Citation Nr: 1806480 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-15 258 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of service connection for a lower back disorder. 2. Entitlement to service connection for a lower back disorder. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Borman, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1977 to August 1984. This matter comes before the Board of Veteran's Appeals (Board) on appeal of a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. Jurisdiction over the appeal is now with the RO in Columbia, South Carolina. The Veteran testified before the undersigned in November 2017. A hearing transcript is of record. The Board has expanded the Veteran's claim on appeal to encompass all similar disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (2012). FINDINGS OF FACT 1. In February 1994, service connection for a lower back disorder was denied; a notice of disagreement and/or new and material evidence was not submitted within one year of notice of that decision. 2. The evidence added to the record since the February 1994 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for a lower back disorder. 3. The Veteran's lower back disorder is not related to service. CONCLUSIONS OF LAW 1. The February 1994 decision that denied the Veteran's claim for entitlement to service connection for a lower back disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. As the evidence received subsequent to the February 1994 rating decision is new and material, the requirements to reopen the claim for entitlement to service connection for a lower back disorder have been met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.102, 3.156 (2017). 3. The criteria for establishing entitlement to service connection for a lower back disorder have not been met. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See, e.g., 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). In the instant case, VA provided adequate notice in letters sent to the Veteran. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service and VA treatment records are associated with the claims file. The Board acknowledges that the Veteran was not provided with a VA examination for his lower back disorder. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court held that in disability compensation claims, the Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurring symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on a claim. In this instance, the Board finds that there is nothing in the record indicating that the disability occurred during service, continued since service, or has any relationship to service. During the Veteran's November 2017 hearing, the undersigned explained to the Veteran that a VA examination would be unhelpful unless the Veteran submitted treatment records regarding the accident that an examiner could analyze. Unfortunately, the Veteran has not submitted any medical records that would serve to show the severity of the car crash he described during the hearing. Therefore, there is no need for a VA examination at this time and VA has met its duty to assist with respect to obtaining pertinent evidence. There is no indication of additional existing evidence that is necessary for a fair adjudication of the claim that is the subject of this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. New and Material Evidence In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999); Manio v. Derwinski, 1 Vet. App. 140 (1991). Under the relevant regulation, "new" evidence is defined as 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. If it finds that the submitted evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999); but see 38 U.S.C. § 5103A (eliminates the concept of a well-grounded claim). In this case, the Veteran has previously filed a claim for and has been denied service connection for a lower back disorder. The denial was based at least in part that the Veteran's service treatment records are absent of back complaints. However, the November 2017 Board hearing was the first occasion that the Veteran described in detail the incident that could serve as a basis for service connection. As the evidence provided could help establish an in-service incident, and as a result, a nexus to service, the Board finds the evidence to be both new and material. Service Connection Under the relevant laws and regulations, 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, 1131 (2012). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). VA must give due consideration to all pertinent medical and lay evidence in a case where a veteran is seeking service connection. 38 U.S.C. § 1154(a). 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 veteran. 38 U.S.C. § 5107(b). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). Additionally, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). The Veteran has filed a service connection claim for a lower back disorder. Medical records reveal that he has been diagnosed with mild osteoarthritic changes of the lumbar spine. The Board finds that service connection is not warranted. Service treatment records do not reflect complaints of, treatment for, or a diagnosis related to a lower back disorder. During the November 2017 Board hearing, the Veteran stated that in April 1979, he was on leave from the military. He reported that he and his family were involved in a significant car crash with a drunk driver that resulted in his placement on light duty as well as the provision of a back brace, which he wore on and off during service. However, no notations regarding a car crash, a back brace, or a back disorder are found in the service treatment records. Significantly, a February 1983 medical examination and his July 1984 separation examination were absent of any complaints of or observed symptoms related to a lower back disorder. The Veteran has also not submitted statements from his family that could serve to confirm the circumstances of this incident. In fact, the post-service evidence does not reflect symptoms related to a lower back disorder for many years after the Veteran left active duty service. In October 1993, the Veteran first filed a service connection claim for a back disorder. The Board emphasizes that because the Veteran left active service in 1984, it was not until approximately 9 years later that the record indicates a back problem. Therefore, continuity is not established based on the clinical evidence. As part of this claim, the Board recognizes the statements regarding the Veteran's history of symptoms. In this regard, while the Veteran is not competent diagnose a disorder such as a lower back disorder, as it may not be diagnosed by its unique and readily identifiable features, and thus requires a determination that is "medical in nature," he and others are nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this instance, the Board finds that it cannot solely rely on the statements provided by the Veteran to grant service connection. In December 1993, the Veteran stated that he continued experiencing back problems since service. He explained that he had not seen any private physicians since separation because he could not afford to be disabled. At the Veteran's November 2017 hearing, the undersigned explained it is vital that the Veteran obtain some sort of indication of treatment that he received following the accident. Such evidence could be in the form of statements provided by the Veteran's family providing their observations of the Veteran's back condition during this time period. Even though more than 60 days has passed since the hearing, the Veteran has yet to present the Board with additional records or explain his efforts to try to obtain additional records. In this case, the Board is without corroborating lay and medical records establishing the in-service event or symptoms since service. Therefore, continuity is not established based on the Veteran's statements. Next, service connection may also be granted when the evidence establishes a medical nexus between a claimed disorder and either his active duty or a service-connected disability. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's claimed disorder to active duty, despite his contentions to the contrary. The Board notes that there are no treatment records establishing that the Veteran's lower back disorder is related to active duty, nor has any physician asserted that such a relationship exists. As noted above, there is no medical evidence from the Veteran indicating any kind of relationship connecting his lower back disorder with his military service. Additionally, there is an approximate 9 year gap between his military service and when records first indicate a back disability. In arriving at this conclusion, the Board has also considered the statements made by the Veteran relating his back disorder to his active service. The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, the Board has no reason to doubt that he experienced a motor vehicle accident. However, the Veteran is not competent to provide testimony regarding the etiology of any sort of back disorder that may have resulted from such an incident. See Jandreau, 492 F.3d at 1377, n.4. Because musculoskeletal disorders are not diagnosed by unique and readily identifiable features, they do not involve a simple identification that a layperson is competent to make. Therefore, the unsubstantiated statements regarding the claimed etiology of the Veteran's back disorder are found to lack competency. The Board finds that the weight of the competent evidence does not attribute the lower back disorder to military service despite his contentions to the contrary. In reaching the above conclusion, the Board also considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b) (2012). However, as the most probative evidence is against the claim, the doctrine is not applicable in this case. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence having been submitted, the application to reopen a previously denied claim for entitlement to service connection for a lower back disorder is granted, and the claim is reopened. Service connection for a lower back disorder is denied. ____________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs