Citation Nr: 18161050 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 15-28 108 DATE: December 28, 2018 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for a lumbar spine condition is reopened. Entitlement to service connection for a lumbar spine condition is denied. FINDINGS OF FACT 1. The September 1980 Board decision denying service connection for a lumbar spine disorder was not appealed and became final. 2. Evidence received since the September 1980 Board decision relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for a lumbar spine condition. 3. The preponderance of the evidence of record is against a finding that the Veteran’s lumbar spine condition is related to the Veteran’s active service or manifested to a compensable degree within a year of his discharge from such service. CONCLUSIONS OF LAW 1. Evidence received since the September 1980 Board decision is new and material, and the claim of entitlement to service connection for a lumbar spine condition is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The criteria for entitlement to service connection for a lumbar spine condition have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from November 1962 to November 1964. The Veteran testified at a hearing before the undersigned Veterans Law Judge in July 2018. A transcript from the hearing has been associated with the claims file. 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a lumbar spine condition The Veteran’s claim of service connection for a lumbar spine condition was initially denied by a rating decision in November 1974. A September 1980 Board of Veterans’ Appeals (Board) decision denied the Veteran’s request to reopen the claim. Since the September 1980 Board decision, the Veteran has submitted additional details regarding his in-service back injury, VA medical records, and private treatment records for his current lumbar spine condition. The Veteran was provided with a VA thoracolumbar spine examination in July 2012. The Board finds that the low threshold for reopening the claim for service connection has been met. Shade v. Shinseki, 24 Vet. App. 110 (2010). The new evidence is material, and the Veteran’s claim for service connection for a lumbar spine condition is reopened. 2. Entitlement to service connection for a lumbar spine condition The Veteran contends that his current lumbar spine condition is related to an in-service back injury suffered in November 1963. Legal Criteria Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In some cases, a grant of service connection is available on a presumptive basis. Service connection may be presumed for certain chronic conditions, such as arthritis, if a veteran served continuously for 90 days or more during a period of war or during peacetime after December 31, 1946, and the condition manifested to a degree of at least 10 percent within one year of the date of discharge from service Analysis The Veteran’s service treatment records show treatment for a back injury in November 1963 while stationed in Germany. The back injury was diagnosed as a pulled muscle in the lumbar spine, and treated for two days. A separation examination in September 1964 revealed normal clinical findings of the spine and musculoskeletal system. The post-service record does not show clinical evidence of a lumbar spine condition until the Veteran underwent surgical excision of the lumbar disc at the L4 level in January 1971. Since 1971, VA medical records and private treatment records show ongoing treatment for degenerative joint disease and degenerative disc disease of the lumbar spine. In July 2012, the Veteran was provided with a VA thoracolumbar spine examination to determine the nature and etiology of any back condition. The examiner reviewed the Veteran’s medical record, and noted a diagnosis of degenerative disc disease in 1971, a diagnosis of degenerative joint disease in 1972, and L2 compression fracture in 2011. The examiner recorded the medical history as reported by the Veteran, including an in-service back strain suffered while lifting an artillery shell, and developing back pain at his new job which resulted in surgeries in 1971 and 1980. Based on the clinical examination and a review of the medical history, the examiner opined that the current lumbar spine condition was not caused by service. The examiner explained that there was a lack of documented evidence to support a nexus between the 1963 treatment for back pain, diagnosed as a pulled muscle, and his degenerative disc disease and herniated nucleus pulposus documented in 1971, seven years after discharge from active duty. The examiner also noted that the 1964 separation physical revealed normal findings. The examiner reviewed the Veteran’s claims file, the examination, and the results of testing in arriving at this conclusion. The examiner considered all pertinent and available medical facts to which the Veteran is entitled in forming his opinion. Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). Therefore, the Board places high probative weight on this opinion. The Board notes that the Veteran submitted a functional capacity evaluation completed by a private occupational therapist in July 2018. The evaluation report contains the Veteran’s statements that his back pain began in service, but also notes there was a gap between the in-service injury and post-service treatment for a lumbar spine condition. The evaluation report contains no medical opinion regarding the etiology of the lumbar spine condition. Although the functional capacity evaluation supports that the Veteran is limited by his current lumbar spine condition, the report is not probative as to whether the current condition is related to service. The Board acknowledges the Veteran’s current contention that his lumbar spine condition is related to service. The Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge (i.e., experiencing symptoms either in service or after service). See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). However, as a layperson without the appropriate medical training and expertise, the Veteran is simply not competent to provide a probative opinion on a complex medical matter, such as an etiological relationship between any current disability and military service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). No other evidence or valid test results in the record show that an etiological relationship exists between the Veteran’s lumbar spine condition and his in-service injury. Thus, remanding for another opinion on that issue would not aid the claimant in obtaining evidence to substantiate his claim or to place that theory of entitlement “within the range of possibility as distinguished from pure speculation or remote possibility.” Mariano v. Principi, 17 Vet. App. 305, 312 (203); 38 U.S.C. § 5103A(a)(2); 38 C.F.R. § 3.102. The Board has also considered whether a grant of service connection is available on a presumptive basis. Here, the Veteran is competent to report a low back condition since service. However, there is no medical evidence that the Veteran had a lumbar spine condition within a year of his discharge from service. The Veteran was discharged from active service in 1964, and there is no record of treatment for a lumbar spine condition pain until 1971. In sum, the competent evidence of record weighs against the Veteran’s assertion that his lumbar spine condition is etiologically related to his active service. Although grateful for the Veteran’s honorable service, the Board concludes that the preponderance of the evidence is against the claim for service connection and the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Casey, Associate Counsel