Citation Nr: 21032387 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 16-46 751 DATE: May 26, 2021 ORDER New and material evidence having been submitted, the claim for entitlement of service connection for a low back condition is reopened. REMANDED Entitlement to service connection for a low back condition is remanded. Entitlement to service connection for a neck condition is remanded. Entitlement to service connection for a headache condition, including migraines, is remanded. FINDINGS OF FACT 1. In a December 2008 rating decision, the Regional Office (RO) denied the claim for service connection for a low back condition. The Veteran was notified of that decision and of her appellate rights, but she did not submit a notice of disagreement or new and material evidence within one year thereafter. 2. The evidence received since the December 2008 rating decision, by itself or in conjunction with previously considered evidence, is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for a low back condition. CONCLUSIONS OF LAW 1. The December 2008 rating decision denying service connection for a low back condition is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.302, 20.1103. 2. The evidence received since the December 2008 rating decision is new and material as to the claim for service connection for a low back condition, and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the United States Navy from August 1992 to August 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2016 and December 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran originally requested a Board hearing in connection with her claims. However, in a July 2019 correspondence submitted by her representative, she withdrew that request and elected a 90-day extension to submit additional evidence. The extension was granted by the Board and additional evidence has been submitted. Therefore, the hearing request is considered withdrawn. The Board also notes that additional evidence has been associated with the claims file since the RO's last adjudication. However, the evidence was submitted by the Veteran and was accompanied with a waiver of the RO's original consideration. New and Material In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (regardless of action taken by RO, Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial). New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). 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 the 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, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The United States Court of Appeals for Veterans Claims (Court) has held that 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. In this case, the RO previously considered and denied the Veteran's service connection claim for a low back condition in a December 2008 rating decision. The RO noted that the Veteran's service treatment records show she was treated for a lumbar strain in April 1996, but there is no evidence to show chronicity or continuity of her symptoms. The RO found that after the incident, there was no mention of low back problems in her service treatment records or June 1996 separation examination. Therefore, the RO concluded the claim should be denied because there was no chronicity in symptoms. The Veteran was notified of that decision and of her appellate rights; however, she did not submit a notice of disagreement. In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. There was also no evidence received within one year of the issuance of the decision. Therefore, the December 2008 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.302, 20.1103. The evidence associated with the claims file since the December 2008 rating decision includes private treatment records and lay statements. In a January 2017 treatment record, the physician noted the Veteran injured her lower back while in active service and continued to have problems that have worsened. A September 2019 correspondence from the Veteran's representative asserts that she had intermittent back pain after the injury, and it has continued ever since. Additionally, October 2019 lay statements from the Veteran's sister and former co-worker state that she injured her back in service and continued to have problems thereafter. Specifically, the statement her former co-worker indicates that after the injury, she missed days of work to receive treatment for her lower back and missed days of work due to pain associated with her injury. An October 2020 lay statement from the Veteran's mother states that she injured herself in service, and continued to have pain after the incident. As noted above, the original claim was denied because there was no evidence of chronicity of symptoms during and following service. The newly submitted evidence provides additional details about the chronicity of the Veteran's symptoms. Accordingly, the Board finds that new and material evidence has been presented to reopen the Veteran's previously denied claim for service connection for a low back condition. However, as will be explained below, the Board finds that further development is necessary before the merits of the Veteran's claim can be addressed. REASONS FOR REMAND Entitlement to service connection for a low back condition is remanded. The Veteran has been diagnosed with lumbar spondylosis, lumbar spinal stenosis, and disc degeneration of the lumbar spine. Service treatment records show she injured her lower back in service and was diagnosed with a lumbar strain. See April 1996 treatment record. The Veteran was evaluated during a January 2017 VA examination. The examiner noted the Veteran's diagnoses, in-service history related to her injury, and current abnormal range of motion in her lower back. She noted the Veteran did not experience flare ups and while there was pain noted on examination, it does not result in or cause functional loss. The examiner indicated that she cannot speak to pain, weakness, fatigability, or incoordination that significantly limits functional ability with repeated use over a period of time because she is not present when the Veteran uses the lumbar spine over a period of time. The examiner opined that it is less likely than not the Veteran's low back condition was incurred in or caused by the claimed in-service injury, event, or illness. She noted the Veteran's injury in service but indicated the separation examination shows the Veteran's low back was normal and she denied having recurrent low back pain. Moreover, there is no complaints or treatment of a low back problem until October 2014 when the Veteran reported she hurt her back in service. Therefore, the examiner found there was around a17 year gap between the injury and her complaint of back pain after service. Thus, the in-service injury is considered acute and there is no objective evidence to establish a nexus between the current low back condition and in-service low back diagnosis. The Board finds the VA examination is inadequate as proper consideration has not been afforded to the lay statements recently submitted attesting to the continuity of symptoms that the Veteran has had pertaining to her back since service. This additional evidence that has been submitted that speaks to the chronicity of her symptoms was not available or considered in the January 2017 VA examination. Thus, an additional VA examination and medical opinion is necessary. Entitlement to service connection for a neck condition is remanded. The Veteran has been diagnosed with degeneration of the cervical spine and cervical spinal stenosis. In a January 2018 VA examination, the Veteran was evaluated and found to have neck pain but a normal range of motion. Noting that degenerative joint disease is not systemic and does not spread from one segment of the spine to another, the examiner opined that it is less likely than not the Veteran's neck condition is related to her back condition. The Veteran asserts that her neck conditions are secondary to her low back conditions. Therefore, the Board finds the issue is inextricably intertwined with the service connection claim for a low back condition. Entitlement to service connection for migraines is remanded. Service treatment records show the Veteran was diagnosed with and treated for migraine headaches in service. See May 1994 treatment record. Post-service treatment records reveal the Veteran has complained of having headaches often. See October 2014, November 2018, and May 2019 private treatment records. In January 2020, the Veteran submitted a headache log. A September 2019 correspondence notes the Veteran did not seek official treatment from a doctor for her headaches because they were infrequent. Rather, she treats them with rest and over the counter medications. An October 2019 lay statement indicates the Veteran began experiencing extreme migraines following her low back injury in service. A review of the claims file reveals the Veteran has not been afforded a VA examination in connection with her claim. Therefore, the claim is remanded for a VA examination and medical opinion. The matters are REMANDED for the following action: 1. The AOJ should schedule the Veteran for a VA examination to determine the nature and etiology of any low back disorder that may be present by an examiner who has not previously examined the Veteran. The examiner is requested to review all pertinent records associated with the claims file. The examiner should note the Veteran is competent to attest to factual matters of which she has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not the Veteran has a current low back disorder, to include arthritis, that is related to her military service, including any injury or symptomatology therein. The examiner should specifically consider the Veteran's assertion that her low back pain began in service and has persisted ever since. The examiner should also consider and specifically address Veteran's service treatment records that show treatment of a lumbar strain, and subsequent private treatment records that indicate the Veteran's current low back condition is reported to have begun in service. Also, the examiner should consider and address the lay statements indicating the same. In rendering the opinion, the examiner should discuss how any current low back disorder generally presents or develops in most cases. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any headaches or migraines that may be present. The examiner is requested to review all pertinent records associated with the claims file. The examiner should note the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that the Veteran has headaches or migraines that manifested in service or is otherwise causally or etiologically related to her military service. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history," 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M. Walker 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.