Citation Nr: 20045271 Decision Date: 07/08/20 Archive Date: 07/08/20 DOCKET NO. 18-51 646 DATE: July 8, 2020 ORDER New and material evidence having been received, the claim for service connection for degenerative joint disease (DJD) of the lumbar spine is reopened, and, to that extent only, the appeal is granted. Service connection for DJD of the lumbar spine is granted. FINDINGS OF FACT 1. A January 2015 rating decision denied service connection for DJD lumbar spine. The rating decision was not appealed nor was new and material evidence received within the appeal period. 2. The evidence received since the last final rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for DJD of the lumbar spine and raises a reasonable possibility of substantiating the claim. 3. Affording the Veteran the benefit of the doubt, his DJD lumbar spine is reasonably shown to be related to or caused by his active service. CONCLUSIONS OF LAW 1. The January 2015 rating decision that denied service connection for DJD of the lumbar spine is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been received; the claim of service connection for DJD of the lumbar spine is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria are met for service connection for DJD of the lumbar spine. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1997 to August 2001. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2016 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). In May 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ) via videoconference. During the period of the appeal, in a June 2018 Rating Decision, the RO granted service connection for hearing loss and tinnitus. In a March 2019 rating decision, the RO granted service connection for left ankle osteoarthritis. Therefore, those claims for service connection have been resolved and are no longer before the Board on appeal. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). New and Material evidence Legal Criteria 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. However, a claim on which there is a final decision 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. 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. 38 C.F.R. § 3.156(a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. Specifically, 38 C.F.R. § 3.156(a) creates a low threshold, and the phrase “raises a reasonable possibility of substantiating the claim” enables, rather than precludes, reopening. See Shade v. Shinseki, 24 Vet. App. 110 (2010). New and material evidence has been received to reopen the claim for service connection for DJD lumbar spine. In this case, service connection for DJD lumbar spine was denied in a January 2015 rating decision. That rating decision was not appealed nor was new and material evidence received within the appeal period. 38 U.S.C. § 7105. Evidence received since that decision includes the Veteran’s May 2020 videoconference hearing testimony. This evidence is new to the record, relates to previously unestablished facts to support the claim, and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Accordingly, the claim is reopened. Service Connection Service connection for DJD lumbar spine is granted. The Veteran contends that his DJD lumbar spine is related to active service. A November 2000 service treatment record (STR) notes that the Veteran complained about back pain after a motor vehicle accident in September 2000. At the time, he was diagnosed with a thoracic paraspinal muscle sprain. Additionally, on the Veteran’s Report of Medical History for separation, he noted that he experienced chronic back pain. In a January 2015 VA examination report, the Veteran was diagnosed with DJD lumbar spine. He stated that he began having low back pain ever since service, but did not list a specific trauma that caused it. The VA examiner opined that it was less likely than not that the Veteran’s claimed condition was incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that there was no evidence of recurrent back pain or continued back symptoms after the Veteran’s motor vehicle accident or for the past 15 years since the Veteran left active service. In his May 2020 hearing, the Veteran testified that in 2016, he reinjured his back but that he had been experiencing back pain and symptoms before then, ever since he left active service. He noted that he had spasms and pain after his accident. The Veteran reported that he was stubborn and never complained about his back after leaving service because of “military culture.” He testified that he was “kicking himself” for not taking care of himself and “doing what he should have done.” The Veteran stated that he has had continual pain in the same place in his back since his in-service car accident. He reported that he had no other back injuries other than his accident in 2016. The Board finds that the January 2015 VA opinion is inadequate and of little probative value. Inadequate medical examinations and opinions include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The January 2015 VA examiner gave no weight or consideration to the Veteran’s lay statements of continuous back problems since active service. Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1110. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. § 3.303(d). Certain disabilities, including arthritis, organic neurological disorders, and psychoses, are presumed to be serviced connected if manifested to a compensable degree within one year following service. 38 C.F.R. §§ 3.303, 3.307, 3.309. Although a causal relationship has not been demonstrated through the foregoing VA opinion, nor otherwise shown through competent medical opinion evidence, the absence of a “valid medical opinion” is not an absolute bar to service connection. Davidson v. Shinseki, 581 F.3d at 1316. The Board finds the reports by the Veteran, of back pain beginning during active service, and continuing to the present, to be competent and credible evidence of continuing symptoms since active service. 38 C.F.R. §§ 3.303, 3.307, 3.309. The Board notes that under the continuity of symptoms provision, “symptoms, not treatment, are the essence of any evidence of continuity of symptom[s].” Savage v. Gober, 10 Vet. App. 488, 496 (1997) (referencing 38 C.F.R. § 3.303(b)). (Continued on next page)   Based on the above analysis, the Board concludes that the competent and credible lay statements from the Veteran outweigh the January 2015 negative nexus opinion. This leads the Board to determine that at the very least, the evidence is evenly balanced for and against (“in relative equipoise”) as to whether the Veteran’s DJD of the lumbar spine is related to active service. Accordingly, resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection for DJD of the lumbar spine is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Abrams, 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.