Citation Nr: 1807794 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-27 130 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a back disorder. 2. Entitlement to service connection for a back disorder. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD K. Forde, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from June 1954 to November 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2017, the Veteran and his spouse testified before the undersigned. In connection with the Veteran's claim, the Board requested a Veterans Health Administration (VHA) expert medical opinion in May 2017. The May 2017 VHA opinion has been associated with the record, and a copy provided to the Veteran. The Board thereafter remanded the claim in September 2017. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran's claim of entitlement to service connection for a back disorder was initially denied in a March 1978 rating decision; the Veteran did not appeal this determination, and new and material evidence was not received within one year of its issuance. 2. The Veteran's claim of entitlement to service connection for a back disorder was most recently denied in a June 2005 rating decision; the Veteran did not appeal this determination, and new and material evidence was not received within one year of its issuance. 3. Evidence received more than one year since the June 2005 rating decision, to include VA treatment records, an April 2013 VA examination report, lay statements, the Veteran's January 2017 hearing testimony, the February 2017 private medical opinion, and the May 2017 VHA expert opinion is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the Veteran's claim of service connection for a back disorder. 4. The Veteran's back disorder, diagnosed as spondylosis, degenerative disc disease of the lumbar spine, and radiculopathy, did not have its onset in service and is not otherwise etiologically related to active duty service; arthritis of the back did not manifest within one year of separation from service. CONCLUSIONS OF LAW 1. The March 1978 and June 2005 rating decisions that denied service connection for a back disorder are final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103 (2017). 2. New and material evidence having been received, the claim of entitlement to service connection for a back disorder is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for entitlement to service connection for a back disorder are not met. 38 U.S.C. §§ 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran asserts that his current back disorder and radiculopathy are due to a documented in-service fall from an antenna pole in February 1957. See July 2017 statement. 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.A. § 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show (1) a present disability; (2) an 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 (Fed. Cir. 2004). In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Here, the Veteran has current diagnoses of spondylosis, degenerative disc disease of the lumbar spine, and radiculopathy, satisfying element one of service connection. See April 2013 VA Examination Report; February 2017 private medical opinion. Regarding element two, the Veteran testified that while repairing an antenna in inclement weather, he fell from about 40 or 50 feet up an antenna pole, hitting his lower back on the roof overhang of a communication shed on the way down, also jamming both legs into the ground. See January 2017 Board hearing at 4; July 2017 written statement. He further testified that he has had back pain since the in-service incident. The Veteran's service treatment records reveal that he experienced a low back injury during service in Alaska in February 1957. At the time, he reported that he was on an antenna tower and jumped seven feet to the ground, causing back pain and numbness in the legs. He reported that there was no radiation of pain, although he experienced occasional tightness in the thighs on attempted flexion. Physical examination revealed a moderate lumbar spasm with limitation of forward flexion. The diagnosis was acute lumbosacral strain and the contemporaneous X-ray was normal. He was admitted to the hospital for fourteen days for therapy. On discharge, some lumbar flattening on forward bending was noted and he was assigned to light duty for two weeks. Thus, the second element of service connection is also established. Notably, the October 1957 separation clinical evaluation for the spine was normal. A three inch surgical scar on the back left side from a removal of a foreign body object in 1953 was noted. He also reported cramps in his legs two to three years ago but none since. He denied all other medical history. In his July 2013 Notice of Disagreement, he reported that he did not report his back pain at his October 1957 separation examination because he wanted to get out of service. He further reported that he self-medicated. Post-service private treatment records indicate that the Veteran sought treatment for moderate to severe degeneration of the lumbar spine with sciatica from January 1975 to December 1976. The January 1975 X-ray noted slight rotatory scoliosis. A February 2004 private treatment record reflects the Veteran's complaint of chronic back pain. A December 2004 VA X-ray revealed degenerative joint and disc disease, lumbar spine with evidence of vertebral spondylosis. A September 2004 VA treatment record reflects the Veteran's complaint of chronic low back pain. The Board notes that the Veteran has also had two post-service motor vehicle accidents: the first occurred during his first post-service employment (in his July 2017 written statement he indicates this being in mid-1958), and the second occurred in 2005. There are no medical reports of record describing specific injuries, if any, or treatments, if any, which may have resulted from these accidents. The Veteran testified that the first accident aggravated his already existing back pain considerably. The Veteran reported to the April 2013 examiner that he worked as a farmer and rancher performing heavy lifting. As to the final element, nexus, in April 2013, the VA examiner found that the Veteran's back disorder was "not at least as likely as not service related" as he was involved in two motor vehicle accidents post-service, performed physical labor, his separation examination was normal, and did not seek treatment until the motor vehicle accidents. This opinion is not probative, as it does not consider the Veteran's relevant 2017 testimony. In a February 2017 medical opinion, the Veteran's treating primary care physician opined that the Veteran's back disorder is at least as likely as not related to his in-service fall. This opinion is not probative, as it lacks any supporting rationale to support the medical conclusion. In May 2017, due to the above-noted inadequacies of the available medical opinions, the Board sought an expert medical opinion from the VHA. In a May 2017 report, following a review of the Veteran's private and VA treatment records, Board testimony, and his service treatment records, the VHA neurosurgeon opined that the Veteran's back disabilities did not have their onset in service or are not otherwise related to his service. The neurosurgeon highlighted the clear change in radiographic appearance between the "normal" X-ray report of his service injury, the January 1975 X-ray showing slight scoliosis as well as retrolisthesis of L5 on S1, and the December 2004 X-ray showing multilevel degenerative changes of the spine and sacroiliac joints consistent with age. He stated that a "position that these changes are attributable to service injury and not to age and smoking would simply be invalid." While noting that the in-service injury was not trivial, the expert highlighted the Veteran's gainful employment history, the absence of complaints of radiculopathy, back pain, extremity numbness or work limitations at his separation examination, and the first documented report of radiculopathy in 1977 (eighteen years post-service). Thus, he concluded that the Veteran's complaints of back pain and radiculopathy are not due to the in-service injury but ongoing environmental factors. The Board affords this opinion high probative value, as it is based on the Veteran's relevant history and is supported by a robust rationale. Thus, the only competent and probative opinion of record is against the claim. Although the Veteran asserts that his back disorder is related to his service, the Board finds that the question regarding the potential relationship between the Veteran's back disorder and his service to be complex in nature. To this end, the Veteran is competent to report symptoms, such as pain, and when those symptoms had their onset. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). However, he has not been shown to have the requisite medical training to render an opinion on the etiology of his back disorder and radiculopathy. Therefore, his opinion as to the etiology of these disabilities is not competent medical evidence, and is thus afforded no probative weight. Finally, given the VHA expert's opinion, there is no indication that arthritis of the back manifested within the first post service year or during service to a sufficient degree to identify the disease. 38 C.F.R. §§ 3.303(b), 3.307(a), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Therefore, the provisions regarding presumptive service connection and service connection based on continuity of symptomatology are not applicable to this Veteran's case. Accordingly, for the reasons outlined above, the preponderance of the evidence is against the claim for service connection for a back disorder, the benefit of the doubt doctrine is not applicable, and service connection is denied. See 38 U.S.C. § 5107(b). ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for a back disorder. Service connection for a back disorder is denied. ____________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs