Citation Nr: 21014705 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 18-09 766 DATE: March 15, 2021 ORDER As new and material evidence has been received, the claim for entitlement to service connection for a low back disability is reopened; the claim is granted to this extent only. Entitlement to service connection for a low back disability is granted. FINDINGS OF FACT 1. An October 2014 rating decision denied the Veteran’s claim for entitlement to service connection for a low back disability. 2. The evidence received since the October 2014 rating decision is neither cumulative nor redundant, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for a low back disability. 3. The evidence is at least in relative equipoise as to whether the Veteran’s low back disability is related to his active service. CONCLUSIONS OF LAW 1. New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for a low back disability. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. 2. The criteria for service connection for a low back disability 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 Veteran served active duty from June 1965 to June 1967. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran testified before a Board hearing in January 2021. The transcript of the hearing is associated to the record. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). New and Material Evidence A rating action from which an appeal is not perfected becomes final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing, and after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. In order to reopen a claim which has been denied by a final decision, new and material evidence must be received. 38 U.S.C. § 5108. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether that low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. As new and material evidence has been received, the claim for entitlement to service connection for a low back disability is reopened; the claim is granted to this extent only. In an October 2014 rating decision, the RO denied service connection for a low back disability, indicating that there was no evidence showing that a low back disability was related to active service. The evidence of record included STRs, private treatment records, and a VA examination. The Veteran was notified of the October 2014 rating decision; however, the Veteran took no further action. Therefore, the October 2014 decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.156(b), 3.160(d), 20.302, 20.1103. Since the October 2014 rating decision became final, the Veteran submitted a medical opinion from his treating provider, indicating that his back disability was related to service. Additionally, at his Board hearing, the Veteran reported that he has experienced ongoing back problems since his injury in service. He also testified that he sought treatment within one year of his separation from service, which was corroborated by testimony from his spouse, who was also present at the hearing. The Board finds that the low threshold requirement for new and material evidence is satisfied with respect to the claim for a low back disability. Shade v. Shinseki, 24 Vet. App. 110 (2010). When considering the new evidence in conjunction with the evidence already of record, it raises a reasonable possibility of substantiating the claim. Thus, the Board finds that new and material evidence has been submitted and the petition to reopen the claim of entitlement to service connection for a low back disability must be granted. Service Connection Establishing service connection generally requires (1) evidence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Continuity of symptomatology may also provide a basis for a grant of service connection for diseases defined as “chronic” by VA. 38 C.F.R. § 3.303(b), 3.307(a)(3), 3.309(a); Fountain v. McDonald, 27 Vet. App. 258 (2015). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for a low back disability is granted. The Veteran contends that his current low back disability is due to an injury that he sustained during active service. Service treatment records dated in June 1965 show that the Veteran injured his back during physical training, assessed as a lumbar strain. A July 1965 record also reflects complaints of back pain. His May 1967 separation examination notes a normal back evaluation. An October 2014 VA examination notes a diagnosis of lumbosacral strain. The Veteran reported that he was treated for lumbar sprain during service in 1965, and he had low back pain on and off since then. The examiner indicated that a review of the records showed that the Veteran was treated for a single episode of lumbar strain and continued heavy military service until 1967, at which time his separation examination revealed a normal back evaluation. The examiner also noted that there were no treatment records within the one year following service separation. Therefore, the Veteran’s current lumbar strain was less likely related to active service. A medical opinion from the Veteran’s treating provider, received in December 2015, indicates that the Veteran’s lumbar strain is more likely than not related to his military service. The provider reasoned that the Veteran hurt his back in basic training in service and has had problems ever since. A February 2020 private treatment record notes that the Veteran’s back pain had its onset in 1965 and has gradually worsened since then. The physician noted that the Veteran’s back pain was chronic and constant. At his January 2021 Board hearing, the Veteran testified that he has experienced ongoing back problems since his in-service back injury and sought treatment within the first year after his separation. Additionally, the Veteran’s spouse testified that she remembered that he sought treatment for his back shortly after he returned from service. After a review of the evidence, the record reflects that the Veteran has a current low back disability diagnosed as lumbar strain. Thus, the element of a current disability is met. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, STRs note treatment for lumbar strain during active service. Thus, the Board finds that the second element, in-service incurrence, is also satisfied. Id. With respect to the final element, the evidence of record is at least in equipoise as to whether the Veteran’s low back disability is related to his active service. In this regard, in December 2015, the private provider opined that the Veteran’s back issues were likely related to his injury during active service. Although the Veteran’s separation examination did not note any abnormalities relating to the Veteran’s spine, the Veteran has competently and credibly asserted that he has experienced back pain since his active duty. Layno v. Brown, 6 Vet. App. 465 (1994). The Board acknowledges the negative nexus opinion provided by the October 2014 VA examiner. However, the examiner’s rationale for the negative opinion was based on the lack documentation at service separation and lack of treatment records after service for back problems, while seemingly ignoring his reports of ongoing back pain since his injury in-service. (Continued on the next page)   Based on the foregoing, the Board finds the evidence is at least in equipoise as to whether the Veteran’s current low back disability originated in service. Accordingly, resolving reasonable doubt in the Veteran’s favor, the Board finds that service connection for a low back disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3. 102. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hite, 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.