Citation Nr: 21070437 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 17-35 654 DATE: November 24, 2021 ORDER New and material evidence having been presented, the claim for entitlement to service connection for a lumbar spine condition is reopened; to this extent only, the claim is granted. Entitlement to service connection for disease of the cervix is denied. REMANDED Entitlement to service connection for a lumbar spine condition is remanded. Entitlement to service connection for a left knee condition, to include as secondary to a back disability is remanded. FINDINGS OF FACT 1. By a May 2002 rating decision, the Regional Office (RO) denied the Veteran's claim for service connection for a lumbar spine condition; she was advised of the RO's decision, and of her appellate rights. 2. The Veteran did not initiate an appeal of the RO's May 2002 decision within one year; nor was new and material evidence received within a year. 3. Additional evidence received since the RO's May 2002 decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to unestablished facts necessary to substantiate the claim for service connection for a lumbar spine condition, and raises a reasonable possibility of substantiating the claim. 4. The preponderance of the evidence of record is against finding that the Veteran has had a disease of the cervix at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. A May 2002 rating decision that denied the claim of entitlement to service connection for a lumbar spine condition is final. 38 U.S.C. §§ 7105; 38 C.F.R. § 20.1103. 2. Evidence received since the May 2002 rating decision is new and material, and the Veteran's claim for service connection for a lumbar spine condition is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for disease of the cervix have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1997 to November 1998. This matter comes before the Board of Veteran's Appeals (Board) on appeal from April 2016 rating decisions. In her June 2017 VA Form 9, the Veteran requested a hearing before the Board in conjunction with her appeal. A hearing was scheduled for December 2019 and the Veteran was notified via a letter in October 2019. The Veteran did not appear for the proceeding and was marked as a "no show." To date, she has not requested a new Board hearing. Her representative submitted an Informal Hearing Presentation in September 2020. Accordingly, the Board considers the hearing request to be withdrawn. 38 C.F.R. § 20.704 (d). Service Connection 1. Whether new and material evidence has been presented to reopen the claim for entitlement to service connection for lumbar spine condition In general, RO rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing 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). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). The credibility of the evidence is presumed for the purpose of reopening, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). 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). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. With respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the service connection claim. In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it would not be enough to convince the Board to grant a claim. The Veteran contends her back disability is due to low back pain experienced during active service. The May 2002 rating decision found that there was no evidence of a chronic disability, no evidence showing the Veteran was treated for a back disability from 1998 to the present, and no evidence of a current disability. Since the May 2002 rating decision, private treatment records from November 2012 to May 2013 and from February 2014 to March 2014 have been associated with the record. These private treatment records show the Veteran has a diagnosis of neuritis or radiculitis, lumbago, and muscle weakness. This evidence was not previously on file at the time of the May 2002 decision; thus, it is new. The private treatment records are material because they bear directly on the issue of a current diagnosis, which is the reason that the claim was previously denied. Thus, the new evidence relates to an unestablished fact necessary to substantiate a claim of entitlement to service connection for a lumbar spine condition, and it raises a reasonable possibility of substantiating the claim, particularly when considering the low threshold for reopening a claim as set forth in Shade, supra. Accordingly, the claim of entitlement to service connection for a lumbar spine condition is reopened. See 38 U.S.C.§ 5108; 38 C.F.R. § 3.156(a). 2. Entitlement to service connection for disease of the cervix The Veteran contends that her disease of the cervix first manifested during active service. Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. The 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. The Board concludes that the Veteran does not have a current disability of disease of the cervix and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). An April 2001 private treatment record reflects the Veteran underwent cervical cryotherapy. The treatment notes reflect the Veteran's pap smears from 1998 and 1999 were within normal limits. The descriptive diagnosis was atypical squamous cells of undetermined significance (ASCUS). Although this is evidence of ASCUS in April 2001, the Veteran did not file the instant claim for service connection for disease of the cervix until January 2016. The ASCUS in April 2001 is considered too remote to be considered a current disability. See Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). There is no other evidence in the record of a diagnosis of disease of the cervix. While the Veteran believes she has a current diagnosis of a disease of the cervix, she is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. However, because no pain has been demonstrated and there is no diagnosis of a disability of the cervix, the Board finds that the Veteran does not have a current disability. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a "disability" under 38 U.S.C. § 1110 refers to functional impairment of earning capacity). The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. §§ 1110, 1131; see also 38 C.F.R. §§ 3.303, 3.304. Thus, as no disability is shown, there can be no valid claim for service connection. In the absence of a disability, the other elements of service connection need not be discussed, and service connection must be denied. REASONS FOR REMAND 1. Entitlement to service connection for lumbar spine condition is remanded. The Veteran contends her back disability is due to low back pain experienced during active service. A March 2014 private treatment record reflects the Veteran has a diagnosis of neuritis or radiculitis, lumbago, and muscle weakness. The Veteran's STRs reflect she experienced low back pain in January 1998 and November 1998. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a lumbar spine condition because no VA examiner has opined whether the Veteran's lumbar spine condition was due to her low back pain experienced during service. Therefore, remand is necessary. 2. Entitlement to service connection for left knee condition, to include as secondary to a back disability is remanded. The Veteran contends that her left knee condition is due to her lumbar spine condition. Finally, because a decision on the remanded issue of entitlement to service connectio for a lumbar spine condition could significantly impact a decision on the issue of entitlement to service connection for left knee condition, the issues are inextricably intertwined. A remand of the claim for entitlement to service connection for left knee condition is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of a lumbar spine and left knee condition. The entire file must be made available to the examiner designated to examine the appellant, and the report of examination should include discussion of the Veteran's documented history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner must opine whether the low back disability is at least as likely as not related to an in-service injury, event, or disease in active service, including low back pain. If yes, then the examiner must also opine whether it is at least as likely as not the Veteran's left knee disability was caused by or aggravated by the low back disability. The examiner is requested to provide a clear rationale and explain in detail the underlying reasoning for any opinions expressed. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alexia E. Palacios-Peters, 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.