Citation Nr: 21020930 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 16-03 877 DATE: April 8, 2021 ORDER The application to reopen the claim of entitlement to service connection for a back disorder is granted. Entitlement to service connection for a back disorder is denied. Entitlement to service connection for a left hip disorder is denied. Entitlement to service connection for a left thigh disorder is denied. FINDINGS OF FACT 1. The RO denied service connection for a back disorder in a March 2006 rating decision. The Veteran did not appeal this rating decision, nor did he submit new and material evidence within one year of the rating decision. 2. The evidence received since the March 2006 rating decision relates to an unestablished fact necessary to substantiate the Veteran’s service connection claim for a back disorder. 3. A back disorder was not manifest during service and arthritis was not manifest within one year of separation. A back disorder is unrelated to service. 4. The Veteran does not have a left hip disability, or a disease or injury causing left hip pain. 5. The Veteran does not have a left thigh disability, or a disease or injury causing left thigh pain. CONCLUSIONS OF LAW 1. The March 2006 rating decision denying service connection for a back disorder is final. New and material evidence has been received and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. A back disorder was not incurred in or aggravated by service and arthritis may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. A left hip disorder was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 4. A left thigh disorder was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1967 to March 1969 and October 1973 to November 1977. These issues were remanded by the Board in September 2018 for evidentiary development. 1. The application to reopen the claim of entitlement to service connection for a back disorder Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c). An 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, VA shall reopen the claim and review the former disposition of the claim. New and material evidence is defined as evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration; such 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 deciding whether new and material evidence has been submitted 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 United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159 (c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” See id. Prior to the June 2015 rating decision on appeal, the Veteran’s compensation claim for a back disorder was denied in rating decisions issued in July 1988, December 1993, September 2003, and March 2006. The Veteran was notified of these previous denials but did not appeal nor submit evidence within the one-year appeal period. The decisions were, therefore, final. See 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.156 (b), 20.1103. At the time of the most recent final rating decision in March 2006, the RO considered the claim, service medical records, private treatment records, and a private medical opinion, among other evidence. The RO denied the claim due to a failure to submit new and material evidence. The claim had previously been denied due to the lack of a nexus between the Veteran’s service and current disability. Since the March 2006 rating decision, the Veteran was afforded a December 2020 VA examination and Social Security Administration records were obtained. The Board finds this evidence to be sufficient to warrant a reopening of the compensation claim for a back disorder. Service Connection 2. Entitlement to service connection for a back disorder Veterans are entitled to compensation if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish entitlement to service-connected compensation benefits, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service -the so-called ‘nexus’ requirement.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Arthritis is identified as a “chronic disease” under 38 U.S.C. § 1101 and 38 C.F.R. § 3.309 (a). “For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.” 38 C.F.R. § 3.303 (b). The Veteran contends that his current back disorder is directly related to an August 1968 in-service injury sustained while falling off of a surfboard. Service treatment records document an August 5, 1968, lower back injury after the Veteran fell from a surfboard. It was assessed as a L-5 strain. In the February 1969 separation examination for the Veteran’s first period of service, clinical evaluation revealed a normal spine and musculoskeletal system. Clinical evaluation at a January 1972 reenlistment examination also documented a normal spine and musculoskeletal system. In an accompanying Report of Medical History, the Veteran specifically denied recurrent back pain and any other potentially relevant symptoms. Clinical evaluation at subsequent October 1973 and May 1975 examinations again documented a normal spine and musculoskeletal system. In an October 1973 Report of Medical History, the Veteran specifically denied recurrent back pain and any other potentially relevant symptoms. Clinical evaluation at the October 1977 separation examination documented a normal spine and musculoskeletal system. In an accompanying Report of Medical History, the Veteran did report recurrent back pain. The Veteran submitted private treatment records dating back to September 1980. The September 1980 treatment note documents an acute lumbar strain incurred while the Veteran was playing volleyball in September 1980. The examiner notes that x-ray imaging was not of “very good quality,” but it did appear to document some evidence of some narrowing at the transitional lumbosacral vertebrae that was “probably congenital rather than a degenerative change. Otherwise the lumbar spine seem[s] to be within normal limits.” He also submitted a November 1993 private treatment note documenting degenerative disc disease and opining that it is “quite apparent that the condition did indeed begin during his tenure with the military.” The examiner cites the extent of degeneration of the L5-S1 disc at the time the Veteran first sought treatment with this practice, “which would have been almost immediately after leaving service.” At a December 2020 VA examination, the Veteran was diagnosed with status post laminectomy L5-S1, severe lumbar stenosis, lumbar radiculopathy and lumbar facet arthropathy. Arthritis was documented on imaging. The examiner opined that the Veteran’s current back disorders were less likely than not related to active service, to include the August 1968 L5 strain documented in service treatment record. The examiner cites service treatment records and post-service medical records. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter 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). The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Board accepts the December 2020 VA examiner’s opinion that the Veteran’s back disorders are less likely than not related to his service as highly probative medical evidence on this point. The Board notes that the examiner rendered the opinions after thoroughly reviewing the claims file and relevant medical records. The examiner noted the Veteran’s pertinent history and provided a reasoned analysis of the case. See Hernandez-Toyens v. West, 11 Vet. App. 379, 383 (1998); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The Board may favor the opinion of one competent medical professional over that of another so long as an adequate statement of reasons and bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). An evaluation of the probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the examiner’s knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Greater weight may be placed on one physician’s opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert’s qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). Here, the Board finds the November 1993 private medical opinion to be of minimal probative value. The examiner cites treatment in the immediate aftermath of service for a significant degree of degeneration at the L5-S1 joint in explaining that the diagnosed degenerative disc disease is “quite apparent[ly]” due to service. However, the earliest private treatment record in the file is the aforementioned September 1980 treatment for an “acute lumbar strain” incurred while playing volleyball. X-ray imaging documented a possible congenital, as opposed to degenerative, narrowing at the L5. This record is in apparent contradiction with November 1993 reference to “significant degree of degeneration” in the immediate aftermath of service. The September 1980 treatment note is for an acute injury nearly three years after separation and analysis of x-ray imagining found a possible congenital narrowing and makes no reference to degenerative disease or an in-service injury. In this instance, the Board finds the December 2020 VA examiner’s opinion to be of significant probative value as he provided an unequivocal and detailed medical opinion supported by a pertinent rationale based upon a review of the Veteran’s claims file, when concluding that the Veteran’s back disorders were not related to his service. The Board has also considered the lay statements of record, to include the Veteran’s previously referenced assertions. With respect to the Veteran’s report that he has experienced a continuity of symptoms since service, he is competent to report his observations and relate what he was told by medical professionals. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Of note, the Veteran has not indicated that a medical professional provided him with a relevant diagnosis during service or immediately thereafter. Id. The Veteran’s lay evidence of onset and continuity is far less probative than the opinion of the VA professional, as the VA medical opinion is far more detailed and reasoned; thus warranting a greater probative value. The Board finds that the probative value of the general lay assertions is outweighed by the clinical evidence of record. While the Veteran did report recurrent back pain upon separation from his second period of service, clinical evaluation revealed a normal spine and musculoskeletal system. It is of note that the Veteran specifically denied recurrent back pain upon separation from his first period of service, the period in which he was treated for the L5 sprain. The preponderance of the evidence does not link the Veteran’s back disorders to service. The contemporaneous records establish that there were no documented manifestations of a relevant chronic disorder in service, there were no manifestations of arthritis within one year of separation from either period of service, and arthritis was first manifest many years after separation. The Board finds the contemporaneous records to be far more probative and credible than the Veteran’s report of onset, continuity, and treatment. Here, chronic disease (arthritis) of the spine was not “noted” during service or within one year of separation within the meaning of section 3.303(b). While the Board notes the Veteran’s reported and documented history of in-service events, it finds that the service treatment records do not show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Rather, despite the Veteran’s reports and the documentation of treatment for back pain in service, the evidence does not establish the presence of a chronic disability in service. Furthermore, the evidence does not establish that arthritis of the spine was manifest to a compensable degree within one year of separation. 38 C.F.R. §§ 3.307; 3.309. The evidence of record shows that arthritis was manifest many years after service. The Veteran was not shown to have arthritis, or any relevant chronic spinal disorder in service, and did not have characteristic manifestations of such disorders until multiple years after discharge. In summary, the evidence establishes that the spine was normal upon separation from service and the onset of arthritis occurred many years after service. The Board finds that the contemporaneous in-service and post-service treatment records are entitled to greater probative weight and credibility than the lay statements of the Veteran. The Board also finds the VA examiner’s opinion to be of significant probative value and the private examiner’s opinion to be of minimal probative value. The more probative evidence establishes that the Veteran did not have a chronic back or spine disorder during service or within one year of separation. Furthermore, the evidence establishes that the remote onset of the current back disorders is unrelated to service. The Board finds that the preponderance of the evidence is against the claim and the claim must be denied. 3. Entitlement to service connection for a left hip disorder 4. Entitlement to service connection for a left thigh disorder “Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability... in the absence of a proof of present disability there can be no claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary’s adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran asserts he has left hip and thigh disorders related to an in-service injury while playing football. Service treatment records do document October 1, 1967, treatment for a left thigh injury while playing football. It was diagnosed as a mild contusion. Clinical evaluation in subsequent examinations in February 1969 (separation), January 1972 (reenlistment), October 1973, May 1975, and October 1977 (separation) documented normal lower extremities and musculoskeletal system. In accompanying reports of medical history, the Veteran specifically denied any relevant symptoms. There is a notation of “cramp in your legs” in the October 1977 Report of Medical History, but it was specified that this was in reference to occasional left ankle swelling. At a December 2015 VA examination, the examiner determined that the Veteran did not have a diagnosable left hip or thigh condition. The 1967 contusion had resolved. The Veteran reported that he was not aware of a specific left hip condition and only experiences left thigh paresthesias as a residual of sciatica, related to the low back. Back pain was reported to limit range of motion of the left hip. There is no evidence of a left thigh or hip disorder in additional VA treatment records, private treatment records, or SSA records. The Board notes muscle strength was 5/5 for hip left flexion at the Veteran’s December 2020 back examination. In addition, sensory examination of the left thigh was normal. Here, the Veteran has reported the presence of pain and discomfort in the left thigh and hip. Service treatment records do document relevant injury and treatment, although subsequent in-service clinical evaluation indicates the injury was acute and transitory. During the period on appeal, VA examination revealed that the Veteran did not have a left hip or thigh disability producing such limitation. The probative evidence does not show a diagnosed left hip or thigh disease, injury or disability during the claims period. The Veteran is certainly competent to report the presence of left hip and/or thigh pain or other symptoms. However, the Board finds the results of diagnostic testing during physical examination to be more probative than the Veteran’s self-reported diagnosis of a left hip and/or thigh disorder. This does not constitute a disease or injury for which service connection may be awarded. Despite his complaints of pain and loss of motion, the examinations were normal and the presence of disability is not established. Here, the preponderance of the evidence is against the claims. Service connection is granted when there is evidence of in-service disease or injury resulting in disability. 38 U.S.C. §§ 1110, 1131. The Veteran has presented no competent evidence of pathology (disease or injury) to account for his post-service complaints   of left hip and/or thigh pain and there is no evidence of functional limitation upon examination. At this time, there is no competent evidence of pathology that would account for his post-service complaints. Since there is no identifiable disease or injury in this case, there is no basis for service connection of a disorder productive of left hip or thigh pain or functional limitation under sections 1110 and 1131. The claims must be denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. R. Stephens, 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.