Citation Nr: 21073485 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 18-03 794 DATE: December 8, 2021 ORDER New and material evidence having been submitted, the previously denied claim for entitlement to service connection for a disability of the lumbar spine is reopened. Service connection for degenerative disc disease of the lumbar spine is granted. FINDINGS OF FACT 1. Since the most recent denial of the benefit sought, the Veteran has submitted new and material evidence which raises a reasonable possibility of substantiating the claim. 2. Medical evidence supports that the Veteran's low back injuries in service caused or contributed to his currently shown lumbar spine degenerative disc disease. CONCLUSIONS OF LAW 1. The criteria for reopening the previously denied claim for entitlement to service connection for a low back disability have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for lumbar spine degenerative disc disease have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1978 to July 1982. This matter comes before the Board of Veterans' Appeals (Board) from a January 2017 decision by the Agency of Original Jurisdiction (AOJ) which found no new and material evidence had been submitted to reopen a previously denied claim for entitlement to service connection for a disability of the lumbar spine. The Veteran perfected an appeal to the Board and in August 2021, he presented sworn testimony during an appellate hearing before the undersigned Veterans Law Judge. The Board observes that the Veteran has twice asserted that a 1983 VA decision denying service connection for a low back disability was tainted by clear and unmistakable error (CUE). In July 2018 and again in October 2019, the Veteran asserted that the decision was erroneous because he had then and continues to have a chronic back disability. The AOJ has not addressed this claim in any way. Previous determinations which are final and binding, including decisions of service connection and degree of disability will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). However, such claims must be specifically pled. The Veteran's current assertions are not specific enough for this purpose, in that he has not identified a particular mistake made, considering the facts of record at the time and the law in effect at the time. Rather, his argument as expressed in these two communications, rests upon facts which developed later. The Veteran and his representative are invited to file such a claim if they desire. Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C. § 7104(a). When there is an approximate balance of 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; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Generally, service connection may be granted for any disability resulting from injury suffered or disease contracted in line of duty, or for aggravation in service of a pre-existing injury or disease. 38 U.S.C. §§ 1110, 1131. Service connection may be established by demonstrating that the disability was first manifested during service and has continued since service to the present time or by showing that a disability which pre-existed service was aggravated during service. Service connection may be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. When a chronic disease such as arthritis becomes manifest to a degree of 10 percent within one year of the Veteran's discharge from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the Veteran's period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. As an alternative to the nexus requirement, service connection for these chronic disabilities may be established through a showing of "continuity of symptomatology" since service. 38 C.F.R. § 3.303(b). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). History of the case Historically, the Veteran applied for service connection for the residuals of low back injuries in service shortly after his discharge from service. He entered service with a normal back. His service treatment records reflected multiple complaints of low back pain, often associated with heavy lifting. A VA examiner in October 1983, however, determined that these complaints had reflected acute and transitory injuries, and that the Veteran's back was normal upon clinical examination. In an October 1983 decision, the AOJ denied service connection for residuals of injury on the basis that any injuries had been acute and resolved without residual disability. The Veteran was notified of this decision and of how to appeal in November 1983. He did not do so, however, and the denial became final. 38 C.F.R. § 20.1103. The Veteran tried again in 2003, asserting that he had injured his back on active duty and continued to be treated for back problems. The AOJ denied the claim in an April 2004 decision, finding that the Veteran had not submitted new and material evidence sufficient to reopen the claim. The Veteran did not appeal to the Board and this denial also became final. The Veteran filed the claim leading to the instant appeal in October 2016. In conjunction with the claim, he submitted copies of private treatment records showing workplace back injuries in 1988 and 2008. He also submitted the report of a June 1996 VA X-ray study which was interpreted as showing minimal scoliosis of the lumbar spine with mild narrowing of the intervertebral disk space at L5-S1. The Veteran was provided with a VA compensation examination in December 2016. The examiner rendered diagnoses of lumbosacral strain, spinal stenosis, and degenerative disc disease. Following review of the Veteran's claims file in addition to the clinical examination, the examiner opined that the Veteran's currently shown low back problems were unrelated to the episodes in service. The examiner explained that the episodes of strain in service had resolved without residual disability and that the current problems were more likely related to the post-service workplace back injuries. In an October 2019 statement, the Veteran wrote that his low back has only worsened since his discharge from service. He detailed his many treatments over the years and his current symptoms, which include depression and inability to sleep due to pain. In June 2021, he submitted a written statement from a friend who had known him since childhood. According to the friend's statement, she recalled the Veteran telling her within several years of discharge from service that he had been having pain in his low back since service. The Veteran provided sworn testimony in support of his appeal during a hearing before the undersigned Veteran's Law Judge. He testified that he had been a warehouseman in service. He related that he first experienced a sharp pain in his back when lifting a heavy box. He explained that he had sprained his back in the same way multiple times during service and had frequently gone to the infirmary for treatment of back pain. He testified he had been experiencing back pain since service and that he took over the counter pain medication during times when he had not had health insurance and had not been able to go for medical care. After the hearing on appeal, the Veteran's representative obtained a medical nexus opinion. The September 2021 opinion, authored by a board-certified physician's assistant, reflects thorough review of the Veteran's service treatment records, as well as relevant medical treatises. The physician's assistant concluded that the Veteran's current lumbar degenerative disc disease was a direct result of his military service. She provided the following explanation: Medical evidence shows that the degenerative cascade leading to chronic back pain can begin even after a single injury, and that subfailure injuries of ligaments may cause chronic back pain due to muscle control dysfunction after even a single injury to the back. Evidence also shows that service members who experience back pain while in the military have a high likelihood of developing chronic back pain. Lastly, medical evidence shows that repetitive heavy lifting is among one of the most common causes for acute and chronic low back pain and disability. Previously denied claim Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 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(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. In this case, the newly submitted evidence since the most recent prior denial of service connection in April 2004 includes the Veteran's hearing testimony and written statements, updated medical records establishing his current diagnosis of lumbar degenerative joint disease, and the September 2021 medical nexus opinion. All of these pieces of evidence are new, were not considered in April 2004, and raise a reasonable possibility of substantiating the Veteran's claim. The Board therefore holds that the previously denied claim for entitlement to service connection for a low back disability is reopened for review on a de novo basis. Merits analysis To establish a right to compensation for a present disability on a direct basis, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Careful review of the evidence of record convinces the Board that service connection for lumbar spine degenerative disc disease is warranted. That the Veteran has current degenerative disc disease is established in the record. That he sustained multiple strains related to lifting during the course of his service duties is established in his service treatment records. A causal relationship between the two is established by the September 2021 medical opinion. Shedden. Given the reports of low back complaints and injuries recorded in his service treatment records, the Veteran's credible hearing testimony and written assertions, supported by the statement of his friend who recalls the Veteran's back pain shortly after service, along with his contemporaneous report of having injured his back during service, the Board finds the Veteran's statements of back pain since service to be credible. The Board finds that the September 2021 medical opinion is more persuasive than the VA examination opinions of record because it reflects a thorough review of the Veteran's records and is well supported by reference to well-regarded medical treatises. The explanation about the degenerative cascade progression from an initial back trauma was particularly persuasive. Although the most recent VA examiner was quick to attribute the Veteran's current problems to his on-the-job injuries, the examiner failed to account for the Veteran's own statements about his painful back since discharge from service. We therefore accord greater probative weight to the more detailed positive nexus medical opinion. The evidence supports the Veteran's claim for entitlement to service connection for lumbar spine degenerative disc disease. The appeal is granted. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Harter, Heather J. 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.