Citation Nr: 21073504 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 18-51 129 DATE: December 8, 2021 ORDER New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for L4-5 herniated disc, status post vertebral fracture and laminectomy and discectomy with spondylolisthesis and lower extremity neuropathy, hereinafter "lumbar spine disability," is granted. Service connection for lumbar spine disability, is denied. FINDINGS OF FACT 1. In an unappealed rating decision issued in September 1987, the Agency of Original Jurisdiction (AOJ) denied service connection for a lumbar spine disability. 2. In unappealed rating decisions issued in March 2010 and October 2015, the AOJ declined to reopen the previously denied claim of service connection for a lumbar spine disability (also characterized as neuropathy secondary to laminectomy and discectomy and spondylolisthesis) because the evidence received was not new and material. 3. Evidence associated with the record since the last final denial in October 2015 is not cumulative or redundant of the evidence of record at the time of the October 2015 decision and raises a reasonable possibility of substantiating the claim of entitlement to service connection for lumbar spine disability. 4. The evidence of record does not demonstrate that the Veteran's lumbar spine disability, is shown to have begun in or to be otherwise the result of military service, to include injury in November 1968. CONCLUSIONS OF LAW 1. The September 1987, March 2010, and October 2015 rating decisions that denied service connection for a lumbar spine disability, are final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. New and material evidence has been received since the October 2015 final decision sufficient to reopen the previously denied claim of entitlement to service connection for lumbar spine disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for lumbar disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.301, 3.302, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1966 to September 1970. This case is before the Board of Veterans' Appeals (Board) on appeal from a November 2017 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO continued a previous denial of service connection for L4-5 herniated disc, status post vertebral fracture and laminectomy and discectomy with spondylolisthesis and lower extremity neuropathy, because new and material evidence sufficient to reopen the previously denied claim had not been received. The Veteran's notice of disagreement was received in July 2018. The RO issued a statement of the case in October 2018. The Veteran's VA Form 9, substantive appeal to the Board, was received in November 2018. In July 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of the testimony is associated with the claims file. New and Material Evidence Generally, in the legacy system, a claim which has been denied in an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. § 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 previously 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). 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. See Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been received to reopen the previously denied claim of service connection for lumbar spine disability. By way of background, VA received the Veteran's original claim for service connection for back condition (claimed as back injury) in April 1987. In a September 1987 rating decision, the AOJ found the claim for service connection must be denied as the Veteran's "vague complaints on one occasion in service cannot be erected into a chronic disability [] considering the lack of continuity or relationship to the veteran's current back problem." In essence, the RO denied the claim because it found that the single in-service back pain had resolved with no chronic condition noted at discharge. The Veteran received notification of the rating decision and his appellate rights in September 1987. The Veteran did not submit a notice of disagreement (NOD) or new and material evidence within the one-year appeal period following notice of the September 1987 rating decision. Therefore, the September 1987 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 19.52, 20.1103. The Veteran requested to reopen the claim in November 2009 and submitted private and VA treatment records showing current treatment and a back diagnosis (degenerative joint disease). In a March 2010 rating decision, the AOJ found that the evidence was not new and material because it did not relate to an unestablished fact necessary to substantiate the claim and did not raise a reasonable possibility of substantiating the claim. In other words, the new evidence did not establish a relationship between any current back disability and service. Accordingly, the RO declined to reopen the previously denied claim. The Veteran received notification of the rating decision and his appellate rights in March 2010. The Veteran did not submit a NOD or new and material evidence within the one-year appeal period following notice of the March 2010 rating decision. Therefore, the March 2010 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 19.52, 20.1103. The Veteran requested to reopen the claim in September 2015. In an October 2015 rating decision, the AOJ continued the prior denial of service connection for neuropathy secondary to laminectomy and discectomy and spondylolisthesis (back disability) because new and material evidence sufficient to reopen the claim had not been received. More specifically, the RO found "the medical evidence supports the conclusion that a persistent disability was not present in service"; the evidence of record shows that [the Veteran] underwent surgery on his back after injuring it in August 1984 when lifting a truck radiator, post military service; and that there is currently no evidence linking the Veteran's current back condition to military service. The Veteran received notification of the rating decision and his appellate rights in October 2015. The Veteran did not submit a notice of NOD or new and material evidence within the one-year appeal period following notice of the October 2015 rating decision. Therefore, the October 2015 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 19.52, 20.1103. The evidence received after the October 2015 rating decision includes an October 2018 VA medical opinion, the Veteran's testimony at the July 2021 virtual Board hearing, and a September 2021 private chiropractic medical opinion. During the Board hearing, the Veteran testified to continuous treatment within a year of service discharge. This evidence did not exist at the time of the October 2015 rating decision. For purposes of determining whether the October 2018 VA medical opinion, the testimony at the July 2021 virtual Board hearing, and the September 2021 private chiropractic medical opinion are new and material, the credibility of the evidence is presumed. Overall, the evidence is not redundant or duplicative and raises a reasonable possibility of substantiating the claim of entitlement to service connection for lumbar spine disability. Therefore, new and material evidence has been received, and the claim is reopened. 2. Entitlement to service connection for a lumbar spine disability. The Veteran asserts the genesis of his current back and spinal problems is the result of an injury during service, specifically a lifting injury in November 1968 causing chronic pain ever since. See November 2018 Notice of Disagreement. As the October 2018 Statement of the Case addressed the merits of the underlying service connection claim on a de novo basis, the Board may proceed to the merits of the appeal without prejudice to the Veteran Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In addition, service connection for certain chronic diseases, including arthritis, may also be established on a presumptive basis by showing that such a disease manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38C.F.R. §3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran has a current diagnosis of lumbar spondylolisthesis, lumbar intervertebral disc disorders with radiculopathy, lumbar degenerative disc disease (DDD), and lumbar disc herniation. See March 2019 private medical records. Accordingly, the first element for establishing service connection, a current disability, has been met. Service treatment records from November 1968 show a complaint of lumbar back pain for one and half weeks from lifting a generator. The record further notes a football injury of the cervical spine, no relation; back full [range of motion]; back strain cervical & lumbar. One week later the Veteran again complains of back pain continuing in the lumbar region, but no longer has cervical pain. In December 1968, there is a record showing back pain. During the Veteran's September 1970 separation examination, a normal back was noted without complaint of pain. Thus, the second element for establishing service connection, an in-service injury, has been satisfied. Therefore, the issue in this case is whether there is a nexus between his current back disability and his active service; i.e. whether the current back disability is due to disease or injury in service. This is a medical question not capable of lay observation. March 1985 private medical records from the Veteran's orthopedic surgeon, Dr. M, noted: [The Veteran] states that he first injured his back in August 1984 when he was lifting a truck radiator and twisted at the same time. He felt something pop in his lower back. At that time he did not have any pain in his back but over the weekend it got markedly worse. Since this time he has had almost a constant pain in his back with difficulty with [range of motion] and pain...He has continued to have the pain in his back with radiation down the right leg. The patient does have a past history in the past of pain when he was in the service in his low back. Dr. M found lateral and oblique x-rays of the 'lumbosacral spine reveal questionable 'spondylolysis of the 'pars in articularis at L5-Sl 'on the right side. 'There is also a suggestion of a spondylolysis with no olisthesis on the lateral at L5-Sl. The surgeon performed the Veteran's right L4-5 hemilaminectomy and discectomy in April 1985. In an April 1986 private treatment record, Dr. M notes, "[the Veteran] evidently was involved in a motor vehicle accident on April 1, 1986, which resulted in this further jarring of his back and this is the reason he presented on 4/03/86 for follow up." In a May 1986 private treatment record, eleven months after surgery, Dr. M. notes, [the Veteran] is doing well with full range of motion in the lumbar spine. The Veteran was afforded a VA examination in June 1987. The Veteran reported he had been bothered with low back pain and discomfort since lifting a generator while in the Marine Corps in November 1968. He further reported receiving chiropractic treatment intermittently until February 1985 when he saw Dr. M who told him he had a herniated disc and performed his laminectomy in June 1985. The examiner diagnosed a transitional vertebra at the lumbosacral junction which is believed to be a partially lumbarized S; Grade I/IV spondylolisthesis of this vertebra; bilateral spondylolysis; and mild narrowing of the L4-5 disc interspace. In an August 1987 letter from the Veteran's private chiropractor, Dr. F. diagnosed cervical sprain strain and lumbosacral sprain strain, and stated the following: On several occasions between July 31, 1972 thru November 22, 1982, patient came to my office complaining of pain in lower cervical area and lower back due to injuries usually sustained at work. Upon review of the Veteran's claims folder and medical records, an October 2018 VA examiner concluded it was less likely than not that the Veteran's current lumbar spine disability was incurred in or caused by the claimed in service injury and provided the following rationale: Based on medical records review, the claimant was diagnosed with an acute lumbar strain after a lifting injury 11/12/1968 in Santa Ana, CA. He had one additional visit for continued back pain 6 days later where he was given physical therapy treatment and muscle relaxers. There is one additional visit that says 'back pain' with no other explanation on 12/6/1968. There are no additional visits for back pain in service. The claimant was in service until 1970, and his separation physical performed on 9/22/1970 shows no back conditions. An evaluation dated 3/7/1985 by Orthopedic Associates in Sioux Falls, SD, reports back pain since August 1984 after lifting a truck radiator and twisting. There is no evidence in the claimant's service medical history to support chronic low back pain or degenerative changes. There is evidence that there was an injury in 1984, 14 years after end of service, that caused a back injury and residual pain has continued since that date resulting in surgical intervention, chronic degenerative changes, and lower extremity neuropathy. The claimed condition is less likely than not incurred in or caused by the claimed in-service injury or event. During the July 2021 Board hearing the Veteran's representative stated the Veteran's back problems had been ongoing for 13 months in service, from November 1968 to December 1969. See Board Hearing transcript, 9. The Veteran testified that no x-rays were taken, that he had never had a football injury and that the reason he did not mention his back pain upon discharge was out of a desire to return home. See Board Hearing transcript, 10. The Veteran further testified that he has had chronic back pain since his November 1968 back injury and sought medical treatment for such within a year of service. After the July 2021 hearing, the Veteran submitted an additional private opinion from his chiropractor Dr. O. as to a nexus between his in-service injury and current disability. In the September 2021 private opinion, the chiropractor noted treating the Veteran for the past several years for chronic lumbar pain and dysfunction and concluded: Degenerative changes are inevitable over time caused by general aging, wear and tear or acute injury. In [the Veteran's] case, however, I would suggest it is highly probably the progression of degeneration has been accelerated, and is a continuation of the effects often seen years after spinal fusion surgery. This is a widely recognized condition and is commonly referred to as adjacent segment degeneration or transitional syndrome. Initially, as noted above, the evidence of record does not document any diagnosis of a chronic disease of the lumbar spine, such as arthritis, during active service or within the first post-service year. Service connection for degenerative arthritis of the lumbar spine on a presumptive basis is therefore not warranted. See 38 C.F.R. § 3.307, 3.309. Furthermore, notwithstanding his desire for a fast return home, the Veteran's separation examination noted a normal back examination, and the Veteran did not complain of any back problems at the time of his discharge; rather, the medical evidence does not demonstrate any complaints related to his service injury for many years after discharge from service. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim, which weighs against the claim). There is no evidence of record to substantiate the Veteran's testimony as to receiving treatment within a year of service. Rather his chiropractor, Dr. F. began treating him in July 1972, almost two years after service, for injuries related to the Veteran's work since service. Although the Veteran testified to continuous pain since his November 1968 injury in service, during his intake with his orthopedic surgeon in March 1985, the Veteran stated that he first injured his back in August 1984 when he was lifting a truck radiator and twisted at the same time. He specifically reported that, "at that time he did not have any pain in his back," contrary to his July 2021 testimony of chronic back pain. See March 1985 private medical record. Service connection on the basis of continuity of symptomatology in this case is therefore also denied. See 38 C.F.R. § 3.303(b). Further, during the July 2021 Board Hearing the Veteran's representative stated the Veteran's back problems had been ongoing for 13 months in service, from November 1968 to December 1969. See Board Hearing transcript, 9. However, the Veteran's service treatment records, which appear to be complete, show no evidence of back pain in December 1969 or any follow up to support an ongoing back injury during service. The representative's statements are inconsistent with the record. In this case, the only evidence to support the Veteran's claim is his own belief that his lumbar spine disability is related to his November 1968 in-service injury. As a lay person, however, he is not competent to provide a nexus opinion on this issue because the first diagnosis of a lumbar spine disability was years after service discharge, and the Veteran does not possess the requisite medical expertise to opine on medical matters requiring knowledge of internal medical processes such as the etiology and/or causation of his lumbar spine disability. The Veteran is certainly competent to report observable symptoms he experiences and their history (such as the presence of varicose veins or the onset of frequent headaches, for example). See Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 454 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, the Veteran is competent to report the onset and continuation of back pain. In addition, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology (such as the onset of ringing in the ears following acoustic trauma, for example). See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, in this case, the question of the etiology of the Veteran's lumbar spine disability falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The disability involves a complex internal process and requires the ability to interpret diagnostic medical testing, as opposed to an external process or something capable of lay observation. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a competent opinion on medical causation. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Additionally, the private medical opinions and treatment records provided by the Veteran afford no additional support of his claim. Rather, the Veteran's own chiropractor, Dr. F. stated that the Veteran's lower back pain was due to injuries sustained at work, not to an injury during service. See August 1987 Dr. F. Letter. Likewise, his current chiropractor Dr. O., found the Veteran's current disability to be related to his spinal fusion surgery. See September 2021 private medical opinion. Consequently, the only competent evidence addressing the nexus question is the October 2018 VA medical opinion that weighs against the claim. The examiner's opinion is highly probative as it is based on review of the record and is supported by a complete rationale. Further, these opinions are unrefuted by any other competent medical evidence of record. To the extent that the Veteran's reports of low back pain since service are competent, his statements in this regard are internally inconsistent with other statements in the record, as summarized above. Most notable is his report in 1985 to his orthopedic surgeon that he first injured his back in 1984, without mention of any in-service back injury. Once evidence is determined to be competent, a determination on whether it also is credible must be made. Id. In weighing credibility, VA may consider factors such as a showing of interest, self-interest, bias, inconsistent statements, inconsistency with other evidence of record, facial implausibility, bad character, malingering, desire for monetary gain, and witness demeanor. See Macarubbo v. Gober, 10 Vet. App. 388 (1997); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). In this case, the Veteran's statements made to treatment providers are more persuasive than statements made in pursuit of monetary benefits. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (Board can consider bias in lay evidence and conflicting statements of the veteran in weighing credibility); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Accordingly, the Veteran's inconsistent statements are not afforded probative value and are outweighed by the medical evidence in this case. As the most probative evidence of record does not demonstrate that the lumbar spine disability is as likely as not the result of in-service injury or disease, service connection for lumbar spine disability is not warranted. See 38 C.F.R. § 3.303. As the preponderance of the evidence is against the Veteran's claim for service connection for lumbar spine disability, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Ardalan, 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.