Citation Nr: 21012339 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 19-03 190 DATE: March 4, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for the Veteran’s back condition is reopened. Entitlement to service connection for the Veteran’s back condition is granted. FINDINGS OF FACT 1. October 1998 Board of Veterans’ Appeals decision and May 2017 rating decision that denied service connection for the Veteran’s back condition were not timely appealed and became final. 2. Evidence added to the record since May 2017 rating decision is not cumulative or redundant of the evidence of record at the time of the prior decisions and raises a reasonable possibility of substantiating the claim of service connection for the Veteran’s back condition. 3. Resolving reasonable doubt in the Veteran’s favor, his back condition is at least as likely as not related to his in-service injury. CONCLUSIONS OF LAW 1. The criteria for reopening the previously denied claim of entitlement to service connection for the Veteran’s back condition have been met. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. §§ 3.156, 20.1103. 2. The criteria for entitlement to service connection for the Veteran’s back condition have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from October 1966 to October 1968. This matter comes before the Board of Veterans’ Appeals (“Board”) on appeal from November 2018 rating decision issued by the Department of Veterans Affairs (“VA”) Regional Office (“RO”). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in December 2020. A transcript of the hearing is associated with the record. 1. New and material evidence having been received, the claim of entitlement to service connection for the Veteran’s back condition is reopened. In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. See 38 U.S.C. §§ 7104, 7105. A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. However, a claim is reopened, and the former disposition is reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). When “new and material evidence” is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). 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. Id. 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. Id. The provisions of 38 C.F.R. § 3.156(a) create a low threshold for finding new and material evidence and view the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. See Evans v. Brown, 9 Vet. App. 273, 284 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The claim for service connection for the Veteran’s back condition was previously denied in April 1998 rating decision, which was timely appealed to the Board, and the Board denied the claim in October 1998. The Veteran did not appeal this decision and it became final. The Veteran submitted new evidence in March 2017 for reopening the claim of service connection for his back condition, which was denied in May 2017 rating decision, and the Veteran timely filed a notice of disagreement and RO issued statement of the case in June 2018. The Veteran did not appeal this decision, and it became final. However, the Veteran resubmitted the claim in September 2018 along with new private treatment records. The RO denied the claim in November 2018 rating decision determining that no new and material evidence was submitted to reopen the claim and issued a statement of the case in December 2018. The Veteran time appealed the issue to the Board. The Board also notes that in pursuit of the current issue of reopening the claim, the Veteran provided testimony at the Board hearing and referred to the positive private medical opinion from February 2017 linking his back condition with his in-service injury. The Board concludes that the additional evidence presented since the May 2017 rating decision including the private treatment records from Greenlaw Family Chiropractic is not cumulative of evidence previously considered and raises a reasonable possibility of substantiating the Veteran’s claim for service connection for his back condition. Presuming the credibility of the evidence in this case, it is new and material because, when considered with the evidence previously of record, it raises the reasonable possibility that the Veteran’s diagnosed back condition is related to his in-service injury. Hence, the Board concludes that new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for the Veteran’s back condition, and the claim is reopened. 2. Entitlement to service connection for the Veteran’s back condition is granted. The Veteran asserted that his back condition is related to his service. At his hearing in December 2020, the Veteran testified that he got injured during in-service judo training at Homestead Air Force Base in Florida and received medical treatment, but his symptoms never went away hundred percent. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In determining whether service connection is warranted for a disability, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990); 38 C.F.R. § 3.102. The existence of current disability of the Veteran’s back is not in question. VA medical treatment records and private treatment records have diagnosed the Veteran with a thoracolumbar spine (back) condition including lumbar degenerative disc disease, lumbar spinal stenosis, lumbar herniated disc, and arthritis. Regarding the in-service incurrence of injury, the Veteran testified at the hearing that he was injured during his in-service judo training at Homestead Air Force Base for which he received medical treatment. The service treatment record from February 1967 notes the Veteran lower back pain, including spasms in paravertebral muscles bilaterally. The in-service lumbosacral strain has already been noted in previous rating decisions. Lastly, regarding the causal relationship between the Veteran’s current back disability and the in-service injury, the Veteran was afforded a VA examination and a medical opinion was obtained in April 2017. The VA examiner diagnosed the Veteran with back condition but opined that the Veteran’s back condition was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury. The examiner noted the back injury during service and a positive nexus opinion from the private chiropractor, who has been treating the Veteran for 20 years. The examiner also noted progressive back condition from 1997 to 2017, however stated that there is no evidence of back condition from 1967 through 1997 and could not find a nexus of evidence linking the acute in-service back injury in 1967 to the Veteran’s present condition. The Board finds the April 2017 medical opinion inadequate because the examiner did not discuss the Veteran’s contentions and stated that there is no evidence of back condition from 1967 through 1997, whereas the Board notes that there is sufficient evidence from December 1977 and April 1978 indicating low back and tail bone condition with history of 10 years. In addition, the examiner noted the private medical opinion from the Veteran’s chiropractor linking his back condition with his in-service injury but did not explain the reasons of his disagreement with the Veteran’s chiropractor. The evidence in favor of the claim includes the continuous symptoms of back condition from private and government treatment records from 1970s to the present, and most importantly the February 2017 positive medical nexus opinion from the Veteran’s chiropractor, who has been treating the Veteran since 1997. The chiropractor provided a detailed history of the Veteran’s back condition and stated that the Veteran has severe L4-L5 degenerative disc disease with moderate anterior/posterior spurring with decreases L4-L5 IVF and moderate to severe L5-S1 degenerative disease. She opined that the Veteran’s long history of lower back problems and the progressive nature of his lumbar degenerative arthritis and degenerative disc disease began with severe lower back injury he sustained while in service. The probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). The Board assigns more probative value to the February 2017 private medical opinion linking the Veteran’s back condition with his in-service injury, since the private chiropractor is more knowledgeable of the Veteran’s condition because she has been treating him for more than two decades and seems to have required knowledge and skill for providing a medical opinion. She also provided history of symptoms of the Veteran’s back problems, which is also supported by the evidence of record in the Veteran’s claim file showing continuity of symptomatology since service. Hence, the Board finds the evidence of record in favor of the claim or at least be in equipoise as to whether the Veteran’s current back condition is related to his service. Accordingly, after resolving all doubt in favor of the Veteran, entitlement to service connection for his back condition is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Tariq, Nadeem, Associate Attorney 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.