely appeal of the denial of this other claim. Of note, on his May 2018 VA Form 21-0958, Notice of Disagreement (NOD), filed in response to the May 2017 rating decision, he listed his claim for a lumbar spine disability as the only claim he was appealing. See 79 Fed. Reg. 57660 (explaining that the revised regulation requiring a NOD be on a standardized form is effective as of March 24, 2015). Moreover, even if the Board were still somehow able to give a liberal construction to accept the VA Form 9 that he later submitted in November 2018 as a “de facto” NOD, it still was untimely to start the appeal process of the claim for tinnitus. See 38 C.F.R. § 20.201 (2015) (a communication expressing dissatisfaction with a RO decision and a desire to contest the result constitutes a NOD; special wording not required); see also Palmer v. Nicholson, 21 Vet. App. 434, 437 (2007) ("VA has always been, and will continue to be, liberal in determining what constitutes a notice of disagreement."). He had 1 year following notification of the May 2017 RO decision to appeal it by filing a NOD, so until May 2018, but he clearly did not meet that deadline. 38 C.F.R. § 20.203. As such, the additional issue of entitlement to service connection for tinnitus is not before the Board and, consequently, will not be addressed further in this decision 1. New and material evidence has been submitted to reopen a claim of entitlement to service connection for a lumbar spine disability This claim was originally considered and denied in a November 1997 rating decision. The RO notified the Veteran of that decision and of his appellate rights. He did not appeal that decision and documentation constituting new and material evidence was not constructively or actually received within the appeal period. Consequently, that November 1997 rating decision became final and binding on him based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.201, 20.302, 20.1103. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. A claim on which there is a final decision, however, may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. “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. 38 C.F.R. § 3.156(a). 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. Id.   When determining whether a claim should be reopened, the credibility of the newly submitted evidence is to be presumed – unless inherently incredible or beyond the competence of the person making the assertion. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). The November 1997 rating decision denied the claim for service connection for a lumbar spine disability based on a finding that there was no event, disease, or injury during the Veteran’s service that caused this continuing disability, rather that his in-service injury was temporary or transient and had resolved. Evidence added to the record since that November 1997 final and binding denial of this claim, however, includes the report of a VA examination, written statements from the Veteran, his wife, his former boss, and his mother, and private treatment records showing continuing treatment for lower back pain. This evidence is new in that it was not previously of record and it is not cumulative or redundant of the evidence of record at the time of the November 1997 rating decision. This additional evidence also is material in that it relates to an unestablished fact necessary to substantiate the claim for service connection for a lumbar spine disability and raises a reasonable possibility of substantiating the claim. Since the evidence is both new and material, the claim for service connection for a lumbar spine disability is reopened. 2. Entitlement to service connection for a lumbar spine disability The Veteran asserts that his current lumbar spine disability is the result of a low back injury he sustained during his service. As already conceded when reopening this claim, there no longer is any dispute as to whether the Veteran has a low back disability. April 2012 private treatment records confirm he has a current diagnosis of mechanical low back pain. The report of his May 2017 VA examination additionally shows he has a current diagnosis of a lumbosacral strain manifested by limited range of motion and pain. Thus, he has established that he has a current lumbar spine disability. During his service, the Veteran was seen for complaints of lower back pain. Thus, the question becomes whether the current disability is related to his service, including to those document complaints referable to his low back while in service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). See also 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The evidence against the claim includes both the August 1997 and the May 2017 VA examinations which found that the Veteran’s injury during service resulted in merely a temporary sprain that resolved prior to his separation from service. Specifically, the May 2017 VA examiner opined that the Veteran’s current lumbar strain was less likely than not related to his military service and, instead, more likely due to his career after service as an automotive mechanic and owing to normal aging. Despite the unfavorable opinions of those VA examiners, the Board finds that the evidence of record – as a whole – is at least in equipoise as to whether the Veteran’s current lumbar spine disability is related to his injury during service. He has complained of lower back pain from the time of his lumbar spine injury during his service, so continuously since June 1995. The Veteran explains that, during a transmission class in June 1995, he attempted to catch a transmission that was falling and heard his back pop, and that he has suffered from back pain since. An August 1995 service treatment record (STR) shows that he presented to a doctor complaining of lower back pain and recounted that June 1995 lumbar spine injury in the transmission class as the source or cause of his lower back pain. Moreover, when later completing his January 1997 Report of Medical History, in anticipation of separating from the military, the Veteran checked a box indicating that he still had recurrent back pain. However, the doctor performing that separation examination did not note or observe any then current problems with the Veteran’s low back, including owing to pain. The Veteran separated from service in May 1997. After his separation from service, however, the Veteran rather immediately filed a claim for VA disability benefits for lower back pain. He continued to maintain that he had hurt his low back during his service and that he continued to have pain as a result of that injury. But the August 1997 VA examiner found that the Veteran’s low back injury in service since had resolved (so was acute and transitory) and, thus, the Veteran’s claim for service connection for a low back disability was denied in November 1997. However, as already alluded to when reopening this claim, in the several years since the Veteran has submitted private treatment records documenting his continued treatment for lower back pain. An April 2012 private treatment record shows a diagnosis of mechanical low back pain and a March 2014 private treatment record shows a diagnostic impression of “left lower back pain without evidence precipitating injury or activity.” Further, in May 2018, the Veteran submitted multiple buddy statements in support of his claim. His personal statement recalls the same injury in June 1995 when he tried to catch a falling transmission and hurt his back. He further wrote that his back pain has impacted his life since his separation from service, and throughout his career as a mechanic after service it impacted the jobs he could take as his back pain precludes him from bending over for longer than 15 minutes. The Veteran’s wife submitted a statement recalling that, early in their relationship, around 2006, he told her about his back injury during service, recounting the same June 1995 injury and that he has had periodic flare-ups throughout the years. As well, the Veteran’s former boss submitted a supporting statement recalling that they had worked together for 15 years and that the Veteran had to take “several days or weeks off per year due to his back hurting/being thrown out/injured.” This evidence, especially when considered collectively, tends to support the notion that the Veteran’s back pain has been ongoing since his separation from service, rather than as a result of his civilian profession after separating from service. Finally, the Veteran’s mother submitted a supporting statement recalling his injury in service and stating that she recalls “he’s had problems with that [his lower back] off and on over the years since then, with not much relief.” In sum, there is a documented low back injury in service and probative (meaning competent and credible) evidence of continuity of symptoms since that injury in service. Therefore, even though the Veteran is not shown to have one of the “chronic” disabilities, per se, contemplated by 38 C.F.R. § 3.309(a) – such as degenerative joint disease (i.e., arthritis) of his lumbar spine, he has shown the continuous symptoms since his service according to § 3.303(b) allowing for attribution of his current disability (e.g., lumbar strain, mechanical low back pain) to his injury in service. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board finds the evidence to at least be in equipoise on this determinative issue. Accordingly, after resolving this reasonable doubt in his favor, the Board finds that service connection for a lumbar spine disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Pak 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.