Citation Nr: 20021360 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 18-20 135 DATE: March 25, 2020 ORDER New and material evidence has been received to reopen a previously-denied claim of entitlement to service connection for a lumbar spine disability. Service connection for a lumbar spine disability, to include degenerative arthritis, is granted. Service connection for bilateral lower extremity radiculopathy, as secondary to a back disability, is granted. FINDINGS OF FACT 1. A March 2016 rating decision denied entitlement to service connection for lumbar spine disability. A June 2016 rating decision reopened the claim and confirmed and continued the previous denial. The March 2016 and June 2016 rating decisions were not timely appealed, and new and material evidence was not actually or constructively received within one year of the issuance of the decisions. 2. Evidence added to the record more than one year after the most recent final June 2016 rating decision has not been previously considered and relates to an unestablished fact necessary to substantiate the Veteran’s claim of entitlement to service connection for a lumbar spine disability. 3. The Veteran’s degenerative arthritis of the spine is a chronic disease and continuity of symptomatology is established. 4. The Veteran’s bilateral lower extremity radiculopathy is proximately due to his back disability. CONCLUSIONS OF LAW 1. The March 2016 and June 2016 rating decisions are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received to reopen the previously-denied claim of entitlement to service connection for a lumbar spine disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for a lumbar spine disability, to include degenerative arthritis, are met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303(b), 3.309(a). 4. The criteria for entitlement to service connection for bilateral lower extremity radiculopathy, as secondary to a back disability, are met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from December 1996 to February 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2017 rating decision by an agency of original jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In January 2020, the Veteran testified at a videoconference hearing before the undersigned. While the AOJ limited its decision to whether new and material evidence had been received to reopen a previously-denied claim, the Board will also address the question of entitlement to service connection for a back disability, as that issue is part of the matter on appeal and as the Veteran will not be prejudiced by the Board’s full grant of the benefit sought on appeal. See Bernard v. Brown, 4 Vet. App. 384 (1993). 1. New and material evidence has been received to reopen a previously-denied claim of entitlement to service connection for a lumbar spine disability. A March 2016 rating decision denied entitlement to service connection for a lumbar spine disability due to the lack of a nexus between a current disability and the Veteran’s active service. In April 2016, the Veteran requested that the AOJ reopen his claim, but he did not submit or alert VA adjudicators to the presence of any new and material evidence. A June 2016 rating decision confirmed and continued the March 2016 denial. The Veteran did not appeal the March 2016 or June 2016 rating decisions, and VA adjudicators did not actually or constructively receive new and material evidence within one year of the issuance of the decisions. Thus, the March 2016 and June 2016 decisions are final. A final claim may be reopened if new and material evidence is submitted. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Evidence associated with the record more than one year after the issuance of the June 2016 rating decision includes the Veteran’s testimony at the January 2020 Board hearing as to the continuity of his symptoms, as well as a record of private treatment for his back disability. See January 2020 Medical Treatment Record. Because this evidence had not been previously submitted and because it relates to an unestablished fact necessary to substantiate the Veteran’s claim, it is considered new and material, and the claim is reopened. 2. Service connection for a lumbar spine disability, to include degenerative arthritis, is granted. The Veteran asserts that service connection is warranted for his back disability, as his back pain began in service following heavy physical labor and lifting and has continued to the present. The Board agrees. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Furthermore, service connection is warranted for certain chronic diseases listed in 38 C.F.R. § 3.309(a), including arthritis, that are shown to be chronic in service or that began in service and there is a continuity of symptomatology to the present. 38 C.F.R. § 3.303(b). The Veteran testified that his back pain began after lifting heavy objects in service, such as ammunition and stores. He explained that when he sought treatment while ashore, he was only referred to “back school” and told to lose weight and did not receive any treatment or preventative devices such as a lifting belt. Thus, while his back pain persisted, he did not seek additional treatment in service. He competently and credibly testified that his pain continued after service while he worked as a truck driver and he self-treated his symptoms from 2004 to 2014, when he finally sought treatment following a bad back spasm. See Hearing Transcript. The Veteran’s service treatment records (STRs) show that he was referred to “back school” in 2001 and that he reported recurrent back pain at separation in 2004. See STRs. A February 2016 VA examination report and medical opinion show a diagnosis of degenerative arthritis of the spine. The examiner opined that this was less likely than not due to service because his STRs only showed one note for back pain and one note to secure an appointment for back school, and thus there was no evidence of a “chronic” back disorder in service. See February 2016 VA Examination Report. Here, the first two elements of direct service connection are met, as the Veteran has a current diagnosis of arthritis of the spine and as an injury due to the cumulative impact of his military duties is conceded as consistent with the circumstances of his service as a gunner’s mate. With respect to the third element, nexus, the VA examiner’s opinion is not adequate, as he did not consider the Veteran’s competent and credible reports of his in-service and post-service symptoms and focused solely on evidence of treatment. However, remand to correct this deficiency is unnecessary, as the Veteran’s arthritis of the spine is a chronic disease for VA purposes and as he competently and credibly reported a continuity of symptomatology since service. In this regard, the Board emphasizes that the Veteran’s testimony as to why he did not seek additional treatment in service and until 2014 is credible and consistent with the evidence of record, including his report of recurrent back pain at separation notwithstanding the absence of additional encounters for treatment following his referral to back school. Thus, as continuity of symptomatology is established, the criteria for entitlement to service connection for arthritis of the spine are met, and the appeal as to this issue is granted. 3. Service connection for bilateral lower extremity radiculopathy, as secondary to a back disability, is granted. Secondary service connection is warranted for a disability that is proximately due to or has been aggravated by a service-connected disability. 38 C.F.R. § 3.310. Private treatment records show that the Veteran underwent EMG testing in April 2015 that showed abnormal electromyography “suggestive of bilateral chronic active L5 radiculopathy.” See December 2015 Medical Treatment Record. The February 2016 VA examiner did not diagnose radiculopathy. However, he explained that a previous EMG study “noted a chronic active L5 radiculopathy which was bilateral” but there were “no major clinical signs of radiculopathy” found at the current examination. Additionally, an X-ray report taken that day noted a clinical history of right-sided lumbar radicular pains “which are not super-acute right now.” See February 2016 VA Examination Report. Here, the VA examiner’s report confirms that the prior EMG demonstrated bilateral lower extremity radiculopathy. Additionally, the examiner’s statement that there were “no major clinical signs” of radiculopathy shows that some non-major signs of radiculopathy were found on examination. Thus, while there is some question as to whether the Veteran has a current diagnosis of radiculopathy, the Board resolves this reasonable doubt in his favor on the basis of the examiner’s equivocal statement and his favorable interpretation of the EMG results. Accordingly, secondary service connection for bilateral lower extremity radiculopathy is warranted. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.M. Badaczewski, Associate Counsel 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.