Citation Nr: 20008331 Decision Date: 01/31/20 Archive Date: 01/31/20 DOCKET NO. 16-45 632 DATE: January 31, 2020 ORDER 1. New and material evidence having been received, the application to reopen the claim for service connection for a lumbar spine disability, to include degenerative disc disease (DDD), is granted. The appeal is granted to this extent only. 2. The reopened claim of entitlement to service connection for a lumbar spine disability, to include DDD and degenerative changes, is denied. FINDINGS OF FACT 1. The Veteran did not appeal the October 2009 rating decision that denied the claim for service connection for degenerative disc disease (DDD) of the lumbar spine based on there being no medical evidence that showed a disease or injury that was incurred or aggravated by military service; and no new and material evidence was received during the one year appeal period. 2. Evidence received since the October 2009 rating decision that denied the claim for service connection for DDD of the lumbar, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim for service connection for a lumbar spine disability and raises a reasonable possibility of substantiating the claim. 3. The Veteran’s current lumbar spine disability, to include DDD and degenerative changes, was not incurred in service, arthritis (degenerative changes) was not manifested to a compensable degree within one year of service discharge, and the lumbar spine disability is not otherwise related to service. CONCLUSIONS OF LAW 1. The October 2009 rating decision that denied the claim of entitlement to service connection for degenerative disc disease (DDD) of the lumbar spine is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2018). 2. As evidence received since the October 2009 rating decision is new and material, the criteria for reopening the claim of entitlement to service connection for a lumbar spine disability, to include DDD, are met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2018). 3. The criteria for service connection for a lumbar spine disability, to include DDD and degenerative changes, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2001 to February 2005. In a September 2019 Board video conference hearing, the Veteran provided testimony before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. 1. Whether new and material evidence has been received to reopen a previously-denied claim for service connection service connection for a lumbar spine disability, to include DDD. Prior decisions of the Board are final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. The Board does not have jurisdiction to consider a claim that has become final before it determines that new and material evidence has been presented, irrespective of what the regional office may have determined with respect to new and material evidence. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). If, however, 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. New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence means existing evidence that, by itself or 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. Id. New and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof; the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Entitlement to service connection for degenerative disc disease of the lumbar spine was denied in an October 2009 rating decision. The Veteran was notified of the denial and his appellate rights. In the one-year appeal period that followed, the Veteran submitted neither a notice of disagreement nor any additional evidence. This rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The October 2009 rating decision denied service connection for degenerative disc disease of the lumbar spine on the basis that there was no evidence that a lumbar spine disability existed and no medical evidence that showed a disease or injury that was incurred or aggravated by military service. The Veteran has since provided evidence of a diagnosis including a Disability Benefits Questionnaire (DBQ) from a private physician and private medical records. Lay statements and a letter from a private provider which address in-service back pain and the Veteran’s current back disability have also been associated with the file since the October 2009 rating decision. Given that the threshold for substantiating a claim to reopen is low, this evidence, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim for service connection for a right knee disability and raises a reasonable possibility of substantiating the claim. The Board finds that this new evidence is also material. Thus, the claim of entitlement to service connection for a lumbar spine disability, to include DDD, is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. Entitlement to service connection for a lumbar spine disability, to include DDD and degenerative changes. The Veteran asserts that service connection for a lumbar spine (lower back) disability is warranted because it was incurred in or otherwise related to service. Specifically, the Veteran stated that there was not a specific injury that he recalled but in Officer Candidate School (OCS) he was a bigger guy who could hike better than some and that he would often lead the hikes and carry the heavy loads. He stated that his back started to bother him during OCS but that he did not want to go to sick call because he did not want to get kicked out and wanted to show toughness. See September 2019 Board hearing transcript; August 2016 substantive appeal (VA Form 9), Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by 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. 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). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board has carefully reviewed the evidence of record and finds that service connection for a lumbar spine disability is not warranted because the preponderance of the evidence is against a finding that the Veteran has a lumbar spine disability, to include DDD, that is related to a disease or injury in service. The reasons follow. As to evidence of a current disability, the Veteran has a current lumbar spine disability. For example, the Veteran submitted a July 2015 DBQ from a private medical provider who indicated diagnoses of mechanical back pain syndrome, intervertebral disc syndrome, and radiculopathy. Further, when asked whether arthritis was documented following imaging studies of the thoracolumbar spine, the medical provider checked “yes.” Thus, the first element of a service-connection claim is met. The preponderance of the evidence, however, is against a finding that the Veteran had a disease or injury involving the lumbar spine during service. For example, service treatment records and personnel records do not document low back complaints, and, in fact, document the Veteran denying back pain. For example, in a dental health questionnaire in his service treatment records, the Veteran denied that he ever had or had at the time “arthritis” and “painful joints.” This record was first signed September 2001 and updated on November 2002, December 2003, and November 2004. In a March 2004 Post-Deployment Health Assessment regarding deployment from September 2003 to April 2004, the Veteran documented that his health in general was “excellent;” he did not have any medical or dental problems that developed during the deployment; he was not on a profile; and while he expressed concerns about possible exposures or events during the deployment, it was related to a broken nose. The Veteran denied that he had at the time or developed anytime during the deployment “swollen, stiff, or painful joints;” “back pain;” and “muscle aches.” All of these facts show a denial by the Veteran of a disease or injury involving his lumbar spine. Additionally, in a November 2009 medical record from Dr. Philip Mayer related to the Veteran being seen for low back pain, he wrote that the Veteran reported the onset of his symptoms having “begun three years ago.” Dr. Mayer wrote, “There was no precipitating event” and that the symptoms had been of a gradual onset. Dr. Mayer also wrote, “He was discharged from the US Marines in 2005 and did not have any history [of a] back injury while on active duty.” The facts documented in this medical record are accorded high probative value for two reasons. One, they are consistent with what is documented in the service treatment records, where the Veteran denied back pain when specifically asked about it after returning from his deployment. Two, these kinds of statements documented within medical records (reporting one’s medical history) tend to be highly credible, as it is in the patient’s best interest to provide as accurate a history as possible to receive the most appropriate course of care. The U.S. Court of Appeals for Veterans Claims has recognized how a medical history recounted in the course of medical evaluation and treatment is especially probative (trustworthy) because the declarant has inherent incentive to give the most accurate history to receive the best or most appropriate medical care. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). The facts that the Veteran reported to Dr. Mayer directly refute what he has stated during the current appeal about having a back injury and/or back pain in service. Because of the inherent reliability of the facts documented in the service treatment records and what Dr. Mayer documented in the November 2009 private medical record, wherein he specifically wrote that the Veteran did not have a back injury while in the U.S. Marines, the Board finds as fact that the Veteran did not sustain a disease or injury to his lumbar spine in service. This November 2009 medical record from Dr. Mayer is consistent with other evidence in the file (other than the service treatment records). For example, a February 2008 medical record documents the onset of back pain as being in December 2007. In a January 2009 document from Dr. Jason A. Brodkey, he wrote that the Veteran had reported “at least a solid year of back pain,” and then wrote, “He says it started in January 2007.” These documents further support the finding that the Veteran’s onset of back pain happened after service. While there is a discrepancy between what is documented in the February 2008 medical record (onset in December 2007) and the January 2009 medical record (onset in January 2007), both documents show the Veteran reporting the onset of his back pain as being after service. In the August 2016 VA Form 9, Appeal to the Board, the Veteran’s representative stated that while it is true that the Veteran’s service treatment records are silent for complaints and treatment for his lower back, there are numerous lay statements submitted by the Veteran in support of his claim. Three fellow soldiers have provided buddy statements in May 2015, wherein they stated that the Veteran complained about pain in his legs and back; that during the time they were carrying heavy packs and sleeping on the ground for about three or four months; and that the Veteran was regularly taking Motrin for back pain when he was at Camp Lejeune. During the September 2019 Board videoconference hearing, the Veteran testified that he had a sore back during the entire enlistment that was “on and off,” intermittent depending on his activity and had never completely healed before separating from service. The Veteran clarified that there was not a specific back injury he could recall but indicated that he did not go to sick call for back pain due to a fear of showing weakness, and he was also not given an exit physical. The Board finds that the contemporaneous service treatment records and the post-service medical records described above outweigh the current allegations that the Veteran experienced back pain in service. In the March 2004 post-deployment record, the Veteran was asked if he had “any medical or dental problems that developed during this deployment,” and he checked no. He checked yes to possible exposures, which would indicate that he read through these questions and felt comfortable reporting a positive medical symptom and that he was not automatically checking no to every question. He was asked in that document, “Do you have any of these symptoms now or did you develop them anytime during this deployment,” which included “Back pain,” and the Veteran responded no. (Underline in original.) The contemporaneous evidence is in agreement in that the Veteran was denying back pain in service, including when he returned from deployment. If the Veteran was misrepresenting his symptoms in service, that does not lend to a positive finding of credibility. What is documented in the service treatment records is consistent with the post-service medical records dated in 2008 and 2009, and Dr. Mayer’s statement about the Veteran denying having a back injury during service directly addresses this fact. These facts show the Veteran’s back pain started after service. Thus, while the Board has considered the Veteran’s statements and testimony and the statements from fellow soldiers, it finds as fact that there was no disease or injury to the lumbar spine (low back) in service. To state it plainly, the Board finds that the facts alleged by the Veteran and the fellow soldiers regarding in-service back pain are not credible. The Board has explained in detail why it finds the service treatment records and the medical records dated within four years following service discharge to be the most probative evidence as to a finding of no back pain during service. What is particularly probative is what the Veteran reported to Dr. Mayer, when he specifically denied any back injury during service because, at that point in time, the Veteran would not have been avoiding looking weak, as he was no longer in service, and he was seeking treatment for his low back pain. What he reported to Dr. Mayer is consistent with the February 2008 and January 2009 medical records, when he reported the onset of his back pain as occurring after service. Accordingly, because the Board finds as fact that there was no disease or injury during service, direct service connection is denied. On this note, Dr. Curt McDaniel has submitted two medical opinions, dated in September 2015 and May 2019, wherein he attributes the Veteran’s current lumbar spine disability to service. Moreover, in a July 2015 DBQ proffered by the Veteran, Dr. Steven Harwood, noted that the Veteran had symptoms of back and right anterior thigh pain beginning in 2003 while deployed in Iraq. As these opinions are based on an inaccurate factual premise (a finding that the Veteran had a disease or injury during service), they are not probative to the issue at hand. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). A February 2008 MRI of the lumbar spine shows a diagnosis of degenerative changes, which is the first documented evidence of arthritis, which is three years following service discharge. There is no competent evidence of degenerative changes within one year of service discharge. Thus, a presumption of service connection based on the chronicity of arthritis is not warranted. For all the reasons laid out above, the Board finds that the preponderance of the evidence is against the claim of service connection for a lumbar spine (lower back) disability, the benefit-of-the-doubt doctrine is not for application, and the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Cheng, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.