Citation Nr: 20028860 Decision Date: 04/24/20 Archive Date: 04/24/20 DOCKET NO. 18-39 345 DATE: April 24, 2020 ORDER New and material evidence having been received, the claim for service connection for a lumbar spine disability is reopened. Entitlement to service connection for a lumbar spine disability is denied. FINDINGS OF FACT 1.Service connection for a lumbar spine disability was denied in an October 2008 rating decision for which an appeal was not timely perfected. 2. Medical records received since the prior final denial constitute evidence that was not previously considered, and that has a reasonable possibility of substantiating the claim. 3.The Veteran’s lumbar spine disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. . CONCLUSIONS OF LAW 1. The October 2008 rating decision that denied the claim for service connection for a lumbar spine disability is final. 38 U.S.C. § 7105; 38 C.F.R. § 3.160(d). 2. New and material evidence has been received such to reopen the claim for a lumbar spine disability. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.15620.1100, 20.1103 3. The criteria for entitlement to service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Navy from December 1965 to October 1969. This case comes before the Board of Veterans Appeals (Board) from a May 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). New and Material Evidence Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. 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 is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The regulation does not require new and material evidence as to each previously unproven element of a claim and creates a low threshold for reopening claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of new evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Here, evidence received since the prior final denial in October 2008 includes, in pertinent part, VA medical records from July and October 2015 and May and October 2018. Specifically, there is an October 2015 Compensation and Pension (C&P) Examination which evaluates the Veteran’s spine. As these records are new, in that they have not been previously associated with the file, and they raise the possibility of substantiating this claim through additional medical evaluation, the Board determines this evidence constitutes new and material evidence. Therefore, the case is considered reopened and the Board will proceed to address the merits of the issue. 1. Entitlement to service connection for a lumbar spine disability Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The record shows the Veteran has a currently diagnosed lumbar spine disability. The Veteran has been shown to have scoliosis. An October 2015 Compensation and Pension (C&P) Examination diagnosed the Veteran with lumbar strain, herniated lumbar disc, and spondylosis. The Veteran stated his lower back is painful all of the time. He reported limited in standing with feelings of numbness in both legs after about 15 minutes. Sitting did not bother his legs but will aggravate the back after a while. He used a heating pad for the back. Based on these diagnoses and description of symptoms, the Board concedes the presence of a current lumbar spine disability. What remains to be determined is whether the Veteran’s current lumbar spine disability is related to an in-service event or injury. The Board finds that the Veteran’s current lumbar spine disability is not etiologically related to an in-service event or injury. The Board acknowledges the Veteran’s service treatment records (STRs) show that he was seen many times in sick call for lower back pain, often included with other complaints. A report in January 1966 references a fall on the ice early that year, with a June 1966 exam finding no pain over the spine but pain over the paraspinal muscles and a diagnosis of muscle strain. That June 1966 report stated that upon physical examination the pain is actually located over spinal muscles and not over the spine. No other diagnosis for the lower back pain was found and no x-rays were performed. A treatment note of November 1968 stated that the Veteran came to sick call very frequently with vague somatic complaints and was diagnosed as a malingerer with a release to full duty. A November 2003 VA medical record notes chronic lumbar pain since a workplace injury in 1976. The Veteran received treatment via injection which relieved his symptoms for a period of time. The October 2015 C&P Examiner opined it was less likely than not the Veteran’s current condition was related to service. In their rationale they noted that while the Veteran has advanced degeneration in the spine, his service record did not support the notion that this is a service-connected condition. While the Veteran had complaints of backaches in service, they were muscular in nature with no evidence of a diagnosed chronic back condition in service. His separation examination was silent for any back issues. Rather, they highlighted the evidence showing that the Veteran hurt his back at work in 1979 while working as a mechanic, and went to Canada for intervention in 1982 which worked for a period of time until he began having pain radiating down his leg. In sum, the examiner reasoned that the Veteran’s complaints of backache in service were noted to be more of a muscle injury and were never diagnosed as a chronic back condition. His separation examination was silent for complaints of a back disability. Additionally, there is evidence that the Veteran instead hurt his back during a workplace injury after service. Based on this evidence, the October 2015 C&P Examiner opined it was less likely as not his current back condition was related to an in-service injury. The Veteran has a current diagnosis of arthritis of the lumbar spine as evidenced by the October 2015 VA examination. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. Post-service treatment records show the Veteran was not diagnosed with any chronic back disability until 1979, years after his separation from service and years outside of the applicable presumptive period. Thus, this presumption is not available to the Veteran here. Service connection for a lumbar spine disability may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s lumbar spine disability and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. Here, the October 2015 VA examiner opined that the Veteran’s lumbar spine disability is not at least as likely as not related to an in-service injury, event, or disease. As discussed above, the examiner pointed to the lack of any diagnosis of a chronic back disorder during service, as well as the intercurrent 1979 workplace injury, in finding that it is less likely than not that any current lumbar spine disorder is related to service. While the Veteran is competent to report having experienced symptoms of back pain since service and consistently thereafter, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of arthritis, or any other lumbar spine disorder, as the Veteran has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires knowledge of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board gives more probative weight to competent medical evidence, which establishes that these symptoms are instead attributable to a post-service workplace injury. The October 2015 VA examiner determined that the symptoms were due to the workplace injury, noting that there was no back disorder noted at service separation or between the Veteran’s separation from service and the 1979 workplace injury. Therefore, as there is no medical evidence linking the Veteran’s current lumbar spine disability to his time in service, the Board finds that service connection is not warranted. As the preponderance of the evidence is against the claim for service connection for any back disabilities, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Stuedemann, 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.