Citation Nr: 1806521 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-13 185 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been presented to reopen a previously denied claim of entitlement to service connection for degenerative disc disease lumbar spine claimed as low back condition. 2. Entitlement to service connection for degenerative disc disease lumbar spine claimed as low back condition (back injury). 3. Entitlement to service connection for a sciatic nerve disorder of the right lower extremities and a left leg condition, (claimed as a bilateral leg condition) to include secondary to back injury. REPRESENTATION Veteran represented by: Brett W. Buchanan, Accredited Agent ATTORNEY FOR THE BOARD M. Franklin, Associate Counsel INTRODUCTION The Veteran served in active duty from March 14, 1967 to March 31, 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In July 2017 and May 2017, the record reflects that the Veteran's representative filed a Motion to Advance on Docket. He alleged financial hardship because his expenses exceeded his fixed income and that he has an outstanding VAMC balance due. In August 2017, the Board found that general financial difficulties alone are insufficient and that the Veteran did not meet any other requirements of 38 U.S.C. §7107(a) and 38 C.F.R. § 20.900(c). Therefore, the motion was denied. FINDINGS OF FACTS 1. Service connection for a back injury was denied in a June 1999 rating decision, decision, and the Veteran neither filed a VA form 9 appeal within 60 days of the March 2000 statement of the case, nor submitted new and material evidence within a year of the rating decision. 2. The evidence received since the June 1999 rating decision is neither cumulative nor redundant, relates to unestablished facts necessary to substantiate the claim, thus raising a reasonable possibility of substantiating the claims of entitlement to service connection for a back injury. 3. The Veteran's back injury was not shown to have been diagnosed either in service or within a year of service discharge; and the evidence fails to establish that the Veteran's currently diagnosed back injury is etiologically related to service. 4. The Veteran's bilateral leg condition neither began during nor was otherwise caused by his military service, and it was neither caused nor aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The June 1999 rating decision denying the Veteran's claim for entitlement to service connection for a back injury is final. 38 U.S.C. § 7105(c) (1994); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1998). 2. The criteria for reopening a previously denied claim for a back injury have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The criteria for service connection for a back injury have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.655 (2017). 4. The criteria for service connection for a bilateral leg condition secondary to a back injury have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.655 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted. As to VA's duty to assist, 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 treatment records, VA and private treatment records and Social Security Administration records (SSA) have been obtained. The Board notes that the Veteran's service treatment records were not initially available at the time of the June 1999 rating decision, but they were obtained shortly thereafter and considered in conjunction with that initial appeal by a March 2000 statement of the case, which the Veteran declined to appeal. As such, the claim appropriately became final. See 38 C.F.R. § 3.156(c). Of note, the Veteran was also offered the opportunity to testify at a hearing before the Board, but he declined. The Veteran was also provided an August 2011 VA examination for his back injury, which included examinations of his bilateral leg condition. The Veteran and his representative have objected to the adequacy of the August 2011 VA examination conducted during this appeal. See Sickels v. Shinseki, 643 F.3d 1362, 1365-66 (Fed. Cir. 2011). The Veteran's representative argues that the examiner did not consider the Veteran's in-service back diagnosis, treaties or statements of his continuity of symptoms. The Board disagrees, and finds that the VA August 2011 VA examination is adequate for adjudication purposes. The examination was performed by a medical professional based on a review of claims file, a solicitation of history and symptomatology from the Veteran, and a physical examination of the Veteran. The examination reports are objective and accurately address the Veteran's back injury and bilateral leg condition. The examiner's opinion is supported by sufficient rationale and the weight of the evidence of record (discussed below). While the representative has questioned whether continuity of symptomatology was considered, the fact remains that a physical examination three days before separation did not find any back disability. Moreover, despite complaints in service, the Veteran was not actually diagnosed with a back disability at that time, despite imaging taking place. As such, the examiner's rationale is fully supported by the evidence of record and it is found to be adequate for rating purposes. Moreover, it is worth noting that a medical opinion undercutting or questioning the examiner's conclusions has not been provided. The Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). There is no prejudice to the Veteran in adjudicating this appeal, because VA's duties to notify and assist have been met. II. Reopening Claim Generally, a claim that has been finally denied in an unappealed RO decision or a Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means 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). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered new if it has not been previously submitted to agency decision makers, and it is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The Court interprets the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Veteran's claim for service connection for a back injury was denied by a June 1999 rating decision. The Veteran filed a Notice of Disagreement (NOD) in July 1999. A Statement of the Case (SOC) was issued in March 2000. However, the Veteran did not submit a VA Form 9 appeal or new and material evidence within 60 days of the March 2000 SOC. The June1999 rating decision thereby became final. At the time the June 1999 rating decision became final, the record consisted of the Veteran's STRs, VA treatment records, photos and documents submitted by the Veteran. Evidence received since the June1999 rating decision includes VA treatment records, private treatment records, and SSA records. Written statements from the Veteran, treatise evidence, and arguments from the Veteran's representative were also submitted. In addition, the evidence includes an August 2011 VA lumbar spine examination and opinion. This evidence is presumed credible for the limited purposes of reopening the claim. The new information is also considered to be material and is therefore sufficient to reopen the previously-denied claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, the Veteran's claim for service connection for a back injury is reopened. III. Service Connection The Veteran asserts that service connection is warranted for a back injury and a bilateral leg condition secondary to his back injury. Specifically, he contends that he hurt his back in service during boot camp, and later developed leg problems as a consequence. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Service connection can be established by evidence that shows "(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." 38 C.F.R. § 3.310(a) (2016); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection can also be established on a secondary basis for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection can be established by evidence that shows (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) probative evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In November 1998, the Veteran submitted a claim, in pertinent part, for a back injury. In June 1999, his claim was denied, based on a finding that there was no objective evidence showing a back injury in service. At that time, VA records indicated that the Veteran was first seen in 1994, many years after service, for back pain. The Veteran's March 1967 enlistment report of medical history does not show complaint, or diagnosis of any back conditions, and the Veteran specifically denied serious illness and or injury. During service, the Veteran clearly voiced complaints of back problems, as such was noted in the Medical Board report. However, no specific back disability was ever diagnosed. X-rays of the Veteran's back were taken in March 1967, and a possible congenital spina bifida condition was noted. However, the STRs show that the medical officer ruled out a diagnosis of herniated nucleus pulposus. The STRs do not show or even suggest that the Veteran's congenital spina bifida condition was aggravated or treated in service. The Veteran's STRs records noted that a Medical Board Examination was completed during the Veteran's brief period of service. The Medical Board found that the Veteran had a personality disorder and noted that he had complained of low back pain upon arrival to training. In addition, the report noted that the Veteran's physical examination was within normal limits three days before he was discharged from service. In August 2011, the Veteran was afforded a VA examination. The examiner conducted objective medical testing and diagnosed the Veteran with Degenerative Disc Disease of the thoracolumbar spine and Ossification of Ligament in Cervical Area. The Veteran reported that while in recruit training he did 179 squats and developed sharp right and lower back pain spasm. The Veteran reported that he went to the sick bay and without notice was kicked out of service. The examiner reviewed the file and noted that an x-ray of the Veteran was taken in service with normal results and possible minor spina bifida. During the examiner's interview, the Veteran stated that he disagreed with the record including evidence of prior service psychiatric admissions. The examiner noted that the Veteran reported that he receives Social Security Disability (SSD) simply because he told SSA that he had back pain. The Veteran contends that x-rays were not taken. The examiner opined that the Veteran's back injury is less likely as not caused by his service, explaining that the Veteran's in-service x-ray of his spine was essentially normal, with only a question of the Veteran having spina bifida. Moreover, the examiner noted that although the Veteran has a current diagnosis of DDD of the lumbar and cervical area, there is no civilian medical record of continued back pain post-service. Review of available Social Security Administration (SSA) records indicates that the Veteran sought benefits for a back injury. The records reveal that the Veteran consistently reported that he fell post-service in November 1987. Specifically, the Veteran stated to the medical professional that he climbed a step, slipped down and fell six feet landing on his buttocks. The Veteran also stated on his SSA application that his symptoms first appeared November 1987. Moreover, the Veteran reported that since the accident, he has continued to experience pain in his low back, both legs, and the back of his neck, as well as having headaches. The medical professional noted that the Veteran reported that his past medical history included good health with no major illnesses and that the he does not take any medication on a regular basis. The Veteran was discharged from the hospital in November 1987 with a herniated nucleus pulposus diagnosis. See SSA disability application and private hospital notes. VA treatment records from September 2014 to March 2017 show continued treatment for the Veteran's low back disorder. Based on the evidence of record, the Board finds that service connection on a direct basis is not warranted. Although, the Veteran has a current diagnosis of a back disability, there are no findings of treatment or complaints for a back condition upon discharge. The first indication of back treatment and complaints do not appear for approximately 20 years after service (in November 1987), and even then, treatment was only sought after a reported fall. The Veteran's representative has submitted treatise regarding herniated discs and degenerative disc disease, and the U.S. Court of Appeals for the Federal Circuit (the Court) has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if it discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999). However, in the present case, the treatise evidence submitted by the Veteran was not accompanied by the opinion of any medical expert. Thus, the Board finds no discussion of any generic relationships with at least plausible causality between the specific facts regarding the Veteran's current back injury and active service. Thus, the Board assigns no probative value and no weight to the treatise, as it does not address the Veteran's case specifically and there is no medical opinion to relate the conditions discussed in the article to the specific facts of the Veteran's case. The Veteran is competent to describe things that are capable of lay knowledge or observation, such as the symptomology of his back injury. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, in adjudicating this claim, the Board must assess not only competency of the Veteran's statements, but also their credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, the Veteran submitted several statements asserting that his back injury occurred during boot camp in service. Specifically, the Veteran reported to the 2011 VA examiner that he injured his back doing squats in service. However, the Veteran described in great detail on his SSA application and to a hospital medical professional that his injury occurred during a fall post-service in November 1987 at his job. The SSA records indicate that the Veteran was hospitalized for back pain on or about the same day he stated that he fell at work and was subsequently diagnosed with a back injury upon hospital discharge. In addition the STRs show that the Veteran's lower back was x-rayed in service and he was found to possibly have congenial spina bifida, a pre-service condition. The treatment records do not show that the Veteran injured his back, received treatment or aggravated his spina bifida condition during service. As such, the Veteran's statements are clearly contradicted and are not found to be credible. As such, no weight is given to his assertion that his back was due to an in service back injury. Moreover, while the Veteran, as a lay person, is competent to report what comes to him through his senses, he lacks the medical training and expertise to provide a complex medical opinion as to the etiology of a back or bilateral leg disability. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As such, his statements are insufficient to provide the requisite nexus between a current disability and his military service. As it stands, the record shows no diagnosis of a back condition in service or for years thereafter, and no suggestion from any medical professional that the Veteran's back condition either began during or was otherwise directly caused by his military service. The Veteran's representative argued that continuity of symptomatology should be considered and noted that the Veteran had reported at a 1994 VA treatment session that his back that he had injured it in 1967. However, as noted a physical examination three days before separation did not detect any physical abnormalities and imaging during service was normal, the Board believes that a basis for continuity of symptomatology has not been established. For the reasons described above, the weight of the evidence is against the claim and service connection for a back condition is denied. IV. Bilateral Leg Condition The Veteran asserted in his January 2012 Notice of Disagreement that his bilateral leg condition is secondary to his lower back injury. The Veteran has neither asserted, nor do the service treatment records indicate, any in-service treatment or incurrence of a bilateral leg condition, not does he suggest that one was diagnosed within a year of service. Thus, secondary service connection for a bilateral leg condition is the issue before the Board. Secondary service connection can be established by evidence that shows (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) probative evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran has a current diagnosis for a right and left leg condition. However, review of the record reveals that he does not have any service connected disabilities. Regarding the Veteran's right leg condition, the 2011 VA examiner examined the Veteran and determined that the Veteran has sciatic nerve involvement and moderate radiculopathy on the right lower extremity. VA treatment records show treatment for the Veteran's right leg condition. Regarding the Veteran's left leg condition the VA examiner noted that the Veteran has radiculopathy and some mild symptoms, but no sciatica nerve involvement was noted. VA treatment records do not show treatment for the Veteran's left leg condition. Importantly, the only disorder for which the Veteran himself has attributed his bilateral leg condition is a back injury and that disorder is not currently service connected. The Board finds that there is simply no probative evidence of record to demonstrate a medical link between the claimed back injury and the Veteran's period of active service (see analysis above). Moreover, the evidence of record indicates that the Veteran does not have any other service connected disabilities to consider with this claim. Therefore, secondary service connection cannot be established. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Accordingly, the Veteran's claim for service connection for a bilateral lower extremity disability is denied. ORDER New and material evidence has been presented, and the claim of entitlement to service connection for degenerative disc disease lumbar spine claimed as low back condition is reopened. Service connection for degenerative disc disease lumbar spine claimed as low back condition (back injury) is denied. Service connection for a bilateral lower extremity disability is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs