Citation Nr: 18145079 Decision Date: 10/26/18 Archive Date: 10/25/18 DOCKET NO. 16-00 825 DATE: October 26, 2018 ORDER 1. The application to reopen the claim of entitlement to service connection for a back disability is granted. 2. The reopened claim of entitlement to service connection for a lumbar spine disability, to include degenerative disc disease, is denied. FINDINGS OF FACT 1. The Veteran did not appeal or submit evidence within one year of the June 2008 rating decision that denied service connection for a back disability. 2. Evidence associated with the claims file after the June 2008 rating decision relates to an unestablished fact, is not cumulative or redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim for service connection for a back disability. 3. The most probative evidence establishes that a lumbar spine disability, to include degenerative disc disease, did not have its onset in or is otherwise caused by or related to active service. CONCLUSIONS OF LAW 1. The June 2008 rating decision that denied service connection for a back disability is final. 39 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. After the final June 2008 rating decision, new and material evidence has been received and requires reopening of the claim of entitlement to service connection for a back disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for a lumbar spine disability, to include degenerative disc disease, have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1972 to June 1975. This matter is before the Board of Veterans’ Appeals (Board) on appeal of the July 2013 and September 2014 Department of Veterans Affairs (VA) Regional Office (RO) rating decisions. 1. Criteria to Reopen a Claim In September 2007, the Veteran applied for a disability compensation for a back condition. In June 2008, the RO denied service connection for a back disability. The Veteran did not initiate an appeal of the June 2008 rating decision and did not submit new and material evidence within one year of the decision. Thus, the June 2008 rating decision became final. See 39 U.S.C. § 7105; 38 C.F.R. § 20.1103; Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007). After the June 2008 rating decision became final, the Veteran made additional submissions asserting a degenerative disc disease (DDD) disability. The RO reopened the Veteran’s claim and denied service connection for DDD, previously claimed as a back condition. New evidence is evidence not previously submitted to the VA. Material evidence is evidence that, when considered by itself or 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, and must raise a reasonable possibility of substantiating the claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). A presentment of new and material evidence requires reopening of a finally disallowed claim. Here, the Veteran’s submissions made after the June 2008 rating decision became final included medical opinions rendered by the Veteran’s private physician in August 2011 and May 2014. The opinions alleged that the Veteran had suffered a back injury in February 1974 because of lifting heavy equipment. The opinions constitute new and material evidence because: (1) they were newly associated with the record; (2) relate to the fact of whether the Veteran suffered an in-service injury that could relate to the Veteran’s DDD; and (3) raise a reasonable possibility of substantiating his claim. Thus, reopening of this case is required. Solely for the purposes of reopening, the August 2011 and May 2014 opinions are deemed credible. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). 2. Criteria for service connection for a lumbar spine disability, to include degenerative disc disease Service connection may be granted for a disability resulting from an injury or disease incurred in service. See 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. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for service connection for a lumbar spine disability, to include degenerative disc disease. The reasons follow. The in-service injury asserted by the Veteran has been a moving target. During his June 2013 VA examination, the Veteran stated that he first injured his back diving and then injured it again while throwing heavy material overboard. The sequence and context of these statements correspond to the sequence and context of the STR entries made in June and November 1974. However, the November 1974 STR entry reflected the Veteran’s report that he injured his shoulder, and not his back. In sync with the STR entries, the Veteran’s August 2011 brief asserted only the diving injury. However, in March 2006, the Veteran reported to a VA medical practitioner that he had no injuries at all. In contrast, the August 2011 and May 2014 opinions rendered by the Veteran’s private physician alleged that the Veteran hurt his back in February 1974, when he was cleaning the ship and had to lift heavy equipment. The August 2011 and May 2014 opinions also alleged that the Veteran reported this lifting injury to a medic who treated the Veteran the same day, but the medic: (1) did not create any record of the Veteran’s report about the lifting injury; (2) merely wrote the phrase “back pains”; and then proceeded to (3) extensively detail the Veteran’s chest congestion and cough, and the treatment the Veteran received for those symptoms, even though the Veteran considered those symptoms minor. The STR contains five relevant entries: a January 1975 entry, a November 1974 entry, a June 1974 entry, and two back-to-back entries made on consecutive dates in February 1974. The January 1975 entry recorded the Veteran’s report about a back pain he experienced while defecating, and his treatment for digestion. The November 1974 entry reflected the Veteran’s report that he injured his shoulder throwing heavy material overboard, and the treatment he received for his shoulder. The June 1974 entry recorded the Veteran’s report that he injured his back diving and then experienced a back pain for one day while sitting and walking, and the treatment the Veteran received for that pain. The two entries made in February 1974 are consecutive. The first entry recorded the Veteran’s report that gas was causing him chest pain and he was treated for digestion, while the second entry detailed the Veteran’s complaints about chest congestion and cough, recorded the medications the Veteran was treated with for these symptoms, and included a phrase “back pains” at the top of the entry. Read in toto, these STR entries indicate that the medic invariably detailed all injuries and symptoms the Veteran reported, and all treatments he received. These entries are inconsistent with the allegation that the medic grossly deviated from the usual practices and patterns of note taking in February 1974, and solely as to the portion of the Veteran’s report that his back pain was caused by a lifting injury. Moreover, the evidence of record shows that: (1) the Veteran did not report a lifting injury to a VA examiner or medical practitioner treating him post service; (2) the Veteran did not allege a February 1974 lifting injury in any document he executed for filing with the RO or the Board; and (3) the February 1974 injury was alleged only in the private physician’s August 2011 and May 2014 opinions, which stated that the opinions were prepared as litigation material, in response to the Veteran’s statement that he had been unsuccessful in his efforts to obtain a disability compensation based on the Veteran’s DDD of the lumbar spine. In light of the foregoing, the Board finds the factual allegations raised in the August 2011 and May 2014 opinions not credible. A medical expert who is competent to testify about medical issues in a case is not competent to testify about a factual issue to which the expert was not an eyewitness. See Jones v. West, 12 Vet. App. 383, 386 (1999). However, and notwithstanding the foregoing, the Board finds that, under the benefit-of-the-doubt rule, the Veteran established that he had injured his back in service while diving. Therefore, the in-service element of the direct service connection test is met. To establish the nexus element, the Veteran relies on the August 2011 and May 2014 opinions. An indecisive and qualitative language used by a medical professional is a factor for evaluating the probative value of an opinion. See Obert v. Brown, 5 Vet. App. 30, 33 (1995). Furthermore, to render a probative opinion, a medical expert must be informed of relevant facts. See Nieves Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008). Paramount here, such facts must be accurate. See Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005). If an expert medical opinion is premised on a factual history provided by a veteran, and the history is not true or accurate, the expert’s opinion is of no value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In this case, the Veteran’s physician: (1) based his August 2011 and May 2014 opinions on an assumption that the Veteran injured his back in February 1974 by lifting heavy equipment; and (2) opined that an act of lifting heavy equipment was “compatible” with the “biomechanical mechanism” of injuring one’s lumbar spine, and a DDD in the L4 L5-S1 lower spine was not typical for a 60-year-old male. Because the August 2011 and May 2014 opinions are: (1) based on a fact that the Board finds is not credible; (2) comment on a hypothetical compatibility between a not credible injury and a present disability, and on the typicality of a disease within a certain age-and-gender category, rather than on the Veteran’s actual circumstances, the August 2011 and May 2014 opinions are entitled to no probative weight. In contrast, given that a lumbar spine disability is capable of lay observation, the Veteran was competent to report his in-service difficulty to sit and walk after diving, and he is competent to report his current difficulty to bend, sit, and walk. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The burden, however, is on the Veteran to establish, by an equipoise evidentiary standard, that the independent medical evidence supports a finding that his in service injury is related to his present disability. See 38 U.S.C. §§ 1153, 5107; 38 C.F.R. §§ 3.102, 3.306. In this case, the Board finds that the Veteran’s lay opinion is outweighed by the June 2013 VA examiner’s opinion. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Because the Veteran is not shown to possess the expertise to render a nexus opinion regarding the etiology of his present disability, the preponderance of the evidence is against the finding of a nexus between the Veteran’s present disability and his in service injury. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Therefore, the benefit-of-the-doubt rule is not applicable here, and service connection for a lumbar spine disability, to include degenerative disc disease, is denied. The Board notes that in the Appellant’s Brief, the Veteran, through his representative, cited to the “chronic disease” provisions of 38 C.F.R. § 3.309(a) when addressing the diagnosis of degenerative disc disease. However, the degenerative disc disease is not the same as degenerative joint disease, which is a chronic disease (arthritis). The Board has not applied the chronic disease provisions to the diagnosis of degenerative disc disease, and the evidence does not show that the Veteran has been diagnosed with degenerative joint disease or arthritis. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Anna Kapellan, Associate Counsel