Citation Nr: 21063701 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 17-57 444 DATE: October 15, 2021 ORDER The petition to reopen the previously denied claim of entitlement to service connection for a low back disability (previously denied as low spine condition) is granted. REMANDED Entitlement to service connection for a low back disability is remanded. FINDING OF FACT An unappealed December 1999 rating decision denied entitlement to service connection for low spine condition; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. CONCLUSION OF LAW The December 1999 rating decision that denied service connection for low spine condition is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 3.160(d), 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1972 to July 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. The VLJ held the record open for 60 days for the submission of additional evidence. However, VA did not subsequently receive any additional evidentiary submissions from the Veteran or his representative. New and Material Evidence Generally, a claim that has been denied in an unappealed RO or Board decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). 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 which 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 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. Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). Regardless of whether the agency of original jurisdiction (AOJ) found that new and material evidence had been submitted to reopen a claim for service connection, it is well established that the Board must determine on its own whether new and material evidence has been submitted to reopen a claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Lastly, unless new and material evidence has been submitted, the duty to assist does not attach. Anderson v. Brown, 9 Vet. App. 542 (1996). Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a low back disability (previously denied as low spine condition). The Board concludes that the December 1999 rating decision denying the claim for service connection for low spine condition is final; and that new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.104, 3.156(a), (b), 20.1103. A December 1999 rating decision denied service connection for low spine condition because the evidence of record did not show a currently diagnosed disability. VA notified the Veteran of this decision in a January 2000 letter and how to appeal. VA received no appeal or new and material evidence prior to expiration of the appeal period. Therefore, the rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. Evidence associated with the claims file since the prior final disallowance includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. In this regard, there are lay statements from the Veteran relating his current low back disability to his service. See Hearing Transcript at 4-5 (July 2021). Additionally, since the December 1999 rating decision, the Veteran's service treatment records (STRs) were associated with the claims file and reflect treatment for low back symptoms. Furthermore, medical evidence reflects diagnoses of lumbosacral strain/sprain and degenerative disc disease of the lumbar/thoracic degenerative disc disease/degenerative disc disease. See C&P Exam (February 2017). The Board finds the evidentiary submissions received since the prior final disallowance constitute new and material evidence. This evidence was not previously considered by decision-makers and is material insofar as it shows in-service treatment for low back complaints and current diagnoses of low back disabilities which cure prior evidentiary defects. For the purposes of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Accordingly, the petition to reopen the claim is granted. REASONS FOR REMAND Entitlement to service connection for a low back disability is remanded. The Veteran contends that his low back disability had its onset during active service from the strain caused by jumping off a 5-ton truck, opening up trails and starting ammunition rounds while in an artillery unit. See Hearing Transcript at 4-6 (July 2021). The Veteran's DD 214 shows his military occupational specialty (MOS) was field artillery crewman. Although a VA examination and medical opinion were obtained in February 2017, for the reasons provided below, the Board finds that it is inadequate to decide the claim. The Veteran's STRs show that he was seen for low back pain on several occasions throughout his active service. For instance, in June 1973, the Veteran was noted to have tenderness in the lumbosacral area and was diagnosed as having low back pain secondary to immunizations. A December 1973 entry reflects back problems for 1 week that began after heavy lifting. Upon physical examination, muscle spasms were noted on the right side and the Veteran was diagnosed with acute muscle strain. In January 1974, the Veteran reported low back pain for the past 4 months and a physical therapy consult showed a provisional diagnosis of lumbosacral strain. The Veteran was advised to firm up his mattress, avoid lifting for 48 hours, take hot showers, apply a hot pack and take Robaxin. In January 1975, the Veteran was noted to have low back pain with no known cause of trauma. His range of motion was described as good and no muscle spasms were noted. The Veteran was referred for a physical therapy consult. In February 1975, the Veteran reported that he had longstanding low back pain. The orthopedic consult noted a negative x-ray and normal physical examination. The Veteran was assessed with functional low back pain and was found fit for duty. Several entries dated from February 1975 to May 1975 note complaints of low back pain associated with his diagnosis of prostatitis. Lastly, while the Report of Medical Examination shows a normal clinical evaluation of the spine, it was noted the Veteran reported that he had low back pain. The Veteran underwent a VA back examination in February 2017 and was found to have lumbosacral strain with degenerative joint disease of the lumbar spine. The VA medical opinion (VAMO) indicates that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The rationale for that conclusion was that, although the Veteran was seen for back pain during service and diagnosed with muscle strain, the record contains no evidence of recurrent back pain in over 40 years, from service separation in 1975 to the first documented low back diagnosis in 2017. Here, the Board finds that the February 2017 VAMO is inadequate for adjudicative purposes. First, while the opinion acknowledges the in-service diagnosis of muscle strain and complaints of low back pain, it concludes that the Veteran's current low back degenerative joint disease/degenerative disc disease cannot be attributed to the in-service clinical history and findings because of the 40-year gap in medical treatment between the Veteran's active duty separation and the first documented post-service low back diagnosis in 2017. In this regard, the VAMO failed to consider the Veteran's lay reports of in-service injury to his low back from lifting 45-50 pounds of heavy bullets and lay statements regarding his low back symptomatology since service. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) ("the VA examiner's failure to consider [a veteran's] testimony when formulating her opinion renders that opinion inadequate"). In addition, the opinion is essentially predicated on the absence of continuity of treatment. It is noted, however, that certain chronic diseases, such as arthritis, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Thus, the applicable regulation requires continuity of symptomatology, not continuity of treatment. Wilson v. Derwinski, 2 Vet. App. 16 (1991). Next, the VAMO does not reflect full consideration of pertinent in-service clinical findings such as muscle spasms and tenderness, nor is there a discussion of the frequency and duration of the Veteran's low back complaints throughout his active duty service. The VAMO also does not address the theory that the Veteran's in-service heavy lifting injury in 1973, although only manifested by a muscle strain at that time, did not cause his later diagnosed lumbar degenerative joint disease/degenerative disc disease. Indeed, in order for the Veteran to prevail in a claim for service connection, the evidence needs only to show that he has a current lumbar spine disability that is at least as likely as not (50% or greater probability) due to or the result of his in-service injury to the back. An examination report or opinion must contain a clear conclusion with supporting data, and a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). It is also noted that a medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record. See Stefl v. Nicholson, 21 Vet. App. 102, 124-25. As such, remand is required for an opinion that addresses the deficiencies discussed above. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matter is REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for signs, symptoms, treatment of his low back disorders. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran's VA treatment records for the period from 2010 to the Present. 3. Schedule the Veteran for an examination by an appropriate clinician regarding the nature and etiology of his low back disability. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on examination and review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptom consistent with a low back disability, to include lumbar strain and lumbar degenerative disc disease. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). The clinician must opine on: (a) Whether it is at least as likely as not (50% or greater probability) that the Veteran's current low back disabilities, including lumbar strain/sprain and lumbar degenerative joint disease/degenerative disc disease, are etiologically related to in-service injury or disease, to include his duties as a field artillery crewman and documented symptoms of low back pain, muscle spasms and tenderness. (b) Whether symptoms of arthritis of the lumbar spine, at least as likely as not, were noted during service with continuity of the same symptomatology since service. Consider and expressly address the medical and lay evidence in this context. NOTE (1): An adequate medical opinion may not be predicated solely on the absence of documented in-service diagnosis or treatment. NOTE (2): An adequate medical opinion may not be predicated solely on medical literature without discussing it vis-à-vis facts specific to the Veteran. NOTE (3): An adequate medical opinion may not reject the Veteran's competent report of symptoms in service and since without providing an explanation for doing so. For example, if the Veteran's reports about his symptoms do not align with how the currently diagnosed disability is known to develop, explain; or if the Veteran's reports are generally inconsistent with medical knowledge or implausible, explain. 4. Ensure that the VA medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 5. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Krunic, 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.