Citation Nr: 21026193 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 18-14 441 DATE: April 30, 2021 ORDER Entitlement to service connection for a left knee disability is dismissed. New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for a low back disability is granted. Entitlement to service connection for a low back disability is granted. FINDINGS OF FACT 1. At the October 2020 Board hearing, the Veteran withdrew the appeal of the issue of entitlement to service connection for a left knee disability. 2. In an August 2006 rating decision, the RO denied the Veteran’s claim of service connection for a low back disability. Although he was duly notified of the RO’s decision and his appellate rights, the Veteran did not initiate an appeal within the applicable time period nor was new and material evidence received within one year. 3. In a January 2008 rating decision, the RO determined that new and material evidence had not been received to reopen the Veteran’s previously denied claim of entitlement to service connection for a low back disability. Although he was duly notified of the RO’s decision and his appellate rights, the Veteran did not initiate an appeal within the applicable time period nor was new and material evidence received within one year. 4. Evidence received since the final January 2008 rating decision denying entitlement to service connection for a low back disability relates to an unestablished fact necessary to substantiate the claim and, presuming its credibility, raises a reasonable possibility of substantiating the claim for service connection for a low back disability. 5. The evidence is in relative equipoise as to whether the Veteran’s current low back disability is causally related to his active service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the issue of entitlement to service connection for a left knee disability by the Veteran are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The August 2006 rating decision denying service connection for a low back disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 3. The January 2008 rating decision determining that new and material evidence had not been received to reopen the Veteran’s previously denied claim of entitlement to service connection for a low back disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 4. New and material evidence has been received to warrant reopening of the claim of service connection for a low back disability. 38 U.S.C. § 5107, 5108; 38 C.F.R. § 3.156. 5. The criteria for entitlement to service connection for a low back disability have been 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 served on active duty from June 1990 to June 2000. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for a left knee disability and continued the previous denial of service connection for a low back disability because the evidence received was not new and material. In October 2020, the Veteran testified at a tele-hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. 1. Entitlement to service connection for a left knee disability is dismissed. Under applicable criteria, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55(a). At the October 2020 Board hearing, the Veteran, with the assistance of his attorney, expressed his desire to withdraw the pending appeal of the issue of entitlement to service connection for a left knee disability. As reflected in the hearing transcript, the withdrawal was explicit and unambiguous. Moreover, the undersigned explained the consequences of the withdrawal and the Veteran indicated that he fully understood the consequences. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Hence, no allegations of errors of fact or law remain for appellate consideration with respect to said claim. Accordingly, the Board does not have jurisdiction to review the appeal as to this matter, and it must be dismissed. New and Material Evidence 2. New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for a low back disability is granted. 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; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. For claims to reopen such as this one, filed on or after August 29, 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. To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the credibility of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). 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, in determining whether this low threshold is met, VA should not limit its consideration to 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, to include by triggering the Secretary’s duty to assist. Id. at 118; but see Villalobos v. Principi, 3 Vet. App. 450 (1992) (evidence that is unfavorable to a claimant is not new and material). In April 2006, the Veteran submitted an original application for VA compensation benefits, seeking service connection for a low back disability. In a final August 2006 rating decision, the RO denied the claim, finding that the evidence did not show that the Veteran’s low back disability was related to service. In reaching its decision, the RO considered the Veteran’s service treatment records (STRs), which noted that the Veteran was treated in 1999 for a muscle spasm in the thoracic vertebrae region, but found that no further treatment or diagnosis of disease or disability of the back was shown during service or at the time of separation. The RO also considered the Veteran’s post-service clinical records noting diagnoses of back pain and herniated nucleus pulposus of L5-S1. The record on appeal shows that the Veteran was duly notified of the RO’s decision and his appellate rights. He did not, however, initiate an appeal within the applicable time period nor was new and material evidence received within one year of notification of the August 2006 rating decision. The Veteran does not contend otherwise. Thus, the August 2006 rating decision is final and not subject to revision on the same factual basis. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. In August 2007, the Veteran submitted an application to reopen his previously denied claim of service connection for a low back disability. In a January 2008 rating decision, the RO confirmed and continued the previous denial of service connection, finding that new and material evidence was not submitted to show that the Veteran’s current back condition existed during service or was otherwise related to his active duty. The record on appeal shows that the Veteran was duly notified of the RO’s decision and his appellate rights. He did not, however, initiate an appeal within the applicable time period nor was new and material evidence received within one year of notification of the January 2008 rating decision. The Veteran does not contend otherwise. Thus, the January 2008 rating decision is final and not subject to revision on the same factual basis. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this appeal, the Veteran seeks to reopen his claim of service connection for a low back disability. As noted above, despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. In order to determine whether new and material evidence has been received, the Board has reviewed the entire record, with particular attention to the additional evidence received since the final January 2008 rating decision. After reviewing the record, the Board finds that the additional evidence received is new and material within the meaning of 38 C.F.R. § 3.156. The additional evidence received since the January 2008 rating decision includes private treatment records noting a history of chronic low back pain and diagnoses of failed back syndrome with residual foraminal stenosis and herniated L5-S1 disk. See August 2009 private treatment records received February 2013; see also May 2010 private treatment records received May 2014. The additional evidence also includes VA treatment records indicating that the Veteran’s back disability was detected during active duty, progressed and worsened prior to discharge, and required 3 subsequent surgeries. See April 2014 Primary Care Note. Also received since the last final rating decision was a medical opinion from a private physician, Dr. E.G., which indicated that the Veteran’s back disability was aggravated by his military service and led to back surgery. See January 2015 correspondence from Dr. E.G. received February 2015. The additional evidence received since the January 2008 rating decision also includes the Veteran’s October 2020 hearing testimony indicating that he began to experience back pain during active duty, which progressed and worsened, and persisted continuously since that time. After reviewing the record, the Board finds that new and material evidence has been received sufficient to reopen the claim. Specifically, the VA treatment records and private medical opinion indicating that the Veteran’s back disability was detected during active duty, progressed and worsened during that time, and required subsequent surgery, were not before agency decision-makers at the time of the January 2008 rating decision. These records are therefore new, and directly address unestablished facts necessary to substantiate the claim of service connection for a low back disability, particularly evidence of causation. When presumed credible, they raise a reasonable possibility of substantiating the claim and trigger the VA’s duty to assist. Accordingly, the standards under 3.156(a) have been met and the claim is reopened. See Shade, 24 Vet. App. at 117. Service Connection 3. Entitlement to service connection for a low back disability is granted. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1110. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service treatment records (STRs) include the Veteran’s January 1990 enlistment examination, which revealed that the spine was essentially normal. On his accompanying Report of Medical History, the Veteran reported that he was in good health and denied having, or having ever had, recurrent back pain. A September 1990 chest X-ray noted an S-type rotoscoliosis of the thoracolumbar spine. In October 1996, the Veteran sought treatment for right shoulder and back pain. In May 1999, the Veteran sought treatment for mid back pain, which had been present for 1.5 days. The Veteran’s March 2000 separation examination report states that the spine and lower extremities were essentially normal. On his March 2000 Report of Medical History, the Veteran endorsed swollen or painful joints; he denied recurrent back pain. VA and private treatment records obtained in connection with the Veteran’s claim indicate a history of chronic low back pain and diagnoses of failed back syndrome with residual foraminal stenosis and herniated L5-S1 disk. See August 2009 private treatment records received February 2013; see also May 2010 private treatment records received May 2014. A December 2000 clinical record noted that the Veteran was seen for complaints of lower back pain radiating into the left hip. The assessment was sciatica. See December 2000 clinical record received May 2014. A VA medical opinion was obtained in January 2008. The examiner was asked to opine as to whether the Veteran’s diagnosed rotoscoliosis was congenital or developmental and whether the Veteran’s low back disability had its onset during active duty or was the result of some other etiology. After reviewing the Veteran’s claims file, the examiner determined that she could not opine without resort to mere speculation whether the Veteran’s rotoscoliosis was a congenital or developmental finding, although she noted the onset was prior to active duty. Additionally, the examiner indicated that it would be resort to mere speculation to opine if the Veteran’s current low back disability had its onset during active duty or was the result of some other etiology. An April 2014 VA treatment record indicated that the Veteran’s rotoscoliosis was detected during active duty, progressed and worsened prior to discharge, and required 3 subsequent surgeries. See April 2014 Primary Care Note. In a January 2015 medical opinion, a private physician, Dr. E.G., opined that it was “just as likely as not that the rotoscoliosis noted in service was aggravated by [the Veteran’s] military service and led to his surgery in April 2004.” See January 2015 correspondence from Dr. E.G. received February 2015. At his October 2020 Board hearing, referenced above, the Veteran testified that he began experiencing low back pain, which radiated from the left hip to the foot, during active duty and that such pain has persisted and worsened since that time. He testified that prior to active duty, he never experienced back issues. He further testified that he has had 6 back surgeries since active duty. See October 2020 Transcript of Hearing, pages 3-7. As an initial matter, the Board observes that a veteran is presumed to have been in sound condition when entering service, except as to defects, infirmities, or disorders noted at the time of the examination or where clear and unmistakable evidence demonstrates that the injury or disease existed prior to service and was not aggravated by such service. 38 U.S.C. §§ 1111, 1137. In order to rebut the presumption of soundness, the government must show by clear and unmistakable evidence that (1) a veteran’s disability existed prior to service and (2) that the pre-existing disability was not aggravated during service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Federal Circuit has made clear that the Secretary may rebut the second prong of the presumption of soundness by demonstrating with clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition. Wagner, 370 F.3d at 1096; see also Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009). The Veteran’s spine was examined upon entry, during his January 1990 entry examination, and found to be essentially normal. Absent a finding of disability on service entry, the legal presumption of soundness attaches. Crowe v. Brown, 7 Vet. App. 238 (1994). Thus, the burden of proof would be on VA to rebut the legal presumption of soundness. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in order to rebut the presumption of soundness, the government must show by clear and unmistakable evidence that (1) the disability existed prior to service and (2) that the pre-existing disability was not aggravated during service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); see also VA O.G.C. Prec. Op. No. 3-2003. This burden is a formidable one, requiring that the preexistence of a condition and the no-aggravation result be “undebatable.” See Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993); see also Cotant v. West, 17 Vet. App. 116, 131 (2003) citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). The Board notes that although the January 2008 VA examiner indicated that the Veteran’s rotoscoliosis existed prior to active duty, the examiner used the wrong standard in rendering her opinion. In that regard, the examiner failed to indicate that there was clear and unmistakable evidence that the Veteran’s low back disability preexisted his active service. Therefore, in this case, the Board finds that the legal presumption of soundness has not been rebutted. After a review of the evidence, the Board finds that service connection is warranted for a low back disability. With regard to the first element of a service connection claim, the evidence shows that the Veteran has a current low back disability. VA and private treatment records, noted above, indicated a history of low back pain and diagnoses of sciatica, failed back syndrome with residual foraminal stenosis, and herniated L5-S1 disk. See December 2000 clinical record received May 2014; August 2009 private treatment records received February 2013; May 2010 private treatment records received May 2014. In addressing the second element, the evidence shows that the Veteran came to sickbay on more than one occasion with complaints of back pain. The evidence also shows that during active duty the Veteran was diagnosed with an S-type rotoscoliosis of the thoracolumbar spine. With respect to the third element, the nexus requirement, the Board finds that the evidence is in relative equipoise as to whether the Veteran’s current low back disability is causally related to the diagnosed rotoscoliosis and low back symptomatology he experienced during active duty. The Board finds the January 2015 positive nexus opinion from Dr. E.G. of great probative weight, as the physician rendered his opinion after thorough review of the Veteran’s STRs and post-service clinical records and during the course of continued treatment of the Veteran’s symptomatology. The Board also finds the VA treatment records indicating that the Veteran’s low back disability was related to active duty of great probative weight. Additionally, the Board finds the Veteran’s statements both competent and credible regarding his in-service low back symptomatology, as his statements are consistent throughout the course of the claim and are supported by his STRs. Therefore, the Board also assigns great probative weight to the Veteran’s statements. The Board affords less probative weight to the January 2008 medical opinion, as the examiner used the wrong standard in determining that the Veteran’s rotoscoliosis preexisted service and was unable to opine without resort to mere speculation as to the etiology of the Veteran’s low back disability. Accordingly, the Board has weighed the probative evidence of record and finds that the evidence is at least in relative equipoise as to the Veteran’s current low back disability and the causal relation between the Veteran’s disability and his in-service rotoscoliosis and low back symptomatology. The benefit-of-the-doubt rule is therefore for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board will resolve the reasonable doubt in the Veteran’s favor and find that the evidence supports the grant of service connection for a low back disability. See 38 U.S.C. § 5107. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Ruddy, 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.