Citation Nr: 18153475 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 14-16 354 DATE: November 27, 2018 ORDER The previously denied claim of entitlement to service connection for a back condition is reopened on the basis of new and material evidence. Entitlement to service connection for degenerative disc disease and congenital scoliosis is denied. Entitlement to service connection for left arm weakness as secondary to degenerative disc disease and congenital scoliosis is denied. Entitlement to service connection for left leg numbness, to include as secondary to degenerative disc disease and congenital scoliosis is denied. FINDINGS OF FACT 1. An August 1978 rating decision denied service connection for a back condition; the Veteran did not perfect an appeal of that decision, and new and material evidence was not received within one year of notice of its issuance. 2. Evidence received more than one year after that August 1978 rating decision denying service connection for a back condition is neither cumulative nor redundant of the evidence that was already of record and considered in that decision, and this additional evidence raises a reasonable possibility of substantiating the Veteran’s claim. 3. The preponderance of the evidence is against finding that the Veteran has degenerative disc disease or congenital scoliosis due to a disease or injury in service, to include specific in-service event, injury, or disease. 4. The Veteran’s claimed left arm weakness is neither proximately due to nor aggravated beyond its natural progression by a service-connected disability, and it is not otherwise related to an in-service injury, event, or disease. 5. The Veteran’s claimed left leg numbness is neither proximately due to nor aggravated beyond its natural progression by a service-connected disability, and it is not otherwise related to an in-service injury, event, or disease. CONCLUSIONS OF LAW 1. New and material evidence sufficient to reopen the claim of entitlement to service connection for a back condition has been received since the final August 1978 rating decision. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. The criteria for service connection for degenerative disc disease and/or congenital scoliosis are not met. 38 U.S.C. §§ 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for left arm weakness have not been met. 38 U.S.C. §§ 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for service connection for left leg numbness have not been met. 38 U.S.C. §§ 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1976 to January 1977. Service Connection The Veteran claims entitlement to service connection for degenerative disc disease and congenital scoliosis, left arm weakness as secondary to degenerative disc disease and congenital scoliosis, and left leg numbness, to include as secondary to degenerative disc disease and congenital scoliosis. 1. Whether new and material evidence has been received to reopen the previously-denied claim of entitlement to service connection for a back condition Service connection for a back condition was denied in an August 1978 rating decision. The Veteran was notified of that determination and of his appellate rights, and he did not appeal or submit new and material evidence within the following year. Accordingly, that decision is a final and binding determination based on the evidence then of record. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103. Evidence received since that unappealed rating decision includes but is not limited to VA treatment records indicating that the Veteran has had degenerative changes and disc protrusions in his lumbar spine in and after November 2004. This newly received evidence is new because it was not previously considered in the August 1978 rating decision, and it is material because it pertains to unestablished facts necessary to substantiate the claim of entitlement to service connection for a back condition, namely, the nature of the claimed disability. As this additional evidence is new and material, this claim consequently is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). This action will not prejudice the Veteran, as the Agency of Original Jurisdiction (AOJ) previously reopened the claim in a May 2013 rating decision and March 2014 Statement of the Case (SOC). See Hickson v. Shinseki, 23 Vet. App. 394, 398 (2010). 2. Entitlement to service connection for degenerative disc disease and congenital scoliosis 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 service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. More specifically, a preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153. For these purposes, veterans shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. Here, the Veteran claims that he has suffered from pain in the middle lower part of his back since and as a result of a back injury during his active military service. He also claims that he has suffered from pain in his left arm and left leg since and as a result of that injury and consequent back condition. See, e.g., letter from Veteran received in October 1979; VA Form 21-4138, Statement in Support of Claim received in February 2013. A review of the Veteran’s service treatment records (STRs) reveals that his enlistment examination does not contain any reference to back pain. However, his STRs do show that he injured his back while moving a heavy object in or about June 1976, and his separation examination does reflect the Veteran’s report of recurrent back pain in December 1976. A June 1978 radiographic report indicates that the Veteran had mild levoscoliosis at the mid portion of his lumbar spine, and that his lumbar spine was otherwise normal. See Radiographic Report received in May 1978. The Veteran was afforded a VA examination in June 1978, and the examiner indicated that the Veteran had mild lumbar levoscoliosis, but no limitation or painful motion or other impairment of the spine. See Report of Medical Examination for Disability Evaluation dated in June 1978. The Veteran has stated that he was evaluated and treated for his claimed back condition at a few different healthcare facilities shortly after his release from active military service, but after attempting to obtain relevant records from those facilities, the Agency of Original Jurisdiction (AOJ) was notified that the facilities had no records of the reported treatment. See, e.g., VA Form 21-4138, Statement in Support of Claim received in February 2013; VA Form 21-0820, Report of General Information dated March 14, 2013; VA Form 21-0820, Report of General Information dated March 30, 2013; VA Form 21-0820, Report of General Information dated April 8, 2013. The Veteran’s VA treatment records, however, do reflect consistent complaints of back pain since the early 2000s. Those records also include reports of multiple MRIs and x-rays of the Veteran’s lumbar spine, including reports from a lumbar spine MRI and x-ray that were performed in November 2004. The reports of those studies indicate that, at that time, the Veteran had multilevel degenerative change in the lumbar spine that was worst at the L5-S1 level, where a disc protrusion severely compromised the foramen for the left L5 nerve root and appeared to impinge upon the root, and mild scoliosis. See VA treatment records received in February 2013. The report of an August 2009 lumbar spine MRI indicates that the Veteran had degenerative disc disease from L3-4 through L5-S1 at that time. See id. More recent VA treatment records are largely consistent with the aforementioned findings. The Veteran was afforded a VA examination in May 2013, and the examiner indicated that the Veteran was diagnosed with degenerative disc disease in 2004 and congenital scoliosis in 1976. The examiner opined that the Veteran’s back condition was less likely than not incurred in or caused by the Veteran’s active military service or any event, injury or illness that occurred or that he sustained therein. The examiner also opined that the Veteran’s congenital scoliosis clearly and unmistakably existed prior to his active military service and was clearly and unmistakably not aggravated beyond its natural progression by his active military service or any in-service event, injury or illness. The examiner based those opinions on his determination that the Veteran did have an in-service back injury, but that there was also no medical evidence that the Veteran’s back problems continued after his discharge from active military service. The examiner also stated that the Veteran’s congenital scoliosis would not be symptomatic and would not predispose him to chronic back problems, and that the Veteran had typical age-related degeneration of his spine. See Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire (DBQ) dated in May 2013. The Veteran’s private treatment records reflect that he was evaluated and or treated for lower back pain after a motor vehicle accident in September 2015. Those records show that after an MRI of his lumbar spine, it was determined that the Veteran had some disc protrusion and stenosis and that there was some contact between certain vertebra and nerve roots. See private treatment records received in October 2015. The Veteran was afforded another VA examination in July 2018. This examiner arrived at the same diagnoses as the May 2013 examiner did, although the July 2018 examiner noted 2018 as the year of diagnosis for each (perhaps mistakenly). The July 2018 examiner went on to opine that the Veteran’s scoliosis was a congenital defect that was not incurred during, and pre-existed, his active military service. See Back Conditions DBQ and Medical Opinion DBQ dated in July 2018; VES Addendum to Provider dated in August 2018. The above-mentioned evidence is the most pertinent evidence of record relating to this claim. Upon review of all of the evidence of record, including but not limited to that discussed above, the Board finds that the preponderance of the evidence weighs against this claim. First, the Board notes that although the Veteran claims that his back condition began during the course of his active military service, he is not competent to opine on when his back condition (as opposed to his back pain) began, since he has not shown that he possesses the necessary education, training, experience or other credentials to determine the etiology of such conditions. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Second, the medical evidence reflects that only scoliosis was diagnosed during the Veteran’s active duty service, and the May 2013 examiner opined that it clearly and unmistakably existed prior to the Veteran’s active military service and was not aggravated beyond its natural progression during said service. There is no competent medical evidence to the contrary. Third, none of the other back conditions noted in the Veteran’s medical records were found to have begun during or within one year of his active military service. For example, the May 2013 examiner indicated that the Veteran’s degenerative disc disease was diagnosed decades after his active military service. Further, there is no objective or medical evidence that any of the other back conditions were at all related to the Veteran’s active military service. The July 2018 examiner specifically stated that the Veteran’s spinal degeneration (i.e., his degenerative disc disease) was age-related. Thus, in conclusion, there is no competent medical evidence that the Veteran has a back condition that began during or within one year of his active military service or was caused by an in-service event, injury or disease; and although the Veteran contends otherwise, the probative value of the VA examination opinions outweigh that of his contentions, since the examination opinions were formed by examiners that are competent to opine on complicated medical matters and that have more experience in determining the etiology of back conditions. Accordingly, the Veteran’s claim of entitlement to service connection for degenerative disc disease and congenital scoliosis is denied. 3. Entitlement to service connection for left arm weakness as secondary to degenerative disc disease and congenital scoliosis and entitlement to service connection for left leg numbness, to include as secondary to degenerative disc disease and congenital scoliosis The Veteran also claims that he has suffered from left arm weakness and left leg numbness since his injury in 1976, both of which may be secondary to his back condition. However, he did not mention any such conditions or symptoms until decades after his service. See, e.g., VA Form 21-526, Veteran’s Application for Compensation and/or Pension received in January 2013; VA Form 21-4138, Statement in Support of Claim received in February 2013. The Veteran’s STRs, including but not limited to his discharge examination, do not reflect any complaints of left arm weakness or left leg numbness. The Veteran’s VA treatment records contain evidence of contact between some of the Veteran’s vertebra and certain nerve roots, and some impingement of certain nerve roots. However, all references to such conditions or symptoms were made in the early 2000s or later. See, e.g., VA treatment records received in February 2013. As mentioned above, the Veteran was afforded a VA examination in May 2013, and, after review of the Veteran’s VA treatment records and the remainder of his claims file and an in-person examination of the Veteran, the examiner determined that the Veteran had normal sensation to light touch in his left leg and no radiculopathy or other neurologic abnormalities. The examiner based that opinion on his findings that the Veteran has no indication of radicular pathology, and that a recent MRI did not indicate any nerve impingement. See Back Conditions DBQ dated in May 2013. The July 2018 VA examiner mentioned above also opined, after a review of the Veteran’s claims file and an in-person examination of the Veteran, that he does not have a peripheral nerve condition or peripheral neuropathy. See Peripheral Nerve Conditions DBQ dated in July 2018. The above-mentioned evidence is the most pertinent evidence of record. Having considered this evidence, and the remainder of the evidence of record, the Board finds that the preponderance of the evidence weighs against these claims. As discussed above, the Board has found that the Veteran is not entitled to service connection for his back condition. As such, he is not entitled to service connection for his left arm weakness or left leg numbness secondary to his back condition. See 38 C.F.R. § 3.310. Furthermore, the Veteran’s STRs do not reflect any left arm weakness or left leg numbness during his service, and the Veteran did not state that he was experiencing any such symptoms until decades after his discharge from active military service. Additionally, there is no competent medical evidence of any possible left arm weakness or left leg numbness until decades after the Veteran’s discharge, and there is also no competent medical evidence that any left arm weakness, left leg numbness, or contact between the Veteran’s vertebra and any nerve roots or any nerve root impingement was ever thought to be related to the Veteran’s service. Finally, the May 2013 and July 2018 VA examiners both determined that there was no objective evidence of the Veteran having any radicular conditions or other neurologic abnormalities, including left arm weakness and left leg numbness. The Board finds that the probative value of all of the aforementioned evidence far outweighs that of the Veteran’s contentions that he has suffered from left arm weakness and left leg numbness, especially since he did not report any such symptoms until decades after his service, and since the VA examiners are better qualified, in light of their training and credentials, to determine the diagnosis and etiology of a neurologic condition. Accordingly, the Veteran is not entitled to service connection for left arm weakness or left leg numbness, and his claims therefor are denied. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Banks, Associate Counsel