Citation Nr: 1728107 Decision Date: 07/19/17 Archive Date: 07/27/17 DOCKET NO. 12-35 761 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for a lumbar spine disability. 2. Entitlement to service connection for radiculopathy of the lower extremities to include as secondary to the lumbar spine disability. 3. Entitlement to service connection for scars on the back to include as secondary to the lumbar spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. L. Krasinski, Counsel INTRODUCTION The Veteran served on active duty from August 1985 to December 1985 and from May 1987 to March 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Boise, Idaho. An August 2011 rating decision reopened service connection for a lumbar spine disability and denied the claim on the merits. The RO denied entitlement to service connection for radiculopathy of the lower extremities and a scar on the low back. Before reaching the merits of the claim for service connection for a lumbar spine disability, the Board must first rule on the matter of reopening of the claim. That is, the Board has a jurisdictional responsibility to consider whether it is proper for the claim to be reopened. Jackson v. Principi, 265 F.3d 1366 at 1369 (Fed. Cir. 2001) and Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In other words, the Board is required to first consider whether new and material evidence is presented before the merits of a claim can be considered regardless of the RO's action. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Veteran was notified by letter dated April 8, 2014 that his appeal was certified and transferred to the Board. The letter informed him of the opportunity to submit additional evidence in support of his appeal within 90 days pursuant to 38 C.F.R. § 20.1304 (2016). The Veteran did not submit additional evidence within the 90 day time period. FINDINGS OF FACT 1. In a July 2004 decision, the RO denied service connection for a lumbar spine disability on the basis that the current lumbar spine disability was not related to active service. The Veteran was notified of this decision, but he did not file a timely appeal. 2. Evidence received since the July 2004 decision is either cumulative of the evidence at the time of the July 2004 decision or the evidence that is new, by itself or in connection with previously considered evidence, does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim of entitlement to service connection for a lumbar spine disability. 3. The Veteran did not have chronic symptoms of radiculopathy or other neurological disorders of the bilateral lower extremities in active service or continuous or recurrent neurologic symptoms in the bilateral lower extremities since service separation; the radiculopathy of the bilateral lower extremities did not manifest within one year of service separation; and the evidence of record makes it less likely than not that the Veteran's current radiculopathy of the bilateral lower extremities is related to disease or injury or other event in active service or is caused or aggravated by a service-connected disability. 4. The scar on the low back were incurred many years after separation from active service and the evidence of record makes it less likely than not that the Veteran's current scars on the low back are related to disease or injury or other event in active service or are caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The July 2004 decision to deny service connection for a lumbar spine disability is final. 38 U.S.C.A. §7105 (West 2014); 38 C.F.R. §§ 20.1103, 20.1104 (2016). 2. The evidence received subsequent to the July 2004 rating decision is not new and material and the claim for service connection for a lumbar spine disability is not reopened. 38 U.S.C.A. §§ 5108, 7104(b), 7105(c) (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2016). 3. The criteria for the establishment of service connection for radiculopathy of the bilateral lower extremities are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2016). 4. The criteria for the establishment of service connection for scar of the low back are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA notice letters must also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has met its duty to notify for the claims. Here, the Veteran was provided adequate notice. See the April 2011 VA letter. Thus, adjudication of the claims at this time is warranted. The Board finds that all relevant evidence has been obtained with regard to the Veteran's claims being decided herein, and the duty to assist requirements have been satisfied. The Veteran's service treatment records and personnel records are associated with the claims file. Private medical records are associated with the file. The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claims. In a claim to reopen, the duty to assist by affording a VA examination or obtaining a medical opinion does not attach until the previously denied claim is reopened. 38 C.F.R. § 3.159 (c)(4)(iii) (2016). However, in this case, the RO reopened the claim for service connection for a lumbar spine disability and provided a VA examination in October 2012 to obtain medical evidence as to the nature and likely etiology of the lumbar spine disability, radiculopathy of the bilateral lower extremities, and scar on the low back. The examination and medical opinions are adequate because a medical professional performed the examination and issued medical opinions based on review of claims file, solicitation of history and symptomatology from the Veteran, and an examination of the Veteran. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, the Board finds that the Veteran was afforded an adequate medical examination. The Board finds that the duties to notify and assist the Veteran have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claims. 2. Claim to Reopen Service Connection for a Lumbar Spine Disability Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d) (2016). In order to establish service connection for the claimed disorder, generally, 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). Rating actions from which an appeal is not perfected become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. The governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing, and after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. In order to reopen a claim which has been denied by a final decision, new and material evidence must be received. 38 U.S.C.A. § 5108. New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). 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, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). Initial matters The Board notes that additional evidence was associated with the file from February 2015 to January 2016 in connection with a claim for service connection for post traumatic stress disorder (PTSD). This additional evidence was not submitted to the Board. As noted in the introduction, the Veteran was notified by letter dated April 8, 2014 that his appeal was certified and transferred to the Board. The letter informed him of the opportunity to submit additional evidence in support of his appeal within 90 days pursuant to 38 C.F.R. § 20.1304 (2016). The Veteran did not submit additional evidence within the 90 day time period. Thus, the Board will not consider this additional evidence in the current appeal. In February 2015, additional service personnel records were associated with the file in cone ton with a claim for service connection for PTSD. Under 38 C.F.R. § 3.156 (c)(1), "at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. Such records include, but are not limited to: (i) Service records that are related to a claimed in-service event, injury or disease (ii) Additional service records forwarded by the Department of Defense or the service department of VA any time after VA's original request for service records; and (iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim." The Board notes that 31 pages of service personnel records were associated with the claims file in September 2000 and were part of the record at the time of the July 2004 decision. These records included the Veteran's Report of Separation and record of Service, Army National Guard Retirement Points Statement, Record of Assignments, Life Insurance records, and Enlistment and Reenlistment documents. The Board finds that although some of the newly associated service personnel records were associated with the Veteran's claims folder after VA's original request for the records, these records are not relevant to the claim for service connection for a lumbar spine disability. Pertinently, these records do not indicate that the Veteran's current lumbar spine disability manifested during military service or within one year of discharge from service or is medically related to injury, disease, or other event in active service, which as discussed below, was the basis for the previous denial. Therefore, these service personnel records are not relevant to this issue before the Board. Accordingly, the Board will not reconsider the Veteran's lumbar spine claim pursuant to 38 C.F.R. § 3.156 (c). Analysis In a July 2004 decision, the RO denied service connection for a lumbar spine disability to include status post lumbar laminectomy with foraminotomies and disc fusion at L4-L5 on the basis that the current lumbar spine disability was not related to active service. The evidence of record at the time of the June 2004 decision included service treatment records for the period of active service from May 21, 1987 through March 6, 1992; service personnel records; M.H.C./C.M.I. treatment records dated from April 1998 to December 18, 2003; treatment records from S.M.C. dated from December 31, 2002 to June 22, 2003; treatment records from N.I. Neurosurgery and Spine dated from November 19, 2002 to May 14, 2004; an October 2003 statement from T.S. Physician Assistant, Certified; and VA examination reports dated in February 1999 and June 2004. The service treatment records show that in December of 1987, the Veteran complained of low back pain and the assessment was low back pain secondary to bad posture when lifting. A January 1988 service treatment record indicates that the Veteran sought treatment for back pain and the diagnosis was muscle strain. The service treatment records note that both times, the Veteran was given light duty for 5 days and returned to full duty. A November 1989 service treatment record notes that the Veteran had low back pain for 2 days. The Veteran separated from active service in March 1992. A separation examination is not of record. He served in the Army National Guard for 3 years, 10 months and 13 days and separated from the National Guard in September 2000. A March 1999 National Guard examination report indicates that the Veteran denied having recurrent back pain or injury. Physical examination of the spine was normal. The Veteran was afforded a VA examination in February 1999. He reported having joint pain in the joints from the hands to his ankles; he did not identify joint pain in the spine. Physical examination revealed normal range of motion of the spine. Muscle strength was 5/5 throughout. Vibratory sensation was within normal limits throughout. Gait was symmetric without limp. There was no atrophy, fasciculations or tremors. Private treatment records from M.H.C. dated in September 1999 indicate that the Veteran sought medical treatment for low back pain; it was noted that he was hurt while lifting weights two months ago. The assessment was mid back muscle strain. In November 1999, the assessment was low back pain probable due to weight. In December 2000, the Veteran sought medical treatment for lumbar back pain after tweaking his back. The Veteran stated that he had a history of chronic intermittent back pain. He reported no heavy lifting or any activities that he could associate as the cause of the back pain. It was noted that the Veteran's occupation was somewhat sedentary and he does a lot of sitting. The Veteran stated that the pain just started today when he was sitting and stood up. The assessment was chronic intermittent lumbar back pain syndrome. In October 2002, the Veteran was seen for back pain after he twisted wrong. The low back pain was mainly of the right side with pain up into his mid back, mainly muscle spasm. He was having a little bit of radiculopathy down the posterior thigh but not very much. Private treatment records from M.H.C. indicate that in November 2002, the Veteran underwent MRI of the low back and a herniated disc at L5-S1 and an L4-L5 disc bulge were detected. An April 2004 neurosurgeon consult indicates that the Veteran has had chronic low back pain, but with no precipitating event or trauma he had pain radiating down his left leg, lateral thigh, and lateral calf with occasional numbness and tingling. Surgery was recommended. In April 2004, the Veteran underwent a lumbar laminectomy at L4 and L5, bilateral foraminotomies at L4-5, an allograft autograft modeling, a sham screw placement at L4-5, and bony arthrodesis, posterior and lateral. The post-operative diagnosis was stenosis with instability. The Veteran was afforded a VA examination in June 2004. The VA examiner considered the history provided by the Veteran and the evidence of record. The VA examiner concluded that although the Veteran has back problems now and he has been treated for the back problems numerous times since post service, it was less likely than not that the Veteran's current back problems were related to his complaints of back pain while in the military. The VA examiner explained that the Veteran did not have a history or trauma to his back while in the military and that his injuries "were rather minor" and that the Veteran began having more and more back problems after separation from the service. The Veteran was notified of the July 2004 rating decision, but he did not file a timely appeal, and no new and material evidence was received within a year of the July 2004 rating decision. Therefore, the July 2004 decision is final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.156(b), 3.160(d), 20.302, 20.1103. In March 2011, the Veteran applied to reopen his previously denied claim for service connection for a low back disability. The additional evidence received in support of his claim includes the Veteran's own lay statements, a lay statement from his mother, a VA examination report dated in October 2012, private treatment records from M.H.C./C.M.I. and N.I. Neurosurgery and Spine., a statement from S.M.C., and a May 2011 statement from T.S. Physician Assistant, Certified. The Board finds that the evidence added to the record since July 2004 is not new and material, it does not relate to an unestablished fact necessary to substantiate the lumbar spine claim, and therefore, it does not raise a reasonable possibility of substantiating the claim. In March 2011, the Veteran submitted his own lay statement and a lay statement from his mother stating that the Veteran sustained an injury to the back in active service. While these statements are new, the lay statements are not material because this evidence is cumulative of the evidence of record at the time of the July 2004. At the time of the July 2004 statement, the fact that the Veteran injured his low back in active service was conceded by VA. The fact of a back injury was already established. For these reasons, the Board finds that the lay statements are not new and material evidence and are insufficient to reopen the claim. In April 2011, the Veteran submitted 25 pages of treatment records from N.I. Neurosurgery. The treatment records and reports dated from February 2004 to May 2004 are copies of the records from N.I. Neurosurgery records and reports that were part of the record at the time of the July 2004 decision. Thus, the evidence cannot be considered to be new since this evidence was previously submitted to and considered by the agency decision makers at the time of the July 2004 decision. The treatment records and reports from N.I. Neurosurgery dated June 2004 and October 2004 including the June 2004 x-ray examination report and the October 2004 MRI report of the lumbar spine are clearly new, because this evidence was not previously contained within the record. Nevertheless the evidence is not material and does not raise a reasonable possibility of substantiating a claim. The Veteran's claim was previously denied, because his current lumbar spine disability was attributable to injuries after service separation rather than the documented in-service back injuries in December 1987 and January 1988. The Veteran's new evidence demonstrates that the Veteran continues to experience a lumbar spine disability, but it does not include evidence, such as a medical opinion or documentation of additional in-service incurrences, purporting to make it more likely that his current disability is related to a claimed in-service incurrence rather than the post service injuries. As such, this evidence is not new and material and is insufficient to reopen his claim. In April 2011, the Veteran submitted 79 pages of treatment records and reports from I. Imaging and M.H.C./C.M.I. dated from May 1995 to December 2003. All of the records with the exception of the records dated in April 1997, September 1997, October 1997, February 1998, and April 1998 are copies and are duplicative of the treatment records from this health care provider that were part of the record at the time of the July 2004 decision. Thus, the evidence cannot be considered to be new since this evidence was previously submitted to and considered by the agency decision makers at the time of the July 2004 decision. The treatment records from I. Imaging and M.H.C./C.M.I. dated in April 1997, September 1997, October 1997, February 1998, and April 1998 are clearly new, because this evidence was not previously contained within the record at the time of the July 2004 decision. Nevertheless the evidence is not material and does not raise a reasonable possibility of substantiating a claim. This evidence does not address or discuss the Veteran's lumbar spine disability. It does not include evidence, such as a medical opinion or documentation of additional in-service incurrences, purporting to make it more likely that his current lumbar spine disability is related to a claimed in-service incurrence rather than the post service injuries. As such, this evidence is not new and material and is insufficient to reopen his claim. In May 2011, a statement from T.S., a certified Physician Assistant was received into the record. The Board finds that this statement is not new and material evidence. The Veteran submitted a statement by T.S., certified Physician Assistant, in October 2003. The May 2011 and the October 2003 have almost identical first paragraphs. T.S. concluded in both statements that "It appears from his long history of back pain and his injury that he had in the service that it is, more probable than not that these two situations coincide." T.S. then noted "As the first letter was originally written on 10/20/03." The medical opinion by T.S. was previously submitted to and considered by the agency decision makers at the time of the July 2004 decision. The Board finds that the second paragraph in the May 2011 statement by T.S. is not material. T.S. notes that the Veteran had treatment for the back disability including surgery in April 2004. These facts were established at the time of the July 2004 rating decision. T.S. does not provide any further rationale or explanation that relates the current lumbar spine disability to the injuries in active service in the May 2011 statement. The Board finds that this evidence is not material and does not raise a reasonable possibility of substantiating a claim. It does not relate to an unestablished fact necessary to substantiate the lumbar spine claim. It does not include evidence, such as a medical opinion or documentation of additional in-service incurrences, purporting to make it more likely that his current lumbar spine disability is related to a claimed in-service incurrence rather than the post service injuries. As such, this evidence is not new and material and is insufficient to reopen his claim. In May 2011, a statement from S. Medical Center was received into the record. In the letter, the medical records manager for S. Medical Center indicated that the Veteran's medical records from the office of Dr. Gibbons have been destroyed. This evidence is not new and material because this evidence is cumulative of the evidence of record at the time of the July 2004 decision. The fact that the Veteran's treatment records from Dr. Gibbons were unavailable was established at the time of the July 2004 rating decision. As such, this evidence is not new and material and is insufficient to reopen his claim. In June 2012, the Veteran submitted copies of his service treatment records. He submitted 7 copies of service treatment records including the January 1988 record documenting back pain, two February 1990 records documenting right hip pain, and a right hip x-ray report. These service treatment records are copies of the service treatment records that were part of the record at the time of the July 2004 decision. Thus, the evidence cannot be considered to be new since this evidence was previously submitted to and considered by the agency decision makers at the time of the July 2004 decision. In October 2012, the October 2012 VA examination report was associated with the record. This evidence is new in that it had not previously been submitted. However, the new evidence is not "material" since the evidence does not establish, or even suggest, a nexus or any such relationship between the current lumbar spine disability and the Veteran's active service. After a thorough review of the Veteran's medical history, as documented in the VA examination report, the VA examiner opined that the Veteran's current low back condition was not related to the treatment for low back pain shown during his sick call visit of 1-13-1998. The Board notes that the VA examiner inadvertently reported the date as 1998 instead of the current date of 1988; while the VA examiner reported the incorrect date, the other information from this medical record was reported correctly. The VA examiner noted that per the Veteran's report, he was carrying his gear up to his barracks room and injured his back. The VA examiner indicated that the service treatment record notes that the Veteran showed no signs of radiculopathy, swelling, or redness. He had only some tenderness, and the Veteran stated and it is documented that there was no trauma or injury. The Veteran was given a profile for 5 days and the diagnosis was muscle strain. The VA examiner indicated that per the records and the Veteran's verbal statement at time of exam, the muscle strain resolved. The VA examiner stated that he did not believe the in-service injury caused the current lumbar spine problem and the VA examiner based the Veteran's increased symptoms and radiculopathy to an obesity/gout and his weight lifting and exercise injuries since discharge. The Board finds that the October 2012 VA examination report is not material and does not raise a reasonable possibility of substantiating the claim. It does not relate to an unestablished fact necessary to substantiate the lumbar spine claim. It does not include evidence, such as a medical opinion, purporting to make it more likely that his current lumbar spine disability is related to a claimed in-service incurrence rather than the post service injuries. The October 2012 VA medical opinion purports to make it less likely that the Veteran's current lumbar spine disability is related to a claimed in-service incurrence. As such, this evidence is not new and material and is insufficient to reopen his claim. Therefore, the Board finds that the evidence added to the record since July 2004 is not new and material. At best, the evidence is cumulative of the evidence previously considered by the RO at the time of the July 2004 decision and does not relate to an unestablished fact necessary to substantiate the lumbar spine claim and, therefore, does not raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. For these reasons, the Board finds the new evidence of record is not material to the Veteran's lumbar spine claim. As such, and even considering the holding in Shade v. Shinseki, 24 Vet. App. 110 (2010) to the effect that the VA regulation as to reopening a claim "must be read as creating a low threshold," there is still a minimum threshold, and the new evidence submitted since July 2004 does not reach that threshold. As such, the claim is not reopened. 3. Service connection for radiculopathy of the lower extremities and scar on the low back. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Generally, to establish service connection, the evidence 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 (nexus) between the current disability and the in-service disease or injury (or in-service aggravation). Holton v. Shinseki, 557 F.3d 1362, 1355 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Where a Veteran served for at least 90 days during a period of war and manifests an organic disease of the nervous system to a degree of 10 percent within one year from the date of termination of that service, this disease shall be presumed to have been incurred in service, even though there is no evidence of the disability during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The disease entity for which service connection is sought must be chronic, rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. For certain chronic diseases, set forth in 38 C.F.R. § 3.309 (a), to include arthritis, continuity of symptomatology is required when the condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. §§ 3.303 (b), 3.309(a) (2014); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for disability which is proximately due to or the result of service-connected disability. Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also service-connected. 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439 (1995). Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C.A. § 7104(a). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.102, 4.3. The Veteran seeks service connection for left and right lower extremity radiculopathy and a surgical scar secondary to his lumbar spine disability. The October 2012 VA examination reports indicate that the Veteran had diagnoses of right and left lower extremity radiculopathy and a 10.4 centimeter linear scar on the posterior trunk due to the 2004 spine surgery. Service connection is not warranted for the radiculopathy of the right and left lower extremities and the scar on the back on a secondary basis because service connection is not in effect for a lumbar spine disability. As such, the Board finds that under the law, the Veteran lacks legal grounds to establish entitlement to service connection for left and right lower extremity radiculopathy and surgical scars as secondary to the lumbar spine disability. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Insofar as service connection is not in effect for the disability claimed by the Veteran to have proximally caused his left and right lower extremity radiculopathy and surgical scar, service connection on a secondary basis is not applicable under the law. As there is no legal entitlement, the claim of entitlement to service connection for left and right lower extremity radiculopathy and surgical scar as secondary to the lumbar spine disability is without legal merit. Id. The Board finds that service connection for left and right lower extremity radiculopathy and surgical scar on a direct basis is not warranted. The service treatment records do not documents complaints or treatment of left and right lower extremity radiculopathy or surgical scar. The service treatment records document treatment for low back pain in December 1987 and no complaints of radiating pain are noted. The January 1988 service treatment record indicates that the Veteran denied having radiating pain to the legs. The Veteran separated from active service in March 1992. A separation examination is not of record. He served in the Army National Guard for 3 years, 10 months and 13 days and separated from the National Guard in September 2000. A March 1999 National Guard examination report indicates that the Veteran denied having a nerve injury or paralysis. Physical examination of the neurologic system was normal. Examination of the skin revealed a scar on the left thumb. A scar on the back was not detected. The Veteran was afforded a VA examination in February 1999. Physical examination revealed that muscle strength was 5/5 throughout. Vibratory sensation was within normal limits throughout. Gait was symmetric without limp. There was no atrophy, fasciculations or tremors. A scar on the back was not detected. Private treatment records from M.H.C. dated in September 1999 indicate that the Veteran sought medical treatment for low back pain; it was noted that he was hurt while lifting weights two months ago. He reported having pain in the mid back around T11-12 area after exercising. He denied any radiculopathy at this time, and he mainly had muscle spasm and tightness. He had no other complaints. Examination revealed that the Veteran was neurovascularly intact. The assessment was mid back muscle strain. Private treatment records from M.H.C. dated in December 2000 indicate that there was no radiculopathy into the legs. Reflexes were within normal limits with normal sensory findings in both lower extremities. The assessment was chronic intermittent lumbar back pain syndrome. Private records dated in October 2001 indicate that the Veteran did not complain of any neurologic symptoms. In October 2002, the Veteran had no numbness or pain down his legs or to the feet bilaterally but he was having a little bit of radiculopathy down the posterior thigh, maybe mid-thigh, but not very much. It comes and goes. The assessment was low back syndrome with muscle spasm. In November 2002, the Veteran underwent MRI of the low back and a herniated disc at L5-S1 and an L4-L5 disc bulge were detected. He was referred for a neurosurgery consult. An April 2004 neurosurgeon consult indicates that the Veteran has had chronic low back pain, but with no precipitating event or trauma, and he had pain radiating down his left leg, lateral thigh, and lateral calf with occasional numbness and tingling. The assessment was foraminal stenosis on the right at L4-5 and on the left at L5-S1. In April 2004, the Veteran underwent a lumbar laminectomy at L4 and L5, bilateral foraminotomies at L4-5, an allograft autograft modeling, a sham screw placement at L4-5, and bony arthrodesis, posterior and lateral. The post-operative diagnosis was stenosis with instability. The June 2004 VA examination report indicates that there was a diagnosis of numbness left lateral calf secondary to radicular syndrome and neuropathy, probably postoperative, and diminished reflexes bilaterally reflecting L5 radiculopathy, bilateral. Examination revealed a 15 centimeter well-healed surgical scar extending from about T12 down to L5 in the mid line of the back. There is no competent evidence of record showing a diagnosis of radiculopathy of the lower extremities within one year of service separation. The Board also finds that the weight of the competent and credible evidence shows that the Veteran did not experience chronic or recurrent symptoms of radiculopathy in service or since service separation. The weight of the competent and credible evidence shows that the Veteran first began having radicular symptoms in 2002, 10 years after service separation. Thus, presumptive service connection under the provisions of 38 C.F.R. § 3.307 (a) or 38 C.F.R. § 3.303 (b) is not warranted. The evidence of record first shows radicular symptoms in 2002. Such a lengthy time interval between service and the earliest post service clinical documentation of the symptoms or disability is of itself a factor for consideration against a finding that the disability is related to service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The weight of the competent and credible medical evidence shows that the current radiculopathy of the lower extremities is caused by the lumbar spine disability and the scar on the back was due to the lumbar spine surgery in April 2004. See the October 2012 and the June 2004 VA examination reports. There is no competent evidence that relates the radiculopathy of the lower extremities or the scar to any injury, disease, or other event in active service. Accordingly, on this record, the evidence is found to preponderate against the claim for service connection for the radiculopathy of the lower extremities or the scar on a direct or presumptive basis. Therefore, service connection is denied. ORDER New and material evidence has not been received to reopen a claim of service connection for a lumbar spine disability. Entitlement to service connection for radiculopathy of the lower extremities is denied. Entitlement to service connection for scars on the back is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs