Citation Nr: 21062512 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 18-25 239 DATE: October 7, 2021 ORDER New and material evidence has been received to reopen a service connection claim for low back strain. Service connection for lumbosacral strain is granted. Entitlement to service connection for gastrointestinal stromal tumor is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. In an unappealed February 1998 rating decision, the Department of Veterans' Affairs last denied service connection for back strain. 2. Evidence received since the February 1998 rating decision is new and material and relates to an unestablished fact necessary to substantiate the claim of service connection for lumbosacral strain. 3. The evidence is at least evenly balanced as to whether the Veteran's current lumbosacral strain is related to low back pain sustained during service. 4. The preponderance of evidence weighs against a finding that the Veteran's gastrointestinal stromal tumor is related to service. 5. The Veteran's service-connected disabilities do not meet the schedular criteria for assignment of a TDIU, and the evidence of record does not reflect that the Veteran has been unable to engage in substantially gainful employment as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The February 1998 rating decision that last denied service connection for back strain is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.1103 (2020). 2. New and material evidence has been received sufficient to reopen the claim of service connection for back strain. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). 3. The criteria to establish service connection for lumbosacral strain are met. 38 U.S.C. §§ 101(24), 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 4. The criteria for entitlement to service connection for gastrointestinal stromal tumor are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 5. The criteria for entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5103 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty in the Army from September 1973 to September 1975, with Reserve service thereafter. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision of a Department of Veterans' Affairs (VA) Regional Office, the agency of original jurisdiction (AOJ). In May 2021, the Veteran testified during a virtual Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. As phrased on the title page herein, the Board has recharacterized the issue of entitlement to service connection for "lower back pain" to "low back strain" to better reflect the information contained in the medical evidence of record. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that the scope of a claim is determined by the claimant's description of the claim, the symptoms described, and the information submitted or developed in support of the claim). Duty to Assist The record reflects that subsequent to the May 2021 Board hearing, the Veteran submitted VA forms authorizing private providers Centennial Spine and Pain Center and Diagnostic Center of Medicine to release records to VA, apparently in regard to his claim for service connection for a lumbosacral strain. See VA Forms 21-4142 and 21-4142a received June 1, 2021; see also Board hearing transcript dated May 20, 2021 at pg. 6. VA correspondence reflects that the agency requested the records and notified the Veteran (and his representative) that he could submit the records himself. See VA correspondence dated June 3, 2021. Treatment records were received from Centennial Spine and Pain Center in late June 2021; however, these records appear to be duplicates of records associated with the Veteran's claims file in 2015. In June 2021, the Veteran and his representative were notified by VA that it was unable to obtain the records from Diagnostic Center of Medicine, explained the efforts VA made to acquire the records, and informed the Veteran that he should submit the records or otherwise contact VA within 15 days of the date of the letter. See VA correspondence dated June 21, 2021. Despite VA contacting the provider, including by telephone and at least twice by facsimile, see Report of Contact (VBMS date July 4, 2021), VA received no reply and the Veteran, and his representative were notified that VA was unable to obtain records from Diagnostic Center of Medicine and provided the Veteran 15 days to request an extension of time to obtain and submit the records. See VA correspondence dated July 6, 2021. The record does not reflect that the Veteran or his representative submitted records or requested an extension of time to do so. Therefore, VA fulfilled its duty to assist the Veteran in the efforts undertaken to obtain his private treatment records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(1). The Veteran has not identified any additional relevant records that VA failed to obtain. Preliminary Matter The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Petition to Reopen Previously Denied Service Connection Claim Rating decisions 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 AOJ decision to initiate an appeal by filing a Notice of Disagreement (NOD) or submitting new and material evidence, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302. In a legacy claim (a claim not appealed under the new Appeals Modernization Act), such as this one, an exception to the finality rule is found in 38 U.S.C. § 5108, which provides that, if new and material evidence is received with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Here, in a February 1998 rating decision, the AOJ denied the Veteran's original claim for service connection for back strain. See Rating Decision dated February 17, 1998. The AOJ concluded that the Veteran's then-current was not related to an in-service back strain because there was no evidence of permanent residuals or chronic disabilities reflected in service or post-service treatment records. The Veteran did not appeal the February 1998 rating decision, nor was new and material evidence received within a year of issuance of the March 1998 notification letter; the rating decision therefore became final. 38 C.F.R. § 20.1103. In April 2016, the Veteran sought to reopen his service connection claim for a low back disability. In an August 2017 rating decision, the AOJ denied service connection, concluding that the Veteran's currently diagnosed back disorder is not related to service, but did not address the issue of new and material evidence. The Veteran submitted a timely NOD and timely perfected an appeal to the Board, and the instant appeal ensued. Based on the procedural history of the case, the last final decision pertinent to the Veteran's claims of service connection for a low back disability is the February 1998 rating decision. The evidence of record at the time of the February 1998 rating decision consisted of the Veteran's service treatment records and Army Reserve examinations for the period from June 1977 to March 1987. Subsequent to the February 1988 rating decision, evidence added to the claims file includes private and VA treatment records, a July 2017 VA examination report, an unfavorable VA etiology opinion dated July 2017, and a favorable etiology opinion dated June 2018 provided by a treating VA physician. Additional evidence received since the February 1998 prior final denial, particularly the favorable June 2018 medical opinion, speaks to the question of a nexus and is therefore new and material. Accordingly, new and material evidence has been received, and to this extent only, the claim of service connection for a low back disorder is reopened. While the AOJ did not address the matter of new and material evidence, the Board's conclusion is favorable to the Veteran, and no prejudice will result from the Board's adjudication of the claim in this instance. See Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993). Service Connection - Applicable Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical 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) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). An alternative means of establishing service connection is showing continuity of symptomatology under 38 C.F.R. § 3.303(b), which is available for certain "chronic disease" specifically enumerated under 38 C.F.R. § 3.309(a). While the Veteran's post-service treatment records reflect a diagnosis of a tumor and arthritis, which are among the diseases enumerated under 38 C.F.R. § 3.309(a), it is not clear from the record whether the Veteran's low back disorder includes arthritis, and as the evidence does not reflect a diagnosis of arthritis or gastrointestinal stromal tumor until many years after separation from service, the presumptive service connection provisions of 38 C.F.R. § 3.303(b) are not for application on this record. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A lay person is competent to report on the onset and reoccurrence of current symptomatology. See Layno, 6 Vet. App. at 470 (a veteran is competent to report on that of which he or she has personal knowledge). The Board must determine, on a case by case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999). The United States Court of Appeals for Veterans Claims (CAVC) 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). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107(b)). Lumbosacral Strain The Veteran asserts that service connection for lumbosacral strain is warranted because it began in or is related to active duty service. See Application for Disability Compensation received November 29, 2016; Board hearing transcript dated May 20, 2021 (Hearing Transcript) at pg. 3. As an initial matter, the Board recognizes that the Veteran is currently diagnosed with lumbosacral strain. See VA Spine examination dated July 20, 2017. The Veteran's service treatment records reflect that at enlistment, the Veteran denied a history of back pain and clinical examination of his spine and musculoskeletal system revealed no abnormalities. In June 1974 the Veteran complained of low back pain. During a June 1975 pre-separation examination, clinical evaluations of the Veteran's spine and musculoskeletal systems were normal. However, in July and August 1975, the Veteran again complained of low back pain. He was placed on physical profile in July 1975 and again in August 1975 restricting lifting and physical activity due to low back pain. In February 1978 during Reserve service, the Veteran again endorsed back pain. Post-service treatment records reflect that the Veteran complained of chronic low back pain following a motor vehicle accident in 2006. See Private treatment record dated October 18, 2006. The diagnosis was lumbar facet arthropathy. Id. During a VA examination in July 2017, the examiner diagnosed lumbosacral strain and opined that the disorder is less likely than not incurred in or caused by an injury, event, or illness in service. Despite acknowledging the service treatment records reflecting that the Veteran experienced low back pain during service, the VA examiner concluded: "I cannot make a connection of his [current] back condition to the Veteran's time in military service as, in August 2006, the Veteran had a more severe injury to the back due to a motor vehicle accident." See VA thoracolumbar spine examination and VA medical opinion dated July 20, 2017. In correspondence dated June 2018, the Veteran's VA treating physician A.G., M.D. opined that it is more likely than not that the Veteran's low back disorder onset during service. Doctor A.G. explained that the Veteran's chronic low back pain started during service and that an impression of low back pain is indicated in the service treatment records. Doctor A.G. reviewed the Veteran's service treatment records, particularly records reflecting complaints of low back pain, and considered the Veteran's lay statements of experiencing low back pain during service. See Correspondence from A.G., M.D. dated June 25, 2018. The July 2017 VA medical opinion and the June 2018 medical opinion authored by VA physician A.G. are both competent, credible and probative, although both opinions reflect deficiencies. Both opinions were authored by licensed physicians, who reviewed the Veteran's service treatment records. While the VA examiner noted that he reviewed the Veteran's electronic claims file, which includes service treatment records, VA, and non-VA treatment records, Doctor A.G. indicated no such review, although as the Veteran's treating physician, he would be familiar with the Veteran's symptoms, diagnoses, and treatment of his low back disorder, and he noted in his June 2018 opinion that he reviewed the Veteran's service treatment records. Although CAVC has not fully embraced a "treating physician rule" under which a treating physician's opinion would presumptively be given greater weight than that of any other examiner, a medical professional's opportunities to examine a claimant over time may be considered in assigning probative weight. See Winsett v. West, 11 Vet. App. 420, 424-25 (1998). Notably, the VA examiner did not explain why greater weight was accorded to the Veteran's post-service motor vehicle accident over his in-service back pain in concluding that the currently diagnosed back disorder is not likely related to service. See Nieves-Rodriguez, 22 Vet. App. at 304. Notwithstanding these deficiencies, the Board finds that the July 2017 and June 2018 medical opinions are equally probative and persuasive medical evidence in this case. During the May 2021 Board hearing, the Veteran stated that he injured his back during service while filling 55 gallon drums and bags with sand, that he received some treatment for back pain during service, and after discharge from service seldom saw a doctor, instead taking over-the-counter pain relief medications. See Board hearing transcript dated May 20, 2021 (Hearing Transcript) at pgs. 3-5. The Veteran emphasized that he believed the 2006 motor vehicle accident aggravated his already existing low back disorder. Id. at pgs. 11-12. However, as it has not been shown that the Veteran is a trained medical professional, as a layperson he is not competent to offer evidence addressing the etiology of his low back disorder, which requires medical knowledge. See Layno, supra. Nevertheless, review of the record shows that there is an approximate balance of positive and negative evidence regarding evidence of a nexus between the in-service low back pain and the currently diagnosed lumbosacral strain, placing the issue in equipoise. Accordingly, the Board resolves any doubt in favor of the appellant and finds that service connection for Veteran's lumbosacral strain is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303. Gastrointestinal Stromal Tumor The Veteran generally asserts that service connection for gastrointestinal stromal tumor is warranted. See Application for Disability Compensation received November 29, 2016; Hearing Transcript at pgs. 13-15. As an initial matter, the Board recognizes that the Veteran is currently diagnosed with gastrointestinal stromal tumor. See, e.g., Private treatment records dated March 1, 2016 and July 12, 2016. However, there is no evidence of any complaints of, or treatment for, gastrointestinal problems in the Veteran's service treatment records. Moreover, the earliest post-service report of a possible gastrointestinal disorder is shown in December 2015 VA treatment notes reflecting that the Veteran reported abdominal discomfort, shortness of breath, dyspnea on exertion, and melena, with a diagnosis of upper gastrointestinal bleeding. See VA emergency department notes dated December 17, 2015. Further testing revealed a stromal tumor, which was surgically removed. See, e.g., VA primary care note dated March 10, 2016; Private treatment notes dated July 12, 2016. There is no lay or clinical evidence of any earlier gastrointestinal problems following service. In his April 2018 appeal to the Board, the Veteran stated: "My oncologist informed me that this was a very slow growing tumor, therefore, it could have been there for years laying [sic] dormant and had gone undetected." See Appeal to Board of Veterans' Appeals received April 28, 2018. However, no evidence has been presented competently indicating that the etiology of the Veteran's gastrointestinal stromal tumor onset during or is otherwise related to service. During the May 2021 Board hearing, the Veteran was asked if he had any gastrointestinal symptoms during service. He stated that he had no gastrointestinal symptoms he was aware of during service, and he didn't learn that he had a stromal tumor until 2015. See Hearing Transcript at pg. 13. The Veteran said when doctors told him they didn't know how long the tumor had been there, "I just assumed that, you know, well it could have been there when I was in the military, you know." Id. at pgs. 14-15. The Board emphasizes that the mere absence of evidence of treatment, for example after separation from service, does not contradict a veteran's statements about his or her symptom history. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (2006). However, if it is determined based upon reliable evidence that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a nexus between the disability and service. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In addition, the CAVC, in Savage v. Gober, 10 Vet. App. 488, 496-97 (1997), agreed that in a case where the veteran failed to present medical nexus evidence relating a currently diagnosed disability to an in-service injury along with lack of evidence of treatments may bear on the credibility of the evidence of continuity. In this case, the Veteran has not submitted competent evidence of a nexus between his gastrointestinal stromal tumor and his military service. Moreover, neither the private treatment records nor VA treatment records demonstrate a nexus between the Veteran's gastrointestinal stromal tumor and service. Indeed, the absence of any clinical or lay evidence of gastrointestinal problems for many years after the Veteran's separation from service is one factor that weighs against a finding that his current gastrointestinal stromal tumor disability was present in service or in the years immediately after service. The Board finds that the evidence of record does not indicate that the Veteran's gastrointestinal stromal tumor is associated with service or with another service-connected disability. Therefore, remand for further development is not warranted. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Based on the foregoing, the Board finds that the preponderance of the evidence weighs against the Veteran's claim for service connection for gastrointestinal stromal tumor. The benefit-of-the-doubt doctrine is therefore not for application in this case and the claim of service connection must be denied. See 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. at 55-57. TDIU The Veteran is seeking entitlement to a TDIU based on his service-connected disabilities, which now include lumbosacral strain, granted herein. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a). Here, at present, the schedular criteria for entitlement to a TDIU under 38 C.F.R. § 4.16(a) are not met. However, even when the percentage requirements are not met, a TDIU on an extraschedular basis may nonetheless be granted in exceptional cases, pursuant to specially prescribed procedures, when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The Board is prohibited from assigning a TDIU on an extraschedular basis without ensuring that the claim is first referred to the Director of the Compensation Service (Director) for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1 (2001); 38 C.F.R. § 4.16(b). The Board finds that there is no indication that the Veteran's service-connected disabilities have prevented him for acquiring and maintaining gainful employment. In his November 2016 TDIU application (VA Form 21-8940), the Veteran stated that his low back and gastrointestinal stromal tumor disabilities prevent him from securing or following a substantially gainful occupation. As reflected herein, service connection is granted for the Veteran's low back disability; however, service connection for gastrointestinal stromal tumor is denied. During the period on appeal, VA examiners concluded that the Veteran's service-connected hearing loss resulted in the Veteran often having to ask people to repeat themselves and turning his head to hear better, and his tinnitus affects his concentration and sleeping habits. Of note, December 2015 VA treatment notes reflect that the Veteran played guitar, was actively involved in his church and church groups, and was a good leader and motivator. See VA mental health outpatient note dated December 4, 2015. The July 2017 VA examiner noted that the Veteran's lumbosacral strain requires that he alternate standing and sitting and presents problems with lifting and twisting. Notably, during the May 2021 Board hearing before the undersigned, the Veteran indicated that he retired from his former job as a federal prison system employee because the prison facility where he was employed was to be closed and he was eligible for retirement, see Hearing Transcript at pg. 16, and he does not presently work because he is retired, not because of disabilities. Id. at pg. 17. Although the Veteran likely experiences some limitations in his ability to perform certain job activities due to his service-connected disabilities, the most probative evidence does not support a finding that his service-connected disabilities alone have prevented him from securing or maintaining gainful employment. While the Board is sympathetic to the Veteran's contentions, in the final analysis, the Board finds that the preponderance of the evidence weighs against remand of the Veteran's TDIU claim for referral to the Director for consideration of a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b). As such, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable and this claim must be denied. See Gilbert, 1 Vet. App. at 55-57. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, 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.