Citation Nr: 1751795 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 12-23 982 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Whether new and material evidence has been received to reopen a previously-denied claim of entitlement to service connection for a back condition, and, if so, whether service connection should be granted. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Samuelson, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from July 1981 to December 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in January 2016. In February 2016, September 2016, and June 2017, the Board remanded the Veteran's claim for further development. The Veteran previously submitted a claim of entitlement to service connection for a back condition which was denied in a January 2009 rating decision because the Veteran was not found to have a permanent residual or chronic disability subject to service connection. The January 2009 rating decision became final because the Veteran did not submit a notice of disagreement or new evidence in connection with the claims within the appeal period. See 38 C.F.R. § 3.156(b). The May 2011, October 2011, and June 2017 VA examinations show a diagnosis of lumbar strain. Thus, the Board finds that new and material evidence has been received sufficient to reopen his previously denied claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010); Justus v. Principi, 3 Vet. App. 510, 513 (1992). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT The preponderance of the evidence shows that the Veteran's back condition is not related to service or a service-connected disability. CONCLUSION OF LAW The criteria for service connection for a back condition have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION At the Veteran's May 2011 VA examination, he contends that while working as a radio operator in service he had to carry equipment from place to place which resulted in low back pain. He contends that his back pain was better for a while, but lately he began to experience back pain. In the Veteran's August 2012 VA Form 9, he contends that he injured his low back while playing football for his company's team while on active duty. At the January 2016 Board hearing, the Veteran testified that his condition was related to his infantry duties which included marching, repelling, and carrying weight. He testified that his back always hurt during service and has continued to hurt since separation from service. He also testified that his back disability is secondary to his knee disabilities as his knee disabilities have impacted the way he walks. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) 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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The Board notes that service connection may be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a) (2012). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Veteran's service treatment records show complaints of back pain during service and a diagnosis of muscular spasm in September 1981 and muscle strain in July 1982, May 1983, and February 1984. At the Veteran's November 1984 report of medical history at separation he reported no recurrent back pain. Post-service VA treatment records show complaints of low back pain since February 2011. The May 2011, October 2011, and June 2017 VA examinations show a diagnosis of lumbar strain. The May 2016 VA examiner found the Veteran had no diagnosis of thoracolumbar spine condition. At the January 2016 Board hearing, the Veteran testified that he was diagnosed by the VA with degenerative disc disease. The Board acknowledges that an April 2011 VA treatment record shows an MRI impression as multilevel degenerative disc disease with mild spinal canal and foraminal stenosis. However, the VA treatment records show the MRI was taken that day for a lump on the base of his neck, not his back, and subsequent x-rays of the lumbar spine in May 2011 and September 2013 were normal. See May 2011 VA examination and September 2013 VA treatment record. Additionally, none of the VA examiners diagnosed multilevel degenerative disc disease with mild spinal canal and foraminal stenosis. See May 2011, October 2011, May 2016, and June 2017 VA examinations. The VA examiners' opinions regarding the relationship between the Veteran's current back condition and service were all negative. See August 2011, November 2011, May 2016, October 2016, January 2017, and June 2017 VA medical opinions. The June 2017 VA examiner also determined the Veteran's back condition is not related to his service-connected bilateral knee strains or his bilateral pes planus. There is no medical opinion of record relating the Veteran's back disability to service or a service-connected disability. To the extent that the Veteran contends that his back condition is related to his service or a service-connected condition, the Board finds that the question regarding the potential relationship between the Veteran's back condition and his service or a service-connected condition to be complex in nature. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the Veteran is not competent to provide evidence as to more complex medical questions. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Veteran does not possess the medical knowledge to attribute his back condition to his military service or a service-connected disability. Therefore, the Veteran's contention is not competent and therefore not probative. The preponderance of the evidence is against the claim, and service connection for a back condition is denied. ORDER Service connection for a back condition is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs