Citation Nr: 22012764 Decision Date: 03/07/22 Archive Date: 03/07/22 DOCKET NO. 14-21 048A DATE: March 7, 2022 ORDER The appeal to reopen a claim of entitlement to service connection for a low back disability is granted. Service connection for chronic low back pain is granted. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. A November 2009 rating decision denied service connection for a low back disability, finding that there was no evidence of a link between the currently diagnosed back disability and service; evidence received since that decision relates to an unestablished fact necessary to substantiate the claim and raises a possibility of substantiating the claim. 2. The competent and probative evidence is at least in equipoise as to whether the Veteran's current chronic low back pain had its onset in or is otherwise related to active service. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the previously denied claim of service connection for a low back disability may be reopened. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156. 2. The criteria for entitlement to service connection for chronic low back pain are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Navy from August 1973 to August 1974. This appeal comes before the Board of Veterans' Appeals (Board) from December 2011 and July 2014 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In the December 2011 decision, the RO found that new and material evidence had not been received to reopen the previously denied claim for service connection for a low back disability. The Veteran's notice of disagreement (NOD) was received in December 2011. The RO issued the statement of the case (SOC) in June 2014, and the Veteran's VA Form 9, substantive appeal was received in June 2014. In the July 2014 decision, the RO denied entitlement to a TDIU. The Veteran's notice of disagreement (NOD) was received in July 2014. The RO issued the statement of the case (SOC) in January 2017, and the Veteran's VA Form 9, substantive appeal was received in January 2017. The Veteran requested a hearing before the Board by live videoconference in his June 2014 and January 2017 VA Form 9s; however, the hearing requests were subsequently withdrawn in a November 2021 written statement from the Veteran's representative. As such, the hearing requests are deemed withdrawn. 38 C.F.R. § 20.704(e). Significantly, any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding the requirement that new and material evidence must first be received. 38 C.F.R. § 3.156(c); see also Kisor v. Shulkin, 869 F.3d 1360 (Fed. Cir. 2017) (accepting VA's interpretation of the relevancy requirement of 38 C.F.R. § 3.156(c)). In this case, the November 2009 final rating decision indicates that the Veteran's service treatment records (STRs) for his period of active duty were reviewed at the time of the decision and there is no indication that any outstanding relevant service department records exist or were associated with the claims file after the final decisions. Thus, 38 C.F.R. § 3.156(c) is not applicable and new and material evidence is required to reopen the claim. 1. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a low back disability. A November 2009 rating decision denied service connection for a low back disability based on a finding that there was no evidence of a link between the Veteran's currently diagnosed back disability and his period of active service. The Veteran was notified of this rating decision in November 2009 but as he did not file an appeal of them to the Board or submit new and material evidence within the following year, the decision became final. The claim may be reopened if new and material evidence is received. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156. At the time of the November 2009 rating decision, the record consisted of service treatment records (STRs), post-service treatment records and a November 2009 VA examination report. The STRs show multiple complaints of, and treatment for, low back pain. In November 1973, the Veteran was treated for low back pain after falling on his back while carrying a chair down a flight of stairs. He was treated again in December 1973, January 1974 and May 1974 for low back pain. On the separation examination in July 1974, his spine was evaluated as clinically normal. The Veteran was discharged from service in August 1974. VA outpatient records from March 2003 (when the Veteran established care at the VA) note that the Veteran was on methadone for a history of narcotic dependence related to chronic back pain. A VA examiner in November 2009 provided a diagnosis of lumbar strain, opining that the current diagnosed disability was not related to the documented treatment in service for back pain/strain. In October 2011, the Veteran filed an application to reopen his claim for a low back disability. "New evidence" means existing evidence not previously submitted to agency decision makers; "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. "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. 38 C.F.R. § 3.156(a). For the purpose of reopening a claim, the credibility of the evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Evidence received since the November 2009 rating decision includes VA treatment records, a VA examination report, a private nexus opinion linking the Veteran's current low back disability to service and statements of the Veteran wherein he reports experiencing low back pain continuously since the documented back injury during service. This evidence is new evidence because it was not considered in the November 2009 rating decision. Moreover, it is also material evidence, as it relates the current diagnosed low back disability to the Veteran's period of active service. His statements describe low back symptoms that purportedly persisted from the time of his in-service injury and treatment. Additionally, the November 2017 private medical opinion relates the Veteran's current low back disability to active service. Therefore, such evidence relates to an element necessary to substantiate the claim and raises a possibility of substantiating the claim. In reaching such a conclusion, the low threshold standard for reopening endorsed by the U.S. Court of Appeals for Veterans Claims in Shade v. Shinseki, 24 Vet. App. 110 (2010) is applied. Given that the additional evidence received is both new and material, the claim of service connection for a low back disability must be reopened. SERVICE CONNECTION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a Veteran must show: "(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"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases may also be established based upon a legal "presumption" by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 1. Entitlement to service connection for chronic low back pain. The Veteran seeks service connection for chronic low back pain which he contends is related to service. Specifically, the Veteran contends that he fell while carrying a chair down a flight of stairs and injured his back. See March 2017 lay statement. He contends that he has had back pain during service which has continued since service. Id. VA treatment records reveal treatment for chronic back pain. See e.g. VA treatment records dated in April 2014. A March 2017 VA examination report reveals a diagnosis of lumbago. Accordingly, the first element for establishing service connection, a current disability, has been met. STRs confirm that in November 1973, the Veteran was treated for low back pain after carrying a chair down a flight of stairs. The Veteran was assessed as having musculoskeletal pain and put on light duty. In December 1973, the Veteran was treated for an upper back muscle strain. In January 1974, the Veteran reported that he continued to experience low back pain since November 1973. It was noted that the pain appeared to be "mostly muscle spasms." The Veteran was prescribed a muscle relaxer. In May 1974, the Veteran again reported that he continues to experience low back pain since November 1973. He reported that he does quite a lot of heavy lifting. An x-ray taken a week later revealed loss of lumbar lordosis. On the separation examination in July 1974, his spine was evaluated as clinically normal. Thus, the second element for establishing service connection, an in-service injury, has been satisfied. Accordingly, the dispositive issue is whether the Veteran's current chronic low back pain is related to a disease or injury during active duty. VA treatment records from March 2003 (when the Veteran established care at the VA) note that the Veteran was on methadone for a long history of narcotic dependence related to chronic back pain. A February 2005 VA treatment note similarly notes that the Veteran is on methadone for chronic low back pain. The Veteran underwent a VA examination in November 2009. The VA examiner provided a diagnosis of lumbar strain. The Veteran reported that he has experienced low back pain which has progressively worsened since 1973 and treats the pain with methadone and motrin. No x-rays were taken. The VA examiner opined that the Veteran's current back disability was less likely as not caused by or a result of service. The examiner noted the Veteran was treated for low back sprain in November 1973 and January 1974 and that his separation examination was silent for any back problems. The examiner stated that there is no medical documentation of any back problems since service, including VA records February 1991 to February 2006. The examiner noted that a private treatment note dated in November 1990 indicates that the Veteran is on Methadone for a 22-year history of drug and alcohol abuse and that the annual physical exams from 2005 to 2008 indicate a normal physical exam with normal back. The Veteran submitted a lay statement in March 2017. He states that he hurt his back while carrying an office chair down stairs. He states that he fell backwards and his lower back hit the edge of the step behind him. He reports going to sick call the next day, having an x-ray taken, and being told that he hurt his coccyx. The Veteran states that he was put on prescription narcotic painkillers and put on light duty. He reports that he became addicted to pain medications and opiates because of his severe back pain. The Veteran states that he was discharged from the Navy because he was told that he would have to go off opiate medications and that he could not take the pain without the medication. The Veteran states that, immediately after service, he began seeing a private doctor named Dr. F. He reports that he continued taking prescription pain killers for his back pain but eventually began buying pills on the street to treat his back pain when he could no longer get a prescription. He states that this continued until he went to a Methadone clinic. The Veteran states that his back pain never resolved or improved after separation from active service and has only worsened with time. The Veteran underwent another VA examination in March 2017. The VA examiner provided a diagnosis of lumbago. The Veteran reported first injuring his back when he fell on his tailbone in 1973. He stated that he was treated with Percodan for a year and eventually became dependent on narcotics for pain control. He reported taking Methadone and motrin for pain relief. The VA examiner opined that the Veteran's current low back pain was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that the Veteran sustained low back strain and subsequent low back pain in 1973 during service, was managed conservatively for a self-limiting condition and separated from service in 1974 with his separation examination silent for back pain or a back condition. The examiner stated that there are no VA records to support evaluation for or a diagnosis of a back condition. The examiner noted that the Veteran is being managed for chronic low back pain by pain management without a diagnosed back condition per his history. The examiner stated that it is unlikely that the Veteran's low back pain in 1973 related to musculoskeletal strain has caused the Veteran's current low back pain. In November 2017, the Veteran submitted an October 2017 private medical opinion from Dr. T.C., a Board-certified internist, which concluded that the Veteran's chronic low back pain was at least as likely as not incurred during active service. Dr. T.C. noted that a June 2016 CT scan report indicated multilevel degenerative bony changes and involvement of the L4/L5/S1 nerve roots. Thus, Dr. T.C. found that the Veteran has degenerative joint disease of the spine with radiculopathy. However, no such CT scan report has been associated with the claims file. Nevertheless, the Board will resolve all doubt in favor of the Veteran and find that the private physician's assessment of the referenced CT scan report is accurate, particularly as there is no conflicting medical evidence of record and some corroborating evidence in the form of the March 2017 VA examination which noted involvement of the sciatic nerve and radiating pain to the left lower extremity. Dr. T.C. noted that the Veteran entered service in good physical condition with an unremarkable entrance examination. Dr. T.C. recounted the Veteran's treatment for low back pain on four separate occasions during service beginning with an acute incident of low back pain that developed after carrying a chair down a flight of stairs. Dr. T.C. noted that on his final in-service visit for low back pain in May 1974, the Veteran's symptoms met the definition of chronic low back pain as his pain had persisted in the same character and anatomic location for more than 3 months. Dr. T.C. addressed the March 2017 VA examiner's negative nexus opinion, noting that the examiner based their opinion on an incomplete review of the Veteran's STRs. Dr. T.C. stated that the VA examiner only addressed the November 1973 and January 1974 visits and failed to address or note the Veteran's December 1973 visit or that the Veteran's low back pain persisted into at least May 1974, thus meeting the definition of chronic low back pain. Dr. T.C. acknowledged that the Veteran's separation examination was silent on the question of back pain but stated that this was not necessarily unexpected in that era. Dr. T.C. noted that the VA examiner found that the lack of post-service medical documentation for the Veteran's back pain was evidence of a negative medical nexus. Dr. T.C. stated that the Veteran's VA medical records consistently document chronic low back pain on his problem list and past medical history and that imaging studies show degenerative bony changes consistent with osteoarthritis. Dr. T.C. stated that the available medical records are entirely consistent with the Veteran's statements that the low back pain with radicular symptoms that he currently experiences is the same pain that he has continually experienced since his initial fall in November 1973. Dr. T.C. stated that the Veteran's symptoms are readily observable to a lay person, that the Veteran met the criteria for chronic low back pain during active service, and that treatment records corroborate that he has continued to meet that definition in the intervening years. Dr. T.C. stated that, after reviewing the claims file, STRs, and post-service treatment records, it was her opinion that the Veteran's chronic back pain was as likely as not incurred during active service. While the November 2009 and March 2017 VA examiners both concluded that the Veteran's current low back pain was less likely than not incurred in or caused by an in-service injury or disease, the rationale for both opinions is based solely on the absence of documented treatment for the Veteran's low back pain and fails to address his competent lay reports of experiencing chronic back pain since service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (a medical opinion based solely on the absence of documentation in the record is inadequate). Moreover, neither examiner addressed the May 1973 service treatment note indicating that the Veteran continued to report chronic low back pain that he has had since November 1973 as well as a May 1973 x-ray indicating loss of lumbar lordosis. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (A medical opinion based on an inaccurate factual premise has no probative value.). Based on the foregoing, the Board affords the November 2009 and March 2017 VA medical opinions no probative value. By contrast, Dr. T.C.'s October 2017 opinion considered the entirety of the Veteran's documented treatment for low back pain during service, subsequent post-service treatment for chronic low back pain, as well as the Veteran's competent and credible statements of experiencing continuous low back pain since the documented injury during service. Dr. T.C. reviewed the full claims file and provided a detailed overview of the medical history of the Veteran's low back pain. Then, Dr. T.C. provided a clearly worded opinion in which she, based on (i) the Veteran's lay reports concerning the history of his low back pain as well as (ii) STRs documenting in-service treatment for chronic low back pain, directly connected his current low back pain to the in-service injury. For those reasons, Dr. T.C.'s October 2017 opinion carries significant probative value. Moreover, the Veteran has consistently reported that his chronic low back pain began after a documented back injury during service, and that the pain has continued ever since the injury. Additionally, the record does not show any other occurrence or injury to which the condition might be attributed. Finally, while there is an absence of documentation in the claims file to support the Veteran's reports of experiencing continuous symptoms since service, this is largely due to the absence of any medical records from 1975 to 2003 in the claims file. Notably, the Veteran reported a long history of chronic back pain when he first established care with VA in 2003. Thus, the mere absence of treatment records from 1975 to 2003 in the claims file does not undermine the credibility of the Veteran's reports of experiencing ongoing symptoms since service as it is not indicative of a lack of symptoms or even treatment during that time period. Based on the foregoing, the probative evidence weighs in favor of finding that a nexus exists which connects the Veteran's current chronic low back pain to service. When the evidence weighs in the Veteran's favor, the claim must be granted. Therefore, service connection for chronic low back pain is granted. REASONS FOR REMAND 1. Entitlement to a TDIU is remanded. As the grant of entitlement to service connection for chronic back pain has not been effectuated by the AOJ with a disability rating and effective date assigned, adjudication of the TDIU claim is premature. As such, adjudication of the TDIU issue is deferred. Also, all outstanding VA treatment records should be secured upon remand. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records relevant to the Veteran's claim. 2. After implementing the grant of service connection for chronic back pain granted herein, and any additional development deemed necessary, readjudicate the Veteran's TDIU claim. If a complete grant of the requested benefits cannot be granted, issue to the Veteran and his representative a Supplemental Statement of the Case (SSOC). R. Erdheim Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Modesto, Victor 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.