Citation Nr: 21070524 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 18-26 220 DATE: November 24, 2021 ORDER 1. The appeal to reopen a claim of service connection for a back disability is granted. 2. Entitlement to service connection for thoracolumbar spine degenerative disc disease (DDD) (on de novo review) is granted, subject to the regulations governing payment of monetary awards. FINDINGS OF FACT 1. An unappealed April 1997 rating decision denied the Veteran service connection for a disability manifested by back pain, based essentially on a finding that a back disability was not shown. 2. Evidence received since the April 1997 rating decision shows diagnoses of thoracic and lumbar spine disabilities and includes competent (medical) nexus opinion evidence in support of the claim; relates to unestablished facts necessary to substantiate the claim of service connection for a back disability; and raises a reasonable possibility of substantiating such claim. 3. The Veteran's thoracolumbar spine DDD is reasonably shown to be due to an injury in service. CONCLUSIONS OF LAW 1. New and material evidence has been received and the claim of service connection for a back disability may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. Resolving reasonable doubt in the Veteran's favor, service connection for thoracolumbar spine DDD is warranted. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from November 1973 to January 1996. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision which, in relevant part, reopened, but continued to deny, service connection for a back disability. In April 2021, a virtual hearing was held before the undersigned; a transcript is in the Veteran's record. At the hearing, the Veteran was granted a 90-day abeyance period for submission of additional evidence. That period lapsed; additional evidence, including a July 2021 private medical opinion, was received (and is considered herein). The Agency of Original Jurisdiction (AOJ) reopened the claim seeking service connection for a back disability and decided it on the merits. Regardless, the Board must make its own determination whether new and material evidence to reopen the claim was received, to establish its jurisdiction to review de novo the merits of previously denied claim. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). Before addressing the claim to reopen (and the appeal on de novo review) below, the Board will address a procedural matter pertaining to the appeal. The Veteran's May 2018 VA Form 9 (formal appeal) limited this appeal to the matter of service connection for a back disability. Notably, a March 2018 statement of the case (SOC) addressed service connection for a back disability, prostatitis, right eye disability, and tuberculosis. His VA Form 9 specifically limited his appeal to a back disability, varicocele, and bilateral foot disability. The latter two issues were not included in the March 2018 SOC and, accordingly, are not ripe for Board review. 1. The appeal to reopen a claim of service connection for a back disability is granted. 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, 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 presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The United States Court of Appeals for Veterans Claims (CAVC) has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold requirement. The CAVC interpreted the language of 38 C.F.R. § 3.156(a) as "enabling rather than precluding reopening." See Shade v. Shinseki, 24 Vet. App. 110 (2010). An unappealed April 1997 rating decision denied service connection for back pain on the basis that there was no evidence of a chronic disability or underlying disease process (on February 1997 VA examination). The Veteran did not appeal that rating decision, or submit new and material evidence within the following year, and it became final and is the last prior final rating decision in the matters. 38 U.S.C. § 7105. Evidence of record at the time of the April 1997 rating decision included service treatment records (STRs) (which show complaints of back pain in service), a February 1997 VA examination report (which does not show a back diagnosis), and the Veteran's lay statements. As the claim was previously denied based on a finding that a back disability was not shown, for evidence to be new and material, it must tend to relate to this unestablished fact (it must tend to show the existence of a current back disability, that may be related to service). Evidence received since the April 1997 rating decision includes a March 2018 VA back conditions examination report, which notes diagnoses of degenerative arthritis of the spine, intervertebral disc syndrome (IVDS), lumbar spine DDD, and thoracic spine pain, and a July 2021 non-VA medical opinion in support of the claim. This evidence is new, as it was not of record in April 1997, and is material, as it is competent (medical) evidence that pertains to the unestablished facts necessary to substantiate the claim. Consequently, and considering the "low threshold" standard for reopening endorsed by the CAVC in Shade, the Board finds that the evidence received is both new and material, and that the claim of service connection for a back disability may be reopened. 2. Service connection for thoracolumbar spine DDD is granted on de novo review. Legal Criteria Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for a disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of: (1) a current claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury in service. See Shedden v. Principi, 281 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain chronic diseases (to include arthritis) may be presumed to be service connected if manifested to a compensable degree within a specified period of time postservice (one year for arthritis). 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Factual Background The Veteran contends that his current back disability is related to his active duty service. At the April 2021 Board hearing, he testified that he injured his back in service in December 1995, and was treated with medication and physical therapy (PT). He testified that he continued to seek treatment for back pain in January 1996, and again medication and PT were prescribed. He related that in 2016 or 2017 a VA podiatrist advised him to seek treatment for his low back and leg pain, and that an MRI and EMG study confirmed the nature and etiology of his back and leg manifestations. He also testified that he was in the infantry for five years, which involved heavy lifting (including of ammunitions and equipment), and later served as a company medic, which entailed carrying a heavy medical bag (and at times a "litter") and moving patients (on an examination table) and transporting them around the medical facility on gurneys. The Veteran's STRs note complaints of middle and low back pain during his active duty service. On September 1995 service separation examination, his spine was normal on clinical evaluation. Thereafter, in December 1995 (prior to separation), he was seen for complaints of back pain for one week. He described the pain as in the "central back" around T-7. The assessment was thoracic back pain. A January 4, 1996 follow-up record notes he was seen for complaints of back pain at T-7 to T-10. There was tenderness to palpation at T10 to T-12 with "? myospasm." The assessment was "thoracic back pain persistent." Medication and PT were prescribed. Postservice records do not show complaints of back pain or diagnosis of a back disability in the first several postservice years. On February 1997 VA general medical examination, the Veteran reported that he experienced thoracic spine back pain in January 1996 while lifting weights in a gym. He reported that he had pain on palpation then, but "is currently without symptoms." On examination of the spine, there was no pain to palpation or paraspinal muscle spasm; range of motion (ROM) of the lumbosacral spine was full. Subsequent postservice records show complaints of back pain and diagnoses of various back disabilities. May and June 2011 treatment records note complaints of chronic backache. A February 2012 treatment record notes an assessment of herniated invertebral discs at L4-L5 and L5-S1 (upon review of a January 2012 lumbar spine MRI). A September 2014 PT record notes the Veteran's report of chronic hip girdle pain since 1974 or 1975. He also reported lumbar spine pain and described the pain as "going around his midsection but very deep." He reported that the pain is manageable, rated 4/10, and that he likes to work out regularly. On March 2018 VA spine examination, the Veteran reported a "history of chronic upper to lower back pain starting in military around 1994-1995." He also reported intermittent tingling and burning sensation in his legs, which was self-treated with cold packs. The examiner reviewed the record and noted the January 2012 MRI report. She also noted that a September 2015 lumbar spine MRI showed DDD in the "mid to lower lumbar spine, most pronounced at L4-L5 causing mild to moderate narrowing of right neural foramen and mild narrowing of left neural foramen without spinal canal narrowing", and noted that a September 2017 lumbar spine MRI showed multilevel DDD and "facet arthroplasty new at L2-3 and slightly increased at L4-5 compared to prior examination, most significantly producing moderate narrowing of the right L4-5 neural foramen." The diagnosis was degenerative arthritis of the spine, IVDS, lumbar spine DDD, pain in the thoracic spine, and lumbar radiculopathy. Following review of the record and interview/examination of the Veteran, the (nurse practitioner) examiner opined the Veteran's back disability was less likely than not related to service, explaining that DDD "is typically due to wear and tear of aging," and that "Thoracic back pain and facet irritation noted in 1995 and 1996 associated with sit ups would not be an expected trigger for lumbar degenerative disc disease." In July 2021 (after the Board hearing), VA received a July 2021 medical opinion on a Department of Defense (DoD) and Department of the Army letterhead. Dr. M.P., an Army Integrated Disability Evaluation System (IDES) Medical Evaluation Board (MEB) physician, reviewed the Veteran's record and noted diagnoses including thoracic spine DDD, lumbar radiculopathy, and cervical spine radiculopathy. [He did not diagnose IVDS.] Dr. M.P. noted that the Veteran's personnel records show he served 5 years as an infantryman and 17 years as a combat medic/health care specialist. He noted that the Physical Demands Rating of the infantryman MOS is "Very Heavy," with tasks that include carrying heavy sacks, squatting, running, digging, climbing, and heavy lifting. The Physical Demands Rating of the combat medic/health care specialist is "Moderately Heavy" with tasks that include occasional pushing and lifting of heavy objects for short and long distances. He noted the Veteran's STRs show treatment for thoracolumbar back pain in December 1995 through January 1996, and that following separation from service, the Veteran was employed at various medical-related "occupations that did not require any lifting or more than mild physical activity. Review of supplied post-separation medical records do not reveal any history of trauma, but do reflect the slow, insidious progression of degenerative cervical, thoracic, and lumbar spine disease with associated bilateral upper and lower extremity radiculopathies." Dr. M.P. stated, "Due to [the Veteran's] 22 12 years of Active Duty Service in MOS's that have Physical Demand Ratings of Very Heavy and Moderately Heavy, documented AD medical evaluations for spinal orthopedic and neurological complaints, lack of post-separation medical evidence that shows acute onset due to injury but does reflect the slow, insidious progression of degenerative disease, my medical opinion is that the claimed conditions are at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service events." Analysis The Veteran has current diagnoses of degenerative arthritis of the spine, IVDS, lumbar spine DDD, thoracic spine DDD, and pain in the thoracic spine. See March 2018 VA spine examination report; see also July 2021 medical opinion from Dr. M.P. The Veteran's STRs document complaints of, and treatment for, persistent thoracic and thoracolumbar spine pain. The remaining critical question is whether the Veteran's current low back diagnoses are etiologically related to his service. On longitudinal review of the record, the Board finds that the competent medical evidence of record is at least in equipoise that the Veteran's thoracolumbar spine DDD is etiologically related to his active duty service. As outlined above, in July 2021, VA received a medical opinion in support of the claim on DoD letterhead from an Army physician who specializes in IDES and MEB evaluations. He opined, after review of the Veteran's medical record (including his in-service MOS's involving very heavy and moderately heavy lifting), that the Veteran's thoracic and lumbar spine disease is at least as likely as not related to his service, and the documented complaints therein. The Board has no reason to question the findings/conclusions of the July 2021 consulting provider; in fact, his report indicates he specializes in this exact type of work (medical record review and disability examinations) for the military. He expressed familiarity with the record and factual evidence specific to the Veteran, and provided a rationale for his opinion. The Board notes the March 2018 VA opinion against the claim, but finds it less probative, as the rationale is stated in a speculative manner (i.e., not specific to the Veteran), such as the explanations that lumbar spine DDD "is typically due to wear and tear of aging" and that the Veteran's thoracic back pain associated with sit ups in service "would not be an expected trigger for lumbar degenerative disc disease" (emphases added). Considering the foregoing, the Board finds that it is reasonably shown that the Veteran's thoracolumbar spine DDD is etiologically related to his active duty service (and the complaints therein), and that service connection for thoracolumbar spine DDD is warranted. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dupont, 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.