14-10 641, 14-10 641

Veteran served on active duty 1967–1988; sought service connection for a lumbar spine/back disability.
July 1991 RO rating decision denied service connection for a back disability; that decision became final because it was not appealed and no new evidence was submitted within one year.
Since 1991, the record includes treatment and diagnoses of degenerative disc disease and a 2014 surgery (L4–L5 diskectomy), and VA exam diagnosing lumbar degenerative disc disease (May 2013).
May 2013 VA examiner opined the current condition was less likely than not related to service; the Board found that opinion inadequate because it relied on an inaccurate factual premise (contradicted by service records showing an in-service lumbar strain).
An August 2015 private physician letter opined to a reasonable degree of medical certainty that the Veteran’s need for surgery was related to the in-service back injury; the Board found this opinion adequate and highly probative.
Board granted: (1) reopening of the finally adjudicated 1991 claim based on new and material evidence; and (2) service connection for degenerative disc disease of the lumbar spine.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether new and material evidence was submitted to reopen the 1991 denial	The August 2015 private opinion is new and material and raises a reasonable possibility of substantiating the claim	The 1991 decision is final unless new and material evidence is shown	Reopened — private 2015 opinion is new and material
Whether current lumbar disability exists	Veteran has diagnosed degenerative disc disease and had L4–L5 surgery	VA had previously found no current service-related disability in 1991; VA examiner disagreed on nexus	Current degenerative disc disease exists and is service connected
Whether in-service injury occurred	Service treatment records document lumbar strain and paraspinous spasm after 1984 injury	VA examiner asserted no specific in-service back injury and age-related degeneration	Board found service treatment records do show in-service lumbar strain; supports nexus
Whether medical nexus to service is established	Private physician (2015) opined nexus to in-service injury with rationale	VA examiner’s negative nexus opinion deemed inadequate due to inaccurate factual premise	Nexus established; service connection granted

Jackson v. Principi, 265 F.3d 1366 (2001) (Board must consider whether a claim should be reopened)
Barnett v. Brown, 83 F.3d 1380 (1996) (reopening requirements and VA jurisdiction principles)
Justus v. Principi, 3 Vet. App. 510 (1992) (presumption of credibility for new and material evidence analysis)
Reonal v. Brown, 5 Vet. App. 458 (1993) (medical opinion based on inaccurate factual premise is not probative)
Barr v. Nicholson, 21 Vet. App. 303 (2007) (factors for assessing adequacy of medical opinions)
Stefl v. Nicholson, 21 Vet. App. 120 (2007) (requirements for probative medical nexus opinions)
Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (private medical opinion can be sufficient if adequate and well-rationalized)
Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (benefit-of-the-doubt doctrine and when preponderance favors claimant)
Shedden v. Principi, 381 F.3d 1163 (2004) (elements required to establish service connection)