Citation Nr: 20034082 Decision Date: 05/15/20 Archive Date: 05/15/20 DOCKET NO. 17-09 801 DATE: May 15, 2020 ORDER As new and material evidence has been received, the application to reopen the previously denied claim of entitlement to service connection for a lower back disability is granted. Entitlement to service connection for a lower back disability is granted. FINDINGS OF FACT 1. In October 1999 and June 2001 rating decisions, the RO disallowed the Veteran’s claim of entitlement to service connection for a lower back disability; the Veteran did not timely initiate an appeal within one year of notification. 2. In an unappealed January 2016 rating decision, the RO continued the denial of the Veteran’s claim. 3. The evidence received since the June 2001 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for a lower back disability. 4. The Veteran’s lower back disability is related to active service. CONCLUSIONS OF LAW 1. The October 1999 and June 2001 rating decisions that denied entitlement to service connection for a lower back disability are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The criteria for reopening a claim of entitlement to service connection for a lower back disability have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for a lower back disability have been met. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1995 to June 1999. This case is before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision. In December 2019, the Veteran testified at a Travel Board hearing at the RO before the undersigned Veterans Law Judge (sitting in Washington, D.C.). A transcript of that proceeding is of record. New and Material Request to Reopen Generally, a claim which has been denied in an unappealed AOJ decision is final and may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1100. Once the AOJ makes a determination as to a claim, it must mail to the claimant, and his or her representative if there is one, proper notice of the decision, including notice of the claimant’s procedural due process and appellate rights. 38 U.S.C. § 7105(b)(1); 38 C.F.R. §§ 3.103(b)(1), 19.25, 20.1103. An appeal of an AOJ decision to the Board is initiated by the filing of a notice of disagreement (NOD) with the decision. 38 U.S.C. § 7105(a); 38 C.F.R. § 20.200. If a timely NOD is not filed, the determination becomes final and the claim will not thereafter be reopened or allowed, except as may otherwise be provided by regulations not inconsistent with Title 38 of the U.S. Code. 38 U.S.C. § 7105(c). Likewise, if the Veteran does not timely perfect an appeal to the Board following the RO’s issuance of a Statement of the Case (SOC), the rating decision on which the SOC is based becomes final. The exception to this rule of not reviewing the merits of a finally denied claim 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. The regulation that implements 38 U.S.C. § 5108 defines “new and material evidence” as evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of evidence previously of record, and which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). 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. Id. New and material evidence can be neither cumulative nor redundant of the evidence already of record and must raise a reasonable possibility of substantiating the claim. Id. Of note, under 38 C.F.R. § 3.156(b), “new and material” evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. If VA receives new evidence within the appeal period of an AOJ decision, it must make a determination as to whether the evidence is new and material and if it does not do so then the claim does not become final but rather it remains pending. See Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014). In determining whether evidence is “new and material,” the credibility of the evidence in question must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is required to reopen a final claim. See 38 U.S.C. § 5108; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 C.F.R. § 3.156. The Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the RO granted or denied an application to reopen. See Jackson, 265 F.3d 1366, 1369. 1. Whether new and material evidence has been submitted sufficient reopen the claim for service connection for a lower back disability New and material evidence has been submitted sufficient to reopen the claim of service connection for a lower back disability. In the October 1999 rating decision, the Veteran was denied service connection for a low back disorder on the basis that the claim was not well-grounded. The Veteran did not timely appeal the decision within a year of notification, and it became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. In a June 2001 rating decision, the claim was reconsidered on the merits pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) which eliminated the concept of a well-grounded claim. The Veteran did not timely appeal the decision within a year of notification, and it became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. The Veteran filed a claim in September 2015 for, inter alia, a back condition. In a January 2016 rating decision, Veteran’s claim was reopened, and the previous denial of service connection for low back condition was confirmed and continued on the basis that the disability was not incurred in or aggravated by service. The Veteran timely appealed the January 2016 rating decision. Evidence received since the June 2001 rating decision not previously taken into consideration includes lay statements, medical treatment records, private medical opinions, VA examinations and opinions, and the December 2019 Board hearing transcript. This is sufficient to reopen the claim. This additional evidence is not previously of record, is neither cumulative nor redundant of evidence previously considered, and it raises a reasonable possibility of substantiating the claim. Accordingly, the evidence received since the last final denial in June 2001 is sufficient to reopen the claim of service connection for a low back disability. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”- the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases may also be established based upon a legal “presumption” by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected condition. 38 C.F.R. § 3.310. 2. Entitlement to service connection for a lower back disability The Veteran contends that his lower back disability is related to active service. The Board concludes that the Veteran has a current disability that is related to service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service treatment records (STRs) show that in November 1996 the Veteran was seen for back pain and was assessed with lower back strain. In October 1997, he was seen with complaints of chronic lower back pain for the past 9 months. The Veteran underwent a VA examination for his back disability in November 2015. The examiner noted a diagnosis of herniated lumbar disc L4-5, status post left lumbar laminectomy/discectomy from January 15, 2013. The examiner opined that the Veteran’s back condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner’s rationale was that although there is a record of treatment when in service, there is no chronic disability or permanent residuals subject to service connection shown by STRs or immediately following, or within one year of, service. The examiner noted that the Veteran’s separation examination is silent for a back condition. In a February 2016 private medical record, the examiner stated that the Veteran had a diagnosis of herniated disc status post discectomy. He stated that the Veteran reported lifting heavy objects in the military in 1997, causing a severe amount of back problems, and did get better from this. The physician stated that it is likely he had a disc protrusion at that time and had a damaged disc, and that, likely over the years of working, as well as being active, it probably deteriorated and ultimately led to a herniated disc large at L4-L5 necessitating surgery. The examiner stated that he believes that there is not a direct correlation, but that with the years of wear and tear, as well as use on a damaged disc back in 1997, there likely is a correlation with that injury. In an August 2016 statement, the Veteran reported that after several failed attempts to receive treatment from the military doctors, he stopped seeking treatment for the continued pain in his lower left back area, although it was noted in a chronological record of medical care form dated August 6, 1998. He stated that every time he sought medical attention, they advised him that he pulled a muscle, should stretch, take Motrin, and that he would be fine. He stated that despite following the doctor’s recommendations, his back has not been fine since the November 1996 injury. The Veteran stated that it is his opinion, after doing detailed research and knowing his personal pain and the condition of his back, as well as consulting with chiropractors and massage therapists, this his SIJ (SI joint) damage is one of the primary causes of his pain. In the March 2017 back conditions disability benefits questionnaire (DBQ), the private examiner noted a diagnosis of lumbar disc herniation with radiculopathy. In the August 2017 medical opinion, the Veteran’s physician opined that the Veteran’s spine and ankle pains are related injuries he sustained while the service. Regarding the back, he noted that the Veteran was moving weights while remodeling the gym and had immediate symptoms consistent with disc herniation. In an April 2018 private medical record, the examiner, Dr. G.G., stated that the Veteran injured his spine at a work detail when he was in the military. He stated that he “did have probably a significant amount of lordosis and should not have been on that detail.” He stated that the Veteran “had no injury to the pars that the pop that he felt and when he had the translation a herniated disc further moving and activities” made it worse, leading to the discectomy in 2014. He stated that this is going to be an ongoing problem. In the July 2018 back conditions DBQ, Dr. M.M. noted diagnoses of degenerative disc disease (ddd), intervertebral disc syndrome (IVDS), radiculopathy, and spondylosis with radiculopathy. The examiner stated that when the Veteran first saw the doctors in 1996, he believes he was mis-diagnosed as having a “pulled muscle.” He stated that it is more likely that the “pop” he felt and heard in his back was from a tearing of the annular fibers of the L4/5 or L5/S1 disc. He stated that he feels he did not receive proper care for this type of injury and lead to eventual disc herniation and back surgery and that he would anticipate continual episodes of low back pain and sciatica. The examiner opined that the injury sustained in 1996, when moving weights, has resulted in his present symptoms. In an April 2019 statement, the Veteran stated that while in the military his back was injured by moving weights, with pain located on the lower left side. He stated that each time he sought treatment for his lower left back pain, in the exact same area, it was diagnosed as muscle strain. He stated that during service, the pain was localized to the lower left side without radiating nerve pain. He stated that the lower left back pain has been consistent since his service injury in November 1996, he is in constant pain, and the pain increases drastically depending on the activity. During the December 2019 Board hearing, the Veteran testified that his injury occurred in 1996, he went to medical the next day, was told he pulled a muscle, given medicine and told to stretch. He testified that this remained in effect for the rest of his enlistment. He stated that he went to medical two other times between 1997 and 1999 during service for this condition, and that between 1999 and 2012 he continued treating his symptoms with Motrin and stretching until it worsened with severe sciatic nerve pain. He stated that between 1999 and 2012 he did not see a physician for it, but that in 2012 he sought medical treatment for the sciatic nerve pain, had an MRI and was told that his only option was surgery, which he had in January 2013. He stated that in 2013 he reported to his back surgeon that he continued to have pain in the same area, but he was told to give it time to heal. Shortly thereafter, the Veteran’s surgeon passed away, and the Veteran sought treatment in 2016 for the continued pain. He stated that since service he had been self-medicating with Motrin, stretching, and ice when needed and that it was relatively manageable and consistent. He stated that it was on and off for the first few years after separation but that, around 2007, the pain became chronic in nature, and has never gone away. In a December 2019 private medical opinion, Dr. M.M. opined that the Veteran’s current disability is at least as likely as not resulting from a lumbar injury sustained in 1996 during service, moving weights in the gym. The examiner stated that he “reviewed his past medical records and conclude[d] there is a service-related injury to his lumbar spine, which he is still receiving active treatment at [his] office.” In a February 2020 private medical opinion, Dr. J.K. opined that, upon reviewing past medical records and current imaging and examination, the injury sustained in the military, in 1996, is at least as likely as not related to the current diagnosis of spinal stenosis of the lumbar region unspecified whether neurogenic claudication present. While the November 2015 VA examiner opined that the back disability is not related to service, the VA opinion is outweighed by the multiple private opinions indicating that the Veteran’s current condition is related to service. Additionally, STRs show complaints and treatment related to the back on multiple occasions, and the Veteran has credibly reported that he has had back pain in the same region of his back continuously since service. Upon review of the record, the preponderance of the evidence is in favor of the Veteran’s claim. Accordingly, service connection is warranted for a lower back condition, and the claim must be granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Labi, 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.