Citation Nr: A21020640 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 210206-140506 DATE: December 29, 2021 ORDER Readjudication of service connection for a low back disorder is granted. Service connection for a low back arthritis is granted. FINDINGS OF FACT 1. In a February 2015 Department of Veterans Affairs (VA) Regional Office (RO) rating decision, the RO denied service connection for a low back strain, finding that new and material evidence showing a nexus to service had not been submitted. Neither new and material evidence nor a notice of disagreement was submitted within one year of the denial. 2. New evidence has been received since the final February 2015 rating decision that is relevant to the claim of service connection for a low back disorder. 3. The Veteran sustained a back injury during service. 4. The Veteran has present diagnoses of degenerative arthritis of the spine, degenerative disc disease, and spondylosis (low back arthritis). 5. Symptoms of low back arthritis (pain) have been continuous since service separation. CONCLUSIONS OF LAW 1. The criteria for readjudicating service connection for a low back disorder are met. 38 U.S.C. § 501; 38 C.F.R. § 3.156(d). 2. New and relevant evidence has been received to readjudicate service connection for a low back disorder. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.2501(a)(1), 19.2, 20.1103. 3. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for low back arthritis have been met. 38 U.S.C. §§ 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active duty service from June 1956 to March 1961. Following a final rating decision in February 2015, in July 2018, the Veteran filed a claim to reopen service connection for a back disorder. An August 2018 VA RO rating decision found that the additional evidence was not new and material evidence. Less than one year later in July 2019, the Veteran filed a supplemental claim for service connection for a low back disorder. A September 2019 VA RO rating decision denied service connection for a low back disorder. Less than one year later, the Veteran filed a supplemental claim in March 2020 for service connection for a low back strain. An April 2020 VA RO rating decision denied reopening of service connection for a low back disorder, finding that new and relevant evidence had not been received; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In February 2021, less than one year after the April 2020 rating decision, the Veteran filed a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD) and elected the Hearing option. The Veteran participated in a Board hearing in September 2021. The hearing transcript has been associated with the claims file. The question at issue is whether new and relevant evidence has been received based on the evidence of record at the time of the decision on appeal and any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). 1. Readjudication of Service Connection for a Low Back Disorder is Granted. VA will readjudicate a claim if new and relevant evidence is presented or secured. 38 C.F.R. § 3.156(d). "Relevant evidence" is evidence that tends to prove or disprove a matter in issue. 38 C.F.R. § 3.2501(a)(1). A February 2015 VA RO rating decision denied service connection for a low back strain, finding that new and material evidence showing a nexus to service had not been submitted. Neither new and material evidence was received nor was a notice of disagreement filed within one year of the denial. Accordingly, the February 2015 VA RO rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In July 2018, the Veteran filed a new claim to reopen service connection and included a statement in support of claim. A VA examination in September 2019 resulted in a negative nexus opinion. The Veteran testified at a Board hearing in September 2021. The question in this claim is whether the Veteran submitted evidence after the prior final denial and, if so, whether that evidence is new and relevant to the claim so as to warrant readjudication. After a review of all the evidence, lay and medical, the Board finds that the Veteran submitted new evidence since the last final rating decision that is relevant. The Veteran and his son testified at the September 2021 Board hearing as to the continuity of symptoms that the Veteran has experienced since an injury during service in 1957. Such testimony is new because it was not already of record at the time of the prior final denial, and is new because it has some tendency to show that there were continuous symptoms (pain) since service separation, supporting the connection of the current back disorder to service; therefore, readjudication of the claim is warranted. Service Connection Legal Authority Direct Service Connection Service connection may be granted for a disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 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 incurrent in service. 38 C.F.R. § 3.303(d). Generally, service connection for a disability requires competent evidence of: (1) a current disability; (2) the existence of the disease or injury in service; and (3) a relationship or nexus between the current disability and any injury or disease during service. Chronic Disease Presumptive Service Connection The Veteran is currently diagnosed with degenerative arthritis of the spine and spondylosis (low back arthritis), which are a "chronic disease" for purposes of 38 C.F.R. § 3.309(a); accordingly, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as chronic in 38 C.F.R. § 3.309(a); Walker, 703 F.3d at 1338-40 (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). With a chronic disease shown as such in-service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a). 2. Service Connection for a Low Back Disorder is Granted. The evidence demonstrates that the Veteran has current diagnoses of degenerative arthritis of the spine, degenerative disc disease, and spondylosis. See September 2019 VA Examination (diagnosing degenerative arthritis of the spine); March 2020 VA Treatment Record (diagnosing degenerative disc disease and spondylosis). Additionally, the RO stated in the April 2020 rating decision that a favorable finding was that the Veteran had been diagnosed with a disability, namely degenerative arthritis of the spine, on the basis of the September 2019 VA Examination. The Board cannot disturb a favorable finding from the RO's rating decision under AMA review. See 38 C.F.R. § 3.104(c). The RO also stated in the April 2020 rating decision that a favorable finding was that the Veteran had a qualifying injury, disease, or event during service, namely, that the service treatment records show a treatment of back strain on May 29, 1957. The Board is also bound by this favorable finding. See 38 C.F.R. § 3.104(c). At the September 2021 Board hearing, the Veteran further elaborated on this injury, stating that he was assigned to the base commissary and trucks would bring in crates of produce, that he had to get the produce line ready before the commissary opened, that he would have to lift the boxes without anyone to help him or anything with which to help lift them, and that he went to the base hospital when he noticed an injury. The Board finds this description to be a credible and competent explanation of the in-service low back injury. The lay and medical evidence is at least in relative equipoise as to whether symptoms of low back arthritis (pain) were continuous since service separation, as required for service connection pursuant to 38 C.F.R. § 3.303(b). The Veteran and his son testified credibly at the September 2021 Board hearing that the Veteran had experienced chronic ongoing back issues since service separation. The son mentioned that the Veteran has recently started receiving spinal injections, which are also shown by the VA treatment records, and the son testified that when he was growing up the Veteran could not sleep because of his back or had to go to chiropractor or doctor's visits. The Veteran stated that he was employed at a private company from 1962 to 1999 and throughout that time received treatment for back strains and back sprains. Private treatment records that the representative provided after the hearing also show post-service treatment for back disorders. Resolving reasonable doubt in favor of the Veteran, the Board finds that symptoms of back pain were continuous since service. The same symptoms were later diagnosed as lumbar spine arthritis. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As symptoms of low back arthritis (pain) have been continuous since service separation, the evidence meets the criteria for presumptive service connection for the chronic disease of arthritis of the lumbar spine under 38 C.F.R. § 3.303(b). (Continued on the next page) The Board recognizes that there is a nexus opinion against direct service connection; however, as the Board is granting presumptive service connection under 38 C.F.R. § 3.303(b) based on continuous post-service symptoms, the direct service connection theory, and the need for a direct service connection opinion, are rendered moot. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Smith, 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.