Citation Nr: 21062797 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-04 615 DATE: October 12, 2021 ORDER New and material evidence having been received, the previously denied claim of entitlement to service connection for a low back disability (to include diffuse multilevel degenerative changes and 7mm mass, likely synovial cyst) is reopened. Service connection for a low back disability is denied. FINDINGS OF FACT 1. In final October 2007, October 2009, and March 2011 rating decisions, service connection for low back disability was denied. 2. Evidence added to the record since the final March 2011 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for low back disability. 3. The Veteran has a current diagnosis of a low back disability, but such disorder is not shown to be causally or etiologically related to any disease, injury, or incident in service. CONCLUSIONS OF LAW 1. The October 2007, October 2009, and March 2011 decisions that denied service connection for a low back disability are final. 38 U.S.C. § 7104 (b); 38 C.F.R. § 20.1100. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a low back disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1966 to April 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California which, in part, continued a previous denial of entitlement to service connection for diffuse multilevel degenerative changes and 7 mm mass, likely synovial cyst. The Veteran testified before the undersigned Veterans Law Judge at a Board Virtual hearing in June 2021. A transcript of this proceeding has been associated with the claims file. By way of history, service connection for a low back disability had been denied previously by rating decisions dated in October 2007, October 2009, and March 2011. As such, even though the RO adjudicated the issue of entitlement to service connection for a low back disability on the merits in the May 2015 decision on appeal, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Jackson v. Principi, 265 F.3d 1366, 1369 (2001) (the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board). Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) an in-service injury, event, or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Certain chronic diseases, such as arthritis, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). An alternative method of establishing service connection for disabilities identified as chronic diseases in 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. New and material evidence having been received, the previously denied claim of entitlement to service connection for a low back disability is reopened. The Veteran seeks service connection for a low back disability as a result of an in-service low back injury. Significantly, service treatment records dated in August 1968 show that the Veteran injured his back while stationed in Vietnam in September 1967 and assessed with a back sprain. While the Veteran's March 1969 separation examination shows a normal spine, in a March 1969 report of medical history, the Veteran reported a history of "back trouble of any kind," noting that he was experiencing pain and stiffness of the back. The Veteran submitted an original claim for service connection for a low back disability in May 2007. In connection with this claim, the RO obtained VA treatment records showing complaints of back pain as early as May 2007. By rating decision dated in October 2007, the RO denied service connection for a low back disability, finding that there was no medical nexus between the Veteran's current low back pain and his military service. The October 2007 rating decision advised the Veteran of his appellate rights; however, he did not submit a timely appeal with regard to this decision. The Veteran submitted a second claim for service connection for a low back disability in September 2008. In connection with this claim, the RO obtained updated VA treatment records showing an impression of severe spinal stenosis pursuant to an August 2008 magnetic resonance imaging (MRI) scan. The Veteran was also afforded a VA examination in August 2009. Significantly, the examiner diagnosed degenerative arthritis of the lumbar spine and provided a negative nexus opinion. By rating decision dated in October 2009, the RO continued the previous denial of entitlement to service connection for a back disability. The October 2009 rating decision also advised the Veteran of his appellate rights; however, he did not submit a timely appeal with regard to this decision. A special review of the Veteran's claims file was mandated in May 2010 and, by rating decision dated in March 2011, the RO continued the denial of service connection for a back disability. The March 2011 rating decision also advised the Veteran of his appellate rights; however, he did not submit a timely appeal with regard to this decision. No further communication regarding her claim was received until November 2014, when VA received an application to reopen such claim. Therefore, the October 2007, October 2009, and March 2011 rating decisions are final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Generally, a claim which has been denied in 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 existing evidence not previously submitted to agency decisionmakers. 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 United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what new and material evidence is, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran submitted the current claim to reopen a previously denied claim of entitlement to service connection for a low back disability in November 2014. In connection with this claim, the Veteran was afforded a new VA spine examination in October 2016. Significantly, this examiner noted a diagnosis of thoracolumbar strain, status post lumbar fusion with scars, scoliosis and provided a negative nexus opinion. The Board finds that the evidence received since the March 2011 rating decision is new and material. Significantly, since such decision, additional evidence addressing the bases of the prior final denial has been received. Specifically, the October 2016 VA examination and medical opinion. The prior denial in March 2011 was based upon a finding that there was no nexus between the Veteran's low back disability and his military service and the October 2016 VA opinion speaks to this. Therefore, the Board finds that the evidence added to the record since the final March 2011 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for low back disability. Consequently, the Board finds that new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a low back disability. 2. Service connection for a low back disability is denied. As above, the Veteran seeks service connection for a low back disability as a result of an in-service low back injury. Significantly, service treatment records confirm that the Veteran injured his back while stationed in Vietnam in approximately September 1967 and he reported a history of "back trouble of any kind" upon separation in March 1969. Post-service treatment records are negative for complaints regarding the back until October 1996. Specifically, private treatment records show that the Veteran underwent an angiogram for a heart disability in October 1996. It also appears that the Veteran may have been diagnosed with degenerative joint disease of the spine in either October or November 1996. Significantly, a November 1996 private treatment record shows complaints of low back pain since the October 1996 angiogram. VA treatment records show complaints of low back pain as early as May 2007 and, as above, an August 2008 MRI of the lumbar spine shows an impression of severe spinal stenosis. Notably, the August 2008 MRI indicated that there was focal 7 mm T1 and T2 hypointense with defined oval shaped lesion, likely synovial cyst, with the lesser differential of a posteriorly sequestered disc, within the right posterior lateral aspect of the spinal canal at L4-5 subjacent to the degenerative right L4-5 facet joint with M7SS effect and displacement of the thecal sac to the right with resultant moderate to severe spinal canal narrowing. As above, the Veteran submitted an initial claim for service connection for a low back disorder in May 2007 and in October 2007 correspondence, the Veteran wrote that, in September 1967, while on guard duty at LZ English in the Bong Son province, the ammo/pol dump exploded near the Veteran and he was thrown 20 feet, sustaining injury to his back. Also, in his September 2015 notice of disagreement, the Veteran wrote that he injured his back in service when he was blown out of a bunker. Notably, in September 2008 correspondence as well as the January 2017 VA Form 9, the Veteran wrote that he had experienced continued back pain since his military service. The Veteran was also afforded a VA examination in August 2009. Significantly, the examiner noted the Veteran's in-service history of being blown out of a bunker after ammunition exploded, diagnosed degenerative arthritis of the lumbar spine, and opined that the Veteran's current back condition is less likely than not related to the back condition he had while in service since the back condition in service was diagnosed as strain as noted on sick call examinations in 1966 and several examinations 1968 and X-rays were noted to be negative for any abnormality. In addition, the MRI report above clearly states that the spinal canal stenosis is due to mass effect from the 7mm mass adjacent to L4-L5 and thought to be a synovial cyst. The Veteran was afforded a new VA spine examination in October 2016. Significantly, this examiner noted a diagnosis of thoracolumbar strain, status post lumbar fusion with scars, scoliosis, noting the Veteran's allegation of back pain since an in-service injury, and opined that the 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. As rationale for this opinion, the examiner noted the Veteran's in-service treatment for a back sprain in August 1968, post-service treatment for back pain in November 1996 following an angiogram in approximately October 1996, the August 2008 MRI showing spinal canal stenosis due to a synovial cyst, as well as the August 2009 VA examination report showing a diagnosis of L4-5 severe stenosis and noting a negative nexus opinion based on the in-service diagnosis of strain and negative X-rays. Initially, the Board notes that degenerative disc/joint disease of the lumbar spine is included as a chronic condition under 38 C.F.R. § 3.309(a). However, the evidence does not demonstrate degenerative disc or joint disease during the Veteran's military service or within one year of his discharge from service. Furthermore, while the Veteran contends that he has experienced chronic back pain since his discharge from service, such allegations are contradicted by the record given the November 1996 private treatment record showing an onset of low back pain following an October 1996 angiogram. As such, presumptive service connection, to include on the basis of continuity of symptomatology, is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. The claim is also denied on a direct basis. First, there is no evidence of a chronic lumbar spine disorder in service. While service treatment records do show that the Veteran injured his back in service and was assessed with lumbar strain, there is no indication that this disability continued after service. As above, post-service private treatment records show renewed complaints of low back pain in November 1996, approximately 27 years after the Veteran's discharge from service following an angiogram in October 1996. Had the Veteran been experiencing problems with the back prior to the October 1996 angiogram, it stands to reason that he would have mentioned those problems at that time. Following his discharge from military service, the Veteran did not actually complain of back pain until November 1996, following an October 1996 angiogram, and was not actually diagnosed with a lumbar spine disorder until August 2008, approximately 39 years after his discharge from service. Such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000). Finally, there is no medical evidence in the record that links a low back disability to an incident of the Veteran's active military service. As above, both the August 2009 and October 2016 VA examiners opined that the Veteran's low back disability is not related to his military service, but instead due to a cyst, which was not present in service. These opinions are supported by convincing rationales and considered all of the pertinent evidence in the claims file, to include the Veteran's allegations of in-service injury to the back as well as continuity of back symptoms since his discharge from military service. While the Veteran has alleged that a low back disability is related to his military service, the Board finds that the question regarding the potential relationship between the Veteran's low back disability and any instance of his military service to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (providing that although a veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, a veteran is not competent to provide evidence as to more complex medical questions). Furthermore, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). In this regard, the question of causation of the low back disability involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. Accordingly, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for a low back disability. As the evidence is not in relative equipoise, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board April Maddox, 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.