On appeal from the Department of Veterans Affairs (VA) Regional Office in Pittsburgh, Pennsylvania
THE ISSUE
Whether new and material evidence has been submitted to reopen a claim for service connection for a lumbar spine disorder and if so, whether the claim may be granted.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant and witness, Dr. C.B.
ATTORNEY FOR THE BOARD
Michael J. Skaltsounis, Counsel
INTRODUCTION
The Veteran had active service from October 1974 to September 1976.
This case comes before the Board of Veterans' Appeals (Board) on appeal from June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania.
In October 2010, a hearing was held before the undersigned Veterans Law Judge making this decision. See 38 U.S.C.A. § 7107(c) (West 2002).
Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002).
FINDINGS OF FACT
1. An October 2006 Board decision denied a claim for service connection for a disorder of the lumbar spine on the basis that the evidence submitted did not show that a lumbar spine disorder was related to service.
2. The evidence submitted since the October 2006 Board decision pertinent to the claim for service connection for a lumbar spine disorder was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim.
3. The Veteran's degenerative disc disease (DDD), with radiculopathy, urgency, and erectile dysfunction (ED) had its onset during active service.
CONCLUSION OF LAW
1. The October 2006 Board decision, which denied service connection for a lumbar spine disorder, is final. 38 U.S.C.A. §§ 5108, 7104 (West 2002).
2. New and material evidence has been submitted since the October 2006 Board decision, and the claim for service connection for a lumbar spine disorder is reopened. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156(a) (2010).
3. DDD, with radiculopathy, urgency, and ED was incurred during active service. 38 U.S.C.A. §§ 1110, 1154(a), 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONDuties to Notify and Assist
Before addressing the merits of the Veteran's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). However, given the favorable decision with respect to the issue of whether new and material evidence has been submitted to reopen the claim for service connection for a lumbar spine disorder, and the grant of all of the benefits sought, the Board finds that further discussion of the VA's "duty to notify" and "duty to assist" obligations is not necessary at this time.
New and Material Claims
Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, of pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.
The record with respect to the claim for service connection for a lumbar spine disorder reflects that an October 2006 Board decision denied the claim on the basis that the evidence did not show that a lumbar spine disorder was related to service, and there is no indication in the record that the Veteran filed a timely appeal of this decision with the United States Court of Appeals for Veterans Claims (Court). Accordingly, the October 2006 Board decision became final. Evans v. Brown, 9 Vet. App. 273, 285 (1996). As such, the Board finds that the Veteran's claim for service connection for a lumbar spine disorder may only be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.
Evidence is new if it has not been previously submitted to agency decision makers. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or 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. Id. In this regard, in the case of Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. For purposes of determining whether VA has received new and material evidence sufficient to reopen a previously-denied claim, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992).
Here, based on the grounds stated for the denial of the claim in the October 2006 Board decision, new and material evidence would consist of medical evidence indicating that current lumbar spine disability was incurred during active service.
In this regard, evidence received since the October 2006 Board decision most importantly includes medical opinions from April 2009 and October 2010 that link current lumbar spine disability to a fracture consistent with the back injury reported by the Veteran to have incurred during service. Since the lack of medical evidence demonstrating a relationship between a current lumbar spine disorder and service was in part the basis for the denial of the claim by the Board in October 2006, these additional opinions indicating such a relationship between the claimed disorder and service clearly relate to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.303.
Accordingly, the Board finds that this additional evidence was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant, and raises a reasonable opportunity of substantiating the claim. The Board thus finds that the claim for service connection for a lumbar spine disorder is reopened.
Consideration of the Claim for Service Connection for a Lumbar Spine Disorder on the Merits
"[I]n order to establish service connection or service- connected aggravation for a present disability the 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." Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).
If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d).
When a veteran served 90 days or more during a period of war and arthritis or an organic disease of the nervous system becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of the disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2010).
The Veteran contends that his current lumbar spine disability is related to a back injury he sustained during service. More specifically, the Veteran relates that he sustained an injury to his back either when he jumped over a fence while returning to base in July 1976, and/or an altercation with military police who stopped him after jumping the fence. The Veteran explained that words were exchanged between the Veteran and the military police and that they assaulted him with clubs. He most recently credibly testified that his back problem started in service after he was hit in the back with a club (transcript (T.) at p. 10. The Veteran indicated his back had bothered him since that incident. While a post service work-related injury has been acknowledged, the Veteran relates that he was informed at the time that he had a preexisting injury of his back. References were made to the evidence of record as supporting these contentions and a favorable determination.
A review of the evidence of record discloses that the Veteran clearly has a currently diagnosed disorder of his lumbar spine. For example, a November 2001 statement from Evan J. Slatkin, D.C., reported that at the levels of L4-L5 there was a Grade 1 spondylolisthesis with a bulging annulus, central disc protrusion with degenerative changes and a disc herniation at the L5-S1 level. Also, following a VA examination in October 2005, the diagnosis was degenerative disc disease with radiculitis, and the examiner indicated that the Veteran had anterolisthesis by x-ray examination of L4 on 5, with a bilateral pars defect with complete disc space narrowing at that level and spondylolisthesis at the L4-5 level. Finally, Chiropractor Kelly Crooks also diagnosed degenerative disc disease with radiculitis in April 2009, and in October 2010, Dr. Craig Bash diagnosed DDD with radiculopathy, urgency, and ED. Although the Board previously referred to the Veteran's disability as including degenerative joint disease (DJD) and VA treatment records from August 2007 indicate that his past medical history included osteoarthritis, magnetic resonance imaging (MRI) studies in February and March 2009 do not reveal any findings of DJD of the lumbar spine and no examiner has specifically diagnosed DJD based on x-ray findings. Consequently, the Board finds that the current evidence of record at most supports a diagnosis of DDD with radiculopathy, urgency, and ED.
There is also competent medical evidence of record of a nexus or relationship between a current lumbar spine disorder and service. In this regard, a VA outpatient treatment record dated in September 2003 signed by an advanced registered nurse practitioner (ARNP) concluded that the Veteran had chronic low back pain secondary to trauma in 1976 while in service. There was also an opinion rendered following the October 2005 VA examination that "[i]t is at least as likely as not that the current back disorder is related to the patient's military service and is consistent with the injury he describes as having occurred during his service tour of duty." At the time, the Veteran related to the examiner that he had injured his back in a confrontation with military police and that he was treated conservatively, which is essentially the same assertion he made at the time he credibly testified before the undersigned Veterans Law Judge in October 2010. The examiner also indicated that the Veteran's claims file had been reviewed.
Moreover, private medical records from 1993 and 1994 reflect diagnoses that included low back pain syndrome secondary to a work-related injury in August 1989 but complicated by pre-existing DJD at the L5-S1 level, and while the Board finds that the reference to DJD was not based on x-ray findings (indeed, even x-ray findings from 1993 were not noted to include DJD), such diagnosis is found to document the existence of significant lumbar spine disability that preceded the Veteran's post-service injury in August 1989, and that based on a private medical report from October 1990, the diagnosis of that disability was more appropriately spondylolisthesis.
Finally, the record now includes the supporting opinions of Dr. Crooks from April 2009, and Dr. Bash from October 2010. Most notably, Dr. Crooks indicated that within a reasonable degree of chiropractic certainty, the Veteran's back symptoms were the long-term effect of a blunt-force trauma that occurred to his lumbar spine in the military in 1976, and while Dr. Crooks went on to comment that the injury "may" have caused a post-traumatic pars defect, which led to the development of degenerative spondylolisthesis at the L4-5 level with subsequent disc and joint degeneration, in an opinion in October 2010, Dr. Bash went further, and unequivocally concluded that the Veteran's back injury in service and associated fracture (pars defect-spondylolysis) were the root cause of his current DDD which was further aggravated by his 1989 work injury.
Dr. Bash additionally concluded that the Veteran's neurologic lower extremity symptoms were secondary to his DDD, and that his bowel/bladder and sexual dysfunctions in the form of [ur]gency and loss of erectile function were all likely secondary to service and his DDD. The October 2005 VA examiner also related the Veteran's DDD with radiculitis to the Veteran's injury during service.
Consequently, because the evidence of record reflects credible testimony from the Veteran that has been further corroborated by competent medical evidence noting the existence of a pars defect that is consistent with the Veteran having been struck in the back by a club, with four opinions in favor of service connection for DDD and none against, the Board will give the Veteran the benefit of the doubt, and find that the Veteran's DDD with radiculopathy, urgency, and ED is of service origin. Accordingly, the Board finds that service connection for DDD with radiculopathy, urgency, and ED is warranted.
ORDER
Service connection for DDD, with radiculopathy, urgency, and ED is granted.
