Citation Nr: 21025453 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 19-38 931 DATE: April 28, 2021 ORDER New and material evidence has been presented, and the claim for service connection for a back condition is reopened. Service connection for a back condition is granted. REMANDED Service connection for keratoconus is remanded. FINDINGS OF FACT 1. The April 2014 rating decision became final. Evidence received since the April 2014 rating decision includes testimony provided by the Veteran at a February 2021 Board hearing, as well as private medical opinions, which raise a reasonable possibility of substantiating the claim for service connection for a back condition. 2. It is at least as likely as not, that the Veteran’s back condition is related to or otherwise aggravated by his active military service. CONCLUSIONS OF LAW 1. The criteria for new and material evidence to reopen a claim for service connection for a back condition have been met. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.156. 2. The criteria for service connection for a back condition have been met. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from September 2003 to December 2003. The matter is on appeal before the Board from a November 2018 rating decision. The Veteran provided testimony at a February 2021 Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. New and Material Evidence Generally, a final and unappealed decision issued by the Agency of Original Jurisdiction or a decision from the Board may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). An exception exists if new and material evidence is presented or secured with respect to a claim which has been disallowed, then VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. “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). In Shade v. Shinseki the Court interpreted the phrase “raises a reasonable possibility of substantiating the claim” in 38 C.F.R. § 3.156(a) as creating a low threshold, that is “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Therefore, according to Shade evidence is new if it has not been previously submitted to agency decision makers, and it is material if when taken with the evidence of record it could at least trigger VA’s duty to assist by providing a medical opinion. Id. at 118. When determining whether evidence is to be considered new and material, the evidence will be presumed to be credible. Justus v. Principi, 3 Vet. App. 510 (1992). The Board must review all the evidence submitted since the last final disallowance of the claim on any basis in order to determine whether the claim may be reopened. Hickson v. West, 12 Vet. App. 247 (1999). The Veteran was denied service connection for a back condition in a September 2008 rating decision. The Veteran did not appeal the September 2008 rating decision, nor did he submit any new and material evidence within a year of the decision. See 38 C.F.R. § 3.156(b). As such, the September 2008 rating decision became final. In September 2013, the Veteran filed a claim to reopen the issue of service connection for a back condition. In an April 2014 rating decision, it was found that the treatment records submitted by the Veteran were neither new nor material, as they had been previously submitted and considered in the September 2008 rating decision. Thus, the claim was not reopened. The Veteran filed a timely notice of disagreement (NOD) in April 2015. A statement of the case (SOC) was provided in January 2018, in which it was found that the Veteran had submitted new and material evidence to reopen the claim. However, the claim for service connection for a back condition remained denied. The Veteran did not file a timely VA Form 9 Appeal to the Board. See 38 C.F.R. § 3.156(b). As such, the April 2014 rating decision became final. The Veteran filed a claim to reopen the previously denied claim for service connection for a back condition in September 2018. Evidence received since the last final April 2014 rating decision includes, but is not limited to, two private medical opinions, one submitted in June 2019 and one submitted in January 2020. In addition, the Veteran provided testimony at a February 2021 Board hearing. The evidence was not of record at the time of the April 2014 rating decision, and it relates to an unestablished fact necessary to establish the claim, in particular, both of the private medical opinions found there to be a link between the Veteran's back condition and his active military service. The Board finds the evidence to be both new and material, and therefore the claim for service connection for a back condition is reopened. Service Connection Back Condition Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established with certain chronic diseases, based upon a legal presumption, which occurs by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Additionally, service connection may be established under 38 C.F.R. § 3.303(b), when a symptom or symptoms of a chronic disease are noted in service, or within a year of the date of separation from service, and when chronicity is established through a continuity of symptomatology after service. The continuity of symptomatology provision is an alternative method to establishing service connection for the specific chronic diseases listed under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). The Veteran asserts that he has a back condition that is related to his active military service. Service treatment records (STRs) show that at the March 2003 entrance examination the Veteran was found to have scoliosis with 16-degree dorsal and 14-degree lumbar curve. In November 2003, imaging studies were done due to complaints from the Veteran of back pain with sit-ups, push-ups, and running. The findings showed 20-degree dorsal and 25-degree lumbar curve. The Veteran was placed on temporary duty restriction and was returned to training with modifications, including were no sit-ups or push-ups. Shortly thereafter, the Veteran was referred for entry level separation and assigned to medical hold due to scoliosis and lower back pain. Due to persistent low back pain the Veteran was medically disqualified and separated from the Air Force. In June 2019, the Veteran submitted a private opinion from his neurologist, in which it was noted that the Veteran had diagnoses of mechanical back pain syndrome, degenerative disc disease, and degenerative scoliosis. The physician noted that the Veteran had been under her care since 2016, and that she had personally reviewed his medical history from 2003 to present, to include the circumstances and events leading up to and during the Veteran’s military service. The physician concluded that it is at least as likely as not that the Veteran’s thoracic spinal condition, after years of neglect, was developed and aggravated due to his military service. In January 2020, the Veteran also submitted a private opinion from a physical therapist, whom he had been referred to for therapy by his neurologist. The therapist relayed that the Veteran’s neurologist had reported that the Veteran had chronic back pain since his military service in 2003, and that his pain had gradually increased. Diagnostic imaging from November 2003 and November 2018 were noted to confirm scoliosis and traumatic mechanical back pain. A progressive decline in function since 2003 was reported based upon a therapy evaluation from September 2018. In relation to the physical therapy the Veteran had been undergoing with the therapist, it was reported that the Veteran had made minimal progress. The Veteran reported to the clinic with a progressive increase in chronic lumbar pain and demonstrated signs of lumbar instability. The Veteran demonstrated decreased lumbar range of motion, painful lumbar range of motion, guarded lumbar range of motion, impaired posture, and decreased lumbar strength. The therapist concluded, that in his experience, what the Veteran is experiencing, is traumatic back pain due to a weak fitness level beginning and during his training in the Air Force. The high percentage of occupational risk from lifting, pushing, pulling, and twisting of the spine, combined with a weak back and abdominal muscles to support and protect the spine, along with years of neglected treatment, has manifested itself in recent years. In addition to the two private medical opinions, the Veteran’s private treatment record reflects a private scoliosis survey from December 2003 that was submitted in March 2016, in which it is commented by the attending physician that “it is evident that military training has given a prognosis of lumbosacral strain.” The Board notes that the Veteran was provided with a VA examination in September 2008, after which a VA examiner provided a negative opinion, finding that the Veteran’s scoliosis that pre-existed military service was not worsened beyond its natural progression by the Veteran’s military service. In addition to the findings, the VA examiner did provide a well-reasoned and thorough rationale, which provides probative value. However, the VA examiner’s opinion does not outweigh the above private opinions when they are taken together. The above private medical opinions provide probative value, and when they are taken in conjunction with one another, they are at least in equipoise with the VA examiner’s opinion. Thus, by granting the Veteran the benefit of the doubt, it is at least as likely as not, that the Veteran’s back condition was related to or otherwise aggravated by his active military service. As such, service connection for a back condition is granted. REASONS FOR REMAND Service connection for keratoconus The Veteran asserts that his keratoconus is related to his active military service. At the February 2021 Board hearing, the Veteran reported that prior to his service he did not have any problems with his eyes other than wearing glasses and contacts. He relayed that about two to three weeks after he had begun boot camp, he had started developing what seemed to be a shadow on everything. He stated that he spoke with someone, and that they were going to give him a new pair of glasses, but that he should wear his civilian glasses for the time being. He noted that he went for an exam in November 2003 during his military service, at which he was told he had astigmatism and given a prescription. He relayed that he got contacts after he got out of service, but that they did not work well. He then went to see a private doctor after he got out of the service, and was diagnosed with keratoconus. The Veteran’s STRs reflect that the Veteran reported wearing contacts in his March 2003 medical prescreen of medical history, however, no other eye disorders were noted. At the Veteran’s March 2003 enlistment examination, the Veteran’s near and distance vision was noted in the section pertaining to defects and diagnoses, however, it was reported as not disqualifying. In November 2003, the Veteran was seen for an eye examination for glasses. The Veteran was assessed with compound myopic astigmatism and simple myopia. He was given a prescription for glasses. The Veteran submitted a private opinion from an optometrist in April 2019, in which the Veteran was reported to have a diagnosis of keratoconus. The optometrist relayed that they had reviewed the Veteran’s medical history from 2005 to present, and that they had reviewed the circumstances and events of the Veteran’s military service. Additionally, it was reported that the Veteran had been a patient under the optometrist’s care since 2016. The Veterans optometrist concluded that it was at least as likely as not that the Veteran’s pre-existing eye condition was worsened beyond natural progression due to his military service. The Board finds probative value in the opinion, but only to the limited extent that the opinion suggests that the Veteran’s keratoconus may be related to his active military service. The opinion does not rise to the level required to be able to grant service connection. That is, the Veteran’s optometrist did not provide in their opinion an explanation, a link between the Veteran’s active military service and his keratoconus. In addition, the opinion provided by the optometrist pertained only to aggravation of a “pre-existing eye condition”. As already noted, the Veteran at his hearing reported that he did not have a pre-existing eye condition prior to his military service, other than wearing glasses and contacts, which are not considered disabilities for VA purposes. His STRs at the time of his entrance note a defect with his near and distance vision, however, this is not found to be disqualifying, and no other eye conditions are noted. As such, a remand is warranted to provide the Veteran with a VA examination to determine whether his keratoconus was incurred in or otherwise related to his active military service, and if so whether keratoconus should be considered a disability. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his keratoconus. The examiner should answer the following questions: (a.) Should keratoconus be considered an eye disability? Why or why not? In answering this question, the examiner should consider the fact that refractive errors of the eye are not considered to be disabilities for VA purposes. (Continued on the next page)   (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s keratoconus began in or was otherwise caused by the Veteran’s active military service? Why or Why not? In providing an opinion, the examiner should take into account and discuss the optometrist’s private opinion submitted in April 2019, the Veteran’s testimony at the February 2021 Board hearing, as well as the Veteran’s STRs, specifically the Veteran’s March 2021 entrance examination that noted a near and distance vision defect that was not disqualifying, and the November 2003 eye examination. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Lutgens-Staley, 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.