Citation Nr: 18152384 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 15-13 681 DATE: November 21, 2018 ORDER New and material evidence has been received to reopen a claim of entitlement to service connection for lumbar strain; to this limited extent, the appeal is granted. Entitlement to service connection for lumbar disability is denied. REMANDED The issue of entitlement to a compensable rating for migraine cephalgia is remanded. FINDINGS OF FACT 1. The October 2008 rating decision, which considered and denied the Veteran’s claim of service connection for lumbar strain is final. 2. The evidence received since the October 2008 rating decision is not cumulative of the evidence previously of record and relates to an unestablished fact necessary to substantiate the service connection claim for lumbar strain. 3. The preponderance of the evidence indicates that the Veteran does not have a lumbar disability that is related to a disease, injury, or event in service. CONCLUSIONS OF LAW 1. The October 2008 rating decision that denied the Veteran’s claim of entitlement to service connection for lumbar strain is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2018). 2. The evidence received since the October 2008 rating decision is new and material, and the claim of entitlement to service connection for back disability is reopened. 38 C.F.R. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. The criteria for entitlement to service connection for lumbar disability have not been met. 38 U.S.C. § (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Navy from September 2000 to December 2005, and in the U.S. Army from August 2007 to April 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision issued by the Department of Veterans Affairs (VA), Regional Office in Winston-Salem, NC. 1. New and Material Evidence Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. 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 is defined as existing evidence not previously submitted to agency decisionmakers. 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). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this new low threshold is met, VA should not limit its consideration to whether the newly submitted evidence related 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, to include by triggering the Secretary’s duty to assist. Id. at 118. In a June 2007 rating decision, the RO denied an original claim of service connection for back disability. The Veteran filed an informal appeal in April 2008. In an October 2008 rating decision, the RO again denied the claim finding that despite a record of treatment in service for low back pain, the evidence indicated no current residuals of the in-service problem. In fact, a November 2007 examination report showed there was no pathology to render a diagnosis. Inasmuch as the Veteran did not appeal the October 2008 decision, the decision became final. See 38 C.F.R. §§ 3.156(b), 20.1103. In August 2011, Veteran submitted a request to reopen her claim to entitlement for service connection for lumbar disability. Evidence received after the October 2008 rating decision from the Fayetteville VA Medical Center demonstrates the Veteran’s diagnosis with degenerative disc disease and degenerative joint disease of the lumbosacral spine. (See December 2011 MRI findings). Because such diagnosis was not present prior to 2008, this evidence is sufficient to reopen the previously-denied claim. The foregoing evidence is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim. Therefore, this evidence is new and material, and reopening of the claim is warranted. 2. Entitlement to service connection for lumbar disability The Veteran contends that she is entitled to service connection for lumbar disability. She alleges that she has suffered from chronic low back pain since 2007. Service connection is warranted where evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For Veterans who served 90 days or more of active service during a war period, or after December 21, 1946, certain chronic disabilities, including degenerative arthritis, are presumed to have been incurred in service if they manifest to a compensable degree within one year of discharge from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 263 (2015). The Veteran has a current diagnosis of degenerative disc disease and degenerative joint disease of the lumbosacral spine at L4-L5 and L5-S1. (See December 2011 MRI findings). Further, her service treatment records (STRs) indicated an injury during service. The STRs show that as a pedestrian she was injured by a drunk driver in a vehicular accident in 2003. The record shows the Veteran was treated for musculoskeletal back pain and lumbar strain in April, July, and August 2004. Notably, a November 2005 Report of Medical History reflects the 2003 accident resulted in no complications and was not considered disabling. The Veteran’s medical assessment at separation from the U.S. Navy in December 2005 was negative for any back problems. Further, service treatment records show that she denied back pain in January and April 2007. A subsequent U.S. Army enlistment exam in July 2007 is also negative for any back problems. In fact, the Veteran denied any injuries during OEF/IOF. Post-service, the Veteran’s VA outpatient medical record reflects intermittent evidence of low back pain. In January, April, and July 2007, prior to joining the Army, the Veteran denied back pain. The next complaints of back pain are documented in brief entries with limited treatment descriptions during January, August and December 2011; January 2012; December 2013; January 2015; January 2016; August, October and December 2017; January, April, July, and August 2018. The Veteran has been afforded two VA examination. In a July 2008 VA report, it is indicated that the Veteran reported intermittent episodes of lower back stiffness since November 2007. The examiner noted there was no indication of a history of trauma, and the Veteran denied current symptoms, treatment or functional impairment. The examiner explained that a May 2008 radiograph of the lumbar spine showed good alignment throughout the lumbar spine with disc spaces preserved, vertebral body height maintained, and unremarkable SI joints. The examiner concluded that there was no diagnosis for the claimed lumbar spine condition because there was no pathology during the examination. In a second VA examination report, dated in October 2014, the examiner considered the Veteran’s history of low back pain complaints and the injury she sustained in-service. The examiner explained that although the Veteran complained of low back problems after the automobile accident, the medical assessment at separation and subsequent enlistment exam were negative for any back problems. The examiner reasoned that the Veteran’s in-service complaints were secondary to the vehicular accident, but were transient and had resolved without residuals. Recognizing the Veteran’s spinal taps in 2007, the examiner opined that the Veteran’s current degenerative disc disease and degenerative joint disease is less likely than not related to her in-service back trauma or spinal taps. The examiner explained that the preponderance of currently established scientific and medical literature do not support a relationship between spinal taps and chronic back pain problems, including the Veteran’s current degenerative disc disease or degenerative joint disease of the spine. The Board has considered the Veteran’s assertions that her back disability is related to service. While the Veteran is competent to report symptoms such as pain and limitation, which are within the realm of her personal experience. But she is not competent to independently opine as to the specific etiology of her claimed condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Thus, as a layperson, the Veteran is not competent to opine on a complex medical question of etiology, as this requires medical expertise. Consequently, lay assertions of medical diagnosis or etiology cannot constitute evidence upon which to grant the claim of service connection in this case. For this purpose, the Board finds the Veteran’s statements have little probative value and the Board assigns more weight to the medical opinions provided by the 2014 VA examiner. On the question of continuity of symptomatology, the record lacks evidence in favor of finding continuity. First, during her Navy separation exam, in November 2005, the Veteran reported no complications from the vehicular accident. Second, the Veteran denied having any recurrent back pain or any back problem in 2005 and 2007. Third, while the Veteran reported intermittent episodes of back stiffness, during her June 2008 VA exam she denied current symptoms, treatment or functional impairment. Fourth, diagnostic studies in 2011 and 2014 showed a normal lumbar spine. 38 C.F.R. § 3.309(b) (2017). Likewise, there is no evidence to support a finding of chronicity because the condition did not manifest to a compensable degree within one year from the date of separation of service. 38 C.F.R. § 3.309(a) (2017). Upon review of the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran’s claim of service connection for lumbar disability. In this regard, the Board finds that the October 2014 VA medical opinion constitutes the most probative medical evidence of record. The VA examiner provided a reasoned analysis of the case to support a conclusion that there is no reliable evidence linking a lumbar disability to service, because of the absence of back pain complaints or treatment for a period of years after service. Although the Veteran has established a diagnosed disability for lumbar disability, the preponderance of the evidence is against a finding that the disability was caused by or incurred in service. Accordingly, the “benefit of the doubt” rule is not applicable and the Board must deny the claim. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND Entitlement to a compensable rating for migraine cephalgia is remanded. An October 2008 rating decision granted service connection for migraine cephalgia rated at 0 percent effective April 24, 2008. In January 2011, the Veteran filed Form VA 21-526b, seeking an increased rating for this disorder. The May 2012 rating decision denied the increased rating claim. The Veteran timely appealed the decision. The Veteran underwent VA examination into her claim. The report of record is not adequate for rating purposes, however. The examiner noted that the Veteran’s treatment records did not show the claimed condition was treated chronically since her discharge in 2008, and noted that she is not under the care of a physician for the condition. Further, the examiner remarked that review of the available VA treatment records did not document prostrating or incapacitating migraine headaches since service. However, there is no indication that the examiner considered whether the Veteran’s claims regarding the severity of the claimed condition did not adequately address the Veteran’s contentions that her condition has worsened. Indeed, the Board find that the medical evidence suggests a worsening of the Veteran’s migraine disability since the August 2011 VA examination. Particularly, the Veteran avers that the frequency and severity of the headaches can be one continuous week of headache in a month or can last 1-2 days represent prostrating headache attacks. She reported that when she gets headaches, she needs to go to a dark room, experiences nausea, rare vomiting, bifrontal/temporal throbbing pressures, sees black spots in vision, and experiences photo and phonophobia and alleges that she is unable to do any activities when she is experiencing a migraine headache attack. Medical records since August 2011 demonstrate an ongoing history and complaint of worsening migraine headaches: An April 2014 record indicates intractable migraines, denoting frequency of 1-2 times per week. An October 2014 report denotes that the Veteran can have one continuous headache in a month or a headache that may last 1-2 days. Notably, a December 2015 Brain MRI diagnostic report indicates the Veteran has a tiny left posterior parietal while mater lesions of unspecified etiology. A February 2015 report highlights follow-up for chronic headaches with little improvement, noting semiology is consistent with migraines, possibly complicated by untreated hypertension. In March 2015 the Veteran reported that her migraines had been worsening over the last four to five years. Intermittent migraine history is reported during January 2016, August 2016, December 2017, January 2018. Most recently, an April 2018 record states the Veteran suffers migraines on/off three times per week. VA’s duty to assist includes providing an adequate examination when such an examination is indicated. See Sefl v. Nicholson, 21 Vet. App. 120, 123 (2007). An examination is adequate if it takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). An examination must be based upon consideration of the Veteran’s past prior history and examinations. Stefl, 21 Vet. App. At 123. Based on the foregoing, the Veteran should be provided with a new VA examination into this claim. The matter is REMANDED for the following action: 1. Associate with the claims file copies of outstanding clinical records of all VA/private treatment the Veteran has received for her migraine headaches. 2. Schedule a VA examination to determine the nature and severity of the headache disorder. After reviewing the claims file, the examiner should comment on: (a) whether the Veteran has had any prostrating (incapacitating) attacks of migraine headaches over the preceding 12-month period, and if so, the frequency and duration of such prostrating attacks; (b) whether the Veteran’s migraines have been characterized by very frequent completely prostrating and prolonged attacks that have been productive of severe economic inadaptability; (c) all functional loss associated with the Veteran’s migraine headaches, to include limitations of activities of daily living and occupational functioning. (Continued on the next page)   The examiner must explain the rationale for all opinions, citing to supporting factual data and medical literature, as deemed appropriate. The examiner should also note and discuss as appropriate the Veteran’s lay statements that she experiences prostrating migraine headache attacks. CHRISTOPHER MCENTEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Steele, Associate Counsel