Citation Nr: 21002091 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 19-20 380 DATE: January 12, 2021 ORDER New and material evidence has been received to reopen a claim of entitlement to service connection for a lumbar spine disability. Entitlement to service connection for a lumbar spine disability is granted. FINDINGS OF FACT 1. An April 1992 rating decision denied service connection for a back condition; the Veteran did not file a timely notice of disagreement regarding that decision and no new and material evidence was submitted to VA within the applicable time period. 2. Evidence received since the April 1992 rating decision is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim. 3. The evidence is at least evenly balanced as to whether the Veteran’s lumbar spine disability was incurred in or caused by active military service. CONCLUSIONS OF LAW 1. The April 1992 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. New and material evidence has been received since the April 1992 denial of service connection for a back condition to reopen the claim of service connection for a lumbar spine disability. 38 U.S.C. §§ 1110, 1131, 5103, 5108; 38 C.F.R. §§ 3.156, 3.303. 3. The criteria for service connection for a lumbar spine disability to include degenerative disc disease are met. 38 U.S.C. §§ 1110, 1131, 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 August 1978 to May 1991. This case is before the Board of Veterans Appeals (Board) on appeal from a January 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), where the RO reopened and denied the Veteran’s claim for service connection for a lumbar spine disability. The Veteran had a virtual hearing before the undersigned Veterans Law Judge in January 2021. 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a lumbar spine disability New evidence is defined as existing evidence not previously submitted to agency decision makers. 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). The April 1992 rating decision denied entitlement to service connection for a back condition noting that the Veteran’s current back disability was not related to in-service treatment for his back. Evidence received since the 1992 rating decision includes a July 2019 medical nexus opinion by T.P., M.D. relating the Veteran’s current back disability to his active military service. The Board finds that this evidence is new because it was not previously submitted to agency decisionmakers at the time of the April 1992 rating decision. The evidence is also material because it relates to an unestablished fact necessary to substantiate the claim—a nexus between the Veteran’s current lumbar spine disability and his service. Therefore, the newly received evidence raises a reasonable possibility of substantiating the claim as it supports the nexus element of service connection. As such, the claim for service connection for a lumbar spine disability is reopened. 2. Entitlement to service connection for a lumbar spine disability to include degenerative disc disease Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). 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. 38 C.F.R. § 3.303(d). The Veteran contends that his current lumbar spine disability began during active service and has continued since that time. He reports experiencing continuous back pain ever since his time on active duty. See VA treatment records from the Westside Chicago VA medical center (VAMC) dated in January 2015 and January and April of 2016; see also August 2015 VA examination. The Veteran is currently diagnosed with lumbar strain and degenerative disc disease; thereby establishing the current disability element of the service connection claim. See August 2015 VA examination. As to the in-service incurrence element, service treatment records (STRs) document complaints and treatment related to the lumbar spine. Specifically, in June 1983 the Veteran presented with intermittent lumbar pain and was assessed with body wall pain and prescribed Tylenol. In August 1984, the Veteran again reported low back pain with bending and was diagnosed with muscle strain. As such, the in-service incurrence element of the claim is established. Further, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s lumbar spine disability began during active duty. In a July 2019 opinion, T.P., M.D. opined that it is at least as likely as not that the Veteran’s lumbar spine impairment, currently manifesting itself as degenerative disc disease, was incurred in service. In rendering his opinion, Dr. P. considered the Veteran’s documented in-service treatment for back pain and his continued complaints of back pain and treatment after discharge. He noted that a February 1992 x-ray taken less than a year after the Veteran’s discharge from service, showed minimal anterior wedging of the L1, L2, and L4-5 vertebrae, and a 2013 MRI of the lumbar spine reflected multilevel degenerative disc disease. Dr. P. reasoned that it is at least as likely as not that the anterior wedging in the lumbar region of the Veteran’s spine shown in the 1992 x-ray, taken together with the Veteran’s reports of acute back pain in service, led to his current degenerative disc disease. He cited to medical literature to explain that wedging is a sign of a compression fracture in the vertebrae due to trauma and noted that over time a significant amount of wedging can cause instability and put added strain on the discs in the spine, accelerating disc degeneration. He also noted that compression fractures, (wedging is a sign of these fractures) can cause an overall shortening of the spine or lead to greater spine curvature, both of which put additional strain on the spinal discs and cause degeneration. Dr. P. cited to McGirt, M., Vertebral Compression Fractures: A Review of Current Management and Multimodal Therapy, Journal of Multidisciplinary Healthcare 205 (2013). Significantly, Dr. P. noted that many cases of wedge compression fractures go unreported because patients present with acute back pain. Further, Dr. P. noted that the November 2015 VA opinion evaluating the 1992 x-ray which noted evidence of wedging but no mention of arthritis, took a far too myopic view of the Veteran’s condition over time. In summary, Dr. P. stated that as the medical literature makes clear, today’s wedging is tomorrow’s degenerative disc disease. The Board finds Dr. P.’s reasoning persuasive and affords his opinion significant probative weight. In forming his opinion, Dr. P. considered the relevant evidence of record, including the documented treatment related to the back in service, the Veteran’s statements regarding continued back pain since service and the post-service medical records, including the August and November 2015 VA back examination and opinions. Dr. P. provided a fully informed, thorough, well-reasoned analysis supported by medical literature and the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; a threshold consideration is whether the person opining is sufficiently informed). Essentially, Dr. P. reasoned that the in-service documentation of acute back pain was at least as likely as not an undiagnosed wedge compression fracture which was subsequently documented by a 1992 x-ray taken less than a year after discharge. Dr. P. found that the back pain the Veteran experienced during service was a part of the same disease process as his currently diagnosed degenerative disc disease. Dr. P.’s opinion is further bolstered by Dr. R.’s March 2019 opinion (a physician at the Jesse Brown VAMC), where he stated that given the Veteran’s back pain commenced while in the military and that he sought medical attention at that time for complaints that he continues to suffer from today, he found it more likely than not that his back pain is related to his military service. Although Dr. R. did not review the claims file, the Board finds that his opinion is entitled to some probative weight, as he considered the Veteran’s statements regarding in-service treatment for back pain and was currently treating him for his current back pain. The record contains an October 2015 VA examination and opinion, where the examiner opined that it was less likely as not that the Veteran’s current lumbar spine disability was incurred in or caused by the documented in-service back pain. The examiner, Dr. C. primarily reasoned that although the Veteran had a diagnosis of back strain during service, he was not able to describe any specific continuity of care for evaluation and treatment of low back problems following separation from service in 1991. He explained that the Veteran worked as a corrections officer for 18 years and lost no time from work due to complications from back pain. He also noted that although an October 2013 x-ray showed evidence of degenerative disc disease, this was likely due to advanced age and degenerative and congenital central canal stenosis. The primary rationale provided for Dr. C.’s negative nexus opinion was the absence of continuity of care or medical treatment following service. However, the Veteran has reported on several occasions that the onset of his back pain was in the military and that he has experienced pain ever since that time. See November 2015, January, February and April 2016 notations in VA treatment records. The Veteran is competent to report back pain, as pain is observable by a lay person, see Layno v. Brown, 6 Vet. App. 465, 471 (1994), and the Board finds his account credible because his report of the date of onset and continued symptoms since that time has remained consistent over the years. Even during his 2015 VA examination, the Veteran noted that he was hired by the Department of Corrections in 1992 and reported that during his eighteen years of employment as a correction officer he had intermittent episodes of pain in his back with prolonged standing and walking. The 2015 VA examiner’s opinion does not address the Veteran’s reports of continuity of symptomatology since service. Instead, the VA examiner implicitly discounted the Veteran’s lay statements and furnished a negative nexus opinion based on a lack of documented medical treatment in the years following service. This rationale is flawed since lay evidence may not be rejected solely due to the absence of contemporaneous medical treatment. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Further, during the 2015 VA exam, the Veteran reported that during his eighteen years as a correction officer he was seen on and off for back pain by a number of healthcare providers affiliated with St. James Hospital, advocate Trinity Hospital and Provena St. Joseph Hospital, indicating that he did in fact seek treatment for his back pain during the time period immediately following his discharge in 1991. Although these private medical records are not in the file, the Veteran’s statement suggests that there was continuity of care for his back after discharge. Accordingly, because the 2015 VA examiner failed to consider the Veteran’s competent and credible reports of continuity of symptomatology since discharge, instead relying on the lack of continuity of care to furnish a negative nexus opinion, the Board affords his opinion limited probative weight. In conclusion, the Board affords more probative weight to Dr. P.’s well-reasoned July 2019 opinion which found that it is at least as likely as not that the Veteran’s current lumbar spine disability to include degenerative disc disease was incurred in service. As the evidence is at least in relative equipoise as to whether a lumbar spine disability had its onset during service, the Board finds that service connection for a lumbar spine disability with degenerative disc disease is warranted. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alison M. Mecone, 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.