Citation Nr: 21000454 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 17-14 228 DATE: January 5, 2021 ORDER New and material evidence having been received, the claim of service connection for a low back disability is reopened. Service connection for a low back disability is granted. FINDINGS OF FACT 1. In a May 2003 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for a low back disability; a timely notice of disagreement was not filed, and no new and material evidence was received within the appeal period. 2. Additional evidence received since the May 2003 decision is new, relates to an unestablished fact necessary to substantiate the claim of service connection for a low back disability, and raises a reasonable possibility of substantiating the claim. 3. The weight of the competent and probative evidence is at least in equipoise as to whether a low back disability had its onset in or is otherwise related to the Veteran’s period of active service. CONCLUSIONS OF LAW 1. The May 2003 decision denying service connection for a low back disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. 2. New and material evidence has been received since the May 2003 decision to reopen the claim of service connection for a low back disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for a low back disability have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1982 to October 1992. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2020, the Veteran testified at a Board videoconference hearing. A transcript of the hearing has been associated with the virtual file. New and Material Evidence 1. Whether new and material evidence has been received to reopen the claim of service connection for a low back disability. Generally, a claim which has been denied in a final decision by an AOJ may not thereafter be reopened and allowed. 38 U.S.C. § 7105(b). If, however, new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary must reopen the claim and review its former disposition. 38 U.S.C. § 5108. To be considered new, evidence cannot have been previously submitted to agency decision makers or be cumulative or redundant of evidence of record at the time of the last prior final denial. To be material, evidence must, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the claim, and raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In deciding whether new and material evidence has been submitted, the Board considers evidence submitted since the time that the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). After review of the record, the Board finds that new evidence has been received since the final prior decision, and such evidence is material to the issue of service connection for a low back disability. In May 2003, the AOJ denied a claim to reopen service connection for a low back disability based on lack of a nexus opinion. The Veteran did not file a timely NOD and no new and material evidence was received within the period; therefore, the May 2003 decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 3.104, 3.156(b), 20.1103. The Board will therefore consider evidence received since the May 2003 decision. In September 2018, a VA examiner opined the Veteran’s back disability was at least as likely as not related to active military service. See September 2018, VA examination. The Board finds this evidence is new and directly pertains to the basis for the prior final denial, by indicating a positive nexus between service and the Veteran’s current low back disability. The claim of service connection for a low back disability is therefore reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Service Connection 2. Service connection for a low back disability. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). As a general matter, establishing service connection requires competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). The Veteran contends low back pain began during service while deployed overseas and has continued to worsen since discharge from active service. See July 2020, Hearing transcript. After review of the record, the Board finds that the criteria for service connection for a low back disability have been met. The record contains competent diagnoses lumbosacral spondylosis with radiculopathy, lumbosacral disc disorder with radiculopathy, and lumbar spinal stenosis. The Board, accordingly, finds competent evidence of a current disorder. See September 2018, VA examination. Service treatment records (STRs) indicate the Veteran was treated for low back pain on multiple occasions. STRs dated June 1992 and July 1992. In November 1992, a VA examination for the back was obtained. The Veteran complained of lumbosacral area pain and pain that radiated into his left buttock. An etiology opinion for low back pain was not provided. See November 1992, VA examination. In September 2018, a VA examination for the back was conducted. The VA examiner noted the Veteran’s continuous complaints of low back pain since 1991, STRs for low back pain, complaints of low back pain during the November 1992 VA examination, and a January 1995 MRI showing lower lumbar disc herniations, facet joint disease, and stenosis at age 31. The VA examiner opined it is more likely than not that the Veteran’s current back disabilities are related to active duty service. The Board assigns high probative weight to the September 2018 examination as the examiner considered relevant medical records and lay statements, and provided clear clinical findings supported by data. See September 2018, VA examination; see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In light of the foregoing, the Board finds that the weight of the competent and probative evidence is at least in equipoise as to whether the Veteran’s low back disability had its onset during or is otherwise related to active service. See 38 C.F.R. §§ 3.303, 3.304. The Board finds the lay statements of record concerning the onset and continuity of low back pain to be competent and credible, and therefore, accords it high probative weight. Jandreau, 492 F.3d at 1377; see July 2020, Hearing transcript. Resolving all reasonable doubt in favor of the Veteran, (Continued on next page) the Board finds service connection for a low back disability is warranted. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 57-58.  JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Straughn, 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.