Citation Nr: 21010213 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 17-32 386 DATE: February 24, 2021 ORDER As new and material evidence has been received with regard to the previously denied claim for entitlement to service connection for a lumbar spine disability, the claim is reopened. Entitlement to service connection for a lumbar spine disability is granted. FINDINGS OF FACT 1. The Veteran’s claim for entitlement to service connection for a lumbar spine disability was last denied in an April 2004 rating decision; the Veteran did not file a timely notice of disagreement with respect to that decision or submit any pertinent evidence within the appeal period, and the decision became final. 2. Evidence added to the record subsequent to the expiration of the appeal period is not cumulative or redundant of evidence previously of record and does raise a reasonable possibility of substantiating the Veteran’s claim for entitlement to service connection for a lumbar spine disability. 3. The Veteran’s lumbar spine disability began during his active duty service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for entitlement to service connection for a lumbar spine disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 2. The criteria for service connection for a lumbar spine disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from May 1980 to May 1988. This matter comes before the Board of Veterans’ Appeals (Board) from the December 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at an April 2020 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. 1. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a lumbar spine disability The Veteran seeks to reopen a previously denied claim seeking entitlement to service connection for a lumbar spine disability. A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement and substantive appeal are filed within the applicable time limits. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). If a claim has been previously denied and that decision became 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; Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). 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). Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). VA must review all of the evidence submitted since the last final decision on any basis in order to determine whether the claim may be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. The only exception would be where evidence presented is inherently incredible. Justus v. Principi, 3 Vet. App. 510 (1992). The Veteran’s original claim seeking compensation for service connection for a lumbar spine disability was last denied in an April 2004 rating decision because at the time of the Veteran’s claim the RO found that the evidence did not show that there was a permanent residual or chronic disability subject to service connection. The Veteran did not appeal that decision, nor was any new and material evidence submitted within the appeal period, and the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. The Veteran requested to reopen this claim in September 2016. In December 2016, the RO denied the Veteran’s claim stating that the evidence received was not new and material. Evidence added to the record since the April 2004 rating decision includes, in pertinent part, VA treatment records and lay statements regarding the onset of the Veteran’s back disability. The Board finds that this evidence is new, as it has never previously been before agency decision makers, and material, as it relates to an unestablished fact necessary to substantiate the claim. Accordingly, the Board finds this evidence raises a reasonable possibility of substantiating the Veteran’s claim for entitlement to service connection for a lumbar spine disability and the claim is reopened. 2. Entitlement to service connection for a lumbar spine disability The Veteran contends that his current back disability is related to his military service. Specifically, the Veteran reports that while in service, in July 1983, he injured his back shifting a tent out of a truck during a training exercise. The Veteran testified at his April 2020 Board hearing that he fell with the tent and was treated in service for this condition. The Veteran’s service treatment records note that the Veteran received medical treatment from July 1983 to September 1985 for complaints of low back pain. Certain chronic diseases will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has a current diagnosis of chronic lumbar pain, multilevel lumbar spondylosis, and arthritis as evidenced by May 2017 and September 2018 VA treatment records. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. Service treatment records show the Veteran complained of and was treated for symptoms of low back pain and spasms in July 1983, during active service. While no treatment records exist from during the applicable presumptive period, the Board finds that the Veteran continued to experience the same symptoms from his military service to the present. The Veteran is competent to report that he experienced symptoms of chronic back pain during that period. His testimony is credible and entitled to probative weight, as they are internally consistent and consistent with other evidence of record, which shows that these symptoms were attributable to the Veteran’s lumbar strain. Therefore, the Board finds that entitlement to service connection for lumbar strain is warranted. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Mountford, 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.