Citation Nr: 18140990 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-03 312 DATE: October 9, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for a low back disorder, previously characterized as status post back injury, is reopened; the appeal is granted to this extent only. Service connection for a low back disorder is denied. FINDINGS OF FACT 1. In a final rating decision issued in June 2006, the Agency of Original Jurisdiction (AOJ) denied service connection for a low back disorder, characterized as status post back injury. 2. Evidence associated with the record since the final June 2006 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a low back disorder. 3. A low back disorder is not shown to have a causal or etiological relationship to any disease, injury, or incident during service, and arthritis did not manifest within one year of service discharge. CONCLUSIONS OF LAW 1. The June 2006 rating decision that denied service connection for a low back disorder, characterized as status post back injury, is final. 38 U.S.C. § 7105(c) (West 2002) [(2012)]; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2005) [(2017)]. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a low back disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for a low back disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1961 to August 1964. This matter comes to the Board of Veterans Appeals (Board) on appeal from a rating decision issued in April 2015 by a Department of Veterans Affairs (VA) Regional Office (RO). 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a low back disorder, previously characterized as status post back injury. In the instant case, the Veteran’s claim for service connection for a low back disorder, characterized as status post back injury, was initially denied in a June 2006 rating decision. At that time, the AOJ considered his service treatment records and post-service private treatment records, but found that the evidence failed to show that the Veteran’s current low back disorder occurred in or was caused by service. In this regard, the AOJ noted that the Veteran’s service treatment records reflected that he was treated for a back condition in October 1962 and there was evidence of a current back disorder; however, there was no link/relationship shown between the 1962 treatment and his currently diagnosed back disorder. The AOJ also noted that the Veteran was a retired construction worker. Later that month, the Veteran was informed of the decision and his appellate rights; however, he did not enter a notice of disagreement. Furthermore, no new and material evidence was physically or constructively received within one year of the issuance of such decision and no relevant service department records have since been received. In this regard, the Board notes that the Veteran’s service personnel records were received in December 2014; however, such are irrelevant to the instant matter. Therefore, the June 2006 rating decision is final. 38 U.S.C. § 7105(c) (West 2002) [(2012)]; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2005) [(2017)]. Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 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 which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing 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 of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. See Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). As noted previously, the Veteran’s previous claim was denied due to a lack of evidence showing a nexus between his current low back disorder and his military service, to include his documented in-service treatment for back complaints. The evidence received since the final June 2006 rating decision includes an August 2014 letter from the Veteran’s private physician in which he opined that the Veteran’s in-service injury to his back contributed to his current low back disorder and the degenerative process was worse as a result of the 1962 injury. Consequently, the Board finds that the evidence associated with the record since the final June 2006 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a low back disorder. Therefore, new and material evidence has been received and the claim is reopened. As the AOJ considered the Veteran’s claim for service connection for a low back disorder on the merits in the April 2015 rating decision and January 2016 statement of the case, there is no prejudice to him in the Board adjudicating such claim on the merits at this time. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). 2. Entitlement to service connection for a low back disorder. The Veteran contends that his current low back disorder is related to an in-service injury. In this regard, he asserts that he was hospitalized in service after he fell from a water tanker truck. He further reports that he has experienced low back pain, for which he has sought treatment, since his separation from service. Therefore, the Veteran claims that service connection for a low back disorder is warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as arthritis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease enumerated in 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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. §5107; 38 C.F.R. §3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As an initial matter, the Board notes that the record reflects that the Veteran has a current diagnosis of a low back disorder, to include degenerative arthritis and degenerative disc disease, as confirmed by the April 2015 VA examination. His service treatment records reflect that, in October 1962, he complained of pain in the small of his back for the prior two days. It was noted that he was carrying sand bags. It was also observed that the Veteran had a history of low back pain with an onset after heavy lifting. Upon examination, he had limited back motion and muscle spasms in the lumbar area. Service treatment records dated a week later reflect continued complaints of back pain and muscle spasms, but X-rays of the lumbar spine were normal. At the time of the Veteran’s June 1964 separation examination, he reported that he was in good health, but had back trouble in the past. However, a contemporaneous examination revealed that his spine was normal upon clinical evaluation. Furthermore, despite the Veteran’s report of an in-service hospitalization after a fall from a water tanker truck, there is no indication in his service treatment or personnel records that he was hospitalized at any point. After service, the Veteran reported that he sought treatment from a private physician, Dr. Sullivan; however, no records are available as such physician has passed away. Since leaving Dr. Sullivan’s care, the Veteran has been treated by the same physician, Dr. Cambareri, for his back pain since he incurred a low back injury in a Worker’s Compensation incident in 1987. In this regard, the Veteran’s statements to such private physician indicate that he has continuously described his back pain as stemming from such post-service injury. However, in an August 2014 letter, Dr. Cambareri noted that he had treated the Veteran for many years for chronic lower back problems and there was evidence of degenerative disease of the lumbar spine. He further indicated that the Veteran had described an injury that occurred while he was in the service in 1962. Dr. Cambareri then stated that it was clear to him that the injury that occurred in the service is a contributing factor to the Veteran’s ongoing back pain, and the degenerative process is worse as a result of the injury of 1962. However, as Dr. Cambareri did not provide a rationale for his opinion, or address the impact of the intervening Worker’s Compensation injury in 1987, the Board affords no probative weight to such opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). In contrast, in April 2015, a VA examiner reviewed the record, interviewed the Veteran, and conducted a physical examination. In this regard, she specifically noted the Veteran’s contention that his service treatment records were inaccurate as he did not injury his back while lifting sandbags. Rather, he alleged that he injured his back when he fell off a water tanker truck, resulting in a hospitalization. She also observed that the Veteran reported that he had back pain off and on after service, and in 1987, had a Worker’s Compensation injury when he was hit by a machine for which he had consistently sought treatment. The examiner ultimately opined that the Veteran’s low back disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In this regard, she specifically considered the Veteran’s in-service complaints, his Worker’s Compensation injury in 1987, Dr. Cambareri’s August 2014 opinion, and his interview and examination, but found that the Veteran worked construction for 32 years, which caused wear and tear on his spine, and his treatment began in 1987 following a Worker’s Compensation injury. Consequently, the examiner found that the Veteran’s low back disorder was not related to his military service. The Board affords great probative weight to the April 2015 VA examiner’s opinion as such is predicated on a review of the record, to include the Veteran’s service and post-service treatment records, and consideration of his statements as well as a current examination. Further, the examiner provided a complete rationale, relying on and citing to the records reviewed, and offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. Id. In reaching this decision, the Board has considered the Veteran’s statements in support of his claim. While he is competent to report his in-service back injury, as well as his symptoms, the Board finds he is not competent to offer an opinion as to whether his low back disorder is related to any instance of his service since he does not possess the requisite medical knowledge to offer such an opinion. Specifically, the etiology of such disorder, to include whether such is related to his in-service exposure to a specific in-service injury, involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Therefore, as such is a complex medical question, the Veteran is not competent to offer an opinion as to the etiology his low back disorder, and, consequently, his opinion on such matter is afforded no probative weight. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). The Board has also considered whether presumptive service connection for arthritis of the back is warranted. However, the Veteran’s service treatment records reflect that X-rays of his lumbar spine in October 1962 were normal and, while he reported prior back trouble at his June 1964 separation examination, he indicated that he was currently in good health and a contemporaneous examination revealed that his spine was normal upon clinical evaluation. Further, the first indication of a diagnosis of a low back disorder is in November 2001. Moreover, while he has reported treatment from Dr. Sullivan after service, such records are unavailable, and those from Dr. Cambareri reflect the Veteran’s consistent reports that his back pain as stemmed from his Worker’s Compensation injury in 1987. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (ascribing heightened credibility to statements made to clinicians for the purpose of treatment); see also Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I. 2003) (noting that statements made for the purpose of diagnosis or treatment “are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care”). Finally, the Veteran only reported back pain off and on since service at his April 2015 VA examination. Therefore, as the medical evidence does not show a diagnosis of arthritis within the first post-service year, and the Veteran has offered conflicting statements in regard to a continuity of back symptomatology since service, the Board finds that presumptive service connection for arthritis is not warranted. Based on the foregoing, the Board finds that a low back disorder is not shown to have a causal or etiological relationship to any disease, injury, or incident during service, and arthritis did not manifest within one year of service discharge. Consequently, service connection for such disorder is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim for entitlement to service connection for a low back disorder. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 8 U.S.C. 5107; 38 C.F.R. 3.102; Gilbert, supra. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Gardner Gaye, Associate Counsel