Citation Nr: 21076290 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 17-61 801 DATE: December 23, 2021 ORDER New and material evidence having been received, the reopening of service connection for a back disability is granted. Presumptive service connection for lumbar spine degenerative disc disease and arthritis is granted. FINDINGS OF FACT 1. In December 2014, the RO determined that new and material evidence sufficient to reopen service connection for degenerative disc disease and lumbosacral strain had not been received on the basis that the evidence did not show an event, disease, or injury in service or a link between the current back disability and service. 2. Evidence received since the December 2014 rating decision relates to a previously unestablished fact of a back disability related to service. 3. Chronic lumbar spine degenerative disc disease and arthritis symptoms were manifested during service, and continuous symptoms of lumbar spine degenerative disc disease and arthritis were manifested since service. CONCLUSIONS OF LAW 1. The December 2014 rating decision denying service connection for a back disability became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received to reopen service connection for a back disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for lumbar spine degenerative disc disease and arthritis are met. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from April 1969 to April 1971. This matter is on appeal from a March 2017 rating decision on appeal. In August 2021, the Veteran testified at a virtual Board hearing before the undersigned. New and Material Legal Authority Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c), (d)(3); 38 C.F.R. § 20.1103. If "new and material" evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). "[N]ew evidence" means evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial. 38 C.F.R. § 3.156 (a). Materiality has two components, first, that the new evidence pertains to the reason(s) for the prior final denial, and second, that the new evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When making a determination whether the submitted evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim, applying concepts derived from the duty to assist. Shade, 24 Vet. App. at 118. 1. Service connection for a back disability is reopened. In December 2014, the RO determined that new and material evidence had not been received sufficient to reopen service connection for a spine disability claimed as a back condition, on the basis that, although there was evidence of then-current back disability, there was no relevant injury, event, or disease during service, and no evidence of a link between a back disability and service. In December 2014, the Veteran was notified of that rating decision and was provided notice of procedural and appellate rights. Because the Veteran did not appeal the December 2014 decision within one year of that notice, and no additional evidence was received within one year of that notice, the December 2014 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. After reviewing the evidence received since the December 2014 rating decision, the Board finds that it qualifies as new and material evidence sufficient to reopen service connection for a back disability. The February 2016 VA examination report shows a back diagnosis of lumbar arthritis, which was not previously considered and is included as a chronic disease subject to presumptive service connection under 38 C.F.R. § 3.303(b). Considered together with the Veteran's August 2021 hearing testimony that he experienced back injury and chronic back pain during service and continuous back pain since service, the evidence is new to the record, addresses the ground of the prior denial, and raises a reasonable possibility of substantiating the claim. For these reasons, the Board finds that new and material evidence has been received to reopen service connection for a back disability. See 38 C.F.R. § 3.156(a). Service Connection Legal Authority Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established on a direct basis when there is competent, credible evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Holton v. Shinseki, 557 F. 3d 1363, 1366 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also 38 C.F.R. § 3.303(a), (d). Service connection may be established on a presumptive basis for chronic diseases listed under 38 C.F.R. § 3.309(a) if chronic symptoms of the disease were shown in service; the disease was manifested to a compensable degree with a presumptive period, usually one year after service separation; or continuous symptoms of the disease were manifested since service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.33(b), 3.307, 3.309(a); see also Walker v. Shinseki, 708 F. 3d 1131 (Fed. Cir. 2013). Because the current diagnosis of lumbar spine arthritis (i.e., arthritis) is listed as a chronic disease under 38 C.F.R. § 3.303(b), the presumptive service connection provisions are applicable. 2. Presumptive service connection for lumbar degenerative disc disease and arthritis is granted. The Veteran contends that lumbar spine degenerative disc disease and arthritis symptoms had their onset during service and have continued since service. He seeks service connection on this basis. After review of all the lay and medical evidence of record, the Board finds that the evidence is in equipoise on the question of whether a back injury and chronic lumbar spine arthritis symptoms were manifested during active service. The service treatment records show no complaint, diagnosis, or treatment for the back, and the spine and musculoskeletal system were clinically evaluated as normal at the time of the March 1971 service separation examination; however, at the August 2021 virtual Board hearing, the Veteran competently and credibly testified that he experienced back pain due to lifting heavy pots and pans while serving as a cook. On the March 1971 service separation report of medical history, the Veteran checked "Yes" when asked if he then had or had ever had back trouble of any kind. Also, in May 1971 (i.e., approximately two months after service separation), the Veteran filed a disability claim with VA for back injury residuals and explained that he had sustained an in-service back injury in October 1970 after lifting heavy containers of meat and had experienced back pain since the injury, so the account of back injury and chronic back pain during service at the virtual Board hearing is consistent with statements made contemporaneous to service separation. The evidence is in equipoise on the question of whether symptoms of lumbar spine arthritis were continuously manifested since service. The June 1971 special orthopedic examination diagnosed low back pain with a negative medical examination and a negative x-ray for pathological changes in the spine; however, as noted above, the Veteran has consistently and credibly reported continuous back pain since service. When filing the May 1971 VA disability claim, the Veteran reported that he had experienced back pain since an in-service back injury. At the January 1995 VA examination, the Veteran reported a history of low back pain that began during service and has continued since service, and the VA examiner diagnosed recurrent strain of the lumbosacral spine. At the February 2016 VA examination, the Veteran continued to experience back pain after sustaining a back injury in service, including after service separation. At the August 2021 virtual Board hearing, the Veteran competently and credibly testified that he continued to experience back pain after service separation. The February 2016 VA medical opinion was negative on the question of whether the current back disability was related to service; however, because it was based on the inaccurate factual premise of no evidence of chronic back pain after service separation, the February 2016 VA medical opinion is of no probative value. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the chronic in-service symptom criteria and continuous post-service symptom criteria for presumptive service connection under 38 C.F.R. § 3.303(b) for lumbar spine arthritis have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Because the service connection appeal is being granted based on presumptive service connection for a chronic disease due to chronic symptoms of lumbar spine degenerative disc disease and arthritis during service and continuous symptoms of lumbar spine degenerative disc disease and arthritis since service, analysis of other potential theories for service connection is not required. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Palmer, 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.