Citation Nr: 21071971 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 19-28 133 DATE: December 1, 2021 ORDER The application to reopen the previously denied claim of entitlement to service connection for a lumbar spine condition is granted. Service connection for low back pain is granted. THE VETERAN'S CONTENTIONS The Veteran contends that his pre-existing back injury was not substantial; and that his back condition was aggravated, and additional injury was caused as a result of service. See September 2019 VA Form 9. He testified that he injured his back during service when he fell while handling munitions. See August 2021 Board hearing transcript, pp. 4-6. He stated that he subsequently was reassigned to work as a baker and he injured his back a second time in service when he slipped while lifting a 100 pound bag of flour. Id., p. 10; see also July 2014 statement in support of claim; October 2018 VA Form 9. He reported that he was hospitalized during service and placed in traction for one to two weeks. See August 2021 Board hearing transcript, pp. 10-12. The Veteran contends that he has continually suffered from back problems as a result of these injuries. See December 2014 correspondence. FINDINGS OF FACT 1. A January 2015 rating decision denied the Veteran's claim for service connection for a lumbar spine condition. The Veteran filed a notice of disagreement (NOD) in February 2015 and a Statement of the Case (SOC) was issued in October 2016. The Veteran did not perfect his appeal by filing a VA Form 9 and, as such, the decision became final. 2. Evidence presented since the January 2015 rating decision relates to unestablished facts necessary to substantiate the Veteran's claim of entitlement to service connection for low back pain. 3. The Veteran's pre-existing low back pain was aggravated by his active military service. CONCLUSIONS OF LAW 1. The January 2015 rating decision that denied the Veteran's claim for entitlement to service connection for a lumbar spine condition is final; new and material evidence has been received to reopen the claim for entitlement to service connection for service connection for low back pain. 38 U.S.C. §§ 5108; 7105; 38 C.F.R. § 3.156(a). 2. The criteria for service connection for low back pain are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from January 1952 to January 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony in a hearing with the undersigned Veterans Law Judge on August 18, 2021. A transcript of that hearing is of record. 1. The application to reopen the previously denied claim Generally, if a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. 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(a). The threshold to reopen a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). For the purposes of evaluating a request to reopen a previously denied claim, the credibility of new evidence will be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran seeks to reopen his claim of entitlement to service connection for a low back condition. The Veteran's claim for entitlement to service connection for a low back condition was denied in a January 2015 rating decision based on the RO's finding that there was not a link between the Veteran's condition and his service. The Veteran filed an NOD in February 2015 and a SOC was issued in October 2016. The Veteran did not perfect his appeal by submitting a VA Form 9 or any statement that could be construed as a substantive appeal within one year of the January 2015 rating decision or within 60 days of the October 2016 SOC. Thus, the January 2015 rating decision became final. 38 C.F.R. §§ 19.52, 20.1103. Since January 2015, new evidence has been added to the claims file, which is material to the Veteran's claim, to include a July 2018 private medical opinion from Dr. R.T. and the Veteran's testimony at the August 2021 Board hearing. Accordingly, the Veteran's claim for service connection for low back pain is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). 2. Service connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). As an initial matter, the Board notes that some of the service treatment records from January 31, 1952 to January 30, 1954 are unavailable for review. See December 2014 correspondence. When there is evidence that a Veteran's service records have been lost or destroyed, VA has a heightened duty to consider the applicability of the benefit of the doubt rule, to assist a claimant in developing a claim, and to explain its findings and conclusions. Russo v. Brown, 9 Vet. App. 46, 51 (1996); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005). VA law provides that a Veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C. § 1111. The presumption of soundness attaches only where there has been an induction examination during which the disability about which the Veteran later complains was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). A November 1951 pre-induction examination report noted the Veteran had a low back ache for the prior two years. As a back condition was noted at entrance into service, the presumption of soundness does not apply. See 38 U.S.C. § 1111; Duran v. Brown, 6 Vet. App. 283, 286 (1994); Cotant v. Principi, 17 Vet. App. 116 (2003); VAOPGCPREC 3-2003, 69 Fed. Reg. 25178 (2004). As a low back ache was noted upon entry into service, the claim is one of entitlement to compensation based on aggravation of a preexisting disability. 38 U.S.C. § 1153. Where a preexisting disease or injury is noted on the entrance examination, 38 U.S.C. § 1153 provides that "[a] preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). For veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. Clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the disability at issue. 38 C.F.R. § 3.306(b). Temporary or intermittent flare-ups of symptoms of a preexisting condition, alone, do not constitute sufficient evidence for a noncombat veteran to show increased disability for the purposes of determinations of service connection based on aggravation under 38 U.S.C. § 1153 unless the underlying condition worsened. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b). The Veteran served on active duty during a period of war. As such, the regulations direct VA to presume that the Veteran's preexisting back condition was aggravated by active duty if the evidence demonstrates that it underwent an increase in severity during active service. In order to rebut this presumption, it must be shown by clear and unmistakable evidence that the Veteran's back condition was not aggravated or that the aggravation was due to the natural progression of the disability. The Veteran's January 1954 examination at separation from service noted that his spine was abnormal. The Veteran submitted statements from his private physicians, Dr. R.T. and Dr. M.L., relating his low back pain to his injuries during service. See January 2014 medical opinion from Dr. M.L.; February 2015 and July 2018 medical opinions from Dr. R.T. The Board acknowledges the negative nexus opinion provided by the August 2018 VA examiner. However, in light of the Veteran's credible contentions and the positive private nexus opinions of record, the Board resolves doubt in the Veteran's favor and finds that his pre-service low back pain was aggravated by his service. Accordingly, service connection for low back pain is warranted. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Samuelson, 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.