Citation Nr: 20038035 Decision Date: 06/03/20 Archive Date: 06/03/20 DOCKET NO. 18-10 263 DATE: June 3, 2020 ORDER New and material evidence having been received, the claim of entitlement to service connection for a back disability, to include lumbosacral strain, is reopened and to that extent only the appeal is granted. Entitlement to service connection for a back disability, to include lumbosacral strain, is denied. REMANDED Entitlement to service connection for headaches, to include as secondary to service-connected shoulder bursitis, is remanded. FINDINGS OF FACT 1. A July 1990 rating decision denied service connection for back arthritis. The rating decision was not appealed in the appeal period, nor was new and material evidence received within the appeal period. The July 1990 rating decision is final. 2. The evidence submitted by the Veteran since the July 1990 rating decision regarding his back disability is neither cumulative nor redundant, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 3. The Veteran’s back condition is not due to, or caused by, his military service CONCLUSIONS OF LAW 1. The July 1990 rating decision denying service connection for a back disability, to include lumbosacral strain, is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Since the July 1990 rating decision, new and material evidence has been received with respect to the Veteran’s claim of entitlement to service connection for a back disability, to include lumbosacral strain, and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for a back disability, to include lumbosacral strain, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from June 1983 to March 1990. This appeal comes to the Board of Veterans’ Appeals (Board) from a Department of Veterans Affairs (VA) November 2016 rating decision of the Agency of Original Jurisdiction (AOJ). New and Material Evidence AOJ decisions are final unless the appellant files a notice of disagreement or submits new and material evidence within one year of the notification of the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103. However, a claim will be reopened, and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that, when “new and material evidence” is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence is that which was not previously submitted to agency decisionmakers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA’s duty to provide a VA examination is triggered. There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening. Shade, 24 Vet. App. at 117-20. The Veteran’s claim for service-connection for back arthritis was denied in July 1990 on the basis that the Veteran suffered an acute injury while in service and did not have a current disability for VA purposes. The Veteran did not appeal or submit new and material evidence within one year of the notification of the denial. Thus, the decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Since the July 1990 decision the Veteran has submitted medical evidence relating to his back disability. The evidence includes years of medical records showing ongoing treatment for a back condition, as well as records from the Social Security Administration and workers’ compensation records showing that the Veteran had sustained a back injury in March 2012 following which there was low back pain that radiated into the bilateral lower extremities. The Board finds that this evidence is new, relates to an unestablished fact, and raises a reasonable possibility of substantiating the Veteran’s claim. Therefore, the Board holds that the evidence regarding the Veteran’s back disability submitted to VA since the July 1990 rating decision is both new and material. The Veteran’s claim for entitlement to service connection for a back disability, to include lumbosacral strain, is reopened. Shade, supra; 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Service Connection Entitlement to service connection for a back disability, to include lumbosacral strain Service connection generally requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a causal relationship, or nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including arthritis, 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. §§ 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). After careful consideration of all evidence available in a given case, any reasonable doubt, meaning a point where there is an approximate balance of positive and negative evidence regarding any issue material to the determination, VA will resolve that doubt in the Veteran’s favor. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran’s medical record shows that he has been diagnosed with degenerative disc disease (DDD) and lumbosacral strain. Therefore, the Board finds that the first Shedden element necessary to establish service connection is satisfied. The Veteran’s service treatment records (STRs) show that in August 1989 he injured his back while in service; he was assessed as having lumbar strain. He was also seen for a low back contusion in service. Therefore, the Board finds that the second Shedden element necessary to establish service connection is satisfied. In order to establish service connection, the Veteran must show a connection, or nexus, between his current back disability and his in-service injury. In his Form 9, filed in February 2018, the Veteran contends that he was diagnosed with arthritis within a year of discharge. However, the diagnosis of a condition such as arthritis is a complex medical determination that can only be made by a medical professional. Jandreau, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The medical evidence from 1990 shows that the Veteran was not diagnosed with arthritis. In May 1990, shortly after separating from service, the Veteran had X-rays of his spine taken. Per Drs. G. and L., there was “no evidence” of degenerative changes, and the images were “essentially negative” and no diagnosable condition was found. The medical evidence shows that the Veteran suffered multiple back injuries after he left service, in 1995, 2012, and in 2013. The body of his medical record shows him receiving ongoing treatment for his back pain, specifically caused by a March 2012 accident. The Veteran applied for disability benefits though the Social Security Administration (SSA) in July 2015, alleging that his back disability prevented him from working. In his application, the Veteran reported that his March 2012 back injury was the reason he was unable to work at that time. At no point in his disability application did the Veteran state that his inability to work was due to an injury he suffered while in the military. In July 2015 the Veteran was awarded workers’ compensation benefits for his March 2012 back injury. In August 2016 the Veteran was seen by Dr. C., a chiropractor. Based on the Veteran’s self-reporting of his symptoms and a review of the records, Dr. C. could “only conclude that [the Veteran’s] lumbar spine condition today began with his injury of August of 1989.” In October 2016 the Veteran underwent a VA examination to determine the etiology of his back disability. The examiner noted that the Veteran had, at this point, degenerative arthritis of the spine. The examiner concluded that it was “less likely than not” related to, incurred in, or caused by the Veteran’s military service. The examiner based their opinion on the fact that the Veteran’s current disability “was not noted until he injured his low back from a work-related injury in 2012 and a second injury in 2013.” The examiner noted that imaging of the Veteran’s spine done in 1990 was “negative,” and that “there is no chronic disability, complaints, or treatment for his back from 1990 until his noted work-related injury in 2013 which is at least 23 years.” The examiner also noted that the Veteran was able to work as a mechanic from the time he left military service through his March 2012 accident, and was able to work the job without complaints of a back injury until his later injuries. The Board finds that the October 2016 examiner’s opinion has greater probative value than that of Dr. C., as the VA examiner addressed the Veteran’s well-documented post-service back injuries. The examiner’s rationale took the Veteran’s complete medical history into account when giving their conclusion. Dr. C. did not address the impact of the Veteran’s numerous post-service back injuries on his current condition. Furthermore, the Veteran’s own submissions to the SSA indicate that until his March 2013 accident he was not experiencing the symptoms and functional impairment that he currently has. The probative, competent, and credible evidence shows that the Veteran’s current back disability is not related to, incurred in, or caused by his military service, and therefore third Shedden element to establish service connection has not been met. Arthritis of the back was not shown as chronic in service and did not manifest within one year following separation from service. Therefore, service connection is not available on a presumptive basis under 38 C.F.R. §§ 3.307, 3.309(a). Based on the above, the Board finds that the preponderance of evidence is against the Veteran’s claim for entitlement to service connection for a back disability, to include lumbosacral strain. As the preponderance of the evidence is against the Veteran’s claims, the benefit of the doubt doctrine does not apply. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Therefore, service connection for a back disability, to include lumbosacral strain, is denied. REASONS FOR REMAND Entitlement to service connection for headaches, to include as secondary to service-connected shoulder bursitis is remanded. The Veteran contends that his migraine headaches are due to his service-connected bursitis in his shoulders. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury; or, for any increase in the severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progression of the nonservice-connected disease. 38 C.F.R. § 3.310 (a)-(b); Allen v. Brown, 7 Vet. App. 439 (1995). In order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disorder; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the service-connected disability and the current disorder. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In April 2017 the Veteran was diagnosed with a headache condition. Thus, he meets the first requirement necessary to establish secondary service connection. As the Veteran’s shoulder bursitis has been service-connected, he meets the second requirement necessary to establish secondary service connection. While the Veteran is competent to provide evidence regarding the frequency and severity of his headaches, determining the etiology of the condition is a complex medical determination that can only be made by a medical professional. Jandreau, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In January 2018 the Veteran underwent a VA examination to determine the etiology of his migraine headaches. The examiner concluded that the Veteran’s headaches are less likely than not “proximately due to or the result of” his service-connected shoulder bursitis. The examiner based their conclusion on a review of the Veteran’s medical record, which shows that the Veteran’s headaches are not related to his shoulder bursitis. Furthermore, the examiner is “not aware of any medical literature that confirms that shoulder bursitis alone, in the absence of any other factors, results in headaches.” However, the Board notes that the examiner did not address whether the Veteran’s headache condition is aggravated beyond its natural progression by his service-connected shoulder bursitis. While the Board regrets the additional delay, a remand is necessary to obtain an opinion addressing aggravation. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from a qualified examiner to determine whether the Veteran’s headache condition has been aggravated beyond its natural progression by his service-connected shoulder bursitis. The claims file will be made available to the examiner. The examiner shall indicate whether or not such was reviewed. The examiner shall address the following: (a.) Whether it is as least as likely as not (50 percent chance or greater) that the Veteran’s headache condition is aggravated beyond the natural progression of the disease by his service-connected shoulder bursitis. The rationale for all opinions expressed must be provided. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of the need for additional information, the examiner should identify the additional information that is needed. Laura E. Collins Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Neville, 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.