Citation Nr: 21027506 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 17-12 278 DATE: May 5, 2021 ORDER The petition to reopen the previously disallowed 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. In an unappealed July 2013 rating decision, the Regional Office (RO) denied entitlement to service connection for lumbar strain and L5-S1 disc herniation. 2. The evidence associated with the claims file subsequent to the RO's July 2013 decision is new to the record and relates to an unestablished fact necessary to substantiate the merits of the claim for entitlement to service connection for a low back disability, and raises a reasonable possibility of substantiating the claim. 3. The Veteran's moderate degenerative disc disease of the low back is presumed to have been incurred during the Veteran's active duty service. CONCLUSIONS OF LAW 1. The July 2013 rating decision which denied service connection for a low back disability is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The criteria for service connection for a low back disability have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2003 to August 2003, January 2004 to March 2005, and August 2013 to April 2014, with additional service in the Army National Guard from March 2002 to June 2008 and in the Air Force National Guard from June 2008 to June 2014. The issue of whether new and material evidence was submitted in order to reopen the claim for entitlement to service connection for a low back disability comes before the Board on appeal from an August 2016 rating decision of the Department of Veterans Affairs (VA) RO. The Veteran perfected a timely appeal of this determination. See Notice of Disagreement dated August 2016; Statement of the Case dated February 2017; Substantive Appeal dated February 2017. The Veteran testified at a hearing conducted by the undersigned Veterans Law Judge in March 2020. Unfortunately, due to problems with the recording equipment, VA was unable to produce a transcript of the hearing. Correspondence was sent to the Veteran in December 2020 inquiring whether he desired a new Board hearing in conjunction with this appeal. In January 2021, the Veteran responded that he did not want another hearing and requested the Board consider his claim based on the evidence of record. NEW AND MATERIAL EVIDENCE In general, RO rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. If a claim for entitlement to service connection has been previously denied and that decision became final, the claim can be reopened only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is a low one. 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 any element of 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. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). However, a new theory of entitlement does not automatically reopen a previously denied claim. See Bingham v. Nicholson, 421 F.3d 1346, 1348-49 (2005); see also Boggs v. Peake, 520 F.3d 1330, 1336 (Fed. Cir. 2008) (new theory of causation for same disease or injury that was subject of previously denied claim cannot be basis of new claim). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is generally presumed, unless it is inherently false or untrue or, if in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994). 1. Whether new and material evidence was submitted in order to reopen the claim for entitlement to service connection for a low back disability In October 2012, the Veteran filed a claim for a herniated disc, which the RO denied in a July 2013 rating decision on the basis that there was no link between the disability and his service. The Veteran was notified of this decision and of his appeal rights in a July 2013 letter but did not perfect a timely appeal. Moreover, no evidence pertaining to the Veteran's claim was associated with the claims file within one year of the RO's decision. As a result, the decision became final. In October 2014, the Veteran requested to reopen his claim for a low back disability which the RO denied in April 2015. However, new and material evidence was added to the Veteran's claims file in April 2016, prior to the expiration of the appeal period, and the claim was not readjudicated. Therefore, the Board finds that that issue remains pending from the date of the Veteran's October 2014 claim. See April 2016 private medical opinion. 38 C.F.R. § 3.156(b). Relevant evidence at the time of the RO's July 2013 denial included the Veteran's service treatment records, private treatment records, VA treatment records, and lay statements of record. The evidence received since the July 2013 denial includes an April 2016 private medical opinion linking the Veteran's low back disability to his service. The evidence obtained since the last final denial is new and material because it bears directly on the nexus element and provides the Veteran an avenue to establish service connection for his low back disability. The Board must presume the credibility of all newly submitted evidence for the purpose of determining if such evidence is new and material evidence sufficient to reopen the claim. Fortuck v. Principi, 17 Vet. App. 173, 179 (2003). Accordingly, the claim for entitlement to service connection for a low back disability is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). SERVICE CONNECTION 1. Entitlement to service connection for a low back disability Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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). The Veteran contends that he has a low back disability as a result of his active duty service. The Veteran's post-service treatment records include treatment in July 2014 for chronic low back pain. An MRI indicated moderate degenerative disc disease at L5-S1 with a right-sided disc protrusion. A March 2015 VA examination included range of motion testing showing that Veteran had pain with extension. In this context, the Board notes that the Veteran's last period of active duty service ended in April 2014. The Board further notes that, moderate degenerative disc disease, a type of osteoarthritis, is a chronic disease subject to presumptive service connection, provided that it is manifest to a compensable degree within one year after separation from active service. See 38 C.F.R. §§ 3.307, 3.309(a); Groves v. Peake, 524 F.3d 1306, 1309 (Fed. Cir. 2008). Diagnostic Code 5003 and C.F.R. § 4.59 provides that painful motion due to arthritis is deemed to be limitation of motion and warrants the minimum rating for a joint, even if there is no actual limitation of motion. The evidence of record shows that the Veteran was diagnosed with moderate degenerative disc disease, which was manifest by painful motion to a compensable level, within one year after his separation from his last period of active duty service. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. There is no affirmative evidence to the contrary that shows the disease is attributable to an intercurrent cause or the Veteran's willful misconduct. The Board acknowledges that the evidentiary record includes VA negative nexus opinions from June 2013 and March 2015. However, the June 2013 opinion was based on the lack of in-service complaints and the March 2015 opinion was based on the lack of a current diagnosis and the passage of time from separation from service and subsequent diagnoses of a low back disability. Most importantly, the Board finds that the June 2013 and March 2015 opinions and other evidence of record does not rebut the evidence showing that moderate degenerative disc disease was initially diagnosed and manifested to a compensable degree within one year of active duty service. Therefore, the Board finds that service incurrence is presumed for moderate degenerative disc disease under the presumptive provisions pertaining to chronic diseases. Accordingly, service connection for a low back disability is granted. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morrad, 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.