Citation Nr: 21028849 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 18-00 847 DATE: May 12, 2021 ORDER The issue of whether new and material evidence has been submitted to reopen service connection for bilateral plantar fasciitis is dismissed. Service connection for a headache disorder is dismissed. New and material evidence having been received, the appeal to reopen service connection for a lumbar spine disability is granted. Service connection for a lumbar spine disability of degenerative disc disease and intervertebral disc syndrome (IVDS) is granted. Service connection for a cervical spine disability of cervical spondylosis and IVDS is granted. FINDINGS OF FACT 1. Per March 2021 Board testimony, prior to the promulgation of a decision in the present appeal, the Veteran asked to withdraw the issue of whether new and material evidence has been submitted to reopen service connection for bilateral plantar fasciitis. 2. Per March 2021 Board testimony, prior to the promulgation of a decision in the present appeal, the Veteran asked to withdraw the issue of service connection for a headache disorder. 3. In an unappealed October 2007 rating decision, the Regional Office (RO) denied service connection for mechanical low back pain on the basis that the evidence did not show a currently diagnosed disability; evidence received since the October 2007 rating decision relates to the unestablished fact of a current disability, which is necessary to substantiate a claim for service connection. 4. The Veteran is currently diagnosed with degenerative disc disease and intervertebral disc syndrome (IVDS) in the lumbar spine (lumbar spine disability); the Veteran sustained a lumbar spine injury during service; the current lumbar spine disability had its onset during service. 5. The Veteran is currently diagnosed with cervical spondylosis (arthritis) and IVDS in the cervical spine (cervical spine disability); symptoms of the cervical spine disability were chronic in service and continuous since service separation. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal have been met regarding the appeal for whether new and material evidence has been received to reopen service connection for bilateral plantar fasciitis. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of a substantive appeal have been met regarding the appeal for service connection for a headache disorder. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The October 2007 rating decision denying service connection for mechanical low back pain became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 4. Evidence received since the October 2007 rating decision is new and material to reopen service connection for a lumbar spine disability. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. 5. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for lumbar spine degenerative disc disease and IVDS have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 6. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for cervical spine spondylosis and IVDS have been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from June 1983 to March 1988, and from October 1989 to May 1994. 1. Reopening service connection for bilateral plantar fasciitis is dismissed 2. Service connection for a headache disorder is dismissed Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege a specific error of fact or law in the determination being appealed. A veteran may withdraw a substantive appeal by telling the Board of the decision to withdraw either in writing or on the record at a Board personal hearing. 38 C.F.R. § 20.204. Per the March 2021 Board hearing testimony, the Veteran asked to withdraw the issues of whether new and material evidence has been submitted to reopen service connection for bilateral plantar fasciitis and service connection for a headache disorder. As the Veteran has withdrawn the appeals regarding whether new and material evidence has been submitted to reopen service connection for bilateral plantar fasciitis and service connection for a headache disorder, there remains no allegation of errors of fact or law for appellate consideration as to these issues. Accordingly, the Board does not have jurisdiction to review these issues, and the issues of whether new and material evidence has been submitted to reopen service connection for bilateral plantar fasciitis and service connection for a headache disorder will be dismissed. 3. Reopening service connection for a lumbar spine disability Finally decided claims cannot be reopened in the absence of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Barnett v. Brown, 8 Vet. App. 1 (1995) (citing 38 U.S.C. §§ 5108, 7104(b)). Unappealed rating decisions by the RO are final with the exception that a claim may be reopened by submission of new and material evidence. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. When a veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is "new" and "material." See Smith v. West, 12 Vet. App. 312 (1999). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. 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. Id. 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). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of 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, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. In an October 2007 rating decision, the RO denied service connection mechanical low back pain on the basis that the evidence did not show a current low back disability. Because the Veteran did not submit a Notice of Disagreement, and no additional evidence was received within one year of the notice of the rating decision, the October 2007 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103. Since the October 2007 rating decision (final disallowance), additional evidence has been received in the form of VA treatment records, private treatment records, lay statements, and the March 2021 Board hearing transcript, which evidence is new because they have not been previously submitted. Evidence received since the October 2007 rating decision includes an April 2016 private examination report reflecting a currently diagnosed lumbar spine disability. The Board finds that such evidence relates to whether the Veteran has a currently diagnosed lumbar spine disability, so could reasonably substantiate a claim for service connection for a lumbar spine disability. As such, the Board finds that the additional evidence is new and material to reopen service connection for a lumbar spine disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in service disease or injury and the current disability. The Veteran is currently diagnosed with cervical spondylosis (as arthritis), which is a "chronic disease" under 38 C.F.R. § 3.309(a). Therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for "chronic" in-service symptoms and "continuous" post service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 C.F.R. §§ 3.307, 3.309(a). 4. Service connection for a lumbar spine disability The Veteran seeks service connection for a lumbar spine disability that had its onset during service. During the March 2021 Board hearing, the Veteran testified that he injured his lower back while moving stacks of sheet metal during service. The Veteran testified that symptoms of the lumbar spine disability were exacerbated by the demanding physical training requirements in the Army and that his lower back symptoms continued to worsen over time. The evidence reflects a current diagnosis of degenerative disc disease and IVDS in the lumbar spine. See April 2016 private examination report. After a review of all the evidence of record, lay and medical, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran's current lumbar spine disability had its onset during service. The evidence shows that the Veteran sustained a lumbar spine injury during service. As noted above, the Veteran testified during the March 2021 Board hearing that he injured his lower back while moving stacks of sheet metal during service. Service treatment records show the Veteran sought treatment multiple times for complaints of lower back pain. See November 1989 service treatment record; January 1990 service treatment record; August 1991 service treatment record. Additionally, the Veteran credibly testified during the March 2021 Board hearing that the repetitive nature of physical training exercises exacerbated his back pain, which is consistent with service treatment records reflecting the Veteran complained of back pain while running in military formation. See August 1991 service treatment record. Post-service treatment records show the Veteran had been receiving treatment for lower back pain for many years and had been diagnosed with degenerative disc disease and IVDS in April 2016. See January 2016 private medical letter. During the March 2021 Board hearing, the Veteran testified that he continued to experience lower back symptoms since service separation. The record includes a November 2017 VA examination report, which contains the VA examiner's opinion that it is less likely than not that the Veteran's current lumbar spine disability is etiologically related to active service. The November 2017 VA examiner explained that while service treatment records show the Veteran was treated for lower back pain, there is no evidence that the Veteran's lumbar spine condition was severe in nature to have continued to present day. The VA examiner noted that an X-ray of the lumbar spine taken in August 1990 revealed a normal lumbar spine and stated that there is no further objective evidence in the record that shows the lumbar spine problems in service persisted beyond 1991. The VA examiner further explained that the complaints of back pain expressed during the November 2017 VA examination were consistent with a lumbar strain, and there is no evidence of a lumbar spine disability that is severe or chronic that would be the cause of the Veteran's current lumbar spine complaints. The VA examiner also opined that it is more likely than not that the Veteran's current lumbar spine problems are related to post-service use/overuse or to an unspecified post-service occupational/recreational injury. The Board finds the November 2017 VA examiner's opinion of little probative value in determining whether the Veteran's current lumbar spine disability is etiologically related to the lumbar spine injury sustained during service from moving sheet metal. The VA examiner based the negative opinion on a lack of a chronic or severe lumbar spine disability, but also did not perform all indicated diagnostic testing during the November 2017 VA examination, including current imagining studies. Additionally, the VA examiner speculated that the Veteran's current lumbar spine symptoms are attributable to unspecified post-service use/overuse and/or to an unspecified occupational/recreational injury without addressing the Veteran's contention that he injured his lower back while moving sheet metal during service. The record also includes a March 2021 private medical letter from Dr. B.V.V. who has been treating the Veteran since 2014. Dr. B.V.V. indicates familiarity with the Veteran's current lumbar spine problems as well as the lumbar spine injuries sustained during service. Based upon knowledge of the Veteran's reported lumbar spine injuries and medical history, Dr. B.V.V. opined that it is more likely than not that the Veteran's current lumbar spine symptoms are etiologically related to military service. The Board finds Dr. B.V.V.'s positive nexus opinion highly probative as Dr. B.V.V. has a long history of treating the Veteran's current lumbar spine disability and is familiar with the lumbar spine injuries sustained during service. Based on the foregoing, and resolving reasonable doubt in the Veteran's favor, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran's current lumbar spine disabilities of degenerative disc disease and IVDS are etiologically related to the lumbar spine injury sustained during service while moving sheet metal and to the subsequent complaints of lower back pain documented during service. As such, the Board finds that the criteria for service connection for a lumbar spine disability, to include degenerative disc disease and IVDS, have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 5. Service connection for a cervical spine disability The Veteran asserts that he suffered a neck injury during service while riding in an aircraft on a reconnaissance mission, which encountered severe turbulence necessitating a hard landing. During the March 2021 Board hearing, the Veteran testified that the turbulence was so severe during this flight that all the passengers in this aircraft were being lifted out of their seats and slammed back down, which ended with a hard jolt from the hard landing. Initially, the Board finds the Veteran is currently diagnosed with cervical spondylosis (arthritis) and IVDS in the cervical spine. See April 2016 private examination report. After a review of all the evidence of record, lay and medical, the Board finds that the evidence is at least in equipoise on the questions of whether symptoms of the cervical spine arthritis were chronic in service and have been continuous since service separation, to meet the criteria for "chronic" disease presumptive service connection for arthritis. See 38 U.S.C. § 1112 and 38 C.F.R. § 3.303(b). Service treatment records reflect the Veteran sought treatment several times for neck pain in January 1990. Additionally, the Veteran credibly testified during the March 2021 Board hearing that he suffered neck pain ever since sustaining the neck injury during the reconnaissance flight, and that neck pain had progressively worsened over time. Post-service VA treatment records reflect the Veteran had been receiving treatment for neck pain for many years. See January 2016 private medical letter. Post-service private treatment records show the Veteran complained of neck pain and decreased range of motion that had persisted of over 20 years. See e.g., March 2016 private treatment record. A March 2016 private treatment record and April 2016 private examination report reflect the Veteran was diagnosed with cervical spondylosis and IVDS in the cervical spine. During the March 2021 Board hearing, the Veteran credibly testified that he continued to experience cervical spine symptoms since service separation and had been receiving medical treatment for neck pain since service separation. (Continued on the next page) The foregoing evidence pertains to chronic symptoms in service and continuous symptoms of cervical spine arthritis since service separation. The Veteran's statements are competent, credible, and probative. Resolving reasonable doubt in the Veteran's favor, the Board finds that, based on evidence of chronic symptoms in service and continuous post-service symptoms of cervical spine arthritis, presumptive service connection for cervical spine arthritis is warranted under 38 C.F.R. § 3.303(b). 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As the criteria for presumptive service connection for a cervical spine disability based on continuous post service symptoms (38 U.S.C. § 1112 and 38 C.F.R. § 3.303(b)) are met, all other theories of service connection are rendered moot, with no remaining questions of law or fact to be decided. 38 U.S.C. § 7104. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Choi, 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.