Citation Nr: 21032098 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 17-67 492 DATE: May 25, 2021 ORDER The petition to reopen the previously denied claim of entitlement to service connection for a low back disability, to include degenerative disc disease (DDD), is granted. Entitlement to service connection for a low back disability, to include DDD, is granted. REMANDED Entitlement to service connection for sinusitis, to include as secondary to low back condition, is remanded. FINDING OF FACT 1. The regional office (RO) denied service connection claim for a low back condition in a July 1994 rating decision. 2. The evidence received since the July 1994 rating decision is new and material and relates to an unestablished fact necessary to substantiate the claim for a low back disability, to include DDD. 3. Resolving all reasonable doubt in favor of the Veteran, his low back disability was incurred during his active military service. CONCLUSION OF LAW 1. Evidence received since the July 1994 rating decision is new and material and the claim for service connection for low back disability, to include DDD, is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for a low back disability, to include DDD, have been met. 38 U.S.C. §§ 1110, 5103; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1983 to August 1992 and from January 1998 to June 1998, with service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Though it appears that the RO has not reopened the claim for service connection for a low back disability, the Board must determine on its own whether new and material evidence has been submitted to reopen the claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In December 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ); a transcript is of record. In the instant case, the present claim for service connection for low back disability (now claimed as a spine condition), to include DDD, is based on the same symptoms and etiology reported by the Veteran in connection with his previous claim for service connection for low back condition. In the July 1994 rating decision, the RO specifically addressed the Veteran's low back condition. The procedural development thereafter shows that same. While the Veteran's claim is now phrased as a spine condition, the issue of entitlement to service connection for a cervical spine disorder has not been adjudicated. Given that it appears that the Veteran may wish to pursue a claim for service connection for a cervical spine condition, the Board is referring this matter to the agency of original jurisdiction (AOJ) for any action deemed appropriate. Whether new and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for low back disability, to include DDD. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). 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. Id. The evidence need only relate to one unestablished fact necessary to substantiate the claim to be material. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). 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. 38 C.F.R. § 3.156(a). When determining whether the submitted evidence meets the definition of new and material, VA must consider whether the new evidence, when considered with the evidence of record, at least triggers VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Shade, supra. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection for a low back disability was denied in a July 1994 rating decision on the basis that there was no nexus to service. The Veteran did not initiate an appeal of that decision and thus, it became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. No evidence was constructively or physically of record within one year of the July 1994 determination. 38 C.F.R. § 3.156(b); see also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). In determining whether new and material evidence is required to reopen a claim, the focus must be on whether the evidence amounts to a new claim "based upon distinctly diagnosed diseases or injuries" from the claim considered in the prior final decision. Velez v. Shinseki, 23 Vet. App. 199, 204 (2009); Boggs v. Peake, 520 F.3d 1330, 1335-36 (2008). In the instant case, the present claim for service connection for low back disability (now claimed as a spine condition), to include DDD, is based on the same symptoms and etiology reported by the Veteran in connection with his previous claim for service connection for low back condition. In fact, in the July 1994 rating decision, the RO specifically addressed the Veteran's low back condition. Thus, the low back disability (now claimed as a spine condition), to include DDD, claim presently on appeal is a continuation of the Veteran's previous claim for service connection for a low back condition and new and material evidence is required. At the time of the July 1994 rating decision, the pertinent evidence of record included service treatment records (STRs) and a November 1992 VA examination. Since the July 1994 rating decision, additional STRs, private treatment records and October 2017 private opinion have been added. Regarding the additional STRs, the Board notes that several of the reports are duplicative and were considered in the July 1994 rating determination. While the Board acknowledges that the additional STRs include treatment notes showing back complaints and treatment dated in May 1995, September 2000 and June 2002 and those reports were not previously considered by the RO, the Board notes that those additional STRs did not exist at the time of the July 1994 rating determination. Thus, the provisions of 38 C.F.R. § 3.156(c) do not apply. Nonetheless, because the additional STRs, private treatment records, and October 2017 private opinion evidence was not before the VA or considered in the prior denial, it is new. This evidence is also material as it relates to an unestablished fact necessary to substantiate the claim, namely, evidence of a potential link between the Veteran's disability and his active military service. As such, since new and material evidence has been received, the request to reopen the prior denial is warranted. 38 C.F.R. § 3.156. The Board will adjudicate the claim on the merits and given the disposition below, there is no prejudice to the Veteran. Entitlement to service connection for low back disability, to include DJD. The Veteran contends that his low back disability is related to his active military service. For the reasons that follow, and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection is warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to establish service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307, so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may be established for chronic diseases, to include arthritis, manifesting to a certain degree within a year after service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). Turning to the evidence of record, the Veteran has a current diagnosis of DDD. See October 2017 private treatment records. Thus, the first element of service connection has been established. At the December 2019 Board hearing, the Veteran testified that he injured his back carrying heavy loads of gear in the field when stationed in Alaska. He testified that he was a supply specialist in a cold weather testing infantry unit providing mission support. The Veteran testified that he was an active part of the mission as the number of total troops was limited. He also testified that he had back flare-ups "out in the field," and he went to sick call a number of times but not as often as he needed because going to sick call as a leader was frowned upon. The Board finds the Veteran's statements credible as they are consistent with the following evidence of record. Significantly, the Veteran's DD Form 214 shows that his initial military occupational specialty (MOS) was a unit supply specialist. His service treatment records (STRs) show multiple complaints, treatments, and diagnoses of his low back condition. Specifically, the Veteran's STRs show treatment for low back pain from lifting in July 1984. Subsequently, he sought treatment for lower back pain radiating into legs in January 1990. He was diagnosed with mechanical low back pain and prescribed pain medication. Similar complaint in the past was noted. In March 1993, the Veteran sought treatment for lower back pain. He was diagnosed with a low back strain and prescribed pain medication. In June 1992, again, the Veteran sought treatment for recurrent back pain. He was diagnosed with a low back strain and prescribed pain medication. Low back pain was also noted on his separation examination in June 1992. Based on the foregoing, the Board finds that the in-service incurrence element of service connection has been established. Turning to the third element of service connection, a causal nexus, when resolving all reasonable doubt in favor of the Veteran, the Board finds this element also has been established. The Veteran has generally contended that he has had issues with his low back since service. See December 2019 hearing transcript. The Veteran also reported that he has been receiving treatment for his low back disability since his separation from his active duty service. The Board notes that the Veteran listed a low back injury on his September 1992 VA application for compensation. He underwent a VA examination in November 1992. The X-ray of the lumbar spine taken at that time showed no abnormalities. However, the Veteran was diagnosed with a mechanical back pain syndrome. No nexus opinion was provided and the Veteran's claim for service connection was denied. Subsequently, in May 1995, the Veteran sought treatment for his low back pain. In September 2000, the Veteran underwent chiropractic treatment for his low back condition. A June 2002 examination for the Veteran's service in the National Guard noted mechanical back pain. The Veteran underwent a private examination with Dr. R.B. for his low back disability in October 2017. As noted, he was diagnosed with lumbar spine DDD, radiculopathy and lumbar facet hypertrophy. The diagnoses were based on a September 2017 magnetic resonance imaging (MRI) and X-ray of the lumbar spine showing DDD. Dr. R.B. opined that the Veteran has had an on and off back pain for years as a result of his military service. Dr. R.B. added that occasional episodes of low back pain can prevent the Veteran from performing his day to day responsibilities. Dr. R. B. noted that the Veteran has had incapacitating episodes lasting at least 2 weeks but less than 4 weeks in the past 12 months. Dr. R.B. also noted that the Veteran underwent a cervical spine surgery in January 2014 and that he could be considered for a lumbar spine surgery should his symptoms persist. In light of the foregoing, the Board will resolve all reasonable doubt in favor of the Veteran and find that service connection is warranted. The probative evidence of record shows that the Veteran injured his low back in service. He has credibly reported experiencing low back issues since service and has consistently reported seeking treatment since his separation from service. His post-service treatment records also are devoid of any evidence of a post-service back injury. Multiple physicians diagnosed the Veteran with a recurrent low back condition and Dr. R.B. attributed the Veteran's current low back disability to his service. Accordingly, resolving all reasonable doubt in favor of the Veteran, service connection for a low back disability is granted. REASONS FOR REMAND Entitlement to service connection for sinusitis, to include as secondary to low back condition. The Veteran contends that his sinusitis is related to his active military service. For the reasons that follow, the Board finds that additional development is needed prior to adjudication of the claim. In this regard, the Veteran has not yet been afforded a VA examination for his sinusitis. See McClendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). The Veteran's treatment records show a diagnosis of deviated nasal septum, nasal obstruction, chronic frontal ethmoid, maxillary and sphenoid sinusitis, turbine hypertrophy with concha bullosa, and bilateral nasal polyps. See February 2013 private treatment record. At the September 2019 Board hearing, the Veteran testified that while on active duty he was struck in the face resulting in a deviated septum. The Veteran's STRs show a March 1984 X-ray of the skull to rule out a maxillary fracture. In May 1984, the Veteran sought treatment for ongoing nose bleeds. On his June 1992 Report of Medical History at separation, the Veteran noted a head injury. His National Guard service medical examination in November 2005 noted nasal septal deviation. In light of the foregoing, the Board finds that the low threshold of McLendon is met and on remand the Veteran should be afforded a VA examination to determine whether the Veteran's sinusitis is related to his active military service, to include his service in the Army National Guard. 20 Vet. App. at 83-86. In addition, as the Veteran's claim for entitlement to service connection for sinusitis includes a claim for sinusitis as secondary to his low back condition, and the Board grants service connection for his low back disability in the decision herein, a secondary VA opinion is needed to fully address the Veteran's claim. Further, at the September 2019 Board hearing, the Veteran testified that he has been receiving ongoing treatment for his sinusitis with his private physician. The private treatment records on file date back to January 2013. Thus, a remand is needed to obtain the Veteran's updated private treatment records. This matter is REMANDED for the following action: 1. Associate with the claims file all outstanding VA treatment records pertaining to the Veteran's sinusitis. 2. Contact the Veteran to secure the proper authorizations where necessary and make arrangements to obtain all the records of treatment or examination for his sinusitis from all the sources identified by the Veteran which are not already on file, including updated records from Maryland Primary Care Physicians. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After conducting any additional development deemed appropriate, to the extent possible, identify the Veteran's periods of active duty for training and inactive duty for training in the Army National Guard. 4. After completing the above, obtain a VA medical opinion regarding the etiology of the Veteran's sinusitis from a qualified clinician. The examiner must review the entire claims file and a copy of this Remand. All indicated diagnostic testing must be conducted. 5. The examiner must opine: (a) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's sinusitis had its onset in, or is otherwise related to active duty or active duty for training, to include the periods of his active duty for training in the Army National Guard. (b) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's sinusitis is due to an injury sustained while on inactive duty for training, to include the periods of his inactive duty for training in the Army National Guard. (c) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's sinusitis is proximately due to, or aggravated by, service-connected disability, to include the service-connected low back disability. The term "aggravation" in the above context refers to "any incremental increase in disability - any additional impairment of earning capacity - in the nonservice-connected disability resulting from service-connected conditions regardless of its permanence." If aggravation is found, then, to the extent possible, the examiner should establish a baseline level of severity of sinusitis prior to aggravation by the service-connected disability. A complete rationale must be provided for all opinions expressed. The rationale must consider and discuss the pertinent evidence of record, to include the Veteran's lay statements. In providing this opinion, the examiner should also address the Veteran's STRs showing a March 1984 X-ray of the skull to rule out a maxillary fracture, May 1984 treatment for ongoing nose bleeds, a report of head injury on his June 1992 Report of Medical History, and his Army National Guard service medical examination in November 2005 noting nasal septal deviation. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Kuzniar, 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.