Citation Nr: 1804896 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-23 493 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a back condition. 2. Entitlement to service connection for Schmorl's node. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Laroche, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from April 1984 to February 1987. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia which, inter alia, denied what was characterized as a request to reopen a previously denied claim for service connection for an old compression fracture T11-T12 with low back strain. The prior denial has been characterized as it was by the RO in the issue section of the prior decision and the reopened claim has been characterized in accordance with the Board's grant of service connection. In August 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is of record. Subsequently, additional evidence consisting of a private medical opinion was received. 38 U.S.C. § 7105(e)(1) provides that additional evidence submitted to the Board is subject to initial review by the Board, and applies to cases such as this one in which the substantive appeal was filed after February 2013. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154, section 501 (providing that this provision only applies to cases in which the substantive appeal was filed180 days after the date of the enactment of the Camp Lejeune Act, i.e., after February 2013). Additionally, in August 2017, the Veteran submitted a statement waiving regional office consideration of the additional evidence he was submitting. Thus, the Board will proceed with the decision as set forth below. FINDINGS OF FACT 1. In an April 1987 rating decision, the RO denied the Veteran's claim for entitlement to service connection for a back condition. The Veteran neither appealed this decision nor submitted new and material evidence within the one year appeal period. 2. Evidence received since the April 1987 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for a back condition and raises a reasonable possibility of substantiating the claim. 3. The evidence is at least evenly balanced as to whether the Veteran's Schmorl's node is related to an in-service back injury. CONCLUSIONS OF LAW 1. The April 1987 rating decision that denied the claim for entitlement to service connection for a low back condition is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.1103 (2017). 2. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for Schmorl's node are met. 38 U.S.C. §§ 1110, 1111, 1154, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Board notes that VA has certain duties to notify and assist the Veteran. See 38 U.S.C. §§ 5103, 5103A (West 2012); 38 C.F.R. § 3.159 (2017). Neither the Veteran nor his representative has raised any [other] issues with regard to the duty to notify or duty to assist, and none have been raised by the evidence of record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Legal Principles and Analysis A. New and Material Evidence Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran's claim for service connection for a back disability was previously denied in an April 1987 rating decision. The pertinent evidence then of record consisted of service treatment records (STRs). Service connection was denied on the basis that the RO determined that the Veteran's back condition existed prior to service and the evidence did not demonstrate a current chronic low back strain. Although notified of the April 1987 denial, the Veteran did not appeal that decision, nor did he submit new and material evidence within the remaining appeal period. Accordingly, the April 1987 rating decision is final as to the evidence then of record, and it is not subject to revision on the same factual basis. See 38 U.S.C.A. § 7105(c); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Pertinent evidence added to the claims file since the April 1987 rating decision include statements made by the Veteran, a diagnosis of Schmorl's node, and a private medical nexus opinion. The Board finds that the above-described evidence provides bases for reopening the claim for service connection for a lower back disability. Specifically, the diagnosis and nexus opinion is new in that it was not before the agency decision makers at the time of the April 1987 final denial of the claim for service connection, and is not duplicative or cumulative of evidence previously of record. Moreover, the new evidence submitted is material in that it relates to the basis for the prior denial, i.e., the lack of a diagnosis of chronic low back strain and the lack of a relationship between the low back condition and military service. Thus, the current diagnosis and private nexus opinion that the Veteran submitted relate to unestablished facts necessary to substantiate the claim for service connection for a lower back condition and also raise a reasonable possibility of substantiating the claim. See Shade, 24 Vet. App. at 110. The criteria for reopening the claim for service connection for a back condition have therefore been met. B. Service Connection 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 military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection also may be granted for a disability shown after service, when all of the evidence, including that pertinent to service, shows that it was traceable to a disease or injury incurred or aggravated in service. 38 C.F.R. § 3.303(d). 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 current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). In all cases, a Veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). In other words, "[w]hen no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry." Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The Veteran contends that his lower back disability is related to his in-service injury; specifically, an incomplete landing in Airborne school. Service treatment records reflect that on the March 1984 enlistment report of medical examination, mild scoliosis was noted by the examiner. In a September 1985 report of medical examination for Airborne School, examination revealed a normal clinical evaluation for the Veteran's spine. In June 1986, the Veteran was seen for chronic back pain and was diagnosed with T-12 well defined depression at the superior end plate of the vertical body with sclerotic margin. The pain was described as constant with muscle spasms, and the examiner noted full range of motion. In August 1986, the Veteran was again seen for lower back pain, which was noted to have improved. The examiner noted that the "TL strain [was] probably secondary to old compression fracture T-11/12." In September 1986, the Veteran was again seen for a follow up on his lower back pain. In December 1986, the Veteran was seen for his chronic lower back pain and the examiner noted that the Veteran told him that he might have an old compression fracture as a result from an accident 6 years prior to the examination. In the February 1987 separation report of medical examination, the examiner noted that the Veteran had an injury of his T-10/11/12 compression that was not documented on entrance. The examiner noted that an X-ray documented the old compression. In his December 2013 NOD, the Veteran reported that he completed a 15 mile road march with an 85 pound rucksack that aggravated his back injury. He reported two instances of trauma in service; two falls. He continued to report that an X-ray of his back was taken during his entrance physical, and also about 16 months later during his physical for Airborne or air assault training, and there was no sign of compression fracture. In his June 2014 VA Form 9, the Veteran reported that he did not have a previous injury prior to service. In August 2017, during his Board hearing, the Veteran testified that he passed the physical required for Airborne School. While he was in Airborne School, a landing went wrong which resulted in a back injury. He reported that he sought treatment for the injury in service. He reported that when he went to sick call, they did an X-ray and told him that it looked like something happened to his back. He reported that he did not know that the Airborne fall would have caused his back injury so he told them about a trailer accident he was involved in when he was 15 years old. The Veteran reported that he had pain in his back daily since he has gotten out of service. He also reported that his doctor informed him that his injury was caused by service. The Veteran submitted an August 2017 private medical opinion from Dr. G.K. Dr. G.K. noted that the Veteran reported a twist and fall in 1986, where he injured his back. He noted that the STRs reflect a mild compression fracture of the T-12 area. The Veteran reported that the only other injury he sustained occurred when he was approximately 15 or 16 years of age, but did not have a back injury. Dr. G.K. noted that the Veteran was evidently cleared of any previous back injuries prior to being airborne. He noted that August 2017 X-rays of the lumbar spine demonstrate generalized lipping and spurring consistent with osteoarthritis of the lumbar spine throughout the L5, L4, L3, L2 levels. X-rays of the thoracic spine show generalized lipping and spurring through the mid-aspect of the thoracic spine consistent with degenerative disc disease (DDD). He reported that these disorders "are essentially compatible with age and weight-bearing activity." After a review of the records, the Dr. G.K. opined that X-rays reflect significant abnormality noted at the T-12 and mild anterior wedging with a posterior height of 3.5 centimeters (cm) versus 2.8 cm anterior height. He reported that there is a Schmorl's node on the anterior superior aspect of the 12th vertebral body. He opined that these changes are compatible with an airborne injury, and reiterated, "The other changes are consistent with degenerative disc disease of the thoracic and lumbar spine [and] are consistent with the individual's age and weight." Upon review of the evidence of record, the Board finds that service connection for a lower back condition, Schmorl's node, is warranted. As an initial matter, the Board notes that in service, the Veteran reported an accident that occurred prior to service, when he was 15 or 16 years old, that could have caused his back compression. As indicated above, unless a disorder is noted at entry into service, a veteran is presumed sound in this regard unless there is clear and unmistakable evidence that shows the disorder preexisted service and was not aggravated thereby. 38 U.S.C. §1111. Here, no disorder relating to the back was noted on the entrance examination other than scoliosis. The Veteran is thus presumed to have been sound as to his back at the time of entry into service other than as to his scoliosis. Moreover, the evidence does not clearly and unmistakably show either preexistence or lack of aggravation. The Veteran explained that his remarks regarding his pre-service experiences were misinterpreted by the examiners to reflect a prior back injury where none had occurred and there is no other evidence indicating a preexisting back disorder other than scoliosis. The presumption of soundness has therefore not been rebutted. The only medical opinion of record establishes a nexus between the Veteran's Schmorl's node and his Airborne injury. Moreover, the private physician who provided this opinion explained the reasons for the opinion based on an accurate characterization of the evidence. The opinion is therefore entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). To the extent that the opinion based on the service history provided by the Veteran, such reliance only warrants the discounting of a medical opinion in certain circumstances, such as when the opinions are contradicted by other evidence in the record or when the Board rejects the statements of the veteran. See Coburn v. Nicholson, 19 Vet. App. 427, 432-433 (2006); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2006). Here, the Veteran has credibly reported that he sought treatment in service and has had continued pain since service as a result of his in-service back injury and the Board finds his testimony competent, credible, and consistent with the circumstances of his service. See 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). Moreover, there are no contrary medical opinions of record as to the etiology of his Schmorl's node. The evidence is, thus, at least evenly balanced as to whether the Veteran's diagnosed Schmorl's node, is related to his in-service injury. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for Schmorl's node is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Board notes that the grant is limited to Schmorl's node based on the same August 2017 private opinion discussed above. The physician who prepared the opinion explained that none of the other diagnosed disorders, including DDD, were related to service, but rather to the Veteran's age and weight. His opinion on this question is therefore entitled to substantial probative weight. See Nieves-Rodriguez, 22 Vet. App. at 304. There are no contrary medical opinions in the evidence of record. To the extent that the Veteran, including through his representative, has opined that his DDD is related to service, lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In this case, the Veteran's contentions as to the etiology of his DDD relate to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Compare Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (witness capable of diagnosing dislocated shoulder); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); see also Jandreau, 492 F.3d at 1377, n.4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). The Veteran's statements are therefore not competent in this regard. As the preponderance of the evidence is against service connection for a back disability other than Schmorl's node, the benefit of the doubt doctrine is not for application in this regard. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for Schmorl's node is granted. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs