Citation Nr: 20031883 Decision Date: 05/06/20 Archive Date: 05/06/20 DOCKET NO. 17-63 735 DATE: May 6, 2020 ORDER Service connection for a chronic lumbar spine disorder is denied. FINDING OF FACT The weight of the evidence is against finding that any lumbar spine disorder is due to or the result of the Veteran’s active service. CONCLUSION OF LAW The criteria for service connection for a chronic lumbar spine disorder have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1951 to June 1953, to include service in the Republic of Korea. The Veteran was awarded the Korean Service Medal with three Bronze Stars. In connection with this appeal, the Veteran testified at a hearing before the undersigned in June 2018. This case has been advanced on the Board's docket. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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, 1167 (Fed. Cir. 2004). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from 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, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. The Veteran filed a service connection claim for a lumbar spine disorder in May 2003, which was denied by a January 2004 rating decision. The Veteran filed requests to reopen his service connection claim for a lumbar spine disorder in January 2008 and September 2014, which was denied by a December 2014 rating decision. An August 2019 Board decision reopened the Veteran’s service connection claim and remanded the claim for further development. In August 2019, the Board again remanded the claim for further development. The Veteran asserts that his lumbar spine disorder is due to his active service. At the June 2018 Board hearing, the Veteran testified that he injured his back around 10 years of age. He testified that he fell backwards and hit his spine. He testified that this preexisting injury was aggravated by his active service. He testified that he reported his back injury at his entrance examination, but it was not recorded. In May 2004, the Veteran reported that he aggravated a pre-existing condition due to handling ammunition and supplies as some of his duties were strenuous. At a previous hearing before the Board in September 2005, the Veteran testified that he injured his back after he fell off a chair as a child. The Veteran’s STRs show that at an April 1951 pre-induction physical and a September 1951 entrance physical, he had normal examinations of his spine. His STRs do not show any complaints, treatment, or diagnosis of any chronic lumbar spine disorder during his active service. At a June 1953 separation physical, he reported that his back gave him trouble. However, he had a normal examination of his back. A veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at the time of examination, acceptance, enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. A preexisting injury or disease is considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. While the Veteran testified that he injured his back as a child and that he reported his back injury at his entrance physical, he had normal examinations of the spine at his April 1951 pre-induction physical and his September 1951 entrance physical. Regardless of any back injury from his childhood, the presumption or soundness attaches to the Veteran regarding any reported back injury prior to service. Such a conclusion is supported by the fact that the Veteran has not submitted any medical evidence showing that he clearly and unmistakably was diagnosed with a chronic lumbar spine disorder prior to his active service and his STRs show that he had normal examinations of his spine at an April 1951 pre-induction physical and at a September 1951 entrance physical. As such, the presumption of soundness attaches to the Veteran’s lumbar spine. However, the fact that the presumption of soundness attaches alone does not mandate the grant of service connection. Rather, it must be shown that a current, chronic lumbar spine disability either began during or was otherwise caused by the Veteran’s active service. After the Veteran’s separation from active service, the first complaints of lumbar spine symptoms were not until July 1967, over a decade after his separation from active service. He reported having back pain after he injured his lower back lifting a bag of cement about two years previously. An August 1967 lumbar spine x-ray was normal. A May 1996 lumbar spine MRI showed lumbar spine arthritis. In September 2003, the Veteran was afforded a VA examination. He reported that he injured his back as a child falling off a stool. He reported that his back pain became more frequent during his active service, but he did not report it. The examiner diagnosed the Veteran with a low back strain. The examiner did not offer an opinion regarding etiology. In December 2006, the Veteran was afforded a VA examination. He reported that he fell and hit his back as a child. He reported he injured his back during service but did not seek treatment. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, the examiner opined that the Veteran’s lumbar spine disorder was less likely than not due to his active service. The examiner reported that the Veteran’s STRs did not show treatment for any back complaints during his active service. In September 2014, the Veteran reported that he had chronic back pain due to an injury during his active service. A lumbar spine x-ray showed arthritis. In November 2019, the Veteran was afforded a VA examination. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, the examiner opined that the Veteran’s lumbar spine disorder was less likely than not due to his active service. The examiner reported that any in-service injuries were minor, soft tissue injures that resolved and could not cause any chronic conditions. The examiner reported that the Veteran’s back pain was simple age-related lumbar spine arthritis. In February 2020, the VA examiner again reviewed the Veteran’s claims file and opined that the Veteran’s lumbar spine disorder was less likely than not due to the Veteran’s active service. The Veteran has not submitted any medical evidence supporting his assertion that his lumbar spine disorder was due to or the result of his active service. VA obtained medical opinions in an effort to support the Veteran in establishing his claim. Unfortunately, the VA examiners opined that it was less likely than not that the Veteran’s lumbar spine disorder either began during or was otherwise caused by his active service. Moreover, these medical opinions were accompanied by a detailed explanation of how the examiner reached their conclusions, and specifically noted that the Veteran’s lumbar spine arthritis was age-related. Therefore, after weighing all the evidence, the Board finds the greatest probative value in the VA examiners’ opinions, but also notes that the entirety of the medical evidence weighs against the conclusion that the Veteran’s lumbar spine disorder either began during or was otherwise caused by his active service. Thus, the evidence fails to establish service connection for the Veteran’s lumbar spine disorder. Consideration has been given to the assertion that he has a lumbar spine disorder as a result of his active service, to include aggravation of a childhood back injury. He is clearly competent to report back pain. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, he has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he has received any special training or acquired any medical expertise in evaluating chronic lumbar spine disorder. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, the Veteran’s assertions do not constitute competent medical evidence. The record does not contain evidence of a diagnosis of an ongoing chronic lumbar spine disability related to his active service, as the first evidence of any lumbar spine complaints do not appear until over a decade after his separation from service, and this was due to an injury two years previously approximately in 1965. The first evidence of lumbar spine arthritis is not until a May 1996 lumbar spine MRI that showed arthritis. Furthermore, his STRs do not document any chronic lumbar spine diagnosis. As such, the Board does not find that the evidence of record shows continuous symptomatology. The Board also notes that the Veteran is not entitled to presumptive service connection for a lumbar spine disorder. The record contains no objective medical evidence of a chronic lumbar spine disorder until a May 1996 lumbar spine MRI. In addition, the record does not contain evidence that any back injury in service resulted in a diagnosis of arthritis within one year of separation from the service, and there is no credible evidence that the back disorder otherwise manifested within one year of discharge. Therefore, the presumption of service connection has not been triggered. (Continued on the next page)   Consideration has also been given to the Veteran’s assertion that his lumbar spine disorder was the result of his active service. He again is noted to be competent to report his own symptoms or matters within his personal knowledge. However, while the Veteran reported back symptoms at his June 1953 separation physical, he had a normal examination of his back, which serves to sever any continuity from service. Accordingly, the criteria for service connection have not been met for a chronic lumbar spine disorder. That is, the evidence does not show that a lumbar spine disorder was diagnosed in service or within a year of service, and the weight of the evidence is against a finding that a lumbar spine disorder has existed continuously since service. Therefore, the claim is denied. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berryman, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board’s decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: • Appeal to the United States Court of Appeals for Veterans Claims (Court) • File with the Board a motion for reconsideration of this decision • File with the Board a motion to vacate this decision • File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: • Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED