Citation Nr: 18123926
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 14-18 555
DATE:	August 3, 2018
ORDER
The application to reopen the claim of entitlement to service connection for a lumbar spine disability is granted.
FINDINGS OF FACT
1.  Most recently a January 2007 rating decision denied the Veteran’s claim to reopen the claim of entitlement to service connection for a lumbar spine disability. The Veteran was notified of the decision and his appellate rights; however, he did not timely appeal or submit new and material evidence within one year of the decision.
2.  Evidence received since the January 2007 rating decision is new and material and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a lumbar spine disability.
CONCLUSIONS OF LAW
1.  The January 2007 rating decision that denied reopening of the claim of entitlement to service connection for lumbosacral strain and scoliosis is final.  38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.1103 (2017).
2.  Evidence received since the January 2007 rating decision is new and material and the claim for service connection lumbosacral strain and scoliosis, is reopened.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active service in the United States Army from August 1967 to April 1970.
1.  Whether there is new and material evidence to reopen the claim of entitlement to service connection for lumbosacral strain and scoliosis.
Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c).  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.
The Board finds that 38 C.F.R. § 3.156(c) does not apply in this case, and new and material evidence is required to reopen the claim.
New evidence means existing evidence not previously submitted to agency decisionmakers.  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(a).
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, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement.  Id. at 118. 
Evidence is presumed to be credible for determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  The evidence must be both new and material; if the evidence is new, but not material, the inquiry ends and the claim cannot be reopened.  Smith v. West, 12 Vet. App. 312 (1999).
Here, the Veteran’s original claim for service connection for a lumbar spine condition was denied in an April 1972 rating decision, on the basis that the service treatment records were silent for a back condition.  The Veteran did not appeal that decision, nor was new and material evidence associated with the record within one year of its issuance.  Accordingly, the April 1972 decision is final.  See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103.
In a January 1982 decision letter the RO denied the Veteran’s claim for a low back condition because the evidence failed to show that a back condition was incurred in or aggravated by the Veteran’s military duty.  The Veteran did not appeal this decision, and no evidence was received within one year of its issuance, such that it too became final.  See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103.  
Most recently, in a January 2007 rating decision, the RO denied reopening the claim of entitlement to service connection for lumbosacral strain and scoliosis (claimed as lower back injury).  The Veteran was notified but did not appeal the decision.  Accordingly, the January 2007 rating decision is final.  See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103.
In July 2011 the Veteran filed an application to reopen his claim of entitlement to service connection for lumbar strain, scoliosis, which the RO denied to reopen in 2007 because there was no objective evidence to show a low back injury was incurred in or caused by military service.  In support of his claim for a back condition, the Veteran submitted a notarized statement written in August 2011 by C. Belle, who identified himself as the Veteran’s PLT SGT at the time he was a witness to the Veteran’s back injury.  He specified that their section was alerted to move air crafts out of the revetment prior to a mortar attack, and while the Veteran was pushing an O-1 birddog out of a revetment in Dalat, Vietnam, he slipped on a steel plate and injured his back, such that he went to the dispensary for medical attention and was unable to carry out his duties the following day.  In addition, the Veteran has reported experiencing low back pain and his back going out since the reported incident in service, and currently has imaging that shows degenerative changes in his lumbar spine.  As noted, at this stage in a new and material evidence claim, the credibility of this evidence is presumed.  Duran v. Brown, 7 Vet. App. 216, 220 (1994).
Taking this evidence into consideration along with a VA examination and medical opinion, there is a reasonable possibility that the new evidence can substantiate the claim.  See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  The Board finds that the additional evidence received since the January 2007 rating decision is new and material within the meaning of 38 C.F.R. § 3.156, warranting reopening of service connection for lumbar strain, scoliosis, hereafter a lumbar spine disability.
REMANDED
Entitlement to service connection for a lumbar spine disability is remanded.
REASONS FOR REMAND
1. Entitlement to service connection for a lumbar spine disability is remanded.
Service connection may be presumed for certain chronic diseases, to include arthritis, which develop to a compensable degree within one year after separation from service, even though there is no evidence of that disease during the period of service.  That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. 3.307, 3.309(a) (2017). 
“[T]he term osteoarthritis is a synonym of the terms degenerative arthritis and degenerative joint disease.” Greyzck v. West, 12 Vet. App. 288, 291 (1999).
If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing a service connection claim. 38 C.F.R. § 3.303(b) (2017).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent.  If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Continuity of symptomatology applies only to those conditions explicitly recognized as chronic.  38 C.F.R. § 3.309(a) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).
The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a lumbar spine disability because no VA examiner has opined whether the Veteran’s current lumbar disability relates to that symptomatology which the Veteran has reported as continuous back pain and symptomatology since service.
The Veteran indicated in a July 2011 statement in support of claim that he sought treatment from the field hospital in Dalat, Vietnam during service.  A remand is required to allow VA to request these potentially relevant records.
The matter is REMANDED for the following action:
1.  Obtain records of any treatment at Dalat, Vietnam Field Hospital in 1969.  Document all requests for information as well as all responses in the claims file.
2.  Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any lumbar spine disability.  The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s reported in-service injury when he slipped and fell on a steel plate when moving an aircraft out of revetment.  
Presumptive 3.309(a) - whether it at least as likely as not that lumbar spine arthritis (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service.

 
YVETTE R. WHITE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Barner, Counsel 

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