Citation Nr: 18157684 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 16-63 010 DATE: December 13, 2018 ORDER The application to reopen the finally disallowed claim of entitlement to service connection for a lumbar strain is denied. FINDING OF FACT 1. Although notified of an August 2012 rating decision, which denied service connection for a lumbar strain, the Veteran did not appeal that decision; no additional relevant records were received within one year of the August 2012 rating decision nor were any additional service records received. The August 2012 rating decision is final. 2. The additional evidence received since the August 2012 rating decision denying service connection for a lumbar strain consists of evidence that is cumulative and redundant, and does not raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW 1. The August 2012 rating decision which denied service connection for a lumbar strain is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2018). 2. The criteria for reopening the claim of entitlement to service connection for a lumbar strain are not met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1984 to December 1987. The matter comes before the Board of Veterans’ Appeals (Board) from an August 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which denied reopening of that claim. 1. The application to reopen a claim for service connection for a lumbar strain Factual Background Service treatment records include a November 5, 1984, service medical record which shows that the Veteran complained of having had low back pain for three (3) days. He denied any trauma but reported that he was unable to do sit-ups because they caused severe low back pain. He denied any radiation of pain into his legs but reported that sitting, performing sit-ups, and standing for long periods caused pain. On examination he had full range of motion of the low back, and there was tenderness of the low back on palpation of the muscles on both sides of the lumbar spine. The assessment was deferred, although he might have a possible muscle strain. When seen later that day, on November 5, 1984, service medical record shows that the Veteran complained of low back pain after exercising. On examination he had mild tenderness of the lumbar region. On neurological evaluation his motor strength was 5/5 and sensations were intact. Deep tendon reflexes were 2+ and symmetrical. Straight leg raising was negative. The assessment was a back strain, for which he was given medication for pain. He was returned to full duty. The Veteran was seen on multiple occasions thereafter but did not complained of low back pain. A November 1987 examination for service discharge found that the Veteran’s spine was normal. In an adjunct medical history questionnaire he reported having had swollen or painful joints involving his wrist and knees and reported having or having had recurrent back pain. A notation on that form indicates that the Veteran had had mechanical low back pain of acute onset with resolution. In an October 2011 statement W. Moore reported that within weeks of the Veteran’s having returned from military service she had notice that he had, in pertinent part, low back aches, and he was constantly having to see doctors for his various aliments throughout the years. Records of Dr. W. Hunter of the Neuroscience & Spine Center of the Carolinas show that an August 2002 report of an evaluation reflects that as a police officer he had complained of neck pain for several years, and had been involved in a diving accident in 1996, following which he developed neck pain. On neurologic evaluation strength was 5/5 in the upper and lower extremities. Reflexes were 2+. Sensation was intact to light touch and pinprick. There was no bowel or bladder incontinence. Straight leg raising was negative, bilaterally. That physician’s records also show that in September 2002 it was reported that the Veteran had an accident in which he fell hard during a parachute jump in 1996 and had intermittent cervical pain since then. The Veteran had neck surgery in August 2003 and was evaluation for continued neck and upper extremity symptoms. On VA examination in February 2012 the Veteran reported that his back began to bother him in 1984, although he could not recall a specific accident. He did not wear a back brace and had not had low back surgery. He took Aleve for pain relief. On examination he had very mild functional impairment due to mildly diminished range of motion of his back. There was no muscle spasm, guarding, or areas of palpable tenderness. Strength was 5/5 in the lower extremities and deep tendon reflexes were 2+ at the knees and ankles. He had no symptoms of radiculopathy and no history of intervertebral disc syndrome. X-rays were interpreted as normal. In April 2012 a VA physician reported that when he had examined the Veteran in February 2012 the Veteran had reported that his back began to bother him in 1984 but he did not recall any specific accident. There were two visits during service for a low back strain. The examiner reported that a strain would be expected to resolve. Because the Veteran had had only two clinical visits for a lumbar strain, the physician opined that it was not as likely as not that the Veteran’s current low back pain was a continuation of the pain he had during military service, in light of the absence of any indication of chronicity. The August 2012 rating decision which denied service connection for a lumbar strain found that because an examiner had found, based on a review of records and examination findings, that a low back disorder was not related to military service, including any parachute jump during service. By letter of August 30, 2012, the Veteran was notified of the August 2012 rating decision and of his appellate rights. The Veteran did not appeal that decision and no additional VA records were received within one year thereafter nor have any additional service records been received. The Veteran applied to reopen his claim for service connection for a lumbar strain in June 2015. In conjunction therewith he submitted, on several occasions, duplicate copies of some STRs. Received in June 2015 were records of the Carolinas HealthCare System. These show that in April 2015 the Veteran was seen at an emergency room for acute right sided low back pain, which had started prior to arrival at the emergency room. He reported having injured his back 2 month ago and had been prescribed steroids at that time. Yesterday, the back pain recurred after picking up a light object off the ground. On the day he was seen at the emergency room he had gone to a gym and noticed pain after picking up some weights. Shortly after leaving the gym, when walking into a store, he stepped up on a curb and experienced muscle spasms and pain down his right leg to his foot. He had noticed pain in the right leg, but denied having radiation of pain when in the emergency room. He denied any symptoms preceding this episode. On examination deep tendon reflexes were 2+ at the knees and ankles but strength was 4/5 in the hip flexors, bilaterally. The diagnostic impression was right-sided sciatica. In a statement in conjunction with the application to reopen the claim for service connection for a lumbar strain, the Veteran reported in VA Form 21-4138, Statement in Support of Claim, in June 2015 that he reported having injured his back during basic training had current back pain at service discharge. It had not helped that he was a paratrooper and had completed many airborne jumps during service. He had had back issues since his military service. Also in conjunction with the application to reopen the claim for service connection for a lumbar strain, the Veteran submitted records of the Carolinas Healthcare system. However, these records are duplicates of those previously on file. The Veteran also submitted new records from the South Point Family Practice reflecting treatment and evaluation in 2014 and 2015. In December 2014 he had the sudden onset of low back pain, which radiated down the right leg, after lifting weights. The assessments were low back pain and radiculopathy. In May 2015 it was noted that he had low back pain, on the right side and had felt a spasm. He had sciatica. He reported that the right-sided low back pain began about 10 days earlier when he bent over to pick a sock off the floor. Some of these records reflect that an extensive clinical history was obtained; however, none of these contain any reference to low back during or commencing in military service. Law and Regulations Service connection is warranted where the evidence of record establishes that an injury or disease resulting in disability was incurred in the line of duty in active military service or, if preexisting such service, was aggravated thereby. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish service connection, the record must contain evidence of (1) a current disorder, (2) in-service incurrence or aggravation of an injury or disease, and, (3) a nexus between the current disorder and the in-service disease or injury. See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be granted for a disease or disability first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease or disability was incurred in service. 38 C.F.R. § 3.303(d). The Board must determine whether the weight of the evidence supports each claim or is in relative equipoise, with the appellant prevailing in either event. However, if the weight of the evidence is against the appellant’s claim, the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski 1 Vet. App. 49 (1990). VA must reopen a finally disallowed claim when new and material evidence is presented or secured with the respect the claim and review all evidence submitted since the last final disallowance of the claim on any basis to determine whether a claim may be reopened based on new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. See Hickson v. west, 12 Vet. App. 247, 251 (1999). 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 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). Analysis The basis for the original denial of service connection was that although the Veteran was seen for low back pain in 1984, and complained of recurrent low back pain at service discharge when a medical history questionnaire indicated that it had resolved, and a family member reported that he had had low back aches after service, a VA examiner’s opinion in 2012 was that the current the Veteran’s current low back pain was not a continuation of his inservice low back pain. The evidence of record at the time of the August 2012 denial of the claim included STRs. In applying to reopen the claim, the Veteran has submitted duplicate copies of STRs but these are not new. In this regard, the Board notes that the 2012 VA medical opinion which was on file at the time of the prior denial of service connection stated that the Veteran had been seen on two occasions during service for back pain. However, in actuality, he was seen twice on the same day, and not on two separate occasions. The new evidence includes postservice private clinical records. However, these do not establish a reasonable possibility of allowing the claim for service connection because the refect that the Veteran had postservice low back injuries and they do not relate a current low back disability to the Veteran’s military service. In sum, the Veteran’s statements are essentially the same as the history he related when the claim was finally adjudicated in 2012. His merely providing greater details as current symptoms and impairment due to a lumbar strain is not sufficiently significant, when viewed in the context of all the evidence, that there is a reasonable possibility of changing the facts that there is no evidence showing a relationship between his current low back disability and his military service. To the contrary, these additional postservice clinical records show that he began to have radicular symptomatology only after postservice injuries and while these same records include extensive recitations of the Veteran’s clinical history, virtually none relate any current low back pathology to the Veteran’s military service. Thus, the Board finds that new and material evidence has not been submitted which is sufficient to reopen the claim. Since the evidence submitted after the August 2012 rating decision is not new and material, the claim for service connection is not reopened. As the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen the finally disallowed claim, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs