Citation Nr: 1756428 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 14-00 433 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for a low back condition. 2. Entitlement to service connection for a low back condition. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Fales, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1969 to September 1971. He served honorably in the United States Army. The Board thanks the Veteran for his service to our country. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. This matter was previously before the Board in August 1984, when the Board denied service connection for "a back disability" because the Veteran's "service medical records and discharge examination are negative for any complaints, symptoms or findings of a back disability" and a January 1972 VA examination report contains "no mention of any back problems." The Board also noted that "the appellant's back complaints were not reported until 1977, several years after his separation from service." In November 2016, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Pursuant to 38 U.S.C. § 5108 (2012) and 38 C.F.R. § 3.156 (2017), and in light of the "low threshold" espoused in Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the Board finds that the medical evidence and lay statements submitted by the Veteran constitute new and material evidence sufficient to reopen his claim for service connection for a low back condition. FINDINGS OF FACT 1. New and material evidence has been received since the last final denial with regard to entitlement to service connection for a low back condition. 2. The Veteran's statements as to a low back condition in-service are not credible. 3. The probative evidence of record does not support a finding of in-service incurrence of a low back condition. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen a claim for service connection for a low back condition. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.200, 20.302. 2. The criteria for service connection for a low back condition have not been met. 38 U.S.C. §§ 1101, 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Legal Criteria - Service Connection To establish direct service connection, a veteran must show (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 Jandreau v. Shinseki, 23 Vet. App. 12, 15 (2009). Where, as here, a veteran does not establish the second element of direct service connection (in-service incurrence), then the Board does not reach the third element (nexus). Accordingly, discussion of alternative theories of entitlement that apply to nexus is not warranted and the Board's analysis ends with in-service incurrence. Legal Criteria -Evaluating Lay Evidence For the purpose of evaluating lay evidence, to include a veteran's statements about the circumstances of his service, competent evidence is "limited to that which the witness has actually observed, and is within the realm of his personal knowledge." Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). For example, although a lay person is competent to report observable symptomatology of an injury or illness (such as pain or the visible flatness of his feet), a lay person is "not competent to opine as to medical etiology or render medical opinions." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Competent lay evidence may or may not be credible, that is, "plausible or capable of being believed." Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The Board may consider self-interest, bias, and consistency, among other factors, in evaluating credibility. See id. However, "the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Although the Board must adhere to guidelines when it evaluates lay evidence, "[t]his is not to say that the Board may not discount lay evidence when such discounting is appropriate. Rather, the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc." Id. at 1336-1337. If the Board finds that competent lay evidence is not credible, then the Board affords that evidence no weight in its decision. It is not probative. Service Connection - Low Back Condition In the present case, the Board finds that the Veteran has a low back condition. During the pendency of this claim in September 2013 and October 2015, VA examiners diagnosed the Veteran with back conditions to include "degenerative arthritis, lumbar spine," "congenital spinal stenosis," "intervertebral disc syndrome," and "disc herniation, lumbar spine." Therefore, the Veteran has satisfied the first element of service connection. Turning to the second element of service connection, however, the Board concludes that there is insufficient probative evidence to establish in-service incurrence. For the reasons stated below, the Board arrives at this conclusion notwithstanding the Veteran's lay statements. Over the life of this claim, the Veteran has contended that his back was injured in the process of breaking up a fight between service members in September 1970 and when he fell out of a hospital bed in connection with surgery he underwent for a pilonidal cyst in September 1971. Although his surgery has been verified, there is no corroborating evidence in the record that he fell out bed. In April 2013, VA issued a formal finding of unavailability as to records pertaining to the fight the Veteran described. The Board finds that the Veteran's statements about in-service incurrence are competent, but the statements are not credible. This is because there are statements in the record from the Veteran himself that indicate he falsified a 1975 back injury at his civilian employer in order to obtain workers' compensation. The initial statement appeared in his December 1983 substantive appeal: "I still contend that the onset of my back condition was in the service and the statement I made regarding being hurt while moving a stretcher was in desperation as that qualified me for workman's compensation otherwise I would have no means of support for my wife and four children." During the videoconference Board hearing in November 2016, he elaborated: "[The Union guys] told me to claim it as an injury suffered there on the spot so that I would get compensation, otherwise, I would be entitled to nothing . . . they did tell me to deny [any other conditions]." The Board observes that these statements go to the heart of this claim because they implicate how and when the low back condition was incurred. What is more, they demonstrate self-interest, bias, and untruthfulness for the purpose of obtaining a financial benefit regarding the very claim at issue in this appeal. Further, the Board notes that a February 2015 record of a telephone call between the Veteran and VA states that he was going through a financial hardship during the pendency of this claim. In sum, the Board finds that the Veteran's statements regarding in-service incurrence are competent, but not credible. Notwithstanding the above, the Board still has an obligation to consider the other evidence of record as to in-service incurrence. Here, the Veteran's service treatment records (STRs) show a complaint for a backache co-occurring with a high fever and sore throat in January 1970. No treatment for a backache was noted. Later, he was hospitalized for 20 days spanning August 1971 to September 1971 for surgery on a pilonidal cyst. A drawing in his STRs shows the pilonidal cyst was located in his lower back or upper buttocks area. The day after his surgery, his STRs note treatment for back pain. Following his discharge from the hospital, a narrative summary stated that "the patient's postoperative convalescence has been uncomplicated and the operative site is healing nicely." Finally, there is no mention of any back problems in the Veteran's separation examination and he wrote "I am in good health." After considering all the probative evidence of record, the Board finds that there are insufficient grounds to support a finding of in-service incurrence because the evidence does not show that a disease or injury was incurred or aggravated during service. Therefore, service connection for a low back condition remains unwarranted. ORDER New and material evidence has been received to reopen a claim of entitlement to service connection for a low back condition. Service connection for a low back condition is denied. ____________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs