Citation Nr: 21071744 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 19-35 708 DATE: December 1, 2021 ORDER Since there is new and material evidence, the claims of entitlement to service connection for a chronic low back condition (to include low back degenerative disc disease) and gastroesophageal reflux disease (GERD) are reopened. Entitlement to service connection for a chronic low back condition (to include low back degenerative disc disease) is granted. Entitlement to service connection for GERD also is granted. The claims of entitlement to service connection for hemorrhoids and hypothyroidism are dismissed since they have been withdrawn. FINDINGS OF FACT 1. In an unappealed September 2014 rating decision, the local Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ), denied the Veteran's claims for service connection for a chronic low back condition (to include low back degenerative disc disease) and GERD. 2. But there is additional evidence since that decision that is neither cumulative nor redundant of the evidence of record at the time of that decision and that raises a reasonable possibility of substantiating these claims. 3. The Veteran's chronic low back condition (to include low back degenerative disc disease) is related to the low back pain she experienced during her service. 4. The Veteran's GERD is related to the epigastric discomfort and abdominal pain she experienced during her service. 5. During her "virtual" teleconference hearing before this Board on January 26, 2021, so prior to the promulgation of a decision in this appeal, the Veteran withdrew her appeal for service connection for hemorrhoids and hypothyroidism. CONCLUSIONS OF LAW 1. There is new and material evidence to reopen the claims of entitlement to service connection for a chronic low back condition (to include low back degenerative disc disease) and GERD. 38 U.S.C. §§ 5107, 5108, 7105; 38 C.F.R. §§ 3.104(a), 3.156. 3.160(d), 20.200, 20.1103 (2018). 2. The criteria are met for entitlement to service connection for a chronic low back condition (to include low back degenerative disc disease). 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria are met for entitlement to service connection for GERD. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria are met for withdrawal of the claims for service connection for hemorrhoids and hypothyroidism. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the Army from September 1986 to October 1993. A "virtual" teleconference hearing was held in January 2021 before the undersigned Veterans Law Judge (VLJ) of the Board, and a transcript of the proceeding is of record. 1. Since there is new and material evidence, the claims of entitlement to service connection for a chronic low back condition (to include low back degenerative disc disease) and GERD are reopened. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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 sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. These claims were earlier considered and denied in September 2014 because there was no evidence of a diagnosis of either condition. But, since September 2014, the Veteran has submitted treatment records and provided hearing testimony indicating she has experienced symptoms of each condition and has, in turn, received diagnoses of each condition. This is new and material evidence and, therefore, reason to reopen her claims since there now at least is the required indication she has these claimed conditions. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). 2. Entitlement to service connection for a chronic low back condition (to include low back degenerative disc disease) is granted. 3. Entitlement to service connection for GERD also is granted. The Veteran argues that her chronic low back condition (to include her diagnosis of low back degenerative disc disease) and her GERD are related to her service. In support of her claims, she testified credibly that she has experienced symptoms of these conditions continuously since her service. She also has submitted a supporting medical nexus opinion from a private examiner affirming that each of these conditions is related or attributable to conditions documented in her service treatment records (STRs). The Board resultantly is granting these claims. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303(a); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). VA medical records show the Veteran is currently being treated for low back pain and for GERD. Her November 2017 VA examination also confirms she has a diagnosis of degenerative disc disease. Her STRs from between 1986 and 1988 further confirm that she was seen multiple times for complaints of low back pain. Thus, the question becomes whether her current disabilities are related to her service, including to the complaints she had in service. See Watson v. Brown, 4 Vet. App. 309, 314(1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). On this question there are probative opinions in favor of and against the claims. As to the Veteran's low back condition, the evidence against the claim includes an August 2011 VA examination and opinion indicating the Veteran did not then currently have a diagnosis of a chronic back condition. However, as already mentioned, the more recent November 2017 VA examination confirms a diagnosis of low back degenerative disc disease albeit mistakenly also indicating the condition already had been determined service connected and, therefore, will be afforded probative value only to the extent it confirms the Veteran's low back disability diagnosis. An addendum opinion provided in February 2018 concluded unfavorably in terms of nexus based on the examiner's review of the Veteran's STRs and the gap in time between her symptoms in service and later (eventual) diagnosis. In the appropriate circumstance, VA may consider the absence of any indication of a relevant medical complaint until so relatively long after service as one factor, just not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). See also Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy time period following his service during which there was no clinical documentation of the claimed disorder). Conversely, the evidence in favor of the claims includes a December 2019 private medical opinion etiologically linking the Veteran's current diagnosis of low back degenerative disc disease to the documented back pain she experienced while in the Army. This private examiner cited to the Veteran's STRs and confirmed he had reviewed the Veteran's treatment records. He then opined that, based on his examination of the Veteran and his review of her medical history and lay statements indicating she had experienced back pain since her service, it is more likely than not her current degenerative disc disease is related to the back pain noted during her service. As further support of this claim, the Veteran also has testified credibly to experiencing intermittent but continuous back pain since her service. With regards to the Veteran's GERD, the December 2019 private medical opinion also provided a positive nexus additionally linking this condition to the Veteran's service. Specifically, the examiner noted that the Veteran had reported experiencing symptoms since service and surmised that her reports were consistent with both her medical history and the natural history of the disease process. STRs indicate she was treated for abdominal pain and epigastric pain/gastritis. In summary, this examiner indicated it was his opinion that the symptoms and treatment noted in the Veteran's STRs concerning epigastric pain and gastritis were directly related to her current diagnosis of GERD. Therefore, upon review of the record, the Board finds the evidence to at least be in relative balance (equipoise) as to whether the Veteran's current low back disability (to include degenerative disc disease) and GERD originated during her service or are attributable to her service. Accordingly, after resolving this reasonable doubt in her favor, the Board finds that service connection for both her low back disability and GERD is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 4. The claims of entitlement to service connection for hemorrhoids and hypothyroidism are dismissed since they have been withdrawn The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be by the Veteran or her authorized representative. 38 C.F.R. § 20.204. In this case at hand, the Veteran has withdrawn her appeal of these claims; hence, there remain no allegations of errors of fact or law for appellate consideration concerning these claims. Accordingly, the Board does not have jurisdiction to review the appeal of these claims and they are summarily dismissed. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. B. Kucera 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.