Citation Nr: 21075946 Decision Date: 12/22/21 Archive Date: 12/21/21 DOCKET NO. 18-33 136 DATE: December 22, 2021 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for a lumbar spine (back) disability. Entitlement to service connection for a back disability is granted. FINDINGS OF FACT 1. A July 2013 rating decision denied service connection for a back disability. The Veteran initiated an appeal, and a Statement of the Case (SOC) was issued in December 2014; however, the Veteran did not perfect his appeal with a timely VA Form 9. 2. Evidence received more than one year since the final July 2013 rating decision is neither cumulative nor redundant of evidence already of record and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a back disability. 3. The Veteran's back disability had its onset in service. CONCLUSIONS OF LAW 1. The July 2013 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The criteria to reopen the claim of entitlement to service connection for a back disability based on receipt of new and material evidence are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for entitlement to service connection for a back disability 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 United States Air Force from August 1971 to June 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The Veteran previously appointed the American Legion as his representative. See November 2014 VA Form 21-22. However, at his November 2021 Board hearing he indicated that he was revoking his power of attorney in favor of the American Legion and that he would be representing himself. 38 C.F.R. § 14.631(f)(1); Board Hearing Transcript at 2. Therefore, the Board will proceed to adjudicate this appeal with the Veteran proceeding pro se. 1. New and material evidence has been received to reopen the claim of entitlement to service connection for a back disability. A claimant may reopen a finally adjudicated legacy claim by submitting new and material evidence. New evidence is evidence not previously part of the actual record before agency adjudicators. 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). The Veteran's initial claim of entitlement to service connection for a back disability was denied in a July 2013 rating decision for lack of nexus. The Veteran filed a timely Notice of Disagreement and a SOC was issued in December 2014. The Board acknowledges the Veteran's previous representative's April 2015 correspondence asserting the claim was still on appeal; however, this assertion is erroneous, as the Veteran did not submit a timely VA Form 9 within 60 days following issuance of the SOC. Accordingly, the July 2013 rating decision is final. See 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156(b), 20.1103. Evidence received more than one year since the most recent final July 2013 rating decision includes an August 2017 statement from the Veteran's physician and his November 2021 Board hearing testimony. This evidence is new in that it was not considered in the prior denial. This evidence is also material, as it relates to an unestablished fact (nexus) necessary to substantiate the claim. Accordingly, there is new and material evidence to reopen the previously denied claim of entitlement to service connection for a back disability. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 2. Entitlement to service connection for a back disability is granted. The Veteran asserts that his back disability is due to an in-service injury, namely a fall during a training camp exercise, which was compounded by subsequent in-service injuries. See April 2015 Correspondence; November 2021 Board Hearing Transcript at 3. The Board agrees. Here, the evidence of a current back disability is not in dispute, as the Veteran has been diagnosed with degenerative arthritis of the spine. See June 2013 VA examination report. Thus, element one is met. Regarding element two, in-service incurrence of a disease or injury, the Board initially notes that although the Veteran has stated that he had injured his back prior to service, he specified that his lower back was not involved and that the injury resolved before service entry. See November 2021 Board Hearing Transcript at 2. Moreover, his September 1970 enlistment examination is silent with regard to any preexisting back issues. As a back disability was not noted on entry, and given his testimony regarding the nature of his injury, the Veteran is presumed to have been in sound condition with respect to his back when he was examined, accepted, and enrolled for service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304. Moreover, the Veteran's service treatment records (STRs) identify multiple reports of back injuries/pain, to include at service separation, and include his report of an injury during basic training as well as his pre-service injury to a different part of his back, which further buttresses the Veteran's Board hearing testimony. See October 1971, June 1972, and July 1972 STRs; November 2021 Board Hearing Transcript at 3. In this regard, the Veteran competently and credibly testified that he fell during a basic training exercise where there was a simulation of a plane crash and he had to run into the plane and save people. See November 2021 Board Hearing Transcript at 3. He reported that during the exercise, there were many people participating and running around, it was dark and chaotic, he was tear-gassed, and he fell and injured his back as a result. Id. at 3 and 10. He also testified that he had multiple subsequent back-related issues stemming from that fall, which is fully supported by the STRs. Id. at 3. Accordingly, element two is met. Regarding the final element, nexus, the only competent opinions of record are in favor of the claim. Specifically, of record are the May 2012 and March 2017 statements from Dr. S.I., the Veteran's treating physician and an orthopedic surgeon, who opined that the Veteran's low back disability was due to the injuries he sustained while on active duty. In support of her opinions, she noted that since his in-service injuries he has had intermittent back pain that has gotten progressively worse over the year, and that the Veteran initially came to the practice in 2004 due to back pain and that she has seen him since 2012. Dr. S.I. emphasized in her 2017 opinion that the physician the Veteran first saw at her practice in 2004 mentioned the initial injury during active service, with recurrent episodes of injury as supported by the STRs. The Board finds this opinion probative, as it considers the Veteran's competent and credible lay statements and his accurate medical history, both during and post-service. The Board acknowledges the unfavorable June 2013 and July 2013 VA examiners' nexus opinions of record. However, as those examiners failed to consider the Veteran's lay statements of continuous back problems since service, did not provide a well-reasoned rationale (to include a lack of rationale as to why dentistry would cause low back pain) or address all in-service complaints of back pain, these opinions are not probative. Thus, as the only probative medical opinions are in favor of the claim, the third element of service connection is met, and service connection is established for a back disability. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. J. Rogers, Associate 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.