Citation Nr: 21028020 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 18-07 791 DATE: May 10, 2021 ORDER New and material evidence having been received, the petition to reopen the claim of service connection for degenerative disc disease L5-S1 and L4-5 is granted. Service connection for degenerative disc disease L5-S1 and L4-5 is granted. FINDINGS OF FACT 1. New and material evidence was received in the form of a positive nexus statement from the Veteran's private doctor, which was new because it had not been previously associated with the file and material because it raised a reasonable possibility of substantiating the claim. 2. The Veteran's current degenerative disc disease of the L5-S1 and L4-5 is at least as likely as not related to his in-service back injury. CONCLUSIONS OF LAW 1. The criteria for reopening the claim for service connection for degenerative disc disease of the L5-S1 and L4-5 are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The criteria for service connection for degenerative disc disease of the L5-S1 and L4-5 are 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 April 1966 to November 1969. This matter comes before the Board of Veterans' Appeal (Board) on appeal from an October 2017 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In August 2020, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the electronic file. New and material evidence having been received, the petition to reopen the claim of service connection for degenerative disc disease L5-S1 and L4-5 is granted. Where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA's duty to provide a VA examination is triggered. There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening. Shade, 24 Vet. App. at 117-20. In July 2009, the Veteran originally applied for service connection for degenerative disc disease L5-S1 and L4-5. A September 2009 rating decision denied service connection. The Veteran did not file a Notice of Disagreement (NOD), nor did he submit new evidence within a year. As such, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103 (2012). Since the claim was the subject of a final decision, the Veteran needed to submit new and material evidence to reopen the claim. In June 2017, the Veteran filed a claim for service connection for a back injury. See VA 21-526EZ, Fully Developed Claim (Compensation) received 6/02/2017. In August 2020, the Veteran submitted a letter from his private physician, Dr. T.F.G. In the letter, Dr. T.F.G. provided a positive nexus statement stating that the Veteran's in-service spondylosis L4 and retrolisthesis L5-S1 was the cause of his current degenerative disc disease L5-S1 and L4-5. See Email Correspondence received 8/21/2020. This positive nexus statement was new because it was not previously associated with the file and material because it was evidence of a nexus, a prior missing service connection element, between the Veteran's current condition and his service. Service connection for degenerative disc disease L5-S1 and L4-5 is granted. The Veteran contends that he injured his back during a self defense training while on active duty and the condition he sustained has continued since service and progressively worsened. See Form 9 received 2/05/18 at page 3. The Board concludes that the Veteran has a current disability that is related to the back injury he sustained during his active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The letter from the Veteran's provider, Dr. T.F.G., states that the Veteran has a current diagnosis of degenerative disc disease L5-S1 and L4-5. See Email Correspondence received 8/21/2020. During service, the Veteran was seen for complaints of low back pain and received an x-ray that showed spondylosis L4 retrolisthesis L5 on S1. See STR-Medical received 9/30/2009 at pages 16, 17 and 30. Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. The evidence against the claim includes a September 2009 VA medical opinion. The September 2009 VA examiner diagnosed the Veteran with degenerative disc disease at L5-S1 and L4-5. In the opinion, the September 2009 VA Examiner distinguished the Veteran's current diagnosis from his in-service diagnosis, and stated that the Veteran's disc problems were not noted during service and came afterwards from loading wood and being in an awkward position. See VA Examination received 9/22/2009 at page 4. Accordingly, the September 2009 VA examiner concluded that it was less likely than not that the Veteran's current back problems were related to his findings in service. Id. The evidence in favor of the claim includes the letter from the Veteran's current physician, Dr. T.F.G. In the opinion, Dr. T.F.G. stated that he reviewed the Veteran's medical records and concluded that the severity of the Veteran's back pain has continued to worsen since service, and at present he has degenerative disc disease L5-S1 and L4-5. He then gave a positive nexus opinion, stating that the Veteran's degenerative disease at L5-S1 and L4-5 was caused by the injury he sustained while in service. See Email Correspondence received 8/21/2020. At the August 2020 hearing, the Veteran testified that after the injury his back was bothering him, and he went to sick bay. The doctor gave him two options, to have surgery or get a back brace. The Veteran opted for the back brace, but stated that his back pain never resolved. See Hearing Transcript received 8/31/2020 at page 3. The Veteran agreed when he was asked whether he downplayed his injury during service in order to avoid a medical discharge and a negative effect on his pursuit of a career in law enforcement. Id. at page 4. The Board finds the Veteran's testimony to be credible and consistent with the evidence of record. (Continued on the next page) Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current degenerative disc disease of the L5-S1 and L4-5 is related to service. The Board finds that the above negative VA opinion and positive private opinion effectively counterbalance each other. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for degenerative disc disease of the L5-S1 and L4-5 is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Dixon, 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.