Citation Nr: 18132254 Decision Date: 09/06/18 Archive Date: 09/06/18 DOCKET NO. 15-42 580 DATE: September 6, 2018 ORDER New and material evidence having been received, the claim for service connection for a lumbar spine disability (back) is reopened and to this extent, the appeal is granted. Service connection for a lumbar spine disability is denied. FINDINGS OF FACT 1. The RO denied service connection for a lumbar spine disability in December 2001; the Veteran did not submit new and material evidence within one year of that decision or submit a timely notice of disagreement. 2. The December 2001 rating decision is final. 3. Since December 2001, the Veteran has submitted new and material evidence in support of his claim for service connection for a lumbar spine disability. 4. The Veteran’s current lumbar spine disability did not manifest during or as a result of active service. CONCLUSIONS OF LAW 1. The December 2001 rating decision that denied the claim for service connection for a lumbar spine disability is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2018). 2. New and material evidence having been received, the claim for service connection for a lumbar spine disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1976 to August 1980. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In August 2016, the Veteran provided testimony before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. 1. New and Material Evidence In a December 2001 rating decision, the RO denied service connection for a lumbar spine disability. Although the Veteran received notice of the decision and of his appellate rights, he did not perfect an appeal or submit new and material evidence within one year of the decision. Consequently, the December 2001 rating decision is final. 38 U.S.C. § 7015; 38 C.F.R. §§ 3.104, 20.302, 20.1103. Although a decision is final, a claim will be reopened if new and material evidence is received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 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. “New” evidence means evidence not previously submitted to VA. “Material” evidence means evidence that, by itself or when considered with previous evidence of record, relates to an un-established fact necessary to substantiate the claim. See 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. 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 is new and material evidence, rather than a separate determination to be made after VA has found that evidence is new and material. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). If the claim is reopened, it will be reviewed on a de novo basis. 38 U.S.C. §§ 5108, 7105; Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). Since the December 2001 rating decision, the Veteran has submitted lay statements explaining the onset and continuity of back pain since service. The Veteran’s statements are presumed credible for the purpose of reopening his claim. Accordingly, since his statements were not available at the time of the December 2001 rating decision, the Board finds that new and material evidence has been received. Therefore, the claim is reopened for consideration on the merits and to this extent, the appeal is granted 2. Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran contends that his current lumbar spine disability manifested during and continued since service. The Veteran’s current diagnosis is lumbosacral degenerative disc disease and degenerative joint disease status post laminectomy, without radiculopathy. The question for the Board is whether this disability began during service or is at least as likely as not related to an in-service injury, event, or disease. Service treatment records show only one episode of acute back pain that was treated in September 1979. The Veteran reported a one-week history of pain with no history of trauma. The diagnosis was low back pain syndrome. No further complaints of pain or injury were documented in active duty or Reserves treatment records until 1991. See May 1983 enlistment examination report; February 1987 periodic examination report; and February 1986 and 1987 report of medical history forms (showing normal spine exam and/or denial of recurrent back pain). The June 1991 periodic examination report shows the Veteran had a 4 cm well-healed scar at the lumbar spine. The accompanying report of medical history form notes that the Veteran had a disc repaired. The records do not indicate that the back surgery was in any way related to service. The first indication of back pain after the Veteran’s period of active service was documented in private treatment records from C.S.H.P. In March 1987, the Veteran was treated for back pain caused by lifting. The March 1987 X-ray report showed no evidence of degenerative disc disease. He sought treatment again in October 1989 after injuring his back while dressing. The October 1989 X-ray report showed very slight interval narrowing of L4-5 disc space when compared to the March 1987 films. In January 1990, he injured himself while getting out of his car. The X-ray report shows that the L4-5 disc space was equivocally narrowed, but less convincingly on the current exam than in October 1989. There were no other significant lumbar spine abnormalities. In August 1990, the Veteran slipped again and was treated for recurrent sacroiliac strain. Notes from September 1990 indicate suspected herniation. An October 1990 CT scan showed disc bulge at L3-4, herniation at L4-5, and soft tissue mass filling the canal centrally-left laterally at L5-S1. None of the treatment records indicate that the Veteran’s injuries and related pain or herniations were in any way related to the episode of pain during service, instead indicating post-service injuries, providing evidence against this claim. An October 1990 treatment note and letter from Dr. J.S. documents the Veteran’s report of having back difficulties since 1979. The Veteran reported that he had been diagnosed with an inflamed disc during service, which caused low back pain. He stated that the condition resolved after two days of nonsteroidal anti-inflammatory treatment. He reported that he did well until 1987 when he “tore ligaments in his back,” which resolved with conservative therapy. He did well until he injured his back in January 1990 and again in August 1990. Notably, Dr. J.S. merely documented the Veteran’s reported history; he did not indicate that he had reviewed the service treatment records or indicate a relationship between the Veteran’s current back diagnoses and acute injury during service. During the May 2014 VA examination, the Veteran reported that he had back pain in 1977 but was not treated for pain until 1979. He stated that the pain was not trauma related and that when he was treated, his doctor told him he had an inflamed disc. The examiner pointed out that the service treatment records show a diagnosis of low back syndrome and muscle strain. The Veteran said his pain resolved and after 1979, he had rare episodes of pain but did not have chronic pain until 1990. In 1990 he slipped and his back popped out of place. He began to have low back and left radicular pain. The Veteran had a laminectomy in 1991 for the radiculopathy. He stated that he did not have pain for four years. After 1995, if he twisted wrong he would have pain for 3 to 4 days. The examiner indicated a diagnosis of lumbosacral degenerative disc disease and degenerative joint disease status post laminectomy, without radiculopathy. After reviewing the claims file and examining the Veteran, the examiner found it less likely than not that the Veteran’s current back disability is related to service. The examiner stated that the singular episode of back pain in 1979 was assessed as a strain, without trauma, treated with muscle relaxants, and resolved until 1990, by the Veteran’s own history. The examiner found no note or test results in the service treatment records indicating disc disease. The examiner indicated that the episode of strain during service was not likely to naturally progress to his current disc disease. The examiner stated that the back pain that resulted in disc disease was sudden, after a traumatic twisting and popping incident, and was years after service. It was a new injury in 1990. Regarding the 1990 letter from Dr. S., which documented the Veteran’s assertion that he was told he had an inflamed disc in 1979, the examiner stated that the assertion is not substantiated by the record. The examiner noted that Dr. S. did not have access to the claims file or service treatment records for verification. The Board has also considered the Veteran’s lay statements. In his November 2015 substantive appeal, the Veteran indicated that he injured his back in 1979 and denied having recurrent back pain in 1983, 1986, 1987, and 1991 because he did not consider the twinges of back pain to be recurrent back pain. He stated that the recurrent twinges of pain were not as severe as the pain he felt in 1979. He believed the pains were due to aging. He also noted that he had been told during service that he had an inflamed disc. See also August 2016 hearing transcript, page 4. The Veteran also indicated that his duties during service required prolonged standing, which caused or contributed to his back pain. He testified that he would have back pain while out on post but did not seek treatment until 1979. See August 2016 hearing transcript, page 5. Based on the foregoing, the Board concludes that while the Veteran has a current diagnosis of lumbosacral degenerative disc disease and degenerative joint disease status post laminectomy, without radiculopathy, and the evidence shows he had an acute episode of back pain during service, the preponderance of the evidence weighs against finding that the Veteran’s current disability began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service treatment records show only one instance of acute back pain in 1979, and according to the Veteran’s statements to medical providers, that pain resolved within days. He did not have pain or other symptoms again until the late 1980s, and those symptoms were due to new injuries (i.e. lifting, bending, falling, etc.). Further, private treatment records show the Veteran was not diagnosed with degenerative disc disease until October 1990, more than 11 years after his reported pain during service, and 10 years after his separation from service. X-rays do not show degenerative joint disease until May 2014, approximately 34 years after separation from service. The Board considered the Veteran’s lay statements; however, he is not competent to provide a diagnosis or determine that his current symptoms are manifestations of his back pain experienced during service. The issue is medically complex, as it requires interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board does not doubt that the Veteran may have been told that he had an inflamed disc during service; however, there is no evidence that an inflamed disc was equivalent to a herniated disc at that time as diagnostic testing was not completed to confirm any herniation or degenerative disease. Moreover, the March 1987 X-ray report showed a normal spine, which weighs against a finding that the Veteran sustained a herniated disc during service. It also weighs against a finding that the Veteran had degenerative joint disease within one year of separation from service. See 38 C.F.R. § 3.307, 3.309. Thus, Board finds that the diagnostic testing does not support the Veteran’s assertion of a disc injury during service or support a relationship between his current diagnoses and service. Regarding the Veteran’s lay statements and testimony describing his back pain, the Veteran is competent to report on such matters. However, the Veteran’s statements indicating the presence of back pain since 1977, to include reported back pain felt while standing post during service, and his statements indicating “twinges” of pain after service until 1990 are inconsistent with statements documented by his medical providers. Service treatment records show only the one instance of pain in September 1979, and at that time, he indicated a one-week history of pain. According to his statements, his back pain resolved after two days of treatment. Records do not show that he reported non-trauma related instances of back pain between service and 1987. Back pain was not indicated again until he sustained new injuries in the late 1980s. Moreover, in October 1990, the Veteran reported that he had back difficulties in 1979 which resolved after two days of treatment. He did not report that he had chronic pain prior to that instance due to standing post or other duties performed during service. He also reported that his back was fine until 1987, when he injured it again. Consequently, given the inconsistencies in the Veteran’s reports of onset and continuity of back pain during and since service, the Board finds statements made to medical providers were contemporaneous with treatment and are more credible and thus entitled to greater weight than statements made many years later describing past symptomatology. Further weighing against the claim is the May 2014 opinion from the VA examiner, which indicates that the Veteran’s current low back disability is not related to service. The examiner stated that the singular episode of back pain in 1979 was assessed as a strain, without trauma, treated with muscle relaxants, and resolved until 1990, by the Veteran’s own history. The examiner indicated that the episode of strain during service was not likely to naturally progress to his current disc disease and that the back pain that resulted in disc disease was related to a new injury in 1990. The examiner’s opinion is probative, 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). The Board can not, unfortunately, ignore such highly probative evidence. (Continued on the next page) For the foregoing reasons, the Board finds that the claim of service connection for a low back disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim of service connection, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-6 (1990). JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Alderman, Amanda G.
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