Citation Nr: 21032532 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 18-11 821 DATE: May 27, 2021 ORDER New and material evidence has been received and the claim of entitlement to service connection for degenerative disc disease of the lumbar spine is reopened. Entitlement to service connection for degenerative disc disease of the lumbar spine is granted. FINDINGS OF FACT 1. A June 2016 Board decision denied entitlement to service connection for degenerative disc disease. The June 2016 denial is final. 2. Evidence received since the June 2016 Board decision relates to unestablished facts necessary to reopen the claim of entitlement to service connection for degenerative disc disease of the lumbar spine. 3. The Veteran's degenerative disc disease of the lumbar spine is related to his service. CONCLUSIONS OF LAW 1. The June 2016 Board decision is final. New and material evidence has been received to reopen the claim of entitlement to service connection for degenerative disc disease of the lumbar spine. 38 U.S.C. § 7103(a); 38 C.F.R. § 20.1100. 2. The criteria for entitlement to service connection for degenerative disc disease of the lumbar spine are met. 38 U.S.C. § 1131, 5107; 38 C.F.R. § 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1977 to July 1982. This appeal comes to the Board of Veterans' Appeals (Board) from an August 2017 rating decision by the Department of Veterans' Affairs (VA) regional office (RO). The Veteran testified at a hearing with the undersigned in November 2020. The Board acknowledges the Veteran's representative's request for the personnel file or CV of the examiner who performed a compensation and pension examination on the Veteran. However, because the Board is granting the benefit sought in full, any due process error is not prejudicial to the Veteran. New and material evidence having been received, the claim of entitlement to service connection for degenerative disc disease of the lumbar spine is reopened A claim that has been denied in an unappealed Board decision is final unless the Chairman orders reconsideration of the decision. 38 U.S.C. § 7103(a); 38 C.F.R. § 20.1100. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is evidence not previously submitted to agency decision makers. 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. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App.510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to VA. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App.273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is generally "low." See Shade v. Shinseki, 24 Vet. App.110, 117 (2010). A June 2016 Board decision denied entitlement to service connection for degenerative disc disease. The decision was not appealed and reconsideration was not requested. The denial is final. Evidence received since the June 2016 Board decision includes hearing testimony and private medical evidence. These are new, as they were not before the Board in June 2016. This evidence relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for a degenerative disc disease of the lumbar spine. Specifically, the evidence pertains to nexus. The Board thus reopens the Veteran's claim of entitlement to service connection for degenerative disc disease of the lumbar spine for a de novo review on the merits. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Entitlement to service connection for degenerative disc disease of the lumbar spine Generally, direct service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004). First the Board must assess if the Veteran has a current disability. The Veteran was diagnosed with degenerative disc disease of the lumbar spine in October 2011. The disability has continued to present day. See April 2017 VA Treatment Record. As such, the first element has been met. Next, the Board turns to the second criteria for entitlement to service connection: the in-service incurrence of disease or injury. While the Veteran was in training to become a parachutist, he had a bad landing. He testified he landed on his tailbone, and with such force his knees knocked into his head. While he was able to get up and walk after the fall, he heard popping and snapping. The Veteran noted he has been in pain ever since that jump. While there is no record of this injury in the Veteran's service treatment records, the Veteran explains he did not seek treatment because he felt he did not have enough sick days and for fear of losing training if he missed too many days. Additionally, he would have risked losing jump status pay if he had missed days for treatment and did not want to lose a quarter of his pay by reporting the injury. The Veteran's account of not seeking medical attention and not understanding the serious nature of the condition is consistent with the time, place, and circumstances of his service. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds no reason to doubt the credibility of the Veteran's reports. As such, the second element of an in-service incurrence or aggravation of a disease or injury is satisfied. Finally, the Board must address whether a nexus exists between the Veteran's current disability and his in-service injury. During the November 2020 hearing, the Veteran testified he has experienced pain since the bad jump in service but he did not seek treatment for his back after service because he did not have access to health insurance for many years. The Veteran's claim file includes a December 2020 opinion submitted by a private physician. The physician reviewed the Veteran's medical history, provided by the Veteran, including his reasoning for not obtaining medical assistance post service. The examiner stated the Veteran's in-service parachute accident is more likely than not the cause of his current disability of degenerative disc disease. He explained, in depth, how the parachute injury initiated the changes in his spine that led to his current diagnosis. The private physician fully considered the Veteran's history, current medical diagnosis, and is knowledgeable of his condition. The Board finds this opinion probative, as it provided a clear conclusion with supporting data, and reasoned medical explanations connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). VA examinations were provided for the Veteran in October 2011 and June 2015. The October 2011 opinion provided a negative nexus, stating it was less likely than not the Veteran's current back issue were incurred in the military. The examiner explained there was no documentation of back pain or problems in the Veteran's service medical records. This VA examination relied on a lack of contemporaneous medical evidence to find no continuity or chronicity of treatment from service. The examiner did not provide an explanation for his rejection of lay reports of pain since service. The June 2015 opinion provided a negative nexus, stating the "bad" jump may have caused the Veteran's current pain, but it was not severe enough to cause him to seek medical help during or three to four years after service, which would lend to the disability not being caused by service. The examiner also stated the symptoms have been mild and or acute or resolved. The VA examination relied on a lack of contemporaneous medical evidence to find no continuity or chronicity of treatment from service. The mere fact that the Veteran's assertions are not supported by contemporaneous clinical evidence does not render them inherently incredible. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Neither VA opinion takes into consideration the Veteran's reasoning for not seeking medical treatment during and after service, or his reports of pain since service. As a result, the Board attributes more weight to the private opinion and finds the third element of nexus satisfied. The Board therefore grants service connection for degenerative disc disease of the lumbar spine. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Brewer, 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.