Citation Nr: 22014269 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 17-48 965 DATE: March 12, 2022 ORDER The petition to reopen the claim for entitlement to service connection for lumbar spine degenerative disc disease (DDD) is granted. Entitlement to service connection for lumbar spine DDD is granted. FINDINGS OF FACT 1. The claim for entitlement to service connection for a back condition (lumbar spine disability) was initially denied in the August 2003 Rating Decision. The Veteran was notified of the decision, but did not appeal, thus it became a final decision. 2. Evidence received since the August 2003 rating decision relates to a previously unestablished fact necessary to substantiate the claim for entitlement to service connection for a lumbar spine disability. 3. The Veteran's lumbar spine DDD has been linked to his active service by a physician. CONCLUSIONS OF LAW 1. New and material evidence to reopen the claim for service connection lumbar spine DDD has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The criteria for service connection for lumbar spine DDD are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1979 to October 1981. During the March 2022 Board of Veterans' Appeal (Board), the Veteran testified in front of the undersigned Veterans Law Judge. The Veteran's claim for service connection for a lumbar spine disability was initially in August 2003. The Regional Office (RO) reopened the claim in a January 2014 Rating Decision and denied the claim on the merits. However, in order to establish its jurisdiction to review the merits of the previously denied claim, the Board must find new and material evidence has been submitted to reopen the claim. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 2001) (the Board is under the statutory obligation to conduct a de novo review of the new and material issue). Thus, the title page includes the issue of whether new and material evidence has been presented to reopen the claim for service connection for lumbar spine DDD. 1. Entitlement to service connection for lumbar DDD Generally, a claim that has been denied in a final unappealed decision may not thereafter be reopened and allowed. An 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, VA shall reopen the claim and review the former disposition of the claim. New and material evidence is defined as evidence not previously submitted to agency decision makers that bears directly and substantially upon the specific matter under consideration; such new and material evidence can neither be cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 U.S.C. § 3.156(a); Hickson v. Shinseki, 23 Vet. App. 394, 398 (2010). The Board will generally presume the credibility of the newly submitted evidence for determining whether new and material evidence has been presented. Duran v. Brown, 7 Vet. App. 216, 220 (1994). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In deciding whether new and material evidence has been submitted, the Board looks at the evidence submitted since the last final denial of the claim on any basis. Hickson v. West, 12 Vet. App. 247, 251 (1999). The petition to reopen the claim for entitlement to service connection for lumbar spine DDD is granted. Here, the claim for entitlement to service connection for lumbar spine DDD was denied in the August 2003 Rating Decision because there was no evidence of a current disability and that the Veteran's lumbar spine disability was related to his service-connected disabilities. The Veteran was notified but did not appeal the decision, thus it became final a final decision. See 38 U.S.C. §§ 7105, 38 C.F.R. § 20.1103. At the time of the last final decision, the August 2003 Rating Decision, the evidence of record included the Veteran's service treatment records (STRs), December 2000 VA Form 21-4138, Statement in Support of Claim February 2001 VA Examination, June 2001 VA examination, and a July 2003 VA Form 21-4138, Statement in Support of Claim. The evidence received since the last final decision, the August 2003 Rating Decision, includes private and VA treatment records, private treatment records from Louisiana Pain Physicians, November 2013 VA examination report, and testimony during the March 2022 Board hearing. This evidence confirms that that the Veteran has been diagnosed with several low back disabilities including lumbosacral spondylosis, DDD, and chronic pain syndrome. Additionally, the Veteran raised a direct theory of entitlement to service connection. The Board finds that the evidence is new as it was not previously before the agency, and it is relevant because it relates to the issues of a current disability and theory of entitlement. Accordingly, the Veteran's claim for lumbar spine DDD is reopened based on new and material evidence. 2. Entitlement to service connection for lumbar DDD The Veteran seeks service connection for a low back disability which he contends is due to his in-service injury when he fell down a ladder. See December 2000 VA Form 21-4138, Statement in Support of Claim. Legal Criteria Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained in the line of duty during active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Relevant Facts and Analysis The Veteran has a diagnosis of L4-5 DDD with left lumbar radiculopathy and L5-S1 DDD with lumbar radiculopathy which was confirmed by a magnetic resonance imaging (MRI) taken in April 2021. See May 2021 VA Neurosurgery Consult in CAPRI received December 2021. Thus, the first element of service connection, a current disability, has been met. The second element of service connection, an in-service occurrence or illness has also been met. Specifically, the Veteran's service treatment records (STRs) confirm that he complained on left lateral thigh, knee, and low spine pain in February 1980 as a result of falling from a ladder. See February 1980 Emergency Department Record, in STR-Medical. The question for the Board is whether there is a nexus, i.e., link, between the Veteran's current disability and his active service. The record included a positive nexus opinion on this issue. First, a VA examiner opined that the Veteran's "current spine problems is at least as likely as not related to his military service." See February 2001 VA Compensation and Pension Examination Report for Spine. In providing his opinion, the examiner reports the Veteran's complaint of low back pain as a result of falling from a ladder approximately 15 feet, from one deck to another deck aboard the USS Nicholson. The examiner notes that the Veteran injured his knees and low back during the fall. He further asserts that the medical evidence corroborated the Veteran's report that he continually sought medical treatment for his low back following active service. The examiner assessed the Veteran with chronic low back pain since 1979 and opined that the Veteran's low back disability was related to his active service. The Board affords the February 2001 medical nexus opinion significant probative weight as the opinion was based on an examination of the Veteran, the opinion considered an accurate history, was definitive and considered the lay and medical evidence. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In granting the claim the Board considered the Veteran's competent and credible lay statements regarding his in-service injuries and current symptoms. His statements are consistent with the medical evidence of record, and are afforded significant weight. Thus, based on the foregoing, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the weight of the evidence supports a grant of service connection. 38U.S.C. §5107 (b); 38C.F.R. §3.102. Accordingly, service connection for lumbar spine DDD is granted. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Lilly, 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.