Citation Nr: 21027170 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 18-05 931A DATE: May 4, 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. Evidence received subsequent to the last final July 2011 rating decision denying service connection for a back disability relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a back disability. 2. The Veteran's back disability is not etiologically related to his military service. CONCLUSION OF LAW 1. New and material evidence has been received to reopen the claim for entitlement to service connection for back disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The criteria for entitlement to service connection for back disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1851 to February 1954. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran attended a Board videoconference hearing in February 2021. The transcript has been associated with the record. 1. New and Material Evidence Prior unappealed decisions of the RO are final. 38 U.S.C. §§ 7105(c); 38 C.F.R. §§ 20.1103. The Board does not have jurisdiction to consider a claim that has become final before it determines that new and material evidence has been presented, irrespective of what the regional office (RO) may have determined with respect to new and material evidence. If, however, 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 evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence means existing evidence that, by itself or 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. Id. New and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof; 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, 11720 (2010). By way of background, the Veteran's service connection claim for a back disability was originally denied in an April 2011 rating decision since there was no evidence of record that linked the onset of the Veteran's back disability to military service. The RO reported that there was no indication of any sort of back disability or any symptoms from the Veteran's available service treatment records (STRs). The RO also reviewed the Veteran's post-service treatment records that diagnosed the Veteran with back disabilities. The November 1995 report indicated that the Veteran had mild degenerative changes of the cervical spine that developed in 1987. The December 1995 report indicated that the Veteran had degenerative disc disease of the thoracic spine, but no evidence of significant spinal canal stenosis of the cervical spine. The April 2003 report indicated that the Veteran was diagnosed with degenerative disc disease without herniation of the cervical spine. These medical records did not attribute the Veteran's back disability to his military service or to any incident that occurred during military service. After this rating decision, the Veteran submitted a private treatment record which is why the RO issued another rating decision in July 2011. The RO reiterated that there was no evidence from the Veteran's post-service medical treatment records that his back disability was related to military service and confirmed and continued the denial. The Veteran did not appeal this rating decision and did not submit new and material evidence within one year of the decision. Thus, the decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Thereafter, the Veteran filed an application to reopen the previously denied claim for service connection for a back disability in January 2016, which was denied in June 2016 and March 2017 rating decisions. The RO determined that there was still no evidence of a link between the Veteran's current back disability and any injury or event in service. Since the July 2011 rating decision, VA and private treatment records have been added to the file. The Veteran's VA and private treatment records continue to show a diagnosis of and treatment for a back disability. The Veteran submitted a private medical treatment record from December 2014 that indicated that the Veteran underwent an MRI of his cervical spine. The MRI indicated that the Veteran had radiculopathy. The findings reported that cervical lordosis was maintained. The heights and alignment of the vertebral bodies were preserved. It also reported that age-appropriate fatty marrow changes were evident. The findings furthered that the Veteran had moderate multilevel hypertrophic degenerative changes to include mild-moderate multilevel facet arthropathy and uncovertebral disease, most pronounced at C5-C6 with small central disc protrusion resulting in mild central canal stenosis. In another December 2014 private treatment record. The examiner noted that the Veteran has chronic thoracic back pain. The examiner reported that he reviewed the Veteran's MRI and that he does have multiple healed compression fractures and foraminal narrowing with multiple of degeneration. The Veteran resubmitted the December 1995 and April 2003 MRI findings, which were already of record when the Veteran first submitted a claim for service connection for his back disability. VA received a private medical opinion dated July 2016 that claimed that the Veteran has chronic back pain after sustaining an injury in the Army in the 1950s. The examiner explained that the Veteran was seen for this problem in 1995 and was diagnosed with chronic compression deformities from T6-T9. The examiner furthered that the Veteran has had chronic pain since this time. The examiner furthered that the Veteran was last seen in 2014 and imaging studies at that time revealed marked degenerative changes of the cervical and thoracic spine most locally in the area of his previous injuries that occurred while in the army. In the February 2021 Board hearing, the Veteran reported that during his time in military service in October 1951, he fell down from a ten-foot-high wall where his face/head hit the floor. He explained that his partial plate of about five teeth flew out and got busted, which is noted in his service treatment records (STRs). He reported that from that day he has had shocking pain which he went to the medic for. He reported he had continuous treatment throughout service for his back and that he had excruciating back pain. After the initial visit in October, the Veteran reported he had back heat treatments. He furthered that later on in life, the back pain became crippling. He reported that he followed up about his back disability once he got out of military service and that he got many MRIs for his back, but some of them are unavailable since those records cannot be found. The Veteran also reported that his last medical examination at discharge showed that he lost an inch and a half in height since he started military service. He reported that the examiner at discharge asked him if he had an accident in service. The Veteran explained that he told the examiner that he did and the examiner responded that the Veteran lost an inch and a half in height due to the injury. The Veteran further reported that VA treatment records from December 1956 show that the Veteran had slight scoliosis to the right and mid portion of the thoracic spine. He further explained that the October 1951 STR did not report the taping and treatment of his back, nor did the November 1951 STR mention anything about his back even though that is when the tape was removed and when his finger was treated. He explained that the finger treatment was addressed in the records, but his back treatment was not. The Veteran also indicated that dental records from October 1951 show that the cause for visit was because of an injury, which the Veteran claims is the injury to his back. The credibility of such treatment records and reports are to be presumed for purposes of new and material evidence. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Because this information, in connection with evidence previously assembled, raises the possibility of substantiating the Veteran's claim, it constitutes new and material evidence sufficient to reopen the claim. Accordingly, the claim for service connection for back disability is reopened. 2. Entitlement to service connection for a back disability is denied Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Service connection generally requires evidence satisfying three criteria: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the current disability and the disease or injury incurred or aggravated during service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Secondary service connection may be granted when a disability is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 447-48 (1995). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when: (1) the weight of the evidence supports the claim, or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that he experienced an injury during his military service that caused his back disability. Specifically, he reported that he fell from a 10-foot wall and landed on his face/head injuring his back, his teeth, and a finger. He reports that while there is indication of the injury, the medics did not include his back disability or treatments even though there is record of the dental injury and the finger injury. He further reported that at discharge he had lost one and a half inches of height, which is another indication that his back was injured during military service. He furthered that this medic explained to him that at some point he had a broken back since it showed that his back was broken in four places which has caused the loss in height. The Veteran alleges that he has not received all of his medical records from his time in military service. There was some confusion as to whether the Veteran's records were destroyed during the 1973 fire, but later on was discovered that the Veteran was already in possession of his records from another facility and thus they were not destroyed in the fire. VA has made all the proper steps to obtain the records the Veteran has alleged are missing. STRs are negative for any evidence of complaints, treatment, or a diagnosis related to the Veteran's back disability. The February 1954 discharge examination did not indicate that the Veteran suffered from any back pain or disability. The Veteran's entrance examination did indicate that his height was 71 12 inches and his discharge examination did indicate that his height was 70 inches. Moreover, there is indication that the Veteran fell from a height and that he suffered from a dental injury. There is also record that the Veteran suffered from a finger injury. However, there is no record of any back injury. In various statements, the Veteran reported that he sought treatment for his back disability since leaving military service and that he had many MRIs since then. He explained that an examiner interpreting an MRI reported that the Veteran's back disability was caused by the back injury he had in military service; however, this MRI report cannot be located as efforts have shown that the record was too old and may have been destroyed. The earliest post-service medical evidence of record is from November 1995 where the Veteran was examined for degenerative changes. The examiner noted that mild degenerative changes at the C56, and to a lesser extent, the C4-5 level. The examiner noted that the findings had developed since 1987. A December 1995 private treatment record indicates that the Veteran underwent an MRI. After interpreting the MRI, the examiner noted that there was no evidence of significant spinal canal stenosis or significant posterior disc herniation of the cervical spine. There was no evidence of significant foraminal narrowing and the cervical spinal cord was within normal limits in size and MR signal characteristics. The visualized marrow spaces were without significant signal abnormalities and there was minimal exaggeration of the normal cervical lordosis. The examiner also reported that the Veteran had degenerative disc disease at the T6-7, T7-8, T8-9, T9-10, and T10-11 levels. The examiner noted that there was decreased disc heights, small posterior disc bulges, and small posterior vertebral body osteophytes. There was a mild degree of spinal canal narrowing secondary to the above described changes. The examiner furthered that the findings were consistent with mild anterior wedge compression deformities involving the T6, T7, T8, and T9 vertebral bodies which appear old. The Veteran submitted another MRI reading from April 2003. The examiner noted that the Veteran had degenerative disc disease at C5-6 and C6-7. There was no significant spinal canal stenosis or neural foraminal narrowing for the two discs. There was also no posterior disc herniation, spinal canal stenosis, or neural foraminal narrowing at the remaining cervical levels. The Veteran submitted a statement from a fellow servicemember in September 2010. The fellow servicemember reported that when he first met the Veteran, he noticed that he was tall and straight, but throughout the years noticed that he was bent more every time. He furthered that the Veteran always mentioned a bad back. In a June 2011 statement, the Veteran reported that the pains in his cervical spine did not start until the 1960s and then developed seriously in the 1970s. He furthered that the pain in his lumbar spine started in the 1970s and then even more in the 1980s. The Veteran submitted a private medical treatment record from December 2014 that indicated that the Veteran underwent an MRI of his cervical spine. The MRI indicated that the Veteran had radiculopathy. The findings reported that cervical lordosis was maintained. The heights and alignment of the vertebral bodies were preserved. It also reported that age-appropriate fatty marrow changes were evident. The findings furthered that the Veteran had moderate multilevel hypertrophic degenerative changes to include mild-moderate multilevel facet arthropathy and uncovertebral disease, most pronounced at C5-C6 with small central disc protrusion resulting in mild central canal stenosis. In another December 2014 private treatment record. The examiner noted that the Veteran has chronic thoracic back pain. The examiner reported that he reviewed the Veteran's MRI and that he does have multiple healed compression fractures and foraminal narrowing with multiple of degeneration. VA received a private medical opinion dated July 2016 that claimed that the Veteran has chronic back pain after sustaining an injury in the Army in the 1950s. The examiner explained that the Veteran was seen for this problem in 1995 and was diagnosed with chronic compression deformities from T6-T9. The examiner furthered that the Veteran has had chronic pain since this time. The examiner furthered that the Veteran was last seen in 2014 and imaging studies at that time revealed marked degenerative changes of the cervical and thoracic spine most locally in the area of his previous injuries that occurred while in the army. In the February 2021 Board hearing, the Veteran reported that during his time in military service in October 1951, he fell down from a ten-foot-high wall where his face/head hit the floor. He explained that his partial plate of about five teeth flew out and got busted, which is noted in his service treatment records (STRs). He reported that from that day he has had shocking pain which he went to the medic for. He reported he had continuous treatment throughout service for his back and that he had excruciating back pain. After the initial visit in October, the Veteran reported he had back heat treatments. He furthered that later on in life, the back pain became crippling. He reported that he followed up about his back disability once he got out of military service and that he got many MRIs for his back, but some of them are unavailable since those records cannot be found. The Veteran also reported that his last medical examination at discharge showed that he lost an inch and a half in height since he started military service. He reported that the examiner at discharge asked him if he had an accident in service. The Veteran explained that he told the examiner that he did, and the examiner responded that the Veteran lost an inch and a half in height due to the injury. The Veteran further reported that VA treatment records from December 1956 show that the Veteran had slight scoliosis to the right and mid portion of the thoracic spine. He further explained that the October 1951 STR did not report the taping and treatment of his back, nor did the November 1951 STR mention anything about his back even though that is when the tape was removed and when his finger was treated. He explained that the finger treatment was addressed in the records, but his back treatment was not. The Veteran also indicated that dental records from October 1951 show that the cause for visit was because of an injury, which the Veteran claims is the injury to his back. The evidence shows that the Veteran has a back disability. The questions become whether an in-service injury, event, or occurrence happened and, if so, whether a nexus exists between the in-service injury and the Veteran's current back disability. The Veteran claims he injured his back in service rom falling off a wall. STRs are silent for any reference to back complaints or findings. While there is reference to this alleged injury, it was not regarding the back, but for a dental and finger injury. The Veteran's separation examination revealed no abnormalities. Under the circumstances, and given the negative separation examination, the Board finds the Veteran's account of an injury in service to lack credibility. The Veteran reported that the medic during the discharge examination reported that he had broken his back in four different areas and that is what caused his height difference. The Board finds that an injury of this caliber would have required significant medical attention throughout the healing process during military service and would have been a major injury to indicate during the discharge examination. Moreover, the Veteran reported that because an injury was noted during service, it is evidence that his back was injured. The Board finds this to lack credibility since if his back was injured then there would not have been any reason to leave that information out during his medical visits during service. The notes indicate that the Veteran injured his teeth and his finger, but there is no indication of a back injury. Additionally, the Veteran claims that because there is a one-and-a-half-inch height difference from entrance to separation, that is an indication that he suffered from a back injury which caused the height difference. There is no record to substantiate this claim. The Board finds that there is a height difference, but because there is no indication as to its etiology, it cannot be assumed that a back injury caused the height difference. Consequently, the Veteran's statements asserting that he injured his back during active duty service lack credibility. Even assuming that the Veteran did injure his back in service, the evidence still preponderates against the claim. The service separation examination is silent for any back complaints or findings, there is no competent evidence of back complaints until decades after service, and there is no probative medical evidence linking the current back disorder to service. The only medical opinion addressing the etiology of the back disorder is made based off of the Veteran's accounts of his alleged injury. There is no indication that the examiner was able to determine based off of the medical evidence at hand that the Veteran suffered from a back injury in service. Thus, the Board gives very little probative weight to this medical opinion. Moreover, there is an extensive gap between the Veteran's separation from service and the first reports of a back disorder. With regard to the years-long evidentiary gap in this case between the alleged in-service injury and the earliest manifestations of a back disability about 33 years after the Veteran's separation from active duty military service, the Board notes that a prolonged period without medical complaint can be considered along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). To the extent the Veteran contends that his back problems existed in service and continuously since service, the Board finds his account to lack credibility for the reasons already stated concerning the absence of any reference to back problems until many years after separation. In sum, the record does not contain probative lay or medical evidence sufficient to establish that an in-service injury, event, or occurrent happened nor that a medical nexus exists between the Veteran's back and his military service. The preponderance of the evidence is against the claim. Accordingly, while the Board is very sympathetic to the appellant's situation, service connection for cause of the Veteran's back disability must be denied. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Imam, 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.