Citation Nr: 20044932 Decision Date: 07/06/20 Archive Date: 07/06/20 DOCKET NO. 17-17 852 DATE: July 6, 2020 ORDER New and material evidence having been received, the claim for service connection for a back disability is reopened. Service connection for a back disability is granted. FINDINGS OF FACT 1. A February 1981 rating decision denied service connection for a back disability on the basis that there was a lack of evidence of a causal connection between the Veteran’s current back disability and his active service. 2. The evidence added to the record subsequent to the February 1981 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and relates to unestablished facts necessary to substantiate the claim. 3. The Veteran’s back disability began during his active service. CONCLUSIONS OF LAW 1. New and material evidence was received to reopen the claim for service connection for a back disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 2. The criteria for service connection for a back disability are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from July 1970 to January 1972. The matters on appeal come before the Board from an April 2014 rating decision. The Veteran and his wife provided hearing testimony before the undersigned in March 2020. A transcript of that hearing is within the record before the Board. New and Material Evidence The Veteran originally claimed service connection for a back disability in August 1980. This claim was denied by way of a February 1981 rating decision on the basis that there was no evidence of a causal connection between the Veteran’s current back disability and the symptoms he experienced during his active service. The Veteran did not file a notice of disagreement or any new evidence showing a causal connection within one year of the February 1981 decision; therefore, that decision became final. 38 U.S.C. § 4005(c) (1976); 38 C.F.R. §§ 3.104, 19.153 (1980). Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c) (2012). 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 that 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). In this case, the Veteran filed a claim to reopen service connection for a back disability in April 2013. In March 2014, several lay statements from friends, family, and clergy were submitted. These people knew the Veteran, some since prior to the days of his service, and recalled him being healthy without back problems prior to his active service and also recalled him reporting back problems and seeing a chiropractor just after his separation from service. The Veteran’s wife confirmed in writing and at the Board hearing that she has known the Veteran since his active service, and she recalled his back injury and symptoms as present ever since. Moreover, in May 2020, a private physician submitted a report including an opinion that the Veteran’s current back disability more likely than not originally onset during his active service. These newly submitted statements and records are not cumulative or redundant of the evidence previously of record. Rather, they corroborate the Veteran’s report of ongoing back symptoms since his active service and include a medical opinion supportive of the Veteran’s claim. Moreover, these records are material in that they establish a basis for granting the claim. Accordingly, reopening of the claim for service connection for a back disability is warranted. Service Connection The Veteran contends that he has a current back disability that initially started during his active service. The Board concludes that the Veteran has a current diagnosis of degenerative arthritis of the lumbar spine, which began during active service. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303(a); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). The Veteran’s service treatment records show that he entered service free of any reports of back pain at the time of his January 1970 pre-induction examination. He was treated in March 1971 for low back pain and a limited range of motion was noted. Light duty, hot soaks, a bed board, and pain medication were prescribed. At the time of his separation from service, the Veteran completed a January 1972 Report of Medical History. Even though he did not explicitly mention the presence of back pain, the Veteran did indicate he had a history of joint pain. The Veteran submitted a written statement and provided hearing testimony to the fact that he saw a chiropractor for back pain shortly after his separation from service. Various lay statements in the record show other people’s recollection that the Veteran had back symptoms and was seeing a chiropractor after he separated from service. The Board finds no reason to doubt the credibility of these statements. The available post-service treatment records show the Veteran reported back pain in August 1975. He reported the onset of what he felt to be a pulled muscle in his back after walking for ten to fifteen minutes. He reported at that time that he had picked up an engine a few days prior. In September 1979, the Veteran again was seen for back pain and at this time he reported bending down and not being able to get back up. At this time, he referred to an incident in his military service when he fell from the top bunk of his bed and injured his back. He reported having “trouble ever since.” An October 1980 lumbar spine x-ray report shows the presence of arthritis. Subsequent treatment records show the Veteran periodically seeking treatment for low back pain. The Veteran and his wife’s Board hearing testimony support the finding that symptoms were being experienced ever since the Veteran’s active service. Again, the Board finds no reason to challenge the credibility of these statements. They have been consistent throughout the Veteran’s claim and are supported by corroborating statements by friends, family, and clergy. In March 2020, a private physician submitted a statement following a review of the Veteran’s records. The Veteran’s history from the time of his service to the present was summarized. Based upon a review the Veteran’s service and post-service records, as well as the various lay statements of record, and based upon cited medical literature, this physician opined that the Veteran’s lumbar spine degenerative joint disease is more likely than not related to the symptoms he experienced during his active service. Based upon the foregoing, the Board concludes that the preponderance of the evidence establishes that the Veteran’s back disability began during his active service. Accordingly, the Board finds that service connection for a back disability is warranted. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Adamson, 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.