Citation Nr: 18153191 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 16-50 449 DATE: November 28, 2018 ORDER New and material evidence having been received, the claim for service connection for a low back disorder is reopened. Entitlement to service connection for a low back disorder, to include spinal stenosis, degenerative disc disease, and intervertebral disc syndrome, is denied. FINDINGS OF FACT 1. A claim for service connection for a low back disorder was denied by the RO in November 2011, and no new and material evidence pertinent to this claim was received by VA within one year from the date that the RO mailed notice of this adverse determination to the Veteran; this rating action was the last final denial as to this issue on any basis before the present attempt to reopen the claim. 2. Evidence received since the November 2011 rating decision is new and raises a reasonable possibility of substantiating the underlying claim for service connection for a low back disorder. 3. The Veteran’s current low back disorders, diagnosed as spinal stenosis, degenerative disc disease, and intervertebral disc syndrome, were not present in service or manifest to a compensable degree within one year of service discharge and are not otherwise related to service or service-connected disability. CONCLUSIONS OF LAW 1. The November 2011 rating decision that denied service connection for a low back disorder is final; new and material evidence has been received sufficient to reopen this previously denied and unappealed claim. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.156(a), 20.1103 (2018). 2. The criteria for service connection for a low back disorder, diagnosed as spinal stenosis, degenerative disc disease, and intervertebral disc syndrome are not met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service with the United States Army from February 1992 to December 1996. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. New and Material Evidence The Veteran seeks to reopen a previously denied claim for service connection for a low back disorder. In this regard, once a decision becomes final, absent submission of new and material evidence, a claim may not thereafter be reopened or readjudicated by VA. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a); Suttman v. Brown, 5 Vet. App. 127, 135 (1993). New evidence means existing evidence not previously submitted to agency decision makers. 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 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Moreover, if it is determined that new and material evidence has been submitted, the claim must be reopened and considered on the merits. Elkins v. West, 12 Vet. App. 209 (1999). In determining whether evidence is new and material, the credibility of the new evidence is, preliminarily, to be presumed. If the additional evidence presents a reasonable possibility that the claim could be allowed, the claim is accordingly reopened and the ultimate credibility or weight that is accorded such evidence is ascertained as a question of fact. 38 C.F.R. § 3.156; Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In the November 2011 rating decision, the RO denied service connection for spinal stenosis on the basis that there was no evidence of a chronic low back condition shown in the service treatment records or that his currently diagnosed low back disorder was incurred in or aggravated by service or was secondary to service-connected disability. This rating decision became final because no notice of disagreement or new and material evidence was submitted within one year of the date on which it was issued. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156 (b), 20.1103; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52(2010). This rating action was the last final denial as to this issue on any basis before the present attempt to reopen the claim. However, the evidence received since then is both new and material to the claim. Such evidence consists of a May 2014 VA examination opinion indicating a possible correlation between the Veteran’s diagnosed lumbar disc disease and his military service. This evidence relates to unestablished facts necessary to substantiate the claim and raises a reasonable possibility of doing so. This new evidence, in conjunction with VA’s duty to assist, requires reopening. Shade, 24 Vet. App. at 117. Accordingly, the claim is reopened. Given that the RO previously reopened the Veteran’s claim and adjudicated it on the merits, he is not prejudiced by the Board proceeding with a de novo decision now. See August 2016 Statement of the Case. Service Connection The Veteran seeks service connection for a low back disorder that he believes is caused by his service-connected right ankle and left knee disabilities. He does not contend that he sustained any specific injury to the back during service. See claim to reopen and accompanying lay statement, dated July 2, 2012. However, as direct service connection for a low back disorder was also denied in the October 2014 rating on appeal, the Board will analyze the claim on that basis as well. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, a Veteran must show: (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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Continuity of symptomatology may also provide a basis for a grant of service connection for diseases defined as “chronic” by VA. 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439, 446 (1995) (en banc). To establish service connection for a claimed secondary disorder, there must be medical evidence of a current disability; evidence of a service-connected disability; and medical evidence of a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-517 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, any reasonable doubt is resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran argues that he developed a low back disorder from years of overcompensating due to an antalgic gait that resulted from his service-connected right ankle and left knee disabilities and is now exacerbated by the confinement to the wheelchair since 2008. See claim to reopen and accompanying lay statement, dated July 2, 2012. The earliest relevant medical evidence is found in VA outpatient treatment records dated between 2009 and 2013. These records include a MRI report which shows multilevel degenerative changes and severe spinal stenosis. See VA Radiology Reports dated March 13, 2009. The Veteran later underwent hemilaminectomy and microdiscectomy surgery in February 2012 and a spinal fusion in April 2013. A May 2014 VA examination showed that, while guarding and/or muscle spasm of the spine was present, it did not result in abnormal gait or spinal contour. The examiner diagnosed degenerative disc disease and intervertebral disc syndrome and concluded that they were less likely than not related to his right ankle condition. He explained that the Veteran did not report an abnormal gait and that there was no abnormal gait noted on examination. However, the examiner did conclude, that the Veteran’s current back disorder was related to his reported history of military helicopter jumps that resulted in back injury and degenerative disc disease, but provided no additional explanation for his opinion. Because the VA examiner left open the possibility that the Veteran’s left knee disability led to his current back disorder, the RO requested a supplemental VA opinion, which was received in September 2014. Following review of the record, the examiner found that the Veteran’s back disability was not related to his service-connected right ankle and left knee disabilities. The examiner explained that in general spinal stenosis is not due to another joint condition, but rather is due to aging. He explained that as the vertebrae age, the vertebral canal shrinks in size resulting in spinal stenosis. Thus, there is no probative and competent medical evidence of record to indicate that the Veteran’s service-connected right ankle and left knee disabilities play a role in the development of his lumbar disc disease. The Board finds that the September 2014 opinion is probative as it based on an accurate understanding of the Veteran’s medical history and is supported by an adequate rationale. In providing rationale for the medical opinion, the VA examiner considered the onset and course of the Veteran’s back problems, as well as his contentions, before ultimately concluding that his disc disease was due to age-related changes. As for any assertions by the Veteran, or his representative, that there exists a medical relationship between his lumbar disc disease and service-connected disabilities, the Board notes that the matter of its etiology is one within the province of trained professionals. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), determining the etiology of disc disease (as distinguished from merely reporting the presence of symptoms) is a complex medical matter that falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (providing that lay persons are not competent to diagnose cancer). As the Veteran is a layperson without the appropriate training and expertise, he is not competent to render a probative (i.e., persuasive) opinion the medical matter upon which this claim turns. Id. Absent evidence of a nexus between the claimed conditions and the service-connected disabilities, service connection cannot be granted on a secondary basis. 38 C.F.R. § 3.310; Allen, supra; see also, Wallin, Reiber, supra. With regard to whether the evidence establishes a direct connection between the Veteran’s service and his development of lumbar disc disease, service treatment records show he did not indicate any specific back complaints, and there is no evidence to support an in-service injury or diagnosis of a low back disorder. Moreover, X-ray confirmation of lumbar disc disease does not arise in post-service treatment records until 2009, well after one year following his separation from active duty. Although not a dispositive factor, the significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff’d, 230 F.3d 1330 (Fed. Cir. 2000). Although the May 2014 VA examiner did relate the Veteran’s current lumbar disc disease to an-inservice incident, the opinion is based on the erroneous belief that the Veteran injured his back in helicopter jumps during service. As discussed above, this is contradicted by the Veteran himself, who specifically indicated that his back disorder did not begin in service, nor is this shown by the record to be the case. See claim to reopen and accompanying lay statement, dated July 2, 2012. The Board is not bound to accept a medical opinion based on speculation, unsupported by clinical data, or on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458 (1993) (noting that a medical opinion based upon an inaccurate factual premise has no probative value); Black v. Brown, 5 Vet. App. 177, 180 (1993). Even accepting that an in-service injury may have occurred, the examiner did not explain what evidence in the Veteran’s treatment records supported this conclusion, and did not reference any clinical data or other evidence as rationale for the opinion. The opinion is also weakened by the VA examiner’s reliance upon a reported history of in-service events a decade prior, without evidence or analysis of events at separation or in the years after service. In other words, there is no discussion of how an injury that occurred so long ago was manifesting the current symptomatology, particularly in light of the absence of clinical evidence in the interim. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (holding that a medical opinion that contains only data and conclusions is accorded no weight); Bloom v. West, 12 Vet. App. 185, 187 (1999) (holding that an opinion that is unsupported and unexplained is purely speculative and does not provide the degree of certainty required for medical nexus evidence); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (the failure of the health care provider to provide a basis for his/her opinion goes to the weight or credibility of the evidence). In this case, the May 2014 opinion is inadequate and does not assist the Board or the Veteran in resolving this claim and thus cannot serve as the basis of a grant of service connection. As the evidence of record fails to establish that the Veteran’s low back disabilities were present in service, and as there is no evidence relating any of these disorders to his military service or to a service-connected disability, the claim cannot be granted. Accordingly, the preponderance of the evidence is against the claim, and there is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b). THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.R. Bryant