Citation Nr: 22018153 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 18-54 860 DATE: March 28, 2022 ORDER New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for a back disability is granted. Entitlement to service connection for a back disability is granted. FINDINGS OF FACT 1. In a July 2014 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for a back disability. Although he was notified of the RO's decision and his appellate rights in a July 2014 rating decision, the Veteran did not perfect an appeal nor was new and material evidence received within one year of notification of the decision. 2. The evidence associated with the record since the final July 2014 rating decision is not cumulative or redundant of evidence previously considered and, when the credibility of the evidence is presumed, it raises a reasonable possibility of substantiating the claim of service connection for a back disability. 3. The evidence is at least evenly balanced as to whether the Veteran's back disability is related to service. CONCLUSIONS OF LAW 1. The July 2014 rating decision denying service connection for a back disability is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2014). 2. New and material evidence has been received to reopen the claim of service connection for back disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for entitlement to service connection for a back disability have been 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 from May 1984 to August 1987 and April 1988 to April 1992. The Veteran was thereafter a member of the Florida and South Carolina Army National Guard. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision issued by a RO, which, in pertinent part, determined that new and material evidence had not been received to reopen a previously denied claim of service connection for a back disability. The Veteran filed a notice of disagreement (NOD) in September 2016, and a statement of the case (SOC) was issued in October 2018. In December 2018, the Veteran submitted a substantive appeal (VA Form 9). In November 2021, the Veteran testified before the undersigned Veterans Law Judge. A transcript is of record. New and Material In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 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. To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). 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) (in determining whether evidence is new and material, the credibility of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist. Id. at 118; but see Villalobos v. Principi, 3 Vet. App. 450 (1992) (evidence that is unfavorable to a claimant is not new and material). 1. Whether new and material evidence has been received to reopen the previously denied claim of service connection for back disability In December 2011, the Veteran submitted a request for service connection for multiple orthopedic disabilities, including a back disability. In a December 2011 statement, the Veteran indicated that as an infantryman, he repelled from aircraft. He indicated that he had lower back pain, as well as trouble walking and standing and sitting for long periods of time. He also reported he was unable to bend and lift objects. In a January 2012 letter, the RO advised the Veteran that in order to complete his claim, he needed to complete and submit the enclosed Application for VA Compensation and/or Pension. The Veteran did not respond within one year. In November 2013, the Veteran submitted an application for VA compensation benefits, seeking service connection for multiple disabilities, including a back disability. Records assembled in connection with the claim include VA clinical records showing that in September 2012, the Veteran presented to a VA medical center with complaints of "numbness and pins and needles" in the right first and second toes for several months. He also reported a history of low back pain. He was assessed with sensorimotor neuropathy of the right foot. It was noted to "consider low back as causative agent in this peripheral sensorimotor presentation right foot." In July 2014, the Veteran was afforded a VA back conditions examination. The examiner diagnosed lumbosacral strain. During the exam, the Veteran reported chronic low back pain, which he felt was related to exertional activity in service. He reported that standing for long periods caused stiffness and sharp pain in the low back region. The examiner noted that the Veteran's service treatment records (STRs) do not reveal specific low back complaints. On examination, the examiner noted the Veteran exhibited muscular spasms, which was indicative lumbar strain. The examiner stated, the Veteran has "multiple years of military service which can lead to early osteoarthritis." The examiner ordered a lumbar spine x-ray to help him render an etiological opinion. The Veteran underwent the x-ray, which showed grade 1 anterolisthesis of L5, suggestive of spondylolysis, probably at the lamina rather than the pedicles, and slight rightward bending that could be compatible with muscle spasm. After reviewing the x-ray imaging, the examiner opined that the Veteran's back condition was less likely than not incurred in active duty. He reasoned, "There is no objective evidence after review of the strs that [the Veteran's] current [back] condition was a result of event as noted on active duty which were self-limiting and resolved with no specific sequeala {sic}." In a July 2014 rating decision, the RO denied the claim of service connection for a back disability, finding that the evidence did not show that the condition either occurred in or was caused by service, or that the condition developed to a compensable degree after separation from service. In reaching its decision, the RO considered the Veteran's STRs and personnel records from active duty, VA treatment records, and the July 2014 VA back conditions examination and opinion. The record on appeal shows that the Veteran was duly notified of the RO's decision and his appellate rights. He did not, however, initiate an appeal of the denial of service connection for a back disability within the applicable time period from the July 2014 rating decision. The Veteran does not contend otherwise. The Board also finds that new and material evidence was not received within one year of notification of the July 2014 rating decision. The Board notes that, in connection with the Veteran's October 2015 request to reopen, the RO subsequently obtained additional VA clinical records, some of which constructively before the RO at the time of the July 2014 rating decision. None of those additional VA clinical records, however, were new and material, as they did not reflect treatment for a back disability which was noted to be associated with service. 38 C.F.R. § 3.156(b); Lang v. Wilkie, 971 F.3d 1348, 135355 (Fed. Cir. 2020). Under these circumstances, the Board finds that the July 2014 rating decision is final and not subject to revision on the same factual basis. In this appeal, the Veteran seeks to reopen his claim of service connection for a back disability. As noted above, despite the finality of a prior adverse decision, a claim will be reopened, and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Thus, the Board has reviewed the entire record, with particular attention to the additional evidence received since the final July 2014 rating decision. After reviewing the record, the Board finds that the additional evidence received is new and material within the meaning of 38 C.F.R. § 3.156. Since the final July 2014 rating decision, additional VA clinical records have been associated with the record, including a March 2017 MRI report showing degenerative disc disease, and a February 2018 notation from a VA physician noting that the Veteran's "degenerative disc disease in lumbar spine is related also to his military activities including ruck marching with heavy loads and contact with ground from jumping from heights." The Board finds that the new evidence directly addresses unestablished facts necessary to substantiate the claim of service connection for a lumbar spine disability, particularly nexus. When presumed credible pursuant to Justus, this evidence raises a reasonable possibility of substantiating the claim and triggers VA's duty to assist. Accordingly, the standards under 3.156(a) have been met and the claim is reopened. Shade, 24 Vet. App. at 117 2. Service connection for a back disability Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Veteran contends that his current back disability is the result of performing his military duties as an infantryman, which required daily training with heavy rucksacks while marching and rappelling. See Hearing Transcript. He testified that he never went to sick call for his back condition, and it continued after service. Approximately 10 years after discharge, his back really started affecting him and he sought treatment. He had surgery on his back in September 2017. He also testified that two VA doctors told him that his back condition was the result of his duties as an infantryman during service. The record before the Board includes both positive and negative opinions regarding the etiology of the Veteran's current back disability. As noted, in a February 2018 opinion, the Veteran's VA treating physician rendered a positive nexus opinion. The July 2014 VA examiner, however, provided a negative nexus opinion. In Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), the U.S. Court of Appeals for Veterans Claims (Court) held that the rules on expert witness testimony delineated in the Federal Rules of Evidence provide important, guiding factors to be used by the Board in evaluating the probative value of medical opinion evidence. Nieves-Rodriguez, 22 Vet. App. at 302. The first factor to be considered in determining probative value of a medical opinion is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. Nieves-Rodriguez, 22 Vet. App. at 303-04. The second factor involves consideration of whether the medical expert provided a fully articulated opinion. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of a medical opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. Nieves-Rodriguez, 22 Vet. App. at 304. After weighing the opinions in light of the Nieves factors, the Board find the evidence to be in relative equipoise as to the question of nexus. Both opinions in this case were rendered by clinicians with the necessary expertise to opine on the matter at issue. Both physicians were informed of the pertinent factual premise. The February 2018 VA physician had knowledge of the Veteran's current pathology and medical history through his treatment of the Veteran. He also considered the nature of the Veteran's military activities. The July 2014 VA examiner had been provided with the Veteran's claims file for review. Both opinions were fully articulated. With respect to reasoned analyses, both opinions are lacking. The February 2018 VA physician did not explain the basis for his conclusion. The July 2014 examiner appeared to base his opinion on the lack of documented treatment, failing to consider the Veteran's reported history of symptoms. After considering the Nieves factors, the Board is unable to assign greater probative weight to one opinion over the other. Under these circumstances, the evidence is at least evenly balanced as to whether the Veteran's current back disability is related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for a back disability is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.N., 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.