Citation Nr: 21070071 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 15-04 261 DATE: November 22, 2021 ORDER Entitlement to service connection for hypertension is dismissed. Entitlement to service connection for headaches is dismissed. Entitlement to service connection for insomnia is dismissed. Entitlement to service connection for a psychiatric disability is dismissed. Entitlement to service connection for radiation sickness is dismissed. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is dismissed. Entitlement to service connection for right and left lower extremity peripheral neuropathy is dismissed. Entitlement to special monthly compensation for aid and attendance for a spouse is dismissed. The application to reopen the previously denied claim of entitlement to service connection for myofascial back pain is granted. Entitlement to service connection for lumbar spine strain with spinal stenosis (back disability) is granted. FINDINGS OF FACT 1. In March 2019, prior to the promulgation of a decision in the appeal, the Veteran withdrew from appeal the issues of entitlement to service connection for hypertension, radiation sickness, headaches, insomnia, a psychiatric disability, left and right lower extremity neuropathy, COPD, and entitlement to aid and attendance for the Veteran's spouse. 2. In an October 2009 decision, the Board of Veterans' Appeals (Board) denied service connection for myofascial back pain. 3. Evidence received since the October 2009 Board decision relates to an unestablished fact necessary to substantiate the claim for service connection for a back disability, and raises a reasonable possibility of substantiating the claim. 4. The evidence is at least evenly balanced as to whether the Veteran's back disability had its onset in service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal regarding the issues of entitlement to service connection for hypertension, radiation sickness, headaches, insomnia, psychiatric disability, left and right lower extremity neuropathy, COPD, and entitlement to aid and attendance for the Veteran's spouse have been met. 38 U.S.C. § 7105 (b)(2), (d); 38 C.F.R. §§ 19.55, 20.204. 2. The October 2009 Board decision that denied entitlement to service connection for a back disability is final. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 20.1100(a), 20.1104. 3. Evidence received since the October 2009 decision is new and material, and the criteria for reopening of the claim of entitlement to service connection for a back disability have therefore been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for back disability have been met. 38 U.S.C. §§ 1131, 5107(b); 38 U.S.C. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1954 to January 1957. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for hypertension, radiation sickness, headaches, insomnia, anxiety disorder, depression, left and right lower extremity neuropathy, COPD, entitlement to aid and attendance for the Veteran's spouse, and reopened a claim for service connection for spinal stenosis, but denied service connection for spinal stenosis. In October 2012, the Veteran filed his notice of disagreement, was issued a statement of the case in January 2015, and in February 2015, perfected his appeal to the Board. The Veteran requested a videoconference hearing with a Veterans Law Judge which was scheduled for August 16, 2021. However, in an August 2021 statement, the Veteran, through his representative, requested that his hearing be postponed. While the Veteran has not yet testified at a Board hearing, he will not be prejudiced by the Board continuing with adjudication of his claim, as such is being granted in full. The Board may dismiss any appeal which fails to identify the specific determination with which the claimant disagrees. 38 U.S.C. § 7105(d). An appeal may be withdrawn as to any or all issues involved in the appeal. 38 C.F.R. § 19.55(a). Withdrawal may be made by the Veteran, or by his or her authorized representative. Id. In the present case, the Veteran submitted a March 2019 statement indicating that he wished to withdraw the pending appeals regarding all of his claims except the one relating to spinal stenosis. The signed statement constitutes a valid withdrawal of the Veteran's appeal as it complied with the requirements of the applicable regulation, now 38 C.F.R. § 19.55(b), by including the name of the Veteran, the applicable VA file number, and a statement that the Veteran wished to withdraw the issues associated with his appeal. See Hembree v. Wilkie, 33 Vet. App. 1, 8, (2020). As the Veteran has withdrawn the appeal as to these claims, there remain no specific determinations with which the Veteran disagrees with regard to these claims. The Board will therefore dismiss the appeal as to these claims pursuant to 38 U.S.C. § 7105(d). NEW AND MATERIAL The Board notes that to the extent that the RO appears to have adjudicated the claims for service connection for back disability on the merits, regardless of the RO's actions, the Board must still determine whether new and material evidence has been received. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Furthermore, as the RO has reopened the claims for service connection for back disability, no prejudice accrues to the Veteran, and the Board may proceed to adjudicate all claims on the merits. See generally Hickson v. Shinseki, 23 Vet. App. 394, 399 (2010). In October 2009, the Board denied the Veteran's claim for, inter alia, service connection for spinal stenosis finding no nexus between an in-service injury and his current disability. Generally, a claim which has been disallowed by the Board is final on the date stamped on the face of the decision. 38 U.S.C. § 7104(b); 38 C.F.R. § 20.1100(a). If an Agency of Original Jurisdiction decision is appealed to the Board and the Board issues a decision, that Board decision subsumes the underlying decision. 38 C.F.R. § 20.1104. Unless the Chairman of the Board orders reconsideration of a Board decision, the Board decision is final on the date of mailing stamped on the face of the decision. 38 U.S.C. § 7103(a); 38 C.F.R. § 20.1100. Except as provided by 38 U.S.C. § 5108, a claim that has been disallowed by the Board may not thereafter be reopened and allowed, and a claim based on the same factual basis may not be allowed. 38 U.S.C. § 7104 (b). A previously denied claim may be reopened by submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New and material evidence cannot be cumulative or 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. When determining whether submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Id. at 117. Evidence available at the time of the October 2009 Board decision included service treatment records, April 2001 VA treatment records, a November 2001 Veteran's statement, October 2002 treatment records, a December 2002 VA examination report, September 2006 Board hearing testimony, a June 2008 VA examination report, and a December 2008 VA examination report. The Board's denial of the claim hinged in part on the lack of medical evidence supporting a nexus between an in service injury and his current back disability, and the denial became final on the date stamped on the face of the decision. 38 U.S.C. § 7104 (a); 38 C.F.R. §§ 20.1100 (a), 20.1104. Evidence received since the October 2009 prior denial includes additional medical treatment records, a January 2012 private medical opinion, July 2013 RO hearing testimony, and an October 2021 appellate brief. This new evidence is not redundant of the evidence of record, and raises a reasonable possibility of substantiating the claim as it provides previously unsubmitted evidence which could reasonably substantiate the claim, including evidence regarding the etiology of the Veteran's back disability. The evidence received since the October 2009 prior denial is new and material, thus reopening of the claim for service connection for a back disability is warranted. SERVICE CONNECTION Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, air, or space service. 38 U.S.C. §§ 1110, 1131; 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). Back Disability In a November 2001 statement, the Veteran stated that he suffers from a back injury caused by lifting patients during service. The Veteran's DD-214 reflects that his military occupational specialty (MOS) was as an x-ray specialist. The Veteran's October 1954 service treatment records reflect that he was treated for mild muscle strain in his back, but his December 1956 medical examination report upon discharge is normal. April 2001 VA treatment records reflect that the Veteran reported burning dysesthesias in both legs, but no back pain. A December 2002 VA examination report indicates that the Veteran reported pain in his lumbar spine since 1955 when he suffered an injury lifting a heavy individual onto an examination table, causing pain in his low back. He stated that he has always had this pain since service, but managed to do his job even though lifting heavy weight would cause pain in his lower back. The examiner diagnosed the Veteran with lumbar strain with spinal stenosis. The Board notes that the Veteran has indicated that the answers provided on this report were not consistent with the answers he gave to the examiner. During his September 2006 videoconference Board hearing, the Veteran reported that he first noticed back pain in 1955 or 1956 when he was working in surgery, but stated he was engaged in lifting people onto a gurney and operating table throughout his time in service. The Veteran stated that he was told by doctors that they could let it worsen to the point where they could operate on it and try to fix it. In a June 2008 VA examination report, the examining physician opined that the Veteran's back disability is more likely than not the result of his lumbar strain. In a December 2008 VA examination report, the same physician from the June 2008 report noted that the first documented history of the Veteran complaining of lumbar back disease was in November 2001 with the exception of the muscle strain in 1954. He reported that there is insufficient medical evidence in the intervening 40 plus years to causally link the back strain that occurred during service to the subsequent development of osteoarthritis and spinal stenosis, and thus concluded that it was less likely than not that the in service lumbar strain resulted in his current disability. In a March 2010 spine surgery follow up medical report, the Veteran's physician indicated that the Veteran reported significant pain in the thoracolumbar junction which has been ongoing for the past 40 to 50 years since service. May 2010 treatment records reflect that the Veteran was treated for low back pain. In a January 2012 letter, the Veteran's private physician reported that the Veteran had a T-2 compression fracture that occurred while he was working as an x-ray technician, with the Veteran reporting an onset of pain in his back around 1956 while lifting a patient. The physician noted that it has since been intermittently bothersome, and opined that it is certainly plausible given the mechanism that the Veteran described to obtain a T12 compression fracture, and indicated that a recent MRI showed that the fracture was old. The Veteran has provided competent evidence that he currently suffers from back pain, his December 2002 VA examination report reflects a diagnosis of lumbar strain with spinal stenosis, and his service treatment records indicate that he was treated for mild muscle strain in service, an injury consistent with the Veteran's circumstances of service considering his MOS as an X-ray technician. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). The dispositive issue is whether there is a relationship between the in-service back strain and his current back disability. While the December 2008 physician opined that the Veteran's back disability was less likely than not (less than a 50 percent probability) incurred in or caused by a claimed in-service injury, event, or illness, he based his opinion on the fact that there was insufficient medical evidence between the time the Veteran was discharged until November 2001 which is an impermissible basis upon which to find that the back disability is not related to service. See Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Therefore, the December 2008 opinion is inadequate and afforded no probative weight. The January 2012 physician conversely opined that the Veteran's back disability was directly caused by service, noting the nature of the current disability, and the Veteran's complaints of back pain since service. The Veteran is competent to report symptoms that he has observed, and which are within the realm of his personal knowledge. Jandreau v. Nicholson, 492 F. 3d 1372, 1377, n.4 (Fed. Cir. 2007). There is no evidence of record that the Veteran lacks credibility, thus his statements are afforded significant probative value. While the January 2012 physician's rationale was not extensive, reading the opinion as a whole and in the context of the evidence of record, he found that the nature of the Veteran's military service and events that occurred therein, and subsequent symptoms, made it likely that they had resulted in his current back disability, and the opinion is thus afforded significant probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). To the extent that the term "certainly plausible" is ambiguous, the opinion nevertheless constitutes evidence in support of the claim. Cf. Hogan v. Peake, 544 F.3d 1295, 1297-98 (Fed. Cir. 2008) (even if flawed because stated uncertainly, an opinion from a licensed counselor regarding the etiology of a claimant's psychological disorder must be considered as "evidence" of whether the disorder was incurred in service). The Board notes the Veteran's April 2001 VA treatment records wherein the Veteran reported no back pain. However, it is reasonable to conclude that at the time the Veteran was receiving treatment his back pain had subsided, particularly considering the Veteran's consistent accounts that his pain has been intermittent since service. The evidence is thus at least evenly balanced as to whether the Veteran's current back disability is related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for a back disability is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Maddox, 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.