Citation Nr: 20060667 Decision Date: 09/15/20 Archive Date: 09/15/20 DOCKET NO. 15-06 388 DATE: September 15, 2020 ORDER New and material evidence has been presented, and the claim of entitlement to service connection for back disability is reopened. Entitlement to service connection for back disability is denied. Entitlement to service connection, to include on a secondary basis, for right leg disability is denied. Entitlement to service connection for bilateral eye disability is denied. Entitlement to service connection for Lyme disease is denied. FINDINGS OF FACT 1. Unappealed August 1996 and September 1996 rating decisions denied service connection for back disability. 2. An unappealed April 2002 rating action continued the denial of service connection for back disability. 3. Evidence submitted subsequent to the September 1996 rating decision raises a reasonable possibility of substantiating the claim of entitlement to service connection for back disability. 4. The Veteran’s back disability did not originate in service or until years thereafter, and is not otherwise etiologically related to service. 5. The Veteran’s right leg disability did not originate in service or until years thereafter, is not otherwise etiologically related to service, and was not proximately due to or aggravated by a service-connected disability. 6. The Veteran’s bilateral eye disability did not originate in service or until years thereafter, and is not otherwise etiologically related to service. 7. The Veteran’s Lyme disease did not originate in service or until years thereafter, and is not otherwise etiologically related to service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for entitlement to service connection for back disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The criteria for entitlement to service connection for back disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for entitlement to service connection, to include on a secondary basis, for right leg disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for entitlement to service connection for bilateral eye disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. The criteria for entitlement to service connection for Lyme disease have not been met. 38 U.S.C. §§ 1110, 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 October 1970 to October 1972. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The appeal was last remanded by the Board in November 2018 for additional development. A review of the claims file shows that there has been substantial compliance with the Board’s prior remand directives and thus, no further action in this regard is warranted. See Stegall v. West, 11 Vet. App. 268 (1998). The RO issued a supplemental statement of the case and new rating decision in July 2020. New and Material Evidence New evidence means evidence not previously submitted to agency decision-makers. Material evidence means existing 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 of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. This is a low threshold that is meant to enable, rather than preclude, reopening. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The focus is not on whether the evidence remedies the principle reason for the previous denial, but whether the evidence, taken together, would at least trigger the duty to assist by providing a medical opinion. Id. at 117. 1. New and material evidence has been presented, and the claim of entitlement to service connection for a back disability The Veteran originally filed a claim seeking entitlement to service connection for back disability in January 1996, which was denied in August 1996 and September 1996 rating decisions. The September 1996 rating decision was not appealed, and new and material evidence was not received within a year. The decision thereby became final. The Veteran filed a supplemental claim for entitlement to service connection for back disability in November 2000 which was denied by an April 2002 rating decision for lack of new and material evidence sufficient to reopen the claim for entitlement to service connection for a back disability. The April 2002 rating decision was not appealed, and new and material evidence was not entered within a year. The decision thereby became final. The Veteran’s most recent claim to reopen was received in December 2010. Since the September 1996 and April 2002 decisions, new evidence has been received to include additional VA treatment records, including a VA medical opinion received in January 2020. Further, the credibility of such treatment records and report is to be presumed for purposes of new and material evidence. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Because this information, in connection with evidence previously assembled, raises the possibility of substantiating the Veteran’s claim, it constitutes new and material evidence sufficient to reopen the claim. Accordingly, the claim for service connection for back disability is reopened. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Service connection generally requires evidence satisfying three criteria: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the current disability and the disease or injury incurred or aggravated during service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Secondary service connection may be granted when a disability is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 447-48 (1995). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when: (1) the weight of the evidence supports the claim, or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for back disability In a March 2018 Statement in Support of Claim, the Veteran explained that when he was stationed in Guantanamo Bay, Cuba a siren sounded, and soldiers rushed to the front line. During the rush, the Veteran jumped on to the back of a truck full of fellow soldiers. As the truck raced down the road, the truck took a turn causing several soldiers to fall off the truck, the Veteran being one of them. The Veteran stated, “I landed hard but was not severely injured.” The Veteran contends that this accident is the cause of his current back disability. Factual Background Service treatment records are negative for any evidence of complaints, treatment or a diagnosis related to the Veteran’s back disability. An October 1972 separation examination revealed no abnormalities. The Veteran was afforded a VA examination in January 2001. The January 2001 VA examiner’s report notes the Veteran’s contention that in 1997 he was performing lifting procedures when he experienced acute pain in his low back radiating to his right leg. Magnetic resonance imaging (MRI) performed in 2000 revealed discogenic disease. A March 2005 private treatment record notes reports of chronic low back pain that began in 1997 after the Veteran suffered a fall in 1996. A November 2008 private treatment record indicates that the Veteran had been under the care of the private physician since 1991 and is currently disabled due to severe spinal stenosis. The Veteran was afforded a VA examination in January 2008 for his claim for aid and attendance. The January 2008 VA examiner’s report notes the Veteran’s contention that he injured his right ankle in 1997 and subsequently had surgery that resulted in awkward ambulation which caused his low back pain. May 2011 and June 2011 VA treatment records note complaints of low back pain and that the Veteran denied any trauma, injury or fall associated with the pain. A May 2013 VA examiner’s report notes that the Veteran was a farm laborer and then a truck driver until 2000 when the Veteran became disabled as a result of injuries to his right ankle and back sustained in a workman’s compensation incident. A January 2020 VA treatment record notes that the Veteran reported a stabbing pain in his low back radiating to his mid-back and his legs. The Veteran was afforded another VA examination for his back disability in January 2020. The January 2020 VA examiner’s report notes a diagnosis of degenerative arthritis of the spine and references a December 2019 MRI that revealed multilevel degenerative disc disease with foraminal narrowing. The January 2020 VA examiner’s report notes that there was a twenty-five year interval from separation until back pain was first noted in January 2001. The report notes that post-military the Veteran worked at high risk jobs for developing pain. As a result, the January 2020 VA examiner’s report concluded that “[t]he claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.” Analysis The evidence shows that the Veteran has a back disability including a diagnosis of degenerative arthritis of the spine. The questions become whether an in-service injury, event, or occurrence happened and, if so, whether a nexus exists between the in-service injury and the Veteran’s current back disability. The Veteran claims he injured his back in service from falling off a truck. Service treatment records are silent for any reference to back complaints or findings, or for any reference to the alleged injury. The Veteran’s separation examination revealed no abnormalities. Under the circumstances, and given the negative separation examination, the Board finds the Veteran’s account of an injury in service to lack credibility. This is further buttressed by the Veteran’s own account of his back problems made to treating and examining clinicians, including during periods where he was not concerned with seeking compensation for back problems. For example, the January 2001, January 2008, and May 2013 VA examiner’s reports and a March 2005 private treatment record all indicate that the Veteran suffered a post-service back injury in 1996 or 1997; the Veteran at those times did not mention a service injury. Consequently, the Veteran’s statements asserting that he injured his back during active duty service lack credibility. Even assuming that the Veteran did injure his back in service, the evidence still preponderates against the claim. The service separation examination is silent for any back complaints or findings, there is no competent evidence of back complaints until decades after service, there is a clear history of an intercurrent back injury, and there is no medical evidence linking the current back disorder to service. The only medical opinion addressing the etiology of the back disorder is against the claim. The January 2001, January 2008, and May 2013 VA examiner’s reports and a March 2005 private treatment record all indicate that the Veteran’s back disability was likely caused by an injury sustained 1996 or 1997, nearly twenty-five years after the Veteran’s separation from service. In addition, the January 2020 VA examiner’s report highlights the extensive gap between the Veteran’s separation from service and the first reports of back pain. With regard to the years-long evidentiary gap in this case between the alleged in-service injury and the earliest manifestations of a back disability approximately twenty-five years after the Veteran’s separation from active duty military service, the Board notes that a prolonged period without medical complaint can be considered, along with other factors concerning a claimant’s health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The January 2020 VA examiner’s report also emphasized that the Veteran engaged in post-service work that had an increased likelihood for developing back pain. The Board affords great probative value to the January 2020 VA examiner’s report which found no nexus between the Veteran’s military service and his current back disability. To the extent the Veteran contends that his back problems existed in service and continuously since service, the Board finds his account to lack credibility for the reasons already stated concerning the absence of any reference to back problems until he suffered a post-service work injury. In sum, the record does not contain probative lay or medical evidence sufficient to establish that an in-service injury, event, or occurrent happened nor that a medical nexus exists between the Veteran’s back and his military service. The preponderance of the evidence is against the claim. Accordingly, while the Board is very sympathetic to the appellant’s situation, service connection for cause of the Veteran’s back disability must be denied. The Board notes that the Veteran is not prejudiced by the Board addressing the merits of the claim after reopening the claim. From the most recent supplemental statement of the case, it appears the AOJ reopened the claim and considered it on the merits. 3. Entitlement to service connection, to include on a secondary basis, for a right leg disability The Veteran contends that his back disability caused his right leg disability. Factual Background Service treatment records are negative for any evidence of complaints, treatment or a diagnosis related to the Veteran’s right leg disability. The Veteran was afforded a VA examination in January 2001. The January 2001 VA examiner’s report notes the Veteran’s reports that he first experienced pain in his low back radiating to his right leg while lifting in 1997. The Veteran also reported that he continued to have recurrent sharp pains into his right buttock and right thigh with intermittent episodes of tingling and numbness in the lower right leg and foot. The Veteran was afforded another VA examination in January 2020. The January 2020 VA examiner’s report cited to the contentions in the January 2001 VA examiner’s report. The report also emphasized that there was a twenty-five year interval from separation until the Veteran’s back pain was first noted. The report also noted that post-service the Veteran worked in high risk jobs for back pain. January 2020 VA examiner’s report concluded that “[t]he claimed [right leg] condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected condition.” Analysis Service connection may be granted for a disease or injury which resulted from a service-connected disability or was aggravated thereby. The evidence does not show that the Veteran’s back disability is related to service. Therefore, service-connection for a right leg disability on a secondary basis to this condition cannot be established. There is also no evidence showing a right leg disability was incurred in or aggravated by military service, nor has the Veteran contended such. Accordingly, while the Board is very sympathetic to the appellant’s situation, service connection for cause of the Veteran’s right leg disability must be denied. 4. Entitlement to service connection for an eye disability The Veteran contends that his vision began diminishing during service, that he was issued glasses during bootcamp, that his vision has continued to worsen post-service, and that he is now diagnosed with cataracts and macular degeneration. Factual Background The Veteran’s October 1970 entrance examination indicates that the Veteran had 20/20 vision in both eyes upon induction into service. A November 1970 service treatment record indicates that the Veteran’s unaided vision was 20/50. An August 1972 service treatment record notes complaints of blurred vision and 20/50 vision. VA treatment records sparsely reference the Veteran’s vision or eyes. The Veteran was afforded a VA examination in January 2020. The January 2020 VA examiner’s report notes diagnoses of cataracts and age-related macular degeneration. The cataracts were noted to be bilateral incipient cataracts which slightly reduced the Veteran’s corrected visual acuity. Significantly, the VA examiner’s report notes that the Veteran was a poor historian. During the examination, the Veteran claimed no ocular injuries while serving in the military. The January 2020 VA examiner’s report explained that the diagnoses were age related. The January 2020 VA examiner’s report concluded that the Veteran’s bilateral eye disability did not impact his ability to work and “was less likely than not (less than 50 percent probability incurred in or caused by the claimed in-service injury, event, or illness.” Analysis The evidence shows that the Veteran has a current bilateral eye disability including diagnoses of bilateral incipient cataracts and age-related macular degeneration. The Veteran claims his vision began to decline during service and that he was issued glasses during bootcamp. Service treatment records confirm that the Veteran’s vision declined during service. The question becomes whether a nexus exists between the Veteran’s service and his current bilateral eye disability. The only, uncontradicted medical opinion of record determined that the Veteran’s bilateral eye disability was not related to his military service. The Veteran is competent to report when he began experiencing symptoms of poor vision. However, as a layperson lacking in medical training and expertise, he cannot provide a competent opinion on matters as complex as the diagnosis and etiology of his symptoms. Furthermore, the January 2020 VA examiner’s report specifically notes that the Veteran was a poor historian, thus challenging the competency and credibility of the Veteran’s reports. As such, his lay assertions regarding a causation of his bilateral eye disability are of no probative value. Further, even if his opinion regarding the etiology of a current diagnosis of a bilateral eye disability was afforded some probative value, it is far outweighed by the opinion provided by the VA examiner who has greater training and expertise than the Veteran in diagnosing and assessing a bilateral eye disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). To determine the cause of such a condition requires medical training and expertise that the Veteran does not possess. 38 C.F.R. § 3.159 (a)(1), (2) (2018). Accordingly, there is no competent evidence of a link between the Veteran’s bilateral eye disability and his active service. 5. Entitlement to service connection for Lyme disease The Veteran stated in his October 2011 supplemental claim for Lyme disease that he contracted the disease while on active duty in North Carolina. The Veteran later stated on his February 2015 Form 9 that his Lyme disease began when he contracted a rash while stationed in Okinawa, Japan. The Veteran later clarified during the January 2020 VA examination that he believes his Lyme disease began while stationed in North Carolina and that a subsequent rash experienced while stationed in Okinawa, Japan was a symptom of the previously contracted Lyme disease. Factual Background A June 1972 service treatment record notes complaints of a rash. A June 2011 VA treatment record notes that the Veteran was diagnosed with Lyme disease ten years prior and was treated by a private physician outside of VA. The Veteran was afforded a VA examination for his Lyme disease in January 2001. The January 2001 VA examiner’s report explained the history of the Veteran’s Lyme disease noting: “He states that in March of 2000 the patient developed some rather abrupt onset of weakness, nausea, and some chills and fever and some loss of weight. He was seen and examined at this time and a diagnosis was made of possible Lyme’s disease. Subsequently blood work revealed evidence of positive hepatitis C.” The January 2001 VA examiner’s report notes a diagnosis of hepatitis C, but not Lyme disease. The Veteran was afforded another VA examination for his Lyme disease in January 2020. The January 2020 VA examiner’s report notes the Veteran’s reports that his Lyme disease began in in 1972 when he was bit by a tick, that he believes he contract Lyme disease while stated in North Carolina, and that his believes the rash he suffered while stationed in Okinawa, Japan was related to his Lyme disease. The January 2020 VA examiner’s report is ambiguous regarding whether the Veteran currently has a diagnosis of Lyme disease. The report notes that the most recent screening of Lyme disease was within normal limits and that no diagnosis was given. The report also notes, however, that the Lyme disease was currently inactive and that it was unclear when it became inactive. The January 2020 VA examiner’s report further notes that the Veteran’s Lyme disease is currently untreated and that it impacts his ability to work because the Veteran suffers symptoms such as feeling sluggish, run down, tired, sleepy, and a lack of energy. The January 2020 VA examiner’s report notes that there were no abnormalities noted on the Veteran’s entrance or separation examinations and that there was no diagnosis or documentation of Lyme disease in service. The report also cited a twenty-five year interval from separation until Lyme disease was first noted and a fifty year interval from service until lab work confirmed Lyme disease in 2011. As a result, the January 2020 VA examiner’s report concluded that “[t]he claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service, injury, event, or illness. Analysis The evidence shows that the Veteran was previously diagnosed with Lyme disease and that the Lyme disease is currently inactive. The Veteran claims he contracted Lyme disease during service. However, service treatment records are silent for any mention of Lyme disease. The Veteran also claims that a rash incurred during service was related to his Lyme disease. A June 1972 service treatment record documents complaints of a rash. The question becomes whether a nexus exists between the Veteran’s service and his Lyme disease. The Board affords high probative value to the only uncontradicted medical opinion of record which determined that the Veteran’s Lyme disease was not related to the Veteran’s military service. The January 2020 VA examiner’s report cited to the Veteran’s separation examination which noted no abnormalities and the decades long gap between the alleged in-service occurrence and the first diagnosis of possible Lyme disease. With regard to the years-long evidentiary gap in this case between the 1972 in-service rash and the earliest documentation of Lyme disease in approximately 2001, the Board notes that a prolonged period without medical complaint can be considered, along with other factors concerning a claimant’s health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Moreover, the Veteran is competent to report when he began experiencing symptoms of Lyme disease; however, as a layperson lacking in medical training and expertise, he cannot provide a competent opinion on matters as complex as the diagnosis and etiology of his symptoms. As such, his lay assertions regarding a diagnosis and causation of his Lyme disease are of no probative value. Further, even if his opinion regarding the etiology of a current diagnosis of Lyme disease was afforded some probative value, it is far outweighed by the opinion provided by the VA examiner who has greater training and expertise than the Veteran in diagnosing and assessing a psychiatric disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). To determine the cause of such a condition requires medical training and expertise that the Veteran does not possess. 38 C.F.R. § 3.159 (a)(1), (2) (2018). Accordingly, there is no competent evidence of a link between the Veteran’s Lyme disease and his active service. In sum, the record does not contain probative lay or medical evidence sufficient to establish a medical nexus between the Veteran’s Lyme disease and his military service. The preponderance of the evidence is against the claim. Accordingly, while the Board is very sympathetic to the appellant’s situation, service connection for cause of the Veteran’s Lyme disease must be denied. Thomas H. O’Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Palombi, 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.