Citation Nr: 21070732 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 19-13 174 DATE: November 24, 2021 ORDER The request to reopen the claim of entitlement to service connection for a lower back disability is granted. Entitlement to service connection for lumbar spine arthritis is granted. FINDINGS OF FACT 1. In a July 2017 rating decision, the Veteran was denied service connection for a lower back disability on the basis that evidence did not reflect his disability was related to service. The Veteran was notified of that decision in correspondence issued the same month. He did not appeal the decision, nor was material evidence received within one year. Therefore, the decision is final. 2. In a January 2019 opinion, the Veteran's treating VA physician opined that the Veteran's lumber spine disability was related to an in-service injury. This evidence is relevant and probative, and it helps cure a prior evidentiary defect; namely, the lack of a relation to service. 3. After resolving reasonable doubt in his favor, the Veteran's lumbar spine arthritis is related to service. CONCLUSIONS OF LAW 1. The July 2017 rating decision, which denied service connection for a lower back disability, is final. 38 U.S.C. § 7105(c) (2018); 38 C.F.R. § 19.52 (2021). 2. The evidence received since the July 2017 rating decision, which denied service connection for a lower back disability, is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2018); 38 C.F.R. § 3.156 (2021). 3. The criteria for entitlement to service connection for lumbar spine arthritis have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1989 to December 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2018 rating decision by the Department of Veterans Affairs (VA). In November 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. Although the Agency of Original Jurisdiction (AOJ) reopened the Veteran's claim of service connection for a lower back disability, the question of whether new and material evidence has been received to reopen such claim must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end; hence, what the AOJ may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. The Board has characterized the issue accordingly. For the reasons discussed above, the request to reopen the previously denied claim of service connection for a lower back disability is granted. The issue will not be further discussed herein. Entitlement to service connection for a lower back disability. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current 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 incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service treatment records (STRs) reflect that the Veteran fell from the back of a truck and a four by four tent post fell on his back. He reported consistent lower back pain up until his separation from service, to include on his separation medical examination. See, e.g., December 1991 STRs. Prior to his separation, the Veteran submitted a statement to VA noting his chronic back problems. See September 1993 statement. The Veteran reported continued problems with his back ever since service. See, e.g., April 2017 statement. A June 2017 VA examiner diagnosed lumber spine arthritis, but opined it was less likely than not that the disability was related to the Veteran's in-service accident. The opinion is inadequate because it did not consider the Veteran's lay report of continued pain and merely stated that the Veteran's arthritis was mild and age-related. Because the opinion is inadequate, it is assigned no probative weight. A VA treating physician diagnosed multilevel degenerative spondylosis and opined that the Veteran's chronic back pain was related to his in-service injury. See January 2019 private letter. After considering the treating physician's statement, STRs corroborating the Veteran's reports of back pain in service, and the Veteran's consistent reports of pain since service, the Board will resolve reasonable doubt in his favor and find that his lumbar spine arthritis is related to service. Thus, service connection is warranted, and the claim is granted. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Sandler, 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.