Citation Nr: 18161168 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 15-13 435 DATE: December 28, 2018 ORDER New and material evidence having not been received, the claim to reopen service connection for a back (lumbar spine) disorder is denied. Entitlement to service connection for a neurological disorder of the bilateral lower extremities (claimed as pinched nerves with radicular pain in the bilateral lower extremities), to include as secondary to a lumbar spine disorder, is denied. FINDINGS OF FACT 1. In a final decision dated and issued in March 2010, the Agency of Original Jurisdiction (AOJ) denied service connection for a back condition. 2. Evidence added to the record since the final March 2010 denial is cumulative or redundant of the evidence of record at the time of the prior decision and does not raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for a back (lumbar spine) disorder. 3. The evidence of record does not demonstrate that the Veteran’s neurological disorder of the bilateral lower extremities was incurred in or otherwise the result of military service; rather, the evidence demonstrates that such neurological disorder is associated or due to pinched nerves stemming from the Veteran’s nonservice-connected lumbar spine disorder. CONCLUSIONS OF LAW 1. The March 2010 rating decision that denied service connection for a back (lumbar spine) disorder is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. The criteria for reopening the claim of service connection for a back (lumbar spine) disorder are not met. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. §§ 3.156, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for a neurological disorder of the bilateral lower extremities (claimed as pinched nerves with radicular pain in the bilateral lower extremities) are not met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1968 to September 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed his substantive appeal in April 2015 (via a VA Form 9). The Veteran specifically appealed the RO’s continued denials of his petition to reopen his claim for service connection for a back (lumbar spine) condition as well as his claim for service connection for pinched nerves with radicular pain in his bilateral lower extremities, to include as secondary to his back condition. However, the Veteran did not appeal the RO’s denial of his claim for service connection for a bilateral knee condition. Therefore, such is not on appeal at this time. Furthermore, in the Veteran’s April 2015 VA Form 9, he requested a hearing before a Veteran’s Law Judge. However, the Veteran failed to appear for his scheduled hearing in August 2017. The Veteran has not submitted a request to reschedule nor has he provided good cause for failing to report for his scheduled hearing; therefore, the Board deems the Veteran’s request for a hearing to have been withdrawn. See 38 C.F.R. § 20.1304. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). Service connection may also be established on a secondary basis for a disability which is proximately caused by or aggravated by a condition for which service connection has already been established. 38 C.F.R. § 3.310. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Claim to Reopen Service Connection for a Lumbar Spine Disorder Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b), (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a). Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). 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 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 C.F.R. § 3.156(a). The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran previously claimed entitlement to service connection for a back condition in July 2009, which was denied in a March 2010 rating decision. Of record at the time of the March 2010 rating decision were the Veteran’s service treatment records and post-service treatment records. The RO observed that the Veteran’s service treatment records failed to show any treatment or diagnosis of a back condition. Furthermore, there was no evidence of such a condition within one year of the Veteran’s discharge from service. Based on such evidence, the RO denied service connection for a back condition as there was no objective medical evidence that such a condition occurred in or was caused by the Veteran’s military service. In March 2010, the Veteran was advised of the decision and his appellate rights. He filed a timely notice of disagreement, which noted that the RO had not discussed his private positive nexus opinion. In January 2012, the RO issued a statement of the case, in which they discussed the Veteran’s private July 2009 records and opinion. The RO found the July 2009 opinion inadequate and continued to deny the Veteran’s claim. No further communication regarding his claim of entitlement to service connection for a back condition was received to include no substantive appeal. Therefore, the March 2010 rating decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no evidence pertaining to the Veteran’s claim for service connection for a back condition was received prior to the expiration of the appeal period stemming from the March 2010 rating decision. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Evidence received since the March 2010 decision consists of additional post-service treatment records. Such records reflect the continued monitoring and treatment of the Veteran’s back condition, but do not reflect an adequate etiological opinion. Additionally, while the Veteran has submitted statements regarding the onset and severity associated with his claimed back condition during the course of the appeal, such are duplicative of his contentions that were previously of record at the time of the March 2010 rating decision. Specifically, he simply continues to contend that his condition is the result of service. Therefore, the Board finds that the evidence received since the March 2010 rating decision is cumulative or redundant of the evidence of record at the time of the prior decision and does not raise a reasonable possibility of substantiating the Veteran’s claim of service connection for a back condition. Consequently, new and material evidence has not been received to reopen such claim and the Veteran’s appeal must be denied. See 38 C.F.R. § 3.156; Shade, supra. Service Connection for Neurological Disorder of the Lower Extremities The Veteran contends that he developed pinched nerves with radicular pain in his bilateral lower extremities as a result of his service or in the alternative that his claimed back condition caused his pinched nerves with radicular pain in his bilateral lower extremities. Specifically, the Veteran alleges that he drove trucks with poor suspensions over unmaintained roads while on active duty which caused damage to his back and his nerves. The file contains a confirmed diagnosis of pinched nerves with radicular pain in the bilateral lower extremities. See July 2009 private nexus statement. Additionally, the Veteran’s post-service treatment records show treatment for pain, numbness and burning in his lower extremities. Accordingly, the presence of a current neurological disability of the bilateral lower extremities is established. The Veteran’s service treatment records are silent for specific complaints or diagnoses of nerve problems. However, the Veteran’s VA Form DD-214 confirms that the Veteran worked as a truck driver in Vietnam. In July 2009, the Veteran’s private physician submitted treatment records as well as a nexus statement. The physician noted that the Veteran suffered from chronic lumbosacral radiculopathy and specifically degenerative discs and pinched nerves. The physician found that such was most likely caused by or a result of the Veteran driving trucks while on active duty. Although the Veteran has a current disability in this case, the Board specifically notes that there is no indication any neurological dysfunction during military service and the Veteran was neurologically normal on exit from military service. Thus, his neurological disorder of the bilateral lower extremities was not shown to have been incurred in military service, nor was it shown to manifest for many years thereafter. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim, which weighs against the claim). Insofar as the Veteran has claimed that his neurological disorder is the result of his military service, including driving trucks in the Republic of Vietnam, the Board reflects that the Veteran lacks the requisite medical expertise and experience to render such a medical opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). Rather, the sole competent evidence in this case regarding the nexus of the Veteran’s neurological disorder of the bilateral lower extremities is the July 2009 private physician’s opinion, which indicated that disorder was due to pinched nerves stemming from degeneration of his lumbar spine, resulting in lumbosacral radiculopathy. The Board acknowledges that the examiner indicated that such lumbar spine and associated neurological disorders were due to driving truck in Vietnam; however, the import of the private physician’s opinion is not that the current neurological disorder of the bilateral lower extremities was, in and of itself, solely related to driving truck in Vietnam, but rather was an associated symptom of the Veteran’s lumbar spine disorder that was due to such driving truck in Vietnam. In other words, the entire basis of the neurological disorder being related to military service by the July 2009 private physician is through injury of the Veteran’s lumbar spine due to driving truck in Vietnam. Thus, the July 2009 private physician’s opinion is a secondary service connection opinion and not a direct service connection opinion. As the Veteran’s lumbar spine disorder is not service connected, service connection for a neurological disorder of the bilateral lower extremities on that basis must be denied at this time. See 38 C.F.R. § 3.310. The Board acknowledges that no VA examination has been obtained in this case with regards to the Veteran’s neurological disorder of the bilateral lower extremities with respect to direct service connection. However, in light of the lack of any in-service manifestation of any neurological symptoms or any manifestation for many years after military service, as well as the clear nexus opinion by the July 2009 private physician that the etiology of the neurological disorder of the lower extremities is the Veteran’s pinched nerves stemming from his lumbar spine disorder, the Board finds that the low threshold for obtaining a VA examination regarding service connection as directly related to military service, including any truck driving he may have done in Vietnam, has not been met in this case. In short, the evidence does not demonstrate any link directly to driving in service in this case outside of an incurrence of a lumbar spine injury; that evidence has already been considered in this case. Accordingly, a remand for obtaining a VA examination is not necessary respecting the neurological disorder of the bilateral lower extremities in this case at this time based on the evidence of record. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Accordingly, service connection for a neurological disorder of the bilateral lower extremities, to include as secondary to a lumbar spine disorder, must be denied at this time based on the evidence of record. See 38 C.F.R. §§ 3.102, 3.303, 3.310. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Unger, Associate Counsel