Citation Nr: 21072374 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 20-16 031 DATE: December 3, 2021 ORDER New and material evidence has been received to reopen the claim of service connection for a back disability. Entitlement to service connection for a back disability is denied. FINDING OF FACT 1. In a June 2006 rating decision, entitlement to service connection for back/spine condition was denied; the Veteran did not file a notice of disagreement and no new and material evidence was received in the year following the issuance of the rating decision. 2. Additional evidence received since the RO's June 2006 rating decision is new and relates to an unestablished fact necessary to substantiate the claim of service connection for a back disability. 3. The weight of the evidence is against a finding that the Veteran's back disability originated in service or for years thereafter, and the evidence otherwise fails to establish that the Veteran's back disability is etiologically related to service. CONCLUSION OF LAW 1. New and material evidence has been received since the June 2006 rating decision that denied entitlement to service connection for a back disability and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.201, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from February 1952 to February 1954. He is in receipt of the Purple Heart. This matter came before the Board of Veteran's Appeals (Board) on appeal from an October 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for lumbosacral strain. This matter was before the Board in May 2020, when, in pertinent part, it remanded the Veteran's claim for service connection in order to obtain a nexus medical opinion. A nexus medical opinion was obtained in January 2021. The Board find that there has been substantial compliance with its May 2020 remand directives, and it will proceed with a decision. New and Material Evidence Even where the RO determines that new and material evidence has been received to reopen a claim, or that an entirely new claim has been received, the Board is not bound by that determination and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. 38 U.S.C. § 5108. See Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). New and material evidence is existing evidence that by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purposes of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of establishing a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA's duty to provide a VA examination is triggered. There must be new and material evidence as to at least one of the bases prior disallowance to warrant a reopening. Shade, 24 Vet. App. at 117-20. In October 2005, the Veteran filed a claim of service connection for back/spine disability. Of record were service treatment records. A June 2006 rating decision denied the claim. The basis for the denial of service connection for back/spine disability was that the service medical records were silent for any complaint or diagnosis of a chronic back/spine disability, and no back/spine condition diagnosed within one year after separation from service. The Veteran did not file a notice of disagreement and no evidence was received within a year of issuance of the rating decision. 38 U.S.C. § 7105; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011); 38 C.F.R. § 3.156(b). Thus, such rating is final. In July 2018, the Veteran filed a claim of service connection for back disability. A May 2018 private treatment record indicates that the Veteran has several scattered radiopaque densities in the muscular tissues of his lumbar spine which may represent retained shrapnel from the Veteran's injuries sustained from mortar fire during service. In light of the May 2018 private treatment record, the Board finds that this constitutes new and material evidence and the claim of service connection for back disability is reopened. Entitlement to service connection for a back disability 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. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a disability requires evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Veteran contends that his current back condition is etiologically related to his active service, specifically an injury incurred when he landed on his back after a mortar round exploded close to him in October 1952. Service treatment records are silent for complaints, treatments, or diagnosis pertaining to the back. The Veteran's spine was noted as being normal during his February 1954 separation examination. Although his service treatment records show that he was wounded in action in October 1952, they do not provide information concerning how he was wounded in action, what was injured, or how severe the incurred injuries were. The Board acknowledges the Veteran's assertions regarding being wounded by a mortar round in October 1952. In a November 2018 statement the Veteran asserted that he sustained a concussion and broke his nose in three places. The Veteran also asserts that his back was also injured during this mortar explosion. He explained at a September 2018 VA examination that he was never hospitalized for his back injury and thus there are no in-service x-rays of his back following the mortar round event. The Board notes that service connection has been established for maxillary sinusitis (0% 02/26/1954) due to documented in-service treatment, but service treatment records do not reflect treatment for a concussion, broken nose, or back injury. Moreover, at the time of receipt of his December 1954 claim of service connection for a sinus condition, he did not assert that he had broken his nose during service. Likewise, a January 1955 VA consultation reflects the Veteran's complaints related to a deviated nasal septum and sinusitis, but no complaints pertaining to a broken nose. At that time, he did not seek service connection for a back disability. As will be discussed below, however, in light of his receipt of the Purple Heart, being wounded in action, and his lay assertions, the Board will concede that a back injury occurred during his active service. The Veteran filed a claim of service connection for a back disability in October 2005; he reported that he underwent surgery in 2004. As detailed, the claim was denied in a June 2006 rating decision, which became final when the Veteran did not appeal the rating decision during the one-year period after the issuance of the June 2006 rating decision. In July 2018, the Veteran submitted a request to reopen his claim of service connection for lumbosacral strain. The medical evidence of record shows that the Veteran has had several spine surgeries since separation from service and has reported back pain since 2004. He has reported difficulty with exercising, as well as prolonged walking and standing, due to his back disability. In a May 2018 treatment record, the Veteran's private physician, Dr. H., noted "several scattered radiopaque densities in the muscular soft tissues of the lumbar spine which may represent retained shrapnel from the [Veteran's] injuries sustained from mortar fire during his service" after reviewing a computed tomography scan of the Veteran's abdomen and pelvis that was performed in May 2018. The Veteran underwent a VA examination in September 2018. The September 2018 VA examiner's impressions noted advanced L2-3 degenerative disc disease; otherwise mild diffuse degenerative disc disease; uncomplicated appears of L3-S1 posterior function; and mild, likely degenerative anterolisthesis. The examiner diagnosed the Veteran with lumbar disk disease. The examiner noted that although there were no in-service treatment records pertaining to a back injury, the records did contain a note dated October 31, 1952 that the Veteran was wounded in action. The examiner also noted that the Veteran brought a copy of his Purple Heart from that date. Based on that information, as well as the four spine surgeries that the Veteran had, and the May 2018 note from the Veteran's private doctor, Dr. H., which indicated that radiopaque densities in the muscular soft tissues of the lumbar spine, the examiner opined that the Veteran's back was most likely injured in combat on October 31, 1952. However, the examiner was unable to determine without resort to mere speculation as to whether the Veteran's in-service spinal injury was related to his current spine condition. Pursuant to the May 2020 Board remand directives, a nexus medical opinion was obtained in January 2021. The January 2021 VA examiner opined that it was less likely than not (less than 50 percent probability) that the Veteran's current back disorder began during or is otherwise related to the Veteran's service. The examiner recognized the Veteran's in-service 1952 injury for which he received the Purple Heart, but then explained that the medical evidence did not demonstrate an on-going back injury. He stated that the medical evidence did support that any back issues the Veteran may have had resolved either in-service or within one-year post-service because there was no medical documentation for a back problem until several decades after service. The examiner then noted that the Veteran worked as a salesman for Prudential for several decades after separation from service and was able to perform his job duties and maintain gainful employment. The examiner stated that the Veteran's first back surgery (spinal fusion) was undertaken in 2008 and was successful for several years. He explained that wear and tear, smoking, age, lifestyle choices, nutrition, weight, and family genetics, alone or in combination, caused or contributed to the extensive degenerative changes in the Veteran's spine that required multiple surgeries. He noted the May 2018 imaging densities but stated that they were not considered to factor in the progression of spinal stenosis, retrolisthesis, bilateral neural foraminal stenosis, disc collapse, disc herniation, radiculopathy, and weakness. He explained that the noted imaging densities were unrelated to, not because of or any way consequential to the degenerative process of the spine seen almost one-hundred percent with aging, the degrees and extent based on all the factors previously alluded to. The weight of the medical evidence is against a finding that the Veteran's back disorder is related to his in-service back injury. The Board finds the September 2018 VA medical opinion to be inadequate because even though the examiner acknowledged that the Veteran was wounded during service, he failed to opine whether that incident could have been the cause of the Veteran's back issues, stating that he could not determine this without resorting to mere speculation. Additionally, although the Veteran's doctor noted that radiopaque densities in the muscular soft tissues of the Veteran's lumbar spine may represent retained shrapnel from injuries sustained from mortar fire during service in a May 2018 private treatment record, the doctor did not note whether the observed radiopaque densities were causing or aggravating the Veteran's current back disability. As the September 2018 VA medical opinion and the May 2018 private treatment record did not provide adequate opinions relating the Veteran's current back disability to his in-service injury, the Board finds these opinions to be of little probative value. By contrast, the January 2021 examiner reviewed the May 2018 imagining densities and determined that they were not a factor in the progression of spinal stenosis, retrolisthesis, bilateral neural foraminal stenosis, disc collapse, disc herniation, radiculopathy, and weakness. He explained that the noted imaging densities were unrelated to, not because of or any way consequential to the degenerative process of the spine seen almost one-hundred percent with aging. The January 2021 examiner's negative etiological opinion was supported by a thorough analysis in consideration of the lay evidence and objective evidence of record, to include service treatment records, the May 2018 private treatment record, and the September 2018 VA examination. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board thus finds the later opinion to have greater probative value than the two prior opinions. The Board has given consideration to 38 U.S.C. § 1154(b), which provides that if a combat veteran presents satisfactory lay or other evidence of service incurrence or aggravation of a disease or injury, which is consistent with the circumstances or hardships of his service, than an evidentiary presumption of service connection arises and the burden shifts to the government to disprove service incurrence or aggravation by clear and convincing evidence. A combat veteran may invoke § 1154(b) to show both that an event that allegedly caused disability occurred in service and that the claimed disability itself was incurred in service. Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). ("[A]lthough the record contained evidence of the cause of [the veteran's] disability-acoustic trauma mortar blasts ... -he still had the right to invoke the section 1154(b) presumption in order to show that he incurred the disability itself while in service.") In Reeves, the Federal Circuit reasoned that this distinction is useful because if a veteran is able to "use the section 1154(b) presumption to show that he incurred a permanent hearing disability in service, it presumably would [be] far easier for him to establish that there was a nexus between his military service and [a hearing disability]." Id. As detailed above, while the evidence of record reflects that the Veteran was wounded in action, and while the Board finds the Veteran's description of his in-service back injury to be credible, especially in light of his combat service and receipt of the Purple Heart, such assertions do not constitute evidence of incurrence of a chronic back disability. While the Veteran has asserted that his back disability is due to an injury incurred when he landed on his back after a mortar round exploded close to him, the contemporaneous records during service and subsequent to service do not document any complaints or symptomatology associated with the back until approximately 2004 when the Veteran had his first back surgery. As detailed, service treatment records are negative for any complaints related to the back and he specifically denied any back problems at the time of his separation examination. Moreover, evidence of a prolonged period without medical complaint can be considered as a factor, along with other factors concerning the Veteran's health and medical treatment during and after military service. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The lapse of many years between the Veteran's separation from service and diagnosis of a back disability militate against the application of 38 U.S.C. § 1154(b) for a grant of service connection. To the extent that the Veteran believes that his current back disability is related to his in-service back injury, the Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge and experiences through his senses. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay persons are also competent to provide opinions on some medical issues, such as when the Veteran began experiencing readily-observable symptoms associated with a back disability such as pain. See Kahanav. Shinseki, 24 Vet. App. 428 (2011). However, the issue of causation of a back disability is a medical determination outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Thus, although the Board has carefully considered the lay contentions suggesting that the Veteran's current back disability is related to his in-service back injury, the Board ultimately affords the objective medical evidence of record, which weighs against finding such a connection, with greater probative weight than the lay opinions, because such evidence was provided by a medical professional and concerned the functioning of the Veteran's spine and musculoskeletal system, something that is not readily perceivable by the use of a person's senses. The Board concludes that the weight of the evidence is against granting service connection for a back disability, and the claim is denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990) M.W. Kreindler Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fairlie, 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.