Citation Nr: 22013124 Decision Date: 03/08/22 Archive Date: 03/08/22 DOCKET NO. 17-65 187 DATE: March 8, 2022 ORDER New and material evidence having been submitted, the claim of service connection for a back disability is REOPENED. Entitlement to service connection for a back disability is GRANTED. FINDINGS OF FACT 1. A January 1979 Department of Veterans Affairs (VA) Regional Office (RO) rating decision denied the Veteran's claim of service connection for a back disability; the Veteran was notified of the decision and apprised of his right to appeal but did not file a timely appeal or submit new and material evidence within one year of the notice of the decision 2. Evidence received since the January 1979 rating decision is neither cumulative nor repetitive of facts that were previously considered and raises the possibility of substantiating the claim. 3. There is clear and unmistakable evidence that the Veteran entered service with a back disability, but it is not clear and unmistakable that such pre-existing back disability was not aggravated by service; the Veteran's current back disability has continued since service. CONCLUSIONS OF LAW 1. The January 1979 rating decision that denied service connection for a back disability is final. 38 U.S.C. § 7105; 38 C.F.R. § §§ 20.302, 20.1103. 2. The criteria for reopening the claim of service connection for a back disability is met. 38 U.S.C. § 5108; 38 C.F.R. § § 3.156 (a). 3. The criteria for service connection for a back disability are met. 38 U.S.C. §§ 1110, 1154(a), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from January 1965 to December 1967. This matter comes to the Board on Veterans' Appeals (Board) on appeal from a May 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Board notes that the Veteran elected to appear before the Board for an optional hearing on his December 2017 VA Form-9. However, in December 2021, the Veteran withdrew the hearing request. Accordingly, the Board considers the Veteran's request for a hearing to be withdrawn. 38 C.F.R. § 20.704(e). This matter has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Claim to reopen service connection for a back disability A claimant may reopen a finally-adjudicated claim by submitting new and material evidence. 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. The Veteran was initially denied service connection for his back disability in January 1979, because there was no evidence then, of diagnosis of a back disability. That decision was not appealed and therefore became final, and binding based on the evidence of record at that time. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103. The Veteran filed to reopen his claim for entitlement to service connection for a back disability among other claims in November 2013. In a May 2014 rating decision, the RO determined that new and material evidence had been submitted to reopen the claim but continued the denial of the service connection claim on the basis of no current diagnosis of a back disability. Prior to deciding the Veteran's claim of service connection, the Board must first determine whether new and material evidence that is sufficient to reopen the claim has been submitted. The Board is aware that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Moreover, the Court of Appeals for Veterans Claims explained this standard is intended to be a low threshold. Id. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). At the time of the January 1979 rating decision, the evidence of record was essentially the Veteran's VA 21-526 Application for Compensation or Pension. Following a review of the Veteran's file, relevant evidence added to the record since the January 1979 rating decision, VA treatment records, a May 2014 VA examination report, private medical reports, and a December 2017 addendum medical opinion confirming a back disability. The Board finds that these constitute "new" evidence, as they were not available at the time of the January 1979 rating decision. Furthermore, the Board notes that this new evidence is material, as it contains a diagnosed disability and suggests that there may be a nexus between the Veteran's claimed back disability and his military service. Therefore, the Board finds there is sufficient evidence to reopen the previously-denied claim for entitlement to service connection for a back disability. Entitlement to service connection for a back disability The Veteran asserts that his back disability is related to his active duty service. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). To establish service connection, a Veteran must show evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. A Veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304 (b). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304 (b). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Lay evidence is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition is capable of lay observation and may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature." VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event; or whether the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Brown, 1 Vet. App. 49, 52-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. On January 1979 disability application, the Veteran stated that he had "spine condition and affects thereof since about the age of 11..." See January 1979 VA 21-526 Veterans Application for Compensation or Pension. Here, the evidence of record raises a question as to whether the Veteran's back disability preexisted service. As noted above, every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111.Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). Once the presumption of soundness applies, the burden of proof shifts to and remains with VA to prove both preexistence and the absence of aggravation by clear and unmistakable evidence. Horn v. Shinseki, 25 Vet. App. 231 (2012). Both prongs must be proven to rebut the presumption. The presumption of soundness relates to the second requirement - the showing of in-service incurrence or aggravation of a disease or injury. To invoke the presumption of soundness, a claimant must show that he or she suffered from a disease or injury while in service. Thereafter, except for conditions noted at induction, the presumption of soundness ordinarily operates to satisfy the second service connection requirement without further proof. Horn, 25 Vet. App. at 236. In other words, if a veteran is presumed sound at service entrance, a disease or injury that manifested in service is deemed incurred in service if the Secretary is unable to rebut the presumption. Gilbert, 26 Vet. App. at 53. In this case, a spine condition was not noted on service entrance. Thus, the presumption of soundness applies. See 38 U.S.C. § 1111; Horn, 25 Vet. App. 231. However, the record contains clear and unmistakable evidence that a spine condition preexisted active service. See January 1979 VA 21-526 Veterans Application for Compensation or Pension where Veteran acknowledged that he had spine condition since age eleven (11). Thus, based on the totality of evidence, the Board finds that there is clear and unmistakable evidence that the Veteran's back disability preexisted active duty service. However, VA is unable to prove the absence of aggravation in this case (i.e., VA is unable to establish by clear and unmistakable evidence either that the preexisting disease did not increase in severity during service; or that any increase was due to the natural progress of the disease). A "claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong," even if clear and unmistakable evidence establishes that a disease preexisted service. Horn, 25 Vet. App. 231. In other words, the "burden is not on the claimant to show that his disability increased in severity." Id. To the contrary, the burden is on VA to "establish by clear and unmistakable evidence that [a preexisting disease] did not [increase in severity during service] or that any increase was due to the natural progress of the disease." Id. This burden must be met by "affirmative evidence" demonstrating that there was no aggravation. Id. In this case, there is no such affirmative evidence. Thus, the Board finds the onerous burden necessary to rebut the presumption of soundness has not been satisfied in this case as the aggravation prong is not met. See Wagner, 370 F.3d 1089 at 1094-1096 (in cases where the presumption of soundness cannot be rebutted, the claim is one based on service incurrence). Hence, the disability is deemed to have been incurred during service. See Horn, 25 Vet. App. at 236 (citing Wagner at 1094). The January 1965 enlistment examination indicated that the Veteran was in good health and taking no medications. He reported no back problems suggesting that any preexisting back disability was asymptomatic at service entry. From February 1965 to May 1967, the Veteran severally complained about back issues even though radiographic report recorded no definitive abnormality. In November 1965, the Veteran complained of back issues. An examination indicated that he has thoracolumbar muscle strain. In April 1967, the Veteran was given a temporary diagnosis of low back muscle strain, L-S spine. See STRS. A June 2014 Post service magnetic resonance image (MRI) from the Adena Bone and Joint Waverly shows that the Veteran has mild degenerative facet arthropathy at L3-4 and L-5. Because there is a current diagnosis and an in-service event, the only remaining question is whether the Veteran's current back disability is related to service. See Wagner, 370 F.3d 1089 at 1094 ("Congress intended exactly this result - to effectively convert aggravation claims into ones for service connection when the government fails to overcome the presumption of soundness under section 1111"). The Veteran was afforded a VA examination in May 2014. The examiner made the following statement: "Vet[eran] does not have current diagnosis of back condition, no chronic, progressive complaints of back condition on record. Therefore, this exam will not be done today. (it is conceded that without chronic records of back condition, vet's service complaints of back condition were resolved)." See May 2014 C&P Examination. In November 2017, the AOJ requested an addendum opinion from the May 2014 VA examiner. In December 2017, the VA examiner provided an addendum opinion based on review of the record. The examiner opined that it is less likely than not that the Veteran's pre-existing spinal condition is related to or aggravated by in-service complaints. The examiner remarked that the Veteran was diagnosed with chronic paraspinal muscle strain secondary to poor posture in service in May 1967; and that the Veteran has stated that since age eleven, his spine is related to dropped right shoulder as documented in his 1978 C&P application of spine condition. The examiner further explained that there are no chronic progressive complaints of back condition from post service to present to indicate that the previous back condition is related to present condition or that the pre-existing back condition was aggravated by service. The examiner concluded that therefore, the Veteran's condition in service resolved and that the present back condition is a new condition. See December 2017 C&P Examination. The Board notes that the December 2017 VA examiner provided a negative nexus opinion. However, that opinion appears to be based solely on an absence of documentation without any adequate supporting rationale. As noted above, VA's burden to rebut the second prong of the presumption of soundness is not met by finding that the record contains insufficient evidence of aggravation. Id. The Veteran's STRs reveal multiple notations where he was seen for recurrent back pain. In May 1967, it was noted that the Veteran has a three year history of back pain and had been intermittently seen many times with complaints of back pain. A diagnosis of chronic paraspinal muscle strain due to poor posture was notated. The records also indicate that the Veteran was prescribed medication multiple times, and put on profile while in service (i.e., no lighting over 20 lbs., and no prolonged periods of bending and twisting). See STRs. On the 1967 Separation Exam, the Veteran checked "yes" for history of recurrent back pain under Report of Medical History. The examiner also notated "occasional L-S pain". See STRs. It should be noted that even during his initial application for a back disability, and his subsequent application for entitlement to service connection for a back disability, the Veteran has maintained that he has experienced recurrent back pain persistently, although there was no post-service back disability diagnosis at that time. Nevertheless, with regards to establishing continuity of symptomatology, the Board considers it significant that the Veteran has been consistent in his contentions to both VA and his treating physicians that his back pain has persisted since service. Because lay evidence is potentially competent to support the presence of a disability, even where not corroborated by contemporaneous medical evidence such as actual treatment records, the Board finds the Veteran's statements made to his treating physicians regarding his recurrent, chronic back pain both competent and credible and, thus, entitled to probative weight, as they are internally consistent, as well as consistent with other evidence of record including both his STRs and post-service VA treatment records. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Furthermore, probative value is not given to the December 2017 VA examiner's opinion because it is primarily based on the lack of documented complaints and treatment during and shortly after service and do not adequately address the Veteran's statements regarding in-service incurrence and continuity of his symptoms. Therefore, in view of the diagnosis provided by the June 2014 MRI of mild degenerative facet arthropathy at L3-4 and L-5 (which is indicative of arthritis), the Board finds that that there has been chronicity/continuity of the in-service back condition; and that the Veteran's statements are capable of linking to service without the need for more specific medical nexus evidence. Where there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving such issue shall be given to the claimant. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. § 3.102. Thus, the Board finds that the evidence is at least in equipoise regarding whether the Veteran's back disability is related to service, and that service connection for the Veteran's back disability, diagnosed as mild degenerative facet arthropathy at L3-4 and L-5, is therefore warranted. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. M. Rogers, 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.