Citation Nr: 21024504 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 17-62 254 DATE: April 22, 2021 ORDER New and material evidence to reopen the claim for entitlement to service connection for degenerative joint disease of the lumbar spine (back condition) has been received; thus, the claim is reopened. Entitlement to service connection for degenerative disc disease of the lumbosacral spine is granted. FINDINGS OF FACT 1. In a January 2008 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for a back condition. The Veteran filed a timely notice of disagreement and a statement of the case (SOC) was issued; however, she did not file a substantive appeal to the SOC. 2. Since January 2008, the Veteran has submitted new and material evidence sufficient to reopen her claim. 3. The Veteran was seen in service for back pain, and has endured a continuity of symptomology since service related to her back condition, through her diagnosis of degenerative disc disease. CONCLUSIONS OF LAW 1. The January 2008 rating decision is final with respect to the Veteran’s claim to establish service connection for a back condition. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103. 2. The additional evidence received since January 2006 is new and material to the claim for entitlement to service connection for a back condition; therefore, the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for degenerative disc disease of the lumbosacral spine are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had activity duty service from October 1976 to June 1980; and from December 1981 to April 1983. The Veteran testified at a hearing before the undersigned Veteran’s Law Judge (VLJ) in January 2020. A transcript of the hearing is associated with the record. Since the most recent SOC, the Veteran has presented new evidence that was not reviewed in the first instance by the agency of original jurisdiction (AOJ). As the Board of Veterans Appeals (Board) is granting the Veteran’s claim, AOJ review of the evidence is not required. New and material evidence 1. New and material evidence to reopen the claim for entitlement to service connection for back condition has been received; thus, the claim is reopened A January 2008 rating decision denied the Veteran’s claim of entitlement to service connection for a back condition. While the Veteran filed a notice of disagreement with the rating decision, the Veteran did not file a substantive appeal to the Board of the October 2009 SOC. Therefore, the January 2008 rating decision became final. Generally, a claim that has been denied in an unappealed decision may not be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. VA defines “new” evidence is existing evidence not previously submitted to agency decisionmakers. “Material” evidence is 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 neither be 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. See 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.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id., at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). The January 2008 denial was based on a finding of a negative relationship between the Veteran’s current diagnosis and her treatment in service. Since the January 2008 denial, the Veteran’s claims file includes additional VA medical records, the Veteran’s testimony, and lay statements in support of the Veteran’s claim. The above evidence is “new,” as it was not before VA at the time of the January 2008 decision, and is “material” as it raises the reasonable possibility of substantiating the previously-denied issue (i.e. establishing a relationship between the Veteran’s service and her current diagnosis). To this point, the Board thus finds that new and material evidence has been submitted to reopen the claim of service connection for a back condition. On that basis, the claim is reopened. Service Connection 2. Entitlement to service connection for a back condition is granted The Veteran asserts that she has had back pain since service and her current back condition is a progression of the same condition she had at discharge. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 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 addition, 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 degenerative joint disease of the lumbar spine as evidenced by the October 2007 VA examination and later medical records. Arthritis, a form of degenerative joint disease, is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. Service treatment records show the Veteran first reported back pain at the end of March 1982. The Veteran testified that she was lifting something heavy and later reported a “pop” in her back when she was taking a shower. While the hospital records are not part of the file, an April 1982 record noted that she went to the emergency room. That record (the last one related to back pain) noted a diagnosis of low back pain, related to a urinary tract infection or ovarian structure pathology. The Veteran reported continued low back pain at discharge in her report of medical history. While the Veteran did not formally treat for back pain, the Veteran testified under oath that she had back pain since service. In support of her testimony, the Veteran submitted several “buddy letters” noting a history of complaints of back pain and related treatment from 1983-2003. See document labeled Correspondence, received February 10, 2020. Given the above, the Board finds that the Veteran continued to experience a continuity of symptomology since service. The Veteran is competent to report that she experienced symptoms of back pain during that period. Her statements are credible and entitled to probative weight, as they are internally consistent and consistent with other evidence of record, to include lay evidence, which shows back pain starting in service and continuing thereafter. Thus, the weight of the evidence is for the claim for service connection for a back condition. Accordingly, the claim is granted. Absent a relative balance of the evidence for and against the claim, the evidence is not in equipoise and the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. M. Hitchcock 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.