Citation Nr: 1801614 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-16 377 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a lumbar spine disability. 2. Entitlement to service connection for a lumbar spine disability. 3. Entitlement to service connection for a right knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Orie, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from December 1975 to August 1979. These matters come before the Board of Veterans' Appeals on appeal from a February 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The RO in Roanoke, Virginia has assumed the role of Agency of Original Jurisdiction (AOJ). In September 2016, the Veteran testified via videoconference before the undersigned Veterans Law Judge. A copy of that transcript is of record. FINDINGS OF FACT 1. At the September 2016 Board hearing, the Veteran indicated that he wished to withdraw his appeal as it pertained to the issue of service connection for a right knee disability. 2. In an unappealed February 1980 rating decision, the AOJ denied the Veteran's claim of entitlement to service connection for a low back disability. 3. The evidence associated with the claims file subsequent to the AOJ's February 1980 rating decision is not cumulative or redundant and is new and material. 4. The Veteran's current low back disability, degenerative arthritis of the spine, was not manifested during service or within the one year presumptive period following service, and is not related to injury during service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal as it pertains to the issue of service connection for a right knee disability have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The February 1980 rating decision denying service connection for a low back disability is final. 38 U.S.C. § 4005(c) (1976); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1979). 3. New and material evidence has been received to reopen the claim for service connection for a low back disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(b) (2017). 4. Degenerative arthritis of the spine was not incurred in or aggravated by service and may not be presumed to have been incurred in or aggravated by service. 38 U.S.C. §§ 1101, 1110, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal An appellant, or his authorized representative, may withdraw an appeal or any issues therein, on the record at a hearing or in writing; such a withdrawal is effective when received. 38 C.F.R. § 20.204. At the September 2016 Board hearing, the Veteran expressed his decision to withdraw his claim for service connection for a right knee disability. Specifically, the VLJ stated, "[I]s it your contention that you want to withdrawal the service connection for the right knee disability claim?" to which the Veteran answered "[Y]eah." See Hearing Transcript, p. 2. The transcript has been reduced to writing and is of record. See Tomlin v. Brown, 5 Vet. App. 355, 357-58 (1993). Accordingly, the Board finds that the Veteran's withdrawal of the claim for service connection for a right knee disability was well informed; thus, the Board does not have jurisdiction to review this issue and the appeal, as it pertains to this issue, is dismissed. Duties to Notify and Assist VA has procedural requirements pursuant to The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096(Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (2012)) which includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2017). A review of the record does not disclose that the Veteran and his representative have specifically raised any procedural issues to the AOJ or the Board, even when construing the Veteran's contentions liberally. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (Board required to address only those procedural arguments specifically raised by the Veteran, though at the same time giving the Veteran's pleadings a liberal construction). New and Material The Veteran seeks to establish service connection for a low back disability. Service connection is established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during periods of active service. 38 U.S.C. § 1110. In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Under the applicable provisions, a claim shall be reopened and reviewed if "new and material" evidence is presented or secured with respect to a claim that is final. Evidence is considered "new" if it was not of record at the time of the last final disallowance of the claim. "Material" evidence is evidence which relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor 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. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). If it is determined that new and material evidence has been received, the claim must be reopened. VA may then proceed to the merits of the claim on the basis of all of the evidence of record. The Board must presume the credibility of evidence for the purpose of determining whether it constitutes new and material evidence needed to reopen the claims and may not assess its probative weight in relation or comparison to other evidence for reopening purposes. 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). The Veteran originally filed for service connection for a back injury in September 1979. A February 1980 rating decision denied the Veteran's claim. The relevant evidence before the AOJ at the time of the February 1980 rating decision consisted of the Veteran's service treatment records, and a November 1979 VA examination report. Based on this evidence, the AOJ denied the claim reasoning that there was no objective evidence of current residuals of the Veteran's in-service injury. The Veteran was notified of that decision but did not appeal or submit new and material evidence within one year of notification. Thus, the February 1980 rating decision became final. See 38 U.S.C. § 4005(c) (1976); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (1979). Since that time, the evidence of record consists of treatment records diagnosing degenerative arthritis of the lumbar spine. Also of record are new VA examinations and nexus opinions. The evidence is new as it was not previously associated with the Veteran's claim folder at the time of the 1980 denial. The evidence is material as it relates to the nexus criteria for service connection. See 38 C.F.R. §§ 3.156(a), 3.304(f); Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low" and in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement). Thus, the claim is reopened. The Board notes that the AOJ has considered the claim on the merits in the April 2014 Statement of the Case (SOC). As such, the Board finds no prejudice to the Veteran in adjudicating this claim on the merits at this time. See Hickson v. Shinseki, 23 Vet. App. 394 (2010). Service Connection The Board notes that it has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. The Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). As previously noted, 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. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases, including arthritis, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of a chronic disease in service, there is required a combination of manifestations 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." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009); see also Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107 (b)). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Turning to the facts of the case at hand, the Veteran avers that his current low back disability stems from an in-service motor vehicle accident. For the reasons that follow, the Board finds that service connection on either a presumptive or direct basis is not warranted. Service treatment records reflect that in March 1979, the Veteran was involved in a motor vehicle accident, in which he was thrown from a truck. Upon examination, he was diagnosed with a contusion and a back sprain. X-rays were within normal limits. Upon discharge, the Veteran's spine was noted as clinically normal; however, the Veteran reported having continuing problems with his back. In September 1979, the Veteran filed his original application for service connection for a low back and right leg disability. On a VA orthopedic examination in November 1979, the Veteran reported his in-service injury to the low back and right leg which he recalled was evaluated as a pulled muscle. Since that injury, the Veteran denied further difficulty with his right leg but did report recurrent low back pain which was worse in the morning. He otherwise described lower back aches which felt like muscle spasms. He had no pain at the time of examination. Examination of the lumbar spine revealed no spasm of deformity with full range of motion including touching of the toes with ease. X-ray examinations from multiple views were interpreted as showing no demonstrable evidence of abnormalities. The examiner found that no orthopedic pathology of the lumbar spine was demonstrated. In pertinent part, the post-service treatment records document a 2010 diagnosis of degenerative arthritis of the lumbar spine. However, treating physicians did not provide an etiology. The Veteran was afforded a VA examination in June 2012. The Veteran reported having intermittent back pain since service. Upon examination of the Veteran and review of the record, the clinician opined that the Veteran's current degenerative arthritis was less likely than not caused by or a result of the in-service motor vehicle accident. In so finding, the clinician noted that the Veteran's in-service injury was an acute injury that did not result in fracture or structural injury to spine. The AOJ sought an addendum opinion in April 2014. The clinician again provided a negative nexus, reasoning that following the motor vehicle accident, the Veteran had muscular spasms, but did not endorse issues directly related to his spine. X-rays at the time revealed a normal spine and the Veteran did not require additional care for his back injury. The clinician went on to state that muscular injuries do not cause degenerative arthritis. Rather, it appears that the Veteran's degenerative arthritis was caused by chronic use, aging, and a genetic loss of fluid in the disc spaces. Upon review of the evidence, the Board finds that service connection for a low back disability is not warranted on either a direct or presumptive basis. In so finding, the Board acknowledges the Veteran's statements, in which he relates his current disability to service and reports continued pain since service. As a lay witness, the Veteran is certainly competent to attest to his symptoms, to include pain. However, the Board finds that the Veteran is not competent to provide a diagnosis and/or etiology for his recurrent back pain. Such an opinion requires medical knowledge and training of an internal disease process, which the Veteran is not shown to possess. As for the statements describing continued pain since service, the Board affords these statements little probative value as to the issue of whether arthritis manifested in service or within one year from service discharge. Degenerative arthritis, defined as osteoarthritis, is defined as a non-inflammatory degenerative joint disease characterized by degeneration of the articular cartilage, hypertrophy of bone at the margins, and changes in the synovial membrane; these symptoms are often accompanied by pain. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, pp. 150, 1334 (32nd ed. 2012). The symptom of pain, without more, is not enough to demonstrate that degenerative arthritis was manifested within the requisite period. The November 1979 VA orthopedic examiner, who then considered the Veteran's report of recurrent back pain, found no orthopedic pathology and a radiologist found that x-rays were normal. Thus, the November 1979 VA orthopedic examiner and the 1979 radiologist interpretation of x-ray results provides competent, probative evidence that arthritis was not manifest in service or to a compensable degree within one year of service discharge. Additionally, the Veteran was not formally diagnosed with arthritis until 2010. This competent evidence greatly outweighs the lay report of continuity of symptomatology as it pertains to whether the Veteran's pain symptoms alone were sufficient to identify the onset of arthritis. Thus, the lay statements are not sufficient to establish service connection for arthritis of the spine including on the basis of continuity under 38 C.F.R. § 3.303(b) or on a presumptive basis under 38 C.F.R. §§ 3.307 and 3.309. In regards to direct service connection, the most probative evidence of record is the April 2014 VA opinion. The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The April 2014 VA addendum opinion reviewed the Veteran's record and statements and used both the facts of the case and objective medical principles to support the negative nexus opinion. This clinician considered the type of injury the Veteran incurred in service and explained why such an injury did not cause the current disability. The Board finds that this nexus opinion is highly probative as to the issue of etiology. There are no competent opinions to the contrary. In sum, the Board finds that the most probative evidence of record is against the claim. Service connection for a low back disability is not warranted on either a direct or presumptive basis. The benefit-of-the-doubt rule is not applicable because the evidence is not in relative equipoise. ORDER The claim of entitlement to service connection for a right knee disability is dismissed. The claim of entitlement to service connection for a low back disability is reopened. Service connection for a low back disability is denied. ____________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs