Citation Nr: A20008922 Decision Date: 05/19/20 Archive Date: 05/19/20 DOCKET NO. 191029-45179 DATE: May 19, 2020 ORDER New and relevant evidence having been submitted, a claim for service connection for a lower back disability is reopened. Entitlement to service connection for a lower back condition is denied. FINDINGS OF FACT 1. The claim for service connection for a lower back disability was previously denied in a November 2014 rating decision, the Veteran did not appeal the decision, and no new evidence pertinent to the claim was received within one year from the date that the notice of the decision was mailed to the Veteran. 2. Evidence associated with the claims file subsequent to a final November 2014 rating decision relates to information that tends to prove a matter at issue in the lower back claim. 3. The Veteran does not have a lower back disability related to service. CONCLUSIONS OF LAW 1. The November 2014 rating decision denying service connection for a lower back disability is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Evidence received since a final November 2014 rating decision is new and relevant; therefore, the Veteran’s claim of entitlement to service connection for a lower back disability is reopened. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(d), 3.2501, 20.1103. 3. The criteria for entitlement to service connection for a lower back disability have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1963 to March 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2019 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a January 2020 videoconference hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the claims folder. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. This decision has been written consistent with the new AMA framework. In October 2019, the Veteran selected the Hearing Review when he timely appealed this decision to the Board by requesting the AMA Hearing Review lane for a reevaluation of the evidence considered by the Agency of Original Jurisdiction (AOJ). Under the AMA, when a claimant seeks appellate review through the Board’s hearing docket, the Board may consider the evidence of record at the time of the AOJ decision on appeal, additional evidence submitted on the date of the Board hearing (including testimony), and additional evidence submitted within 90 days of the hearing. Pub. Law 115-55 (Aug. 23, 2017), 131 Stat. 1114 (to be codified at 38 U.S.C. § 7113 (b)). New and Relevant Evidence VA will readjudicate a claim if new and relevant evidence is presented or secured. AMA, Pub. L. No. 115-55, § 5108, 131 Stat. 1105, 1109. The evidence necessary for VA to readjudicate the Veteran’s claim must be merely “new” and “relevant.” In this regard, the AMA defines “new evidence” as “evidence not previously part of the actual record before agency adjudicators.” Additionally, “relevant evidence” is defined as “information that tends to prove or disprove a matter at issue in a claim.” Pub. L. No. 115-55 § 2(a) (to be codified at 38 C.F.R. § 3.2501(a)(1)). The “relevant evidence” standard is a lower standard than the “material evidence” standard because the statutory definition of “relevant” does not require that the new evidence relate to an unestablished fact or raise a reasonable possibility of substantiating the claim. The Board will consider this lower standard in deciding the Veteran’s appeal. Whether new and relevant evidence has been received to reopen a claim of service connection for a lower back disability The Veteran seeks to reopen his claim for service connection for a lower back disability. The Veteran’s lower back disability claim was originally denied in a November 2014 rating decision due to a lack of nexus, i.e. the evidence failed to show the current disability was related to service. The relevant evidence of record at the time of this denial included the following: service treatment and personnel records. The Veteran did not timely appeal the lower back disability claim, nor did he submit new and relevant evidence. Therefore, the November 2014 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In July 2019, the Veteran requested review of the lower back claim. The relevant evidence received since the final November 2014 rating decision is detailed below. Private treatment records from February 2017 to March 2019 reflecting back complaints; a September 2019 VA examination for the back, addressing nexus; and a January 2020 private nexus opinion. As the above described evidence includes nexus opinions for a lower back condition, evidence submitted since the previous rating decision contains information that tends to prove a matter at issue in this claim. Specifically, the Veteran submitted a January 2020 private nexus opinion indicating the Veteran’s lower back condition is related to service. Therefore, the claim to reopen is granted. Service Connection The Veteran claims his back condition is related to an in-service injury. Specifically, during the January 2020 Board hearing he alleged he hurt his back while working on a vehicle. For the reasons discussed below, the Board finds the evidence weighs against a finding that the Veteran’s current disability is related to service. Therefore, service connection is not warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for certain chronic diseases a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). When a chronic disease is not shown within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. §§ 3.303(b), 3.309(a); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Turning to the evidence, service treatment records (STRs) reflect a November 1965 back complaint. The January 1966 service separation examination report shows a normal clinical evaluation for the spine. The concurrent report of medical history completed by the Veteran at service separation shows that the Veteran denied a history of swollen or painful joints. In February 2017 private treatment records, an MRI impression revealed lumbar central canal stenosis at L4-5 and mild direct low back pain. In August 2017 private treatment records, an MRI impression revealed low back pain, however the doctor noted it was well-managed. A September 2019 VA examination report indicated review of the Veteran’s claims file, recounted the Veteran’s history, and recited his complaints. He was diagnosed with spinal stenosis. The examiner opined it is less likely as not that the current back condition is related to service. Specifically, the examiner noted “I could not establish a chronic back condition while in the service. The medical records are silent at discharge and for over 20 years after discharge. Therefore, it is less likely as not that his current back condition is related to his service and more likely due to normal wear and tear.” In a September 2019 VA examination addendum, the examiner further found “from the STR’s provided I could not support a chronic back condition. His physical examination and history is silent for a chronic back condition as are the medical records for over a decade after discharge. Therefore it is less likely as not that his current back condition is related to his service.” In January 2020 the Veteran submitted a private nexus opinion from M.F., M.D. The doctor noted “while lifting a heavy truck part, he experienced severe low back pain. He was carried to the medical facility and after treatment, was kept on light duty for one month.” The doctor opined “it is as likely as not that his low back condition began with his low back injury in the service and is therefore service connected.” In rendering his opinion, he noted “often what is termed a back strain in the military is actually a precursor to significant low back pathology in the future.” The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds the current disability is not related to service. Initially, the Board notes in the October 2019 AMA decision, the RO determined that the Veteran suffered from a current disability. The Board is bound by this favorable finding. AMA, Pub. L. No. 115-55, § 5104A, 131 Stat. 1105, 1106-07. Additionally, STRs identified November 1965 back pain complaints, which is evidence of an in-service injury. As such, the Board will focus on the third element of service connection which is evidence of a nexus between the in-service complaint and the current nonservice-connected disability. In this regard, the Board finds that the September 2019 VA opinion, discussed above, is the most probative evidence of record. The VA opinion is competent and probative medical evidence because it is factually accurate and is supported by an adequate rationale. The VA examiner interviewed and examined the Veteran, was informed of the pertinent evidence, reviewed the Veteran’s claims file, and fully articulated the opinion in the report. The examiner specifically noted the in-service back complaint and found there was no pathology. He noted an alternative reason for the condition, in stating the condition is “more likely due to normal wear and tear.” The post service treatment records does not note treatment for a back condition until 2017 which is more consistent with the normal wear and tear argument. To the contrary, the January 2020 private doctor provided a conclusory opinion with a speculative inadequate rationale. After rendering an opinion, the doctor vaguely noted the following general statement: “ . . . often what is termed a back strain in the military is actually a precursor to significant low back pathology in the future.” The doctor does not specifically address why the Veteran’s in-service back strain is a precursor to future low back pathology. The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Additionally, the doctor’s use of the term “often” in the above statement is speculative as it does not provide definitive language to support the opinion. The Board finds the “often” term demonstrates the Veteran’s in-service injury could be related to the current disability. Speculative medical opinions are insufficient to establish service connection. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Furthermore, the Veteran’s in-service injury and alleged month of light duty was noted in the opinion letter; however, the record does not support these allegations. While the Veteran suffered an in-service injury as demonstrated in the November 1965 STRs, the STRs and personnel records does not indicate the Veteran was placed on light duty. As such, the Board finds the January 2020 private opinion is not based on an accurate factual premise. The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993). As such, the Board finds the September 2019 VA opinion is more probative than the January 2020 private opinion. During the January 2020 Board hearing, the Veteran argued he was put on light duty after the injury, given pain medication, and the pain never stopped. He alleged he had the pain for 50 years with his back “blowing out” at least 3 times a year. The Board finds the contemporaneous medical evidence are more probative than the Veteran’s later assertions. The January 1966 service separation examination demonstrates normal clinical findings for the spine. The separation examination did not note complaints or further treatment for a lower back condition. The STRs and personnel records make no mention of light duty after a back injury. The memory fades and becomes more imperfect with the passage of time, while the documented reports more accurately reflect what actually happened. The point in time in which the statement was made is important because a description of an event which is closer to the time that event allegedly occurred is naturally less likely to be affected by errors in memory. See Seng v. Holder, 584 F.3d 13, 19 (1st Cir. 2009) (noting that, notwithstanding the declarant’s intent to speak the truth, statement may lack credibility because of faulty memory). Thus, the more contemporaneous nature of the statement of medical history in 1966 is significant. Furthermore, because that account was presented in the context of routine medical evaluation, it seems likely that he would report events carefully and accurately. The “medical diagnosis or treatment” exception to the hearsay rule (Fed. R. Evid. 803) provides that “statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care.” Recourse to the Federal Rules of Evidence is appropriate where they will assist in articulation of the Board of Veterans’ Appeals’ reasons. Rucker v. Brown, 10 Vet. App. 67 (1997). In contrast to the Veteran’s account in 1966, when the Veteran thereafter presented his account, he was seeking VA benefits rather than medical treatment. The Board is of course cognizant of possible self-interest which any veteran has in promoting a claim for monetary benefits. While the Board must consider all competent lay assertions, in determining the credibility of such assertions, the Board may properly consider the personal interest a claimant has in his or her own case. See Pond v. West, 12 Vet. App. 341, 345 (1999); and see Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest may affect the credibility of testimony). Additionally, the medical records indicate the Veteran was not diagnosed or treated for a back condition until 2017, 51 years post service. Such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000). During the January 2020 Board hearing, the Veteran’s attorney argued the VA examination rationale was inadequate as it fully relies on the gap in treatment and does not explain why the in-service back condition does not relate to the current back condition. The Board has found the VA examination adequate as discussed above. The VA examiner did not solely rely on a gap in treatment. He also found a chronic back condition while in the service could not be established. In the September 2019 VA examination addendum, the examiner further clarified based on the STR’s provided he “could not support a chronic back condition.” Accordingly, service connection for a lower back disability is denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C.§5107(b); 38 C.F.R.§ 3.102; see also Gilbert, 1 Vet. App.at 53-56. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jackman, 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.