On appeal from the Department of Veterans Affairs (VA) Regional Office in St.
Petersburg, Florida
THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for a low
back disorder, claimed as a thoracolumbar spine disorder,
and, if so, whether service connection is warranted.
REPRESENTATION
Veteran represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant and a physician
ATTORNEY FOR THE BOARD
A. Hinton, Counsel
INTRODUCTION
The veteran served on active duty from January 1980 to March
1990.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a December 2002 rating decision of the
Department of Veterans Affairs (VA) Regional Office in St.
Petersburg, Florida (RO), which declined to reopen a claim
for service connection for a low back disorder.
During the a appeal, the RO reopened the claim for service
connection and denied it on the merits. Even though the RO
reopened and adjudicated the claim on the merits, the Board
must now first determine that new and material evidence has
been presented in order to establish its jurisdiction to
review the merits of a previously denied claim. See Jackson
v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v.
Brown, 83 F.3d 1380 (Fed. Cir. 1996). The preliminary
question of whether a previously denied claim should be
reopened is a jurisdictional matter that must be addressed
before the Board may consider the underlying claim on its
merits. Id.
The veteran and a physician testified before the undersigned
at the Board in Washington, DC, in January 2008.
FINDING OF FACT
1. In a May 1990 rating decision, the RO denied the
veteran's claim of entitlement to service connection for a
low back disorder; and the veteran did not file an appeal as
to that decision.
2. The evidence received since the ROs May 1990 rating
decision is so significant that it must be considered in
order to fairly decide the merits of the veteran's claim.
3. It is as likely as not that the veteran has a low back
disorder involving the thoracolumbar spine that is
etiologically caused by his inservice injury to the back.
CONCLUSIONS OF LAW
1. The RO's May 1990 rating decision that denied the claim
of entitlement to service connection for a low back disorder
is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§
20.302, 20.1103 (2007).
2. The evidence received since the RO's May 1990 rating
decision is new and material; and the requirements to reopen
the appellant's claim of entitlement to service connection
for a low back disorder, have been met. 38 U.S.C.A. § 5108
(West 1991); 38 C.F.R. § 3.156 (2007).
3. Resolving the benefit of the doubt in the veteran's
favor, the criteria for establishing entitlement to service
connection for a low back disorder involving the
thoracolumbar spine are met. 38 U.S.C.A. §§ 1110, 1131 (West
2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The VCAA requires, in the context of a claim to reopen, the
Secretary to look at the bases for the denial in the prior
decision and to respond with a notice letter that describes
what evidence would be necessary to substantiate that element
or elements required to establish service connection that
were found insufficient in the previous denial. The
appellant must also be notified of what constitutes both
"new" and "material" evidence to reopen the previously denied
claim. See Kent v. Nicholson, No. 04-181 (U.S. Vet. App.
Mar. 31, 2006).
The VCAA is not applicable where further assistance would not
aid the veteran in substantiating his claim. Wensch v.
Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. §
5103A(a)(2) (Secretary not required to provide assistance "if
no reasonable possibility exists that such assistance would
aid in substantiating the claim"). In view of the Board's
favorable decision in this appeal, to reopen the claim and
grant service connection for service connection for the
claimed low back disorder involving the thoracolumbar spine,
further assistance is unnecessary to aid the veteran in
substantiating this aspect of that underlying claim.
II. New and Material Evidence
The veteran asserts that he has a low back disorder, claimed
essentially as a thoracolumbar spine disorder, related to
inservice injury. In a May 1990 rating decision, the RO
denied service connection for residuals of low back injury.
The RO denied that claim based on its determination that the
current examination did not show any limitation of motion or
other residual of the in-service low back injury sufficient
to grant service connection.
The RO notified the veteran of his appellate rights in a June
1990 letter. The veteran did not appeal the RO's denial of
his back claim. Therefore, the May 1990 rating decision is
final as to the low back service connection issue. 38
U.S.C.A. § 7105.
Under 38 U.S.C.A. § 5108, "[i]f new and material evidence is
presented or secured with respect to a claim which has been
disallowed, the Secretary shall reopen the claim and review
the former disposition of the claim." See 38 U.S.C.A. §
7105(c) and Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).
With claims to reopen filed on or after August 29, 2001, such
as this one, "new" evidence is defined as evidence not
previously submitted to agency decision makers; and
"material" evidence is defined as evidence that, by itself or
when considered with previous evidence of record, relates to
an unestablished fact necessary to substantiate the claim. 38
C.F.R. § 3.156 (2006). New and material evidence can be
neither cumulative nor redundant of the evidence of record at
the time of the last final denial of the claims sought to be
reopened, and must raise a reasonable possibility of
substantiating the claim. Id.
The evidence received subsequent to May 1990 is presumed
credible for the purposes of reopening a claim unless it is
inherently false or untrue, or it is beyond the competence of
the person making the assertion. Duran v. Brown, 7 Vet. App.
216, 220 (1995); Justus v. Principi, 3 Vet. App. 510, 513
(1992). See also Robinette v. Brown, 8 Vet. App. 69, 75-76
(1995).
VA is required to first review the evidence submitted by a
claimant since the last final disallowance of a claim on any
basis for its newness and materiality. See Evans v. Brown, 9
Vet. App. 273 (1996).
In this case, the last final disallowance was the RO's May
1990 rating decision. In that rating decision, the RO
determined that recent examination did "not show any
limitation of motion or other residual of the veteran's in-
service low back injury, sufficient to justify service
connection." In making that finding, the RO relied on a May
1990 VA examination report, which contains a diagnosis of
possible minimal degenerative disc disease, lumbosacral
spine.
Review of the private and VA medical records dated after May
1990 shows findings and diagnoses of significant
thoracolumbar symptomatology, as further discussed below.
Thus, the evidence available at the time of the May 1990
rating decision showed merely a possible low back disorder-
"possible minimal degenerative disc disease, lumbosacral
spine." The additional evidence submitted since then,
however, as discussed below, clearly shows evidence of a
current thoracolumbar spine disorder.
This evidence was not previously submitted to agency decision
makers, and relates to an unestablished fact necessary to
substantiate the claim; specifically, whether the veteran has
a current thoracolumbar spine disorder. Thus, the evidence
submitted since May 1990 relates to what was unestablished at
the time of the RO's May 1990 decision.
Accordingly, the Board finds that the evidence received after
the May 1990 rating decision is new and material and serves
to reopen the claim for service connection for a
thoracolumbar spine disorder. Therefore, the appellant's
claim of entitlement to service connection for that disorder
is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §
3.156(a) (2007).
III. Service Connection
The veteran claims entitlement to service connection for a
low back disorder, claimed as thoracolumbar spine disorder,
due to injury in service. Service connection may be granted
for disability which is the result of disease or injury
incurred in or aggravated by service. 38 U.S.C.A. § 1131
(West 2002); 38 C.F.R. §§ 3.303(a) (2007). To establish
service connection, there must be (1) medical evidence of a
current disability; (2) medical, or in certain circumstances,
lay evidence of in-service incurrence or aggravation of a
disease or injury; and (3) medical evidence of a nexus
between the claimed in-service disease or injury and the
current disability. See Hickson v. West, 12 Vet. App. 247,
253 (1999).
To establish a showing of chronic disease in service, there
is required a combination of manifestations sufficient to
identify the disease entity, and sufficient observation to
establish chronicity at the time. 38 C.F.R. § 3.303(b). If
chronicity in service is not established, a showing of
continuity of symptoms after discharge is required to support
the claim. Id. Service connection may be granted for any
disease diagnosed after discharge, when all of the evidence
establishes that the disease was incurred in service. 38
C.F.R. § 3.303(d).
Certain chronic diseases including arthritis may be presumed
to have been incurred during service if they become
manifested to a compensable degree within one year of
separation from active duty. 38 U.S.C.A. §§ 1101, 1112,
1113; 38 C.F.R. §§ 3.307, 3.309 (2007).
The Board must assess the credibility and weight of all the
evidence, including the medical evidence, to determine its
probative value, accounting for evidence which it finds to be
persuasive or unpersuasive, and providing reasons for
rejecting any evidence favorable to the claimant. See Masors
v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2
Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet.
App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Equal weight is not accorded to each piece of evidence
contained in the record; every item of evidence does not have
the same probative value.
It is the policy of VA to administer the law under a broad
interpretation, consistent with the facts in each case with
all reasonable doubt to be resolved in favor of the claimant;
however, the reasonable doubt rule is not a means for
reconciling actual conflict or a contradiction in the
evidence. 38 C.F.R. § 3.102. In determining whether service
connection is warranted for a disability, VA is responsible
for determining whether the evidence supports the claim or is
in relative equipoise, with the veteran prevailing in either
event, or whether a preponderance of the evidence is against
the claim, in which case the claim is denied. 38 U.S.C.A.
§ 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
The Board initially notes that the claims file includes
sufficient medical evidence showing a diagnosis of a low
back/thoracolumbar disorder, as reflected in a number of
private and VA medical reports. Because the record contains
competent medical evidence of a current disorder, and no
evidence to the contrary, the Board concedes the presence of
such disability. Therefore, the only question is whether
that low back disorder was incurred in or aggravated by
active military service; or, in the case of arthritis, became
manifested to a compensable degree within one year of
separation from active duty. 38 C.F.R. §§ 3.303, 3.307,
3.309 (2007); Allen v. Brown, 7 Vet. App. 439 (1995).
The service medical records show that there were no abnormal
evaluations for the spine during periodic examinations in
November 1984 or December 1987. In September 1988 the
veteran was treated after he fell off an aircraft ladder.
The treatment record shows that he reported complaints of low
back pain for 45 minutes. On examination, there was no pain
to percussion over the spine and no flank tenderness. The
veteran walked easily with a normal gait. X-ray examination
revealed no fracture. The impression was status post back
injury-soft tissue.
When seen four days later in September 1988, the veteran
reported that his back felt better. When seen two days later
that month, the veteran had complaints of right side back
pain for the previous week. The back discomfort was helped
by Motrin. On examination, there was an ache in the back at
the area of T9-10 on the left, which was due to the fall.
There was a slight muscle spasm. The assessment at that time
was muscle strain in the back.
The November 1989 reports of medical history and examination
at separation show that the veteran reported having had
recurrent back pain. The veteran reported that he had had
recurrent upper and mid-back pain since 1988, secondary to a
job related injury. He stated that he treated this with
Motrin, and Tylenol #3; and that he had a constant pain. On
examination of the spine and other musculoskeletal system,
the examiner made a finding that there was a slight decrease
range of motion of the lower thoracic spine.
Three days after separation from service in March 1990, the
veteran submitted a claim for service connection for residual
back pain. The report of VA examination in April 1990 shows
that he reported having occasional unbearable back pain,
which hurt most when he would breath. He reported that the
pain usually was a constant dull pain. After examination,
the report contains a diagnosis of possible minimal
degenerative disc disease, lumbosacral spine. The claims
file does not contain any associated X-ray report.
Private treatment records show that the veteran was seen in
August 1995 for complaints of pain in the upper back after
working and moving limbs. Examination showed tightness and
tenderness of the thoracic paraspinous muscles on the left.
The report contained an assessment of acute thoracic strain.
Subsequent private and VA treatment records beginning in May
1996 show treatment for increasingly significant mid and low
back symptomatology involving the thoracic and lumbosacral
spine. Initial treatment records in 1996 contain impressions
of chronic back pain.
The report of MRI examination in August 2001 contains
impressions, regarding the lumbar and thoracic spines, of (1)
at L4-5, there is a prominent bulge or very small broad-based
central disc protrusion resulting in minimal deformity of the
thecal sac; (2) At L5-S1, there is central disc bulging
resulting in minimal, if any, impingement on the proximal S1
nerve root sheaths; (3) At T 6-7, there is mild right
paracentral disc bulging as seen only on the axial images
resulting in mild deformity of the thecal sac; (4) at T 7-8,
and more prominently at T8-9, there is left posterolateral
disc bulging resulting in minimal deformity of the thecal sac
without cord impingement; and (5) at T11-12, there is a very
small left posterolateral disc protrusion resulting in mild
deformity of the thecal sac without cord impingement.
In two lay statements received in October 2002, the veteran's
brother and girl friend attest that the veteran had low back
pain since discharge from service.
A November 2003 VA consult report includes an assessment of
lumbar spondylosis; and thoracic disc bulge at T6-7, T7-8,
T8-9, and T11-L2.
In a May 2004 statement titled "Independent Medial
Evaluation," Craig N. Bash, M.D., discussed the history of
the veteran's fall during service and inservice treatment.
Dr. Bash noted that the veteran currently had lumbar
degenerative disease. He opined generally that spine
injuries early in life often lead to advanced degenerative
changes later in life due to resultant chronic ligament
laxity and spine instability. Dr. Bash concluded with an
opinion that the veteran's inservice injury caused the
veteran's current lumbar spine disease.
A July 2004 VA treatment record contains an impression of
post-traumatic thoracic and lumbar disc degeneration; no
deficits.
The report of a June 2006 VA examination of the spine shows
that the veteran reported that during service he was treated
for low back pain after he fell approximately seven feet,
striking his buttocks on a concrete runway. He reported
having chronic back pain since then. The examiner noted that
there was a time span of five to six years during which the
veteran did not undergo any treatment. The examiner noted
that after discharge in 1990, the veteran underwent an MRI
examination in 2001-2002, showing mild degenerative disc
disease with several bulging discs. The veteran reported
current complaints of chronic pain in the lumbosacral area
without radiation. After examination, the report contains a
diagnosis of low back pain secondary to degenerative disc
disease. The examiner concluded with an opinion that the
current findings by MRI would not be compatible with the soft
tissue injury shown in service.
In a January 2008 statement titled "Independent Medial
Evaluation," Dr. Bash discussed the veteran's medical
history and current examination. Dr. Bash noted that the
veteran fell off an A-10 aircraft and injured his spine (T9-
10 left); that the veteran had spine troubles noted on
separation examination; and that current MRI examination in
2005 and 2008 showed degeneration at T-8 and T-9, and lumbar
degeneration at L4-5.
After examination, Dr. Bash concluded with an opinion that
inservice trauma caused the current thoracic spine
degeneration and pain; and lumbar spine degeneration,
sciatica and pain. As rationale, Dr. Bash noted that the
veteran entered service fit for duty; had an injury in
service to his spine; and had no post-service spine injuries
documented in the record. The physician also noted that
imaging findings were at the same location as the service
trauma-T-8 and T-9, which was assessed at the same level by
examiner at the exit physical. He also noted that imaging
findings were at the same location as the service trauma, L3-
4.
Dr. Bash noted that the veteran had back muscle spasms in
service, and currently on examination, had pain and limited
motion. Dr. Bash cited literature, which he said noted that
an injury precipitates or accelerates the onset of a
degenerative process of the spine. Dr. Bash opined that it
was well known that injuries to the spine early in life often
lead to advanced degenerative changes later in life due to
the resultant chronic ligament laxity and spine instability.
Dr. Bash concluded with an opinion that the inservice trauma
caused the thoracic spine and lumbar spine to degenerate more
than expected for the veteran's age; and that the antecedent
injury was the inservice trauma. He stated that this opinion
was consistent with the 1990 VA examination.
The transcript of a hearing in January 2008 before the
undersigned shows that the veteran and Dr. Bash testified
essentially that the veteran's current low back
symptomatology was due to the inservice injury.
In summary, the evidence shows that after a fall from an
aircraft ladder, the veteran received treatment in September
1988 for injuries including of the back, assessed as status
post back injury-soft tissue, and later that month assessed
as muscle strain in the back. Over a year later in November
1989, at his discharge examination, the veteran reported
having recurrent/constant upper and mid-back pain since the
1988 injury, requiring pain medication. Evaluation at that
time showed that the veteran had a slight decrease in range
of motion of the lower thoracic spine.
After service, reflecting continued complaints of back
symptomatology, the veteran submitted a claim of entitlement
to service connection for a low back disorder only three days
after service ended in March 1990. VA examination the
following month concluded with a diagnosis of possible
minimal degenerative disc disease, lumbosacral spine.
Following that, beginning in August 1995, medical records
show treatment for increasingly significant low back
symptomatology.
As to whether the veteran's current low back symptomatology
is related to the injury during service, the opinion
contained in the June 2006 VA examination is in opposition to
the opinion offered by Dr. Bash.
The VA examiner based his opinion on the following: That
current findings would not be compatible with the soft tissue
injury shown in service; and that for five to six years after
service the veteran did not receive treatment. Though he did
not seek treatment during that early period after service,
the Board notes, however, that two lay statements show that
people close to the veteran attested that the veteran did
have back complaints during the period beginning in 1990.
The Board further notes in this regard, that the veteran
submitted a claim to that effect in March 1990 right after
service; and that only one month after service, during VA
examination the veteran complained of sometimes chronic low
back pain. At that time, the VA examiner concluded with a
diagnosis of possible minimal degenerative disc disease, of
the lumbosacral spine.
In opposition to the opinion by the examiner at the June 2006
VA examination, Dr. Bash opined that the inservice trauma
caused the current thoracic and lumbar spine degenerative
pathology. He premised that opinion on several bases,
including that diagnostic imaging had shown current pathology
in the same back locations as that associated with the
inservice injury; that there was no evidence of any
significant post-service injury; and that cited literature
essentially held that a spine injury generally precipitates
or accelerates the onset of a degenerative process of the
spine.
The Board finds the opinion by Dr. Bash to be consistent with
the history of medical evidence beginning in service and
continuing thereafter, showing complaints of low back
symptoms within a month of service discharge. Submitted lay
statement evidence of early back complaints after service are
competent to attest to the veteran's complaints, which are in
turn competent evidence of back pain continuing after
service.
In order for the veteran to prevail, it is only necessary
that the probative evidence for and against the claim be in
relative equipoise. The favorable evidence need not outweigh
that which is unfavorable for the veteran to be entitled to
the benefit of the doubt. To deny the claim would require
that the evidence preponderate against it. Alemany v. Brown,
9 Vet. App. 518, 519-20 (1996). The weight to be attached to
relevant evidence is an adjudication determination. Guerrieri
v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board must
assess the weight and credibility to be given to the
evidence. Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992).
The evidence, viewed liberally, is at least in equipoise.
That is, it is as likely as not that the veteran has a low
back disorder involving the thoracolumbar spine that is
etiologically caused by the veteran's injury in service. The
veteran is therefore entitled to the benefit of the doubt.
See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly,
it is the judgment of the Board that service connection is
warranted for a low back disorder involving the thoracolumbar
spine.
ORDER
New and material evidence has been received to reopen the
claim for entitlement to service connection for a disorder of
the thoracolumbar spine.
Service connection for a low back disorder involving the
thoracolumbar spine is granted.
