Citation Nr: 21042162 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 18-10 782 DATE: July 12, 2021 ORDER New and material evidence has been submitted and the claim to reopen service connection for a lumbar spine disability is granted. Service connection for a lumbar spine disability is granted. FINDINGS OF FACT 1. New and material evidence was submitted since the last, final June 2015 rating decision that denied service connection for a lumbar spine disability. 2. The Veteran's current lumbar spine disability was incurred as the result of a low back injury during active military service. CONCLUSIONS OF LAW 1. The criteria for reopening service connection for a lumbar spine disability have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156. 2. The criteria for service connection for a lumbar spine disability have been met. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.102. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from July 2007 to July 2014. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office in New Orleans, Louisiana. In February 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. New and Material Evidence VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). New evidence is evidence not previously submitted to agency decision makers. Material evidence is 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 of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The claim for a lumbar spine disability was previously denied in a June 2015 rating decision because the VA Regional Office found that the Veteran did not have a current, diagnosed disability. Following this decision, the Veteran did not perfect an appeal, and thus, the June 2015 rating decision for became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104. Probative to this claim, evidence received since this last, final June 2015 rating decision, includes and is not limited to, the Veteran's February 2021 virtual Board hearing, in which he provided competent, credible testimony about having a current lumbar spine disability and how it is related to his active service; additional medical treatment records; and a July 2018 disability benefits questionnaire form (DBQ) completed by a private physician, Dr. E.B., which indicates that the Veteran is currently diagnosed with lumbar strain, that results in functional loss. The Board clarifies that at the time of the June 2015 rating decision, pain did not constitute as a disability, and thus, the RO found that the Veteran's lumbar pain was not a current disability, for purposes of compensation. Since this rating decision, however, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that pain alone can serve as a functional impairment, and thus, qualifies as a disability. Thus, this July 2018 DBQ reflects that the Veteran's has a current, lumbar strain/ lumbar pain disability. The above-mentioned pieces of evidence are new because VA had not previously considered them in the previous adjudication of this claim in June 2015. Further, they are material because they serve as proof of an unestablished fact from the prior June 2015 rating decision, and specifically, evidence of a current disability. The Board recognizes that these additional pieces of evidence are presumed to be credible for the purpose of reopening the claim. Justus, 3 Vet. App. at 512 13. Therefore, these additional pieces of evidence, when considered in conjunction with the record as a whole, raise a reasonable possibility of substantiating the Veteran's claim. Thus, as new and material evidence has been submitted, the service connection claim for a lumbar spine disability is reopened. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in, or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. That determination requires a finding of a current disability that is related to an injury or disease in service. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). 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, e.g., Davidson v. Shinseki, 581 F.3d 1313(Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The Veteran testified he was injured in service in July 2010 when part an aerospace ground equipment hit him in the back. He explained that an accident report was undertaken, he was provided with muscle relaxers for this injury. He further explained that after his separation from service, he treated his back injury with motrin, and that in every health assessment since that year of his injury, he has complained of back problems, or lower back issues; and that it would hurt and keep him up at night at times. Additionally, the Veteran testified that he went to the ER, where medical staff took X-rays, and although there were no broken bones, a PCM informed him that it was his muscles, as the metal struck so close to the sciatic nerve, his muscles were constantly contracting and releasing. Pertinently, the Veteran testified that his back condition has bothered him since the date of his injury. See February 2021 Virtual Hearing Transcript. Service treatment records (STRs) corroborate the Veteran's above-mentioned testimony. For example, a July 2010 radiology report confirms that the Veteran was at the emergency room after he was "hit in the back with [an] air duct." However, this radiology report reflects impressions, which note that there were "no acute osseous abnormality of the lumbar spine." At the same time, numerous STRs reflect complaints and/or treatment for chronic back pain. See e.g. July 2011 Medical Record; see also January 2012 Medical Record; see too, June 2013 Medical Record; see too, July 2014 Report of Medical Assessment (indicating that the Veteran complained of unresolved, chronic back pain that was not new). Post medical treatment records reflect that the Veteran has chronic low back pain. See July 2018 Disability Benefits Questionnaire (DBQ) for the Lumbar Spine. Particularly, this July 2018 DBQ for the lumbar spine indicates that the Veteran has functional loss or functional impairment of the lumbar spine due to contributing factors, including weakened movement and interference with standing; and that pain, weakness, fatigability, or incoordination significantly limit functional ability during flare-ups when the lumbar spine is used repeatedly over a period of time. Thus, as these factors are based on functional loss that affects normal working movements of the lumbar spine, the Board finds that the medical evidence sufficiently reflects a current lumbar spine disability for which compensation may be warranted. See Read v. Shinseki, 651 F.3d 1296, 1301 (Fed. Cir. 2011) (explaining that "disability", under VA regulations, is "generally associated with the veteran's inability to perform certain acts"); see also Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011) (stating that "pain itself does not rise to the level of functional loss," but that "pain must affect some aspect of the normal working movements of the body" . . . to constitute functional loss."). In a June 2015 VA opinion, a VA examiner opined that the Veteran's condition was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness. As the rationale for this opinion, the VA examiner explained, among other reasons, that the Veteran had no history of low back pain or intermittent low back pain during his active military service. However, a number of medical treatment records from the Veteran's STRs corroborate and reflect in-service complaints of low back pain throughout the Veteran's service. Thus, the Board finds that this opinion has no probative value, as it is based on an inaccurate factual premise. In support of his claim, the Veteran submitted two private medical opinions for his lumbar spine. In one April 2018 private medical opinion, a physician, Dr. W.B. opined that the Veteran's low back condition is more likely than not (more than 50 percent probability) related to an onset or events while in service. As the rationale for this opinion, Dr. W.B. explained that the records indicate that the Veteran sustained trauma/injury to the left lower back in July 2010, which was caused by metal projectile and resulted in the Veteran's visit ot the emergency room with contusion, and that the Veteran has recurrent lumbar pain, that has been treated with NSAIDS. In a second, April 2018 private opinion, another physician, Dr. E.B., also opined that the Veteran's low back disability is more likely than not related to an onset or events while in service. As the rationale for this opinion, Dr. E.B. explained that the Veteran's chronic low back pain and back spasm was most likely due to the injury he sustained while he was in service, in 2010, because the Veteran continued to have pain and radiation to both legs, for years, up to now, and that the pain never resolved. Thus, the Board finds that the evidence sufficiently demonstrates that the Veteran' has had a chronic low back pain disability since his July 2010 in-service injury, and the medical evidence also reflects two medical opinions that have adequately established a correlation between the Veteran's in-service injury and his current back disability, service connection for a lumbar spine disability is granted. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V-N. Pratt 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.