Citation Nr: 20047565 Decision Date: 07/16/20 Archive Date: 07/16/20 DOCKET NO. 14-33 005 DATE: July 16, 2020 ORDER As new and material evidence has been received, the previously denied claim of entitlement to service connection for low back disability is reopened. Entitlement to service connection for low back disability, to include as secondary to bilateral knee disabilities, is denied. Entitlement to service connection for lipoma on the back, to include as secondary to posttraumatic stress disorder (PTSD), is denied. FINDINGS OF FACT 1. A June 2008 rating decision denied entitlement to service connection for low back disability; the Veteran failed to file a notice of disagreement to initiate an appeal of this decision and new and material evidence was not received within one year. 2. Additional evidence received since the June 2008 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for low back disability and raises a reasonable possibility of substantiating the claim. 3. The Veteran’s degenerative arthritis of the lumbosacral spine 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 a low back disability is not otherwise etiologically related to an in-service injury or disease; nor is a low back disability proximately due to or aggravated by service-connected bilateral knee disabilities. 4. The Veteran’s lipoma on the back is not related to an in-service injury or disease; nor is it secondary to service-connected PTSD. CONCLUSIONS OF LAW 1. The June 2008 rating decision that denied a claim for service connection for low back disability is final. 38 U.S.C. § 7105(c); 38. C.F.R. §§ 3.104, 20.302, 20.1103. 2. The additional evidence received since the June 2008 rating decision is new and material, and the claim for service connection for low back disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for a low back disability, including arthritis, to include as secondary to bilateral knee disabilities, are not met. 38 U.S.C. §§ 1110, 1131, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 4. The criteria for service connection for lipoma on the back, to include as secondary to PTSD, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1990 to September 1992. These matters are on appeal to the Board from a September 2011 rating decision. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in October 2018. A transcript has been associated with the record. In July 2019, the Board previously remanded these issues for further development, to include obtaining VA examinations. The Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the prior Board remand directives. See 38 U.S.C. § 5103A (b); Stegall v. West, 11 Vet. App. 268. New and Material Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for low back disability The Veteran is seeking to reopen his claim for service connection for low back disability. Service connection was denied in a June 2008 rating decision because there was no current diagnosis of a chronic low back condition or a medical opinion showing a clinical relationship between diagnosis and some event or experience in service on a direct, secondary or presumptive basis. The Veteran did not initiate an appeal from this determination and new and material evidence was not received within one year. The Board recognizes that additional VA clinical records existed within one year of this decision. See Turner v. Shulkin, 29 Vet. App. 207 (2018). However, as these records do not show a current diagnosis or nexus, they are redundant of prior clinical records and, thus, are not new and material. Under these circumstances, the Board must find that the June 2008 rating decision became final. 38 U.S.C. § 7105(c); 38. C.F.R. 3.104, 20.302, 20.1103. Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b) and (c); 38 C.F.R. § 3.160(d), 20.200, 20.201, 20.202, and 20.302(a). If new and material evidence is received during an applicable appellate period following a RO decision (1 year for a rating decision and 60 days for a statement of the case) or prior to an appellate (Board) decision (if an appeal was timely filed), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Thus, under 38 C.F.R. § 3.156(b), “VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim.” Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). “[N]ew and material evidence” under 38 C.F.R. § 3.156(b) has the same meaning as “new and material evidence” as defined in 38 C.F.R. § 3.156(a). See Young v. Shinseki, 22 Vet. App. 461, 468 (2011). Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7104 (b), 7105(c). 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 means evidence not previously submitted. Material evidence means existing evidence that by itself or when considered with previous evidence 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 last final decision and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” The Court further held it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element, as it would “force the Veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA.” For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Since the June 2008 rating decision, additional evidence has been associated with the record, including statements and hearing testimony from the Veteran, VA treatment records and VA examination report. Importantly, the VA examination shows a diagnosis of degenerative arthritis and spondylolisthesis. VA clinical records continue to show reports of back pain. Moreover, in his statements and hearing testimony, the Veteran asserted that his back disability was secondary to his service-connected bilateral knee disabilities. Accordingly, the evidence received since the June 2008 rating decision is new and material as it is not redundant of evidence already of record in June 2008 and relates to the unestablished fact of whether the Veteran has a low back disability that may be related to service, to include as secondary to bilateral knee disabilities. See 38 C.F.R. § 3.156(a). As such, the issue of entitlement to service connection a low back disability is reopened. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Additionally, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury; or, for any increase in severity of a nonservice-connected disease or injury which is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of nonservice-connected condition. 38 C.F.R. § 3.310 (a)-(b). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Entitlement to service connection for low back disability The Veteran contends that his low back disorder is related to service. In a November 2011 notice of disagreement, he asserted that he injured his back while weightlifting. Alternatively, he contends that it is secondary to his bilateral knee disabilities. Certain chronic diseases, including arthritis, will be presumed related to service if they were shown as chronic (reliably diagnosed) 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, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. The question for the Board is whether the Veteran has a chronic disease that was noted as chronic in service or that manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service. The Board concludes that, while the Veteran has arthritis, which is a chronic disease under 38 C.F.R. § 3.309(a), it was not shown as chronic in service or within a presumptive period, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. The Veteran indicated that he injured his back in service while weightlifting. However, service treatment records, including the Veteran’s 1992 Medical Board prior to discharge, are silent with respect to any findings, complaints or diagnosis of a low back disorder. Importantly, although a June 2006 VA treatment record indicated degenerative joint disease of the back, this impression was not based on x-ray findings. Subsequently, a July 2008 x-ray of the back was normal. Moreover, a November 2009 MRI of the spine was also unremarkable. The March 2020 VA examination noted that the Veteran’s arthritis was diagnosed in April 2014, 22 years after the Veteran’s discharge from service Accordingly, there is no objective evidence of arthritis within one year of discharge. Moreover, the Board finds that the Veteran’s report of an inservice injury as well as continuity of symptomatology to not be credible. The Veteran’s reports are internally inconsistent to his reports in contemporaneous service treatment records, which are silent with respect to any reports of back problems. Moreover, post-service treatment records are silent with respect to any reports of back pain until approximately December 2006, 14 years after his discharge from service. Significantly, when he sought treatment in July 2008, the Veteran reported back pain for one year since lifting a heavy object. Further, the Veteran again reported back pain following an October 2009 motor vehicle accident. Subsequently, in February 2014, the Veteran again reported back pain for one year. These inconsistencies as to the onset of back pain weigh against the Veteran’s credibility concerning pertinent symptomatology since service. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Service connection for a low back disorder 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 low back disorder and an in-service injury, event or disease. 38 U.S.C. § 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. In this regard, the March 2020 VA examiner noted that there was no evidence in the Veteran’s service treatment records the he received an injury or trauma to his back in service that would have likely resulted in either one of these conditions. The examiner found that a nexus has not been established. Further, the Veteran has now consistently asserted that his back disability is secondary to his bilateral knee disabilities. Nevertheless, the Board concludes the preponderance of the evidence is against finding that the Veteran’s low back disorder is proximately due to or the result of, or aggravated by service-connected bilateral knee disabilities. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). In this regard, the Board previously found that a May 2018 VA examination, which found no such relationship, was inadequate. On remand, the March 2020 VA examiner found that the Veteran’s low back disorder was less likely than not proximately due to or the result of the Veteran’s service-connected condition. The examiner rationalized that the Veteran was diagnosed with spondylolisthesis in 2018 and early osteoarthritic changes in the lumbosacral spine in 2014. Spondylolisthesis is caused by injuries or activities that cause overstretching of the lumbar spine. Degenerative arthritis or osteoarthritis is caused by wear and tear of a joint, typically due to traumatic injury, repeated abuse, excessive repetitive use, overuse of the joint under excessive stress, and rarely but possibly an infection of the joint. There is no indication in the medical literature that arthritis of the knees causes spondylolisthesis or arthritis of the back. The arthritis in his knees does not logically cause any damage to the lumbosacral spine, which would result in osteoarthritis at that location. The examiner also found that the Veteran’s low back disability was not aggravated beyond its natural progression by his service-connected condition. The examiner again rationalized that there is no indication in the medical literature that arthritis of the knees causes spondylolisthesis or arthritis of the back. The arthritis in his knees does not logically cause any damage to the lumbosacral spine, which would result in osteoarthritis at that location. The VA examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board notes that the Court held in the case of Ward v. Wilkie, 31 Vet. App. 233 (2019), that aggravation pursuant to 38 C.F.R. § 3.310 does not require a permanent worsening of the condition. Rather, the Court explained that “aggravation” is any incremental increase in disability attributable to the service-connected disability, i.e., any additional impairment of earning capacity that is above the degree of disability existing before the increase, regardless of its permanence. Id. However, here, although the VA examiner used the term beyond its natural progression, the VA examiner did not indicate that there was any incremental or transient increase. Rather, the examiner found that there was no causal relationship. The Veteran believes his low back disorder is related to an in-service injury, event, or disease; or proximately due to or the result of/aggravated by his service-connected bilateral knee disabilities. However, the Veteran is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires specialized medical knowledge. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA examination with medical opinion. In conclusion, based on the analysis above, a preponderance of the evidence is against the Veteran’s claim for service connection for a low back disability, to include as secondary to bilateral knee disabilities. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b). Entitlement to service connection for lipoma on the back The Veteran has generally claimed that his lipoma on the back was from the Gulf War. However, he has provided no further details concerning any specific incident, injury or disease that occurred during his service in the Gulf War. In the alternative, he has asserted that his lipoma on the back is aggravated by his PTSD as he was unable to have surgery to have it removed due to his PTSD. The initial question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Although the Veteran has current diagnosis of lipoma, the preponderance of the evidence weighs against finding that this disability began during service or are otherwise related to an in-service injury, event, or disease. Service treatment records are silent with respect to any complaints, findings or diagnoses pertaining to any lipomas. Post-service treatment records show that the Veteran was diagnosed with a lipoma on the upper back approximately in March 2010, 18 years after his discharge from service. There is no objective evidence linking any current lipoma of the back to any incident in service. Moreover, the Board finds that the Veteran’s report of the onset of his lipoma being 1992 or 1993 as not credible because it is internally inconsistent to his reports in contemporaneous service treatment records, which are silent with respect to any reports of lipomas. Again, the first post service evidence of a lipoma is in 2010, many years after his discharge from service. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). As there is no competent or credible evidence of an in-service injury, event, or disease, or any competent evidence of a nexus, a VA examination addressing whether the Veteran’s lipoma is directly related to service is not necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Moreover, the Board concludes the preponderance of the evidence is against finding that the Veteran’s lipoma on the back is proximately due to or the result of, or aggravated by service-connected PTSD. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). In this regard, the March 2020 VA examiner found that the claimed condition is less likely than not proximately due to or the result of the Veteran’s service-connected condition. The examiner rationalized that a lipoma was a common, benign, slow growing subcutaneous tumor comprised of fatty tissue. There is no indication in the medical literature that PTSD causes lipomas or aggravates lipomas. A nexus has not been established. The examiner also found that the Veteran’s lipoma was not aggravated beyond its natural progression by service-connected condition and provided the same rationale. The VA opinion is considered highly probative, as it is based on a review of the Veteran’s claims file, and as it contains a sufficient explanation for the conclusion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his lipoma on the back is related to an in-service injury, event, or disease; or proximately due to or the result of/aggravated by his service-connected PTSD. The Veteran has asserted that he was unable to have surgery to remove the lipoma due to his PTSD. However, at the VA examination, he reported that he did not want to have the lipoma removed due to the location on his back. As such, there are inconsistencies in his reports as to why he has not had the lipoma removed. Moreover, the Veteran is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires specialized medical knowledge. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Consequently, the Board gives more probative weight to the VA examination with medical opinion. In conclusion, the preponderance of the evidence is against the Veteran’s claim for service connection for lipoma on the back, to include as secondary to service-connected PTSD. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.N. Moats 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.