Citation Nr: 1751354 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 14-02 420 ) DATE On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for a low back disability and, if so, whether service connection is warranted. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Freeman, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1966 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran participated in a Travel Board hearing with the undersigned Veterans Law Judge (VLJ) in May 2017. A transcript of the hearing is of record. In a December 2013 rating decision, the RO granted the Veteran's claim for entitlement to service connection for a bilateral hearing loss, and the Veteran has not appealed that decision, therefore, that claim is not currently before the Board. FINDINGS OF FACT 1. The Veteran did not appeal an April 1984 rating decision that denied service connection for a lower back disability, due to the lack of evidence showing that the condition was caused or related to service, or otherwise caused or aggravated by an in-service illness, injury or event. 2. The evidence received since the June 2011 rating decision has not previously been before agency decision makers, and relates to an unestablished fact necessary to substantiate the claim.. 3. The Veteran's current low back disability is not etiologically related to disease, injury, or other event in active service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for entitlement to service connection for a back disability. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (a) (2016). 2. The criteria for service connection for a back disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment" at VA facilities. 38 U.S.C.A. § 5103A (c)(2). All records pertaining to the condition at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159 (c)(3)). In this case, VA has obtained all the Veteran's service treatment records, VA treatment records and all pertinent private treatment records. The Veteran was afforded a VA examination in March 1984 and subsequently in March 2011. Service treatment records show treatment for a back pain, however, no permanent residual or chronic disability is shown by the service medical records or demonstrated by evidence following service and no evidence of a low back disability on separation examination in September 1969. There is no current medical evidence to show that the Veteran's back disability is due to his active duty service. New and Material Evidence A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156 (a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156 (a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. For the purposes of reopening a claim, newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Id. at 117-18. Analysis The Veteran seeks to reopen service connection for a low back disability. The RO denied service connection for a low back disability in an April 1984 rating decision. The Veteran did not appeal this decision or provide additional material evidence within one year. The decision became final. New evidence was received from Dr. M.W.J, received in April 2012, which basically stated that the Veteran's back injury in 1966 caused several episodes of severe back pain with pressure on the nerve. Additionally, a letter from Dr. G.M.B., of Gainesville Family Physician, received in April 2014, stated that MRI demonstrated multilevel degenerative disc disease as well as annular tears. The doctor stated that he feels that the Veteran's back issues are a direct result of the injuries sustained while serving in the military in 1966. The Board finds that this evidence is new, as it has not previously been before agency decision makers, and material, as it relates to an unestablished fact necessary to substantiate the claim. Accordingly, the Board finds this evidence raises a reasonable possibility of substantiating the Veteran's claim for entitlement to service connection for a back disability, and the claim is reopened. Service Connection for a Back Disability The Veteran contends that service connection is warranted for a low back disability. Service connection may be established for a disability due to a disease or injury that was incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also 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). In general, in order to prevail on the issue of service connection, the evidence must show: (1) the existence of a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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. § 5107 (West 2002); 38 C.F.R. § 3.102 (2016); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical and lay evidence for the issue on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran asserts that he suffers from a low back disability which arose during or was caused by an incident of his military service. A Service Medical Record (SMR) showed the Veteran was treated in August 1966 after wrenching his back while using a crowbar. The diagnosis was muscle spasm. No other treatment is shown during his military service for a back condition and evaluation of his back on separation in 1969 showed a normal spine. The Veteran was provided with a VA examination of his back in March 1984. He reported that he has early morning stiffness. On examination he was able to flex about 75 degrees. No evidence of muscle spasm. No evidence of any pelvic tilt. There was fairly normal lumbar curve. Lateral movement was greater than 30 degrees. Rotary movement is greater than 45 degrees. The examiner noted that the Veteran was able to squat and able to walk on heels or toes. In the sitting position, straight leg raised to 90 degrees. In March 2011 the Veteran was afforded an additional examination for his low back. A diagnosis of degenerative disc disease of the lumbar spine was made. Thus the Veteran has a current disability that meets the first criterion for service connection. He complained of lower back pain. No cervical spine ankylosis was recorded. No thoracolumbar spine ankylosis was recorded. No muscle spasm, or localized tenderness or guarding severe enough to be responsible for abnormal gait or abnormal spinal contour. No objective evidence of pain on active range of motion (ROM). The examiner opined that the Veteran's degenerative disc disease (DDD) is not caused by or as a result of service. As rationale, the examiner noted that the Veteran's STR notes one complaint of low back pain in 1966. Furthermore, the Veteran's separation physical in September 1969 is silent for any mention of a low back condition. In addition, the examiner noted that the next available record of a low back pain is dated in 1984, nearly 15 years after being discharged from service. Private treatment record from Dr. M.W.J., received in April 2012 states that the Veteran's back injury in 1966 caused several episodes of severe back pain with pressure on the nerve. A VA treatment record dated in February 2014 indicates that there is no significant abnormal bone signal. The cord terminates at the T12 level. The conus appeared unremarkable. There is mild diffuse degenerative sponsylosis throughout the lumbar spine and anterior osteophyte formation. L1-L2 images demonstrate no significant canal or foramina narrowing. L2-L3 images demonstrate a mild broad-based posterior disc bulge causing no significant central canal or neuroforamina narrowing. There is mild bilateral facet arthropathy and hypertrophy. A letter from Dr. G.M.B., received in April 2014, states that the Veteran has been seen at his practice for low back issue since 1984. He reported that MRI demonstrated multilevel degenerative disc disease as well as annular tears. The doctor states he feel that the Vet's back issue are a direct result of the injuries sustained while serving in the military in 1966. In evaluating the extensive evidence of record, the Board extends greatest probative value to the March 1984 and March 2011 VA examiners' opinions and no probative weight to the private medical opinions. The two VA examiners' opinions are supported by adequate rationale, which were derived from detailed understandings of the Veteran's medical history, engaged thorough analyses of the nature of the Veteran's relevant treatment records, and are more consistent with the lack of treatment for a low back disability for about 15 years after leaving service. The Board therefore concludes that the evidence of record is not supportive of a finding that the Veteran has any current low back disability caused by his service, including the in-service back complaint in 1966. The Veteran and his family have presented lay statements in support of his contention that he has experienced recurrent back pain since service. These statements are competent evidence as to the continuity of symptoms he experienced during and after service. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). The Board notes that the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of his condition. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). However, lay witnesses are not competent to provide a medical diagnosis or an opinion as to the origin of a medical disorder. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Thereby, the Veteran is not competent to definitively state the cause of his low back disability. The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C.A. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert, 1 Vet. App. at 54-56. Therefore, given the absence of evidence that low back disability was related to service, the preponderance of the evidence is against the claim for service connection; there is no doubt to be resolved. Service connection for low back disability is not warranted. ORDER The claim for service connection for a low back disability is reopened. Entitlement to service connection for a low back disability is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs