Citation Nr: 21003347 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 17-31 193 DATE: January 21, 2021 ORDER New and material evidence having been received, the petition to reopen the Veteran’s claim of service connection for a back disability is granted. Entitlement to service connection for a back disability is denied. FINDINGS OF FACT 1. The Agency of Original Jurisdiction (AOJ) denied the Veteran’s claim for entitlement to service connection for a back injury in April 1983. The Veteran did not appeal this decision, nor did he submit new and material evidence within one year of it. 2. The evidence submitted since April 1983 is new, in that it was not previously before VA; it is material as it is not cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim and it relates to an unestablished fact necessary to substantiate the claim. 3. The Veteran’s currently shown back disability (degenerative disc disease of the lumbosacral spine) first manifested many years after service and has not been medically related to his service. CONCLUSIONS OF LAW 1. The April 1983 rating decision denying service connection for a back injury is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.1103. 2. New and material evidence since April 1983 rating decision has been submitted to allow the readjudication of the claim. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 20.1103. 3. The criteria for service connection for degenerative disc disease of the lumbosacral spine have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The records reflect that the Veteran served on active duty in the United States Army from February 19, 1960 to August 1960, and January 1966 to January 1969, with additional service in the National Guard. This matter is before the Board of Veterans Appeals (Board) on appeal from a July 2015 Rating Decision (RD) by the Department of Veterans Affairs (VA) of the Muskogee, Oklahoma Regional Office (RO), which denied service connection for the Veteran’s claimed a back disability based on a finding that evidence submitted was not new and material. The Veteran filed a notice of disagreement (NOD) in July 2016 and a subsequent statement of the case (SOC) was issued in April 2017, which denied service connection for the claimed back injury. The Veteran perfected his appeal in June 2017 and requested a Board Hearing. The claim was then certified to the Board in February 2018. On an initial note, the evidence of record shows the Veteran was scheduled for a Board hearing in April 2019; however, the Veteran did not appear for this hearing. Thereafter, a letter was issued in October 2020 requesting clarification on whether the Veteran wanted to be scheduled for another hearing. The Veteran was provided 30 days to respond to the clarification request; however, to date, the Veteran has provided no response. Therefore, the request is considered withdrawn. 1. Whether new and material evidence has been received to reopen a claim of service connection for a back disability. Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). However, under pertinent legal authority, the VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); See also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence means existing evidence not previously received by 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). The Court has 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." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The Veteran seeks to establish service connection for a back disability, which he asserts is causally related to an event incurred during military service. In the April 1983 rating decision, the agency of original jurisdiction denied the Veteran’s claim for service connection for a back injury, finding that although a back injury was incurred in service, it is considered acute and transitory in the absence of continuity of symptomatology since the Veteran’s discharge from military service. See Rating Decision (April 14, 1983). Within the one-year period following this decision, the Veteran did not submit a Notice of Disagreement and new and material evidence was not received. Accordingly, the April 1983 rating decision became final as to the evidence then of record. See 38 U.S.C. § 7105(c) (2006, 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2010, 2017). At the time of the April 1983 rating decision, the record consisted, most notably, of service and personnel treatment records. Following the April 1983 rating decision and in support of reopening his claim, the Veteran submitted VA treatment records spanning from July 2, 2012 through April 28, 2015. Additionally, the AOJ obtained a nexus opinion based on a review of the file. As this evidence was not available at the time of the April 1983 rating decision, it is considered to be new evidence. Additionally, as this evidence is not cumulative or redundant of the evidence previously of record and relates to unestablished facts necessary to substantiate the claim, specifically, whether the Veteran's back disability is related to his military service, the Board finds it is also material. Accordingly, the evidence is found to be new and material, and readjudication of the claim for entitlement to service connection for a back disability is warranted. 2. Entitlement to service connection for a back disability. Although the AOJ determined in the rating decision on appeal that new and material evidence had not been submitted, during the course of the appeal, the AOJ ordered additional development in the form of a VA medical opinion and readjudicated the merits of the claim in the April 2017 statement of the case. Therefore, there is no prejudice for the Board to proceed on the merits. The Veteran contends that service connection is warranted for a back disability. Specifically, the Veteran initially claimed that while “[l]oading cows into a shute, he was hit by a bull and pinned against a fence.” See MTF Treatment Note (November 12, 1968); See MTF Radiographic Report (November 12, 1968). Subsequently, in March 2017, the Veteran asserted that as he was engaged in “[p]ushing guns around while in Vietnam, it is ‘possible’ he injured his back participating in this activity.” See Back Conditions DBQ (March 30, 2017). Generally, in order to prove service connection, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as degenerative arthritis, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. 38 C.F.R. §§ 3.307, 3.309 (2017). As provided by 38 U.S.C. § 1154(a), VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. With specific regard to lay evidence, the type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). For example, lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, the layperson is reporting a contemporaneous medical diagnosis, or 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). Regarding nexus, although without describing specific situations, the Federal Circuit also has explicitly rejected the view that medical evidence is necessarily required when the determinative issue is etiology. See id., at 1376-77. In short, the Board cannot determine that lay evidence as to diagnosis and nexus lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In the present case, the evidence establishes that the Veteran has a current diagnosis of degenerative disc disease, with complete degeneration of L1 and S1, and with an original diagnosis date of August 18, 2015. See Back Conditions DBQ (March 30, 2017). Therefore, a current disability has been established. Thus, the question is whether there any event, injury, or disease in service. The Veteran’s service treatment records include his entrance physical examinations, which show a normal clinical evaluation, to include a normal evaluation of the Veteran’s spine. See Reports of Medical Examination (January 18, 1960; July 25, 1960; January 5, 1966). Thereafter, the Veteran was seen for a back injury incurred while “[l]oading cows into a shute. The Veteran stated he was hit by a bull and was pinned against a fence.” See service treatment records, noted dated November 12, 1968. At the time, the treating physician ordered a lumbar spine x-ray that reported no significant abnormalities. See MTF Radiographic Report (November 12, 1968). Following this appointment, the evidence of record shows the Veteran sought no additional treatment for this injury, while in service. A review of the Veteran’s separation physical examination shows a normal clinical evaluation, to include a normal evaluation of the Veteran’s spine. See Report of Medical Examination (December 12, 1968). Further, the Veteran’s STR’s are silent as to additional complaints, treatment and/or diagnosis of the claimed back disability while in service. On this evidence, the Board finds that the second element of service connection is met, in that there was an in-service injury to the back. The question then turns to whether there is a nexus, or link, between the Veteran’s current back condition and the injury in service. Since separation, the Veteran contends he has continued to experience and suffer from pain stemming from the aforementioned injuries; however, the evidence of record indicates the Veteran did not seek treatment for his back disability until approximately February 2012. Here, the Veteran reported with complaints of back pain with a stated onset of 2 days ago. See Utica Park Clinic Note (February 15, 2012). The Veteran described his pain as sharp and stabbing, not radiating, with symptoms that are aggravated by bending, lifting, sitting, and walking. The examiner also noted no restrictions related to flexion, extension and lateral bending, and was treated with a trigger point injection. Lastly, the treating physician noted the Veteran’s x-rays show complete degeneration of L5 and S1. Id. The Veteran was seen again in August 2013, where he again complained of back pain. See Utica Park Clinic Note (August 20, 2013). Here, the Veteran claimed the onset of his back pain began three weeks ago but, was improving. The Veteran described his pain as sharp, not radiating, with symptoms that are aggravated by ascending/descending stairs, bending, coughing, lying, sitting, standing, twisting and walking. Upon evaluation, the examiner noted a pain free to moderate active range of motion with mild restrictions of flexion, extension, and lateral bending. Id. Finally, the evidence of record shows the Veteran was seen for back pain in September 2013. See Utica Park Clinic Note (September 12, 2013). Here, the Veteran claimed the onset of his back pain began two months ago and states the problem is getting worse. The Veteran described the symptoms as being aggravated by rolling over in bed and are relieved with heat; however, he also provided this only happens, “occasionally after laying down and getting up.” Id. The Veteran was afforded a VA examination in March 2017 for his claimed back disability. During this examination, the Veteran reported suffering from back pain incurred in service from pushing guns around that has progressively worsened over the past 1-2 years. See Back Condition DBQ (March 30, 2017). The examination confirmed a diagnosis of degenerative disc disease at L1 and S1. The examiner ultimately concluded it is less likely than not (less than 50% probability) the condition is incurred in or caused by an in-service event, injury, or disease. This examiner opined that although the medical evidence did show the Veteran received treatment for an event that occurred in service, there was no indication or evidence of chronicity of care as the record clearly indicates that the Veteran received no continued in-service treatment for a back disability, no post-separation treatment for a back disability until February 2012 and there is no evidence of any record of treatment for a back disability after approximately September 2013. This supports the conclusion that the reported event was acute in-service only. Id. The Board does acknowledge that the Veteran offered additional evidence in support of his contention that his back disability was incurred in service and thus warrants service connection. This evidence includes a June 2017 lay statement concerning his disability, whereby the Veteran reported experiencing low back pain 24 hours per day and having trouble getting around. See VA Form 9 (June 6, 2017). The Board has considered the lay evidence provided by the Veteran and does acknowledge that the Veteran is competent to report the nature and timing of his observable symptoms and the factual circumstances of the claimed back disability; however, he is not competent to provide an opinion as to the nature and etiology of his back disability. This is a medically complex question that requires knowledge of the interactions between the musculoskeletal systems in the body, as well as interpretation of the medical history and testing. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Ultimately, the Board finds the March 2017 VA examination medical opinion to be highly probative, on the issue of whether the Veteran’s current back disability is related to his military service. It was offered after examining the Veteran’s claims file, reviewing his lay statements, and reviewing the pertinent service personnel and treatment records. See Bloom v. West, 12 Vet. App. 185, 187 (1999). The examiner then included the underlying reasons for the opinion, which are not contradicted by the record. For these reasons, the March 2017 medical opinion is afforded greater probative value. Given the late onset, it also precludes service connection as a chronic disability by presumption, as there is no diagnosis of degenerative arthritis within one year of his separation. Likewise, there is no credible assertion of continuity of symptomatology. Specifically, the Veteran’s reports of origination of the back disability while in-service and continuous pain after separation from service are not credible due to inconsistency with the other available evidence. Again, the evidence of record shows the Veteran first complained of his back injury in February 1968; however, he did not seek additional treatment for the condition while in service and his separation examination was wholly devoid of findings of a back disability, and the Veteran denied back pain at that time. He did not seek treatment for back pain until 2012, nearly 43 years after his separation from service, at which time he gave a durational history of days or months, as opposed to years. In short, the Board finds that service connection is not warranted under any theory of entitlement, whether direct or presumptive. In reaching these conclusions, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Associate Counsel Donna M. Williams 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.