Citation Nr: 22010352 Decision Date: 02/23/22 Archive Date: 02/23/22 DOCKET NO. 19-13 029 DATE: February 23, 2022 ORDER Whether new and material evidence has been received to reopen a claim seeking service connection for a lumbar spine disability is granted. Entitlement to service connection for a lumbar spine disability is denied. FINDINGS OF FACT 1. An unappealed November 2011 decision issued by the Board of Veterans' Appeals (Board) denied entitlement to service connection for lumbar spine disability. 2. A lumbar spine disability is not shown to be causally or etiologically related to any disease, injury, or incident during service. CONCLUSIONS OF LAW 1. The criteria for whether new and material evidence has been received to reopen a claim seeking entitlement to service connection for a lumbar spine disability have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1979 to February 1990. The Veteran testified at an October 2021 virtual hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. The Board is aware that per correspondence from the National Personnel Records Center (NPRC) dated November 2010, the Veteran's service treatment records (STRs) are unavailable. In cases where STRs are unavailable, VA has a heightened duty to explain its findings and conclusions and to carefully consider the benefit of the doubt rule. Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis of the Veteran's claim was undertaken with this duty in mind. The case law does not; however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). 1. Whether new and material evidence has been received to reopen a claim seeking service connection for a lumbar spine disability Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 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 that has been 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). The determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what new and material evidence is, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). 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. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513. The Board finds additional evidence since the November 2011 Board decision shows current lumbar spine disability possibly related to active service. Such relates to the open medical question as to whether the Veteran's lumbar spine disability is related to his military service. The evidence is new and material and sufficient to reopen the claim. To this extent only, the appeal is granted. 2. Entitlement to service connection for a lumbar spine disability Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). 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. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran contends in various lay statements, as well as his October 2021 testimony, that his lumbar spine disability is due to his military service. 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. Although the Veteran has a current diagnosis of lumbar degenerative arthritis, and the Board does not doubt the Veteran experienced a back injury while on active duty, the persuasive evidence weighs against finding that the diagnosis of lumbar degenerative arthritis began during service or are otherwise related to an in-service injury, event, or disease. As discussed above, the Veteran's STRs are unavailable. Post-service treatment records from the Tennessee Department of Corrections include an April 1995 treatment record that documents chronic back pain and spasms. A February 1996 treatment record documents back pain since 1994. The clinical evidence of record shows degenerative arthritis of the lumbar diagnosed in 2012. During May 2016 VA examination, the examiner indicated that after review of the Veteran's treatment records and examination, she was unable to opine as to the etiology of the Veteran's lumbar spine disability without resorting to mere speculation as there are no available treatment records regarding the circumstances surrounding the reported initial in-service injury in 1989. She indicated that she has reviewed the lay statements, but they do not provide adequate information for her to be able to determine an etiology of the Veteran's back disability. Although the Veteran reported ongoing low back pain since service discharge, the examiner indicated that she did not find medical evidence indicating a low back disability until several years post service discharge. The Board finds that this opinion is not adequate as the examiner essentially indicated that she could not provide an opinion without resorting to speculation. During January 2019 VA examination, the examiner indicated that the lumbar disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner indicated that post-service evidence does not reflect symptomatology until several years post service separation. The first indication of low back disability was not until December 1994 when the Veteran was placed on limited activity for a back problem. Although the Veteran reports ongoing low back pain since service discharge, the examiner indicated that he does not find medical evidence indicating a low back disability until several years after discharge from service. He indicated that the current lumbar degenerative arthritis is more likely than not due to normal aging process and morbid obesity, both of which are primary risk factors. The Board finds that the January 2019 VA examiner's opinion is persuasive because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Although the Veteran's STRs are unavailable, the January 2019 examiner detailed the Veteran's report of his in-service back injury and reports of continuing back symptoms since service. Even considering the Veteran's reports, the examiner did not provide a positive opinion. He opined that continuity of symptoms from service until 1994 had not been shown as evidenced by clinical records, and namely, the 2012 MRI of the spine showing very minimal degenerative changes and disc bulging. The examiner provided the likely etiology of the Veteran's back disability and found that the current lumbar spine disability is more likely due to normal aging and morbid obesity, not the one episode of lumbar strain or spasm that the Veteran reported in service. There is no competent medical opinion to the contrary. The Veteran did not have arthritis of the spine in service, nor within his first post-service year. His very minimal degenerative changes in the spine were discovered following a 2012 MRI of the spine. The January 2019 examiner found no evidence of continuity of symptoms between service and his DOC medical recordsincluding the Medical Report on Entry, Transfer, and Release dated in October 1994. To the extent that the Veteran contends he had continuous back symptoms since service, his statements are not credible. The contemporaneous medical evidence, namely the October 1994 medical report, contradicts the Veteran's current reports made in connection with his service connection claim. Additionally, he did not report an in-service injury whilst undergoing treatment for his back while incarcerated, and he specifically reported back pain since 1994 in a February 1996 DOC medical record. This further supports the Board's finding that his statement of continuity of back symptoms is not credible. The Veteran believes his lumbar spine disability is related to an in-service injury, event, or disease. Even if the Board accepts as true that the Veteran injured his back on active duty, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the musculoskeletal system. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Consequently, the Board gives more persuasive weight to the uncontroverted January 2019 VA examiner's opinion. As persuasive evidence is against the claim, service connection for a low back disability is denied. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. McPhaull, 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.