Citation Nr: 20021867 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 16-60 920 DATE: March 27, 2020 ORDER New and material evidence having been received, service connection for low back strain is reopened and service connection for low back strain with chronic pain is granted. FINDINGS OF FACT 1. A June 2003 rating decision denied the Veteran’s claim of entitlement to service connection for low back strain, and the Veteran did not appeal the decision. 2. The evidence added to the record since the June 2003 rating decision denying entitlement to service connection for low back strain is neither cumulative nor redundant of the evidence of record at the time of the decision, and it raises a reasonable possibility of substantiating the Veteran’s claim. 3. The evidence is at least in equipoise that the Veteran’s low back strain with chronic back pain is attributable to service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for a back disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 2. The criteria for service connection for low back strain with chronic pain are met. 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 May 1984 to April 1998. This matter comes before the Board of Veterans’ Appeals (Board) from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The Veteran testified before the undersigned in a January 2020 Board hearing. A transcript of the hearing is of record. 1. New and Material Evidence to Reopen Claim for Service Connection for a Back Disability Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). Regardless of the AOJ’s actions, given the previous unappealed denial of the claim on appeal, the Board has a legal duty under 38 U.S.C. §§ 5108, 7104 to address the question of whether new and material evidence has been received to reopen the claims for service connection. This matter goes to the Board’s jurisdiction to reach the underlying claims and adjudicate the claims on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). The Board finds new and material evidence has been received sufficient to reopen the Veteran’s claim for service connection for a low back strain. A June 2003 rating decision denied the Veteran’s claim for service connection for low back strain because the RO found no nexus between his in-service back injury and his current back disability. The Veteran did not appeal, and new and material evidence was not received within the following one-year period; thus the rating decision is final. On December 6, 2012, the Veteran was again denied service connection for a low back strain. However, the Board finds that this decision was not final. On December 3, 2013, the Veteran filed another claim for a low back disability. Providing the Veteran the benefit of the doubt, the Board interprets the December 2013 claim as a notice of disagreement received within one year of the December 2012 denial. Since June 2003 rating decision, new evidence has been added to the claims file. Pertinent to this claim includes the Veteran’s January 2020 Board hearing testimony, a September 2011 statement by the Veteran’s VA medical provider, a March 2013 statement letter, and a May and November 2011 medical opinion by the Veteran’s VA medical provider. The Veteran January 2020 testimony included evidence that the Veteran injured his back in service. The September 2011, March 2013, May 2019, and November 2019 medical statement and opinions noted the Veteran’s back disability was likely related to his in-service injury. The January 2020 testimony and the September 2011, March 2013, May 2019, and November 2019 medical opinions are new and material evidence. The evidence is not redundant of previously considered evidence and therefore new. The evidence is material because it goes to the unestablished fact of a nexus between the Veteran’s in-service back injury and his current back disability. Therefore, the January 2020 testimony and the September 2011, March 2013, May 2019, and November 2019 medical opinions are new and material evidence and sufficient to reopen the Veteran’s previously denied claim. In making the determination of materiality, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). Since the Veteran has provided new and material evidence, reopening this claim is in order. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). 2. Service Connection for a Back Disability The Veteran contends that his low back disability is related to his in-service back injury. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-elements required to establish service connection are: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Veteran’s service treatment records note that the Veteran injured his back in May 1997. The service treatment records indicate that the Veteran injured his back while lifting a transformer out of the laundry. The Veteran was diagnosed with mechanical mid-back pain. Available VA treatment records note that the Veteran had diagnosed chronic back pain since August 2000 to March 2013. Notably in December 2000, the Veteran reported that his back pain began after his in-service injury after lifting a transformer. In September 2011, the Veteran’s VA primary caregiver (Dr. A.) stated that the Veteran had chronic back pain. Dr. A. stated that following 1997 back injury the Veteran had varying degrees of persistent back problems. Dr. A. stated it seemed reasonable that the Veteran’s prior back injury is a likely contributing factor to the current problems he was experiencing. In March 2013, Dr. A. submitted another opinion. Dr. A. stated that the Veteran continued to have peristent chronic severe low back pain. The Veteran’s x-ray’s lent objective evidence to support this diagnosis. Dr. A. stated that although the condition may not worsen, it was unlikely to improve much in the foreseeable future. Dr. A. stated that the Veteran reported a back injury in 1997 and that since that time he had continuous back pain. The Veteran underwent a VA contracted examination in April 2014. The examiner diagnosed the Veteran with lumbar strain with T11 osteophyte. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that he could not opine beyond speculation that it was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner stated that at separation in January 1998 there was no claimed back problem. In July 2001, back pain was noted during physical examination without history of low back pain after trauma in 1997. The examiner noted that there are no medical records of pain were found during service. The examiner stated he could not locate the May 1997 back injury noted in his service treatment records and therefore, could not provide an opinion beyond speculation. In August 2016, the Veteran underwent a VA examination. The examiner diagnosed the Veteran with a lumbar strain. The Veteran reported back pain in service when lifting a transformer. The examiner opined that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the service treatment records note a May 1997 strain injury while lifting. The examiner stated no other notes are found to indicate any chronic sequalae resulting from this apparently transitory and self-limiting injury. In May 2019, the Veteran’s VA primary care provider (Dr. B.) submitted an opinion. Dr. B. stated that the Veteran had lower back pain that radiates down his right leg to his right foot. Dr. B. stated that pain started in May 1997 during a lifting injury. The Veteran reported frequent flare-ups of back pain. Dr. B. opined that these episodes of flare-ups are more likely than not related to his prior injury in 1997. In November 2019, Dr. B. provided another opinion. Dr. B. opined that based on a review of the Veteran’s service treatment records and a history of the Veteran’s back condition, his back condition is more likely than not related to his injury in-service. Initially, the Board finds the April 2014 VA contracted examination provides no probative value. The examiner based his negative opinion based on speculation and was unable to review the May 1997 service treatment record that demonstrated the Veteran’s in-service back disability. The Board finds that the August 2016 VA examiner’s opinion is equally as probative as Drs. A. and B.’s statements and opinions. Essentially, the VA examiner found the Veteran’s 1997 back injury did not cause the Veteran’s current back disability that was first noted post-service in 2000 and the Veteran’s primary care providers opinion that the back condition was caused by the in-service injury. Both reviewed the Veteran’s service treatment records (as noted in Dr. B.’s November 2019 opinion letter). The VA examiner’s rationale relied on no further documented back pain during service. The private providers’ rationale relied, in part, on the Veteran’s statements. The Board finds the Veteran’s statements relating to when his back pain began competent and credible. Since December 2000 the Veteran had consistently stated his back pain began in service. Notably, the Veteran made this statement to medical providers two years prior to his original claim for compensation, bolstering the credibility of his contentions. Therefore, the Board finds that the reasoning of the positive VA medical opinion is adequate and equally as probative as the April 2016 VA examiner’s negative opinion. The Board finds that service connection for low back strain with chronic pain is warranted. The Veteran has a current diagnosis of a low back strain and chronic back pain. The Veteran has an in-service back injury, when he injured his back in May 1997 lifting a transformer. Providing the Veteran the benefit of the doubt, and applying the principles of equipoise, the Board finds that the Veteran’s back strain with chronic pain is related to his in-service injury because Drs. B. and A.’s positive opinions are equally as probative as the August 2016 VA examiner’s negative opinion. (Continued on the next page)   The evidence in this case is so evenly balanced so as to allow application of the benefit-of- the-doubt rule as required by law and VA regulations. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Accordingly, service connection for low back strain with chronic back pain is warranted. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Robert Batten 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.