Citation Nr: 0215176 Decision Date: 10/29/02 Archive Date: 11/06/02 DOCKET NO. 95-42 640 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a low back disability. 2. Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and his sister ATTORNEY FOR THE BOARD L. Anne Howell, Counsel INTRODUCTION The veteran served on active duty from October 1969 to October 1971. This matter comes before the Board of Veterans' Appeals (Board) from the Nashville, Tennessee, Regional Office (RO), which found that new and material evidence had not been submitted to reopen the veteran's claim. FINDINGS OF FACT 1. VA has made all reasonable efforts to assist the veteran in the development of the claim and has notified him of the information and evidence necessary to substantiate his claim. 2. The RO denied service connection for a low back disorder by rating decisions dated in October 1985, July 1998, and October 1999. The veteran was notified but did not appeal any of the decisions. 3. The RO's October 1999 decision represents the last final disallowance of entitlement to service connection for a low back disorder on any basis. 4. The undated VA physician letter received in May 2001 bear directly and substantively on the matter under consideration and is so significant that it must be considered in order to fairly decide the merits of the veteran's claim. 5. There is no evidence of a chronic low back disorder in service or for many years thereafter. 6. The weight of the medical evidence fails to show a causal relationship between the veteran's current complaints related to his low back disorder and military service. CONCLUSIONS OF LAW 1. The evidence submitted subsequent to the RO's decision denying the claim of entitlement to service connection for a low back disorder is new and material and the claim is reopened. 38 U.S.C.A. §§ 5103(a), 5103A, 5108, 7105 (West 1991 & Supp. 2002); 38 C.F.R. § 3.156 (2001); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). 2. A low back disorder was not incurred in or aggravated during the veteran's period of military service. 38 U.S.C.A. §§ 1110, 1131, 5103A (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.102, 3.303 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that unappealed rating decisions are final with the exception that a claim may be reopened by submission of new and material evidence. However, when an appellant seeks to reopen a claim based on new evidence, the Board must first determine whether new and material evidence has been submitted. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996). In 1998, the United States Court of Appeals for the Federal Circuit clarified the standard to be used for determining whether new and material evidence has been submitted. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New and material evidence is defined as evidence not previously submitted which bears directly and substantively on the matter under consideration. It can be neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim. See 38 C.F.R. § 3.156 (2001); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Prior to Hodge, but interpreting the same regulation, the United States Court of Appeals for Veterans Claims (formerly the United States Court of Veterans Appeal) (the Veterans Claims Court) found that when a veteran sought to reopen a claim based on new evidence, the Board must first determine whether the additional evidence is "new" and "material." Second, if the Board determined that new and material evidence had been added to the record, the claim was reopened and the Board evaluated the merits of the veteran's claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140 (1991). Parenthetically, the Board notes that the law was recently amended to define "new" as not previously submitted and "material" as related to an unestablished fact necessary to substantiate the claim. Under the amended regulations, if the evidence is new and material, the question is whether the evidence raises a reasonable possibility of substantiating the claim. See 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) (to be codified at 38 C.F.R. § 3.156(a)). Due to the effective date of the amended regulation, the new standard is not applicable to the veteran's claim. Historically, the Salt Lake City RO denied the veteran's claim for a low back disability by rating decision dated in October 1985. In July 1998 and October 1999, the Salt Lake City RO again denied his claim for a low back disorder on the basis that the evidence was insufficient to establish service connection for a low back disorder. He was notified but did not appeal any decision. In February 2000, the veteran filed the current claim, which was denied by a rating decision dated in November 2000. Parenthetically, the Board notes that the veteran was granted nonservice-connected pension benefits in the same decision. This appeal is before the Board from his unsuccessful attempt to reopen his claim for entitlement to service connection for a low back disorder. After a review of the evidence, the Board finds that the veteran's claim should be reopened. Of note, he submitted a written statement from a VA treating physician to the effect that the veteran had "a history of back trauma (in 1970 while in the service) which may have contributed to or accelerated advancement of degenerative joint disease of the lumbar spine." Because the statement focuses on the veteran's assertions of a relationship between his current complaints and in-service back injuries, the Board is of the opinion that it bears directly and substantively on the matter under consideration and is so significant that it must be considered in order to fairly decide the merits of the veteran's claim. As such, the claim is reopened. Having determined that the veteran's claim should be reopened, the Board will now turn to a de novo review. As the statement and supplemental statements of the case addressed the standards for a service-connection claim, the Board can proceed with its review without prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Nonetheless, based on the evidence outlined below, it is the decision of the Board that the claim for entitlement to service connection for a low back disability must fail on the merits. Under the relevant regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 2002). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2001). However, continuity of symptoms is required where the condition in service is not, in fact, chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2001). Further, service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 1991 & Supp. 2002); 38 C.F.R. § 3.303(d) (2001). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Despite the veteran's assertions to the contrary, the Board finds that there is no evidence of a chronic low back disorder shown in service. Specifically, service medical records reveal that he sought treatment in July 1970 for complaints of pain, limited range of motion, an inability to sit, and pain when he moved his legs after feeling "something give in his back" while working. After a physical examination, the diagnosis was muscle strain and he was prescribed bedrest and Valium. Several days later, minimal improvement was noted but apparently he was not following advice to put his mattress on the floor. There is no other notation regarding the low back until July 1971 when the veteran complained of back pain after heavy lifting the previous day. He was again diagnosed with a muscle strain. No additional follow-up was reported. On the issue of whether a chronic disability was shown in service, the Board places high probative value on the October 1971 service separation examination, which showed a normal clinical evaluation of the veteran's spine. The Board has also considered the veteran's statements that he was placed on light duty for the remainder of his military career but finds no supporting medical evidence indicating a low back profile. As such, the Board assigns greater probative value to the showing of a "normal" back examination at the time of service separation. Finding that there was no chronic low back disorder noted in service, the Board will next consider whether the veteran has shown continuity of symptomatology or a medical nexus between his in-service muscle strains and current diagnosis. While he has related that he experienced back pain since military discharge, the Board finds that the medical evidence does not support the veteran's contentions. First, post service medical evidence is absent for complaints of, treatment for, or diagnosis of a low back disorder for several years after discharge. Specifically, at the time he filed an initial claim for a low back disorder (in 1984), he submitted a letter from a private treating chiropractor to the effect that he had been treated for a work-related back injury in January 1979. The chiropractor noted that the veteran had again injured his back in a July 1979 work-related accident. Despite the veteran's contentions to the contrary, the Board finds that this evidence does not, in fact, support his assertions that he had back symptoms since military service. To that end, the Board places significant probative value on the absence of low back complaints prior to the January and July 1979 work-related accidents, some 8 years after service separation. Of note, there is no other medical evidence associated with the claims file, nor has the veteran indicated that any exists, reflecting complaints of, treatment for, or diagnosis of a low back disorder until the 1979 injuries. Therefore, the Board finds that this medical evidence does not support his claim of continuity of symptomatology. A July 1985 VA examination also fails to support a finding of continuity of symptomatology or medical nexus. At that time, the veteran related an in-service history of back pain but did not report his post-service work-related injuries in 1979. While the examiner diagnosed periodic low back pain with no limitation of motion, there was no opinion rendered as to a causal relationship between the veteran's complaints and military service. Significantly, a June 1985 X-ray report showed a congenital transitional vertebra with osteoarthritic changes on the left related to the anomaly. Therefore, to the extent the veteran claims osteoarthritis of the lumbar spine, it appears to be related to a congenital deformity which cannot be service-connected. Under the relevant regulations, congenital or developmental defects are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c) (2001). The Board has also considered multiple outpatient treatment records showing on-going treatment for low back pain since the late 1990s. While the veteran related his pain to an in- service injury, the Board is not obligated to accept the veteran's recitation of the facts. See Godfrey v. Brown, 8 Vet. App. 113 (1995). While recognizing that the veteran has been diagnosed with a current low back disorder, the Board places less probative weight on this evidence as the issue of a causal relationship between his symptoms and current diagnosis were either not addressed or appeared to be based wholly upon statements of past medical history provided by the veteran. The Board, however, is not bound to accept such statements simply because treating medical providers have done so. Wilson v. Derwinski, 2 Vet. App. 614 (1992); Wood v. Derwinski, 1 Vet. App. 190, reconsideration denied, 1 Vet. App. 406 (1991). Similarly, the Board places less probative value on the undated letter from a VA treating physician to the effect that the veteran's in-service history of back trauma "may have contributed" to degenerative joint disease of the lumbar spine. First, the Board is inclined to place less probative weight on the statement due to the equivocal nature of the language. The Board notes that "may" or "may not" language has been found insufficient to support a claim for service connection. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992); see also Bostain v. West, 11 Vet. App. 124, 127 (1998); Obert v. Brown, 5 Vet. App. 30, 33 (1993). Moreover, the Board is inclined to place less probative weight on the undated statement because it did not discuss the relationship, if any, of the veteran's post-service work- related injuries or congenital spinal disorder to his current low back complaints, nor did the physician apparently have the veteran's claims file for review prior to rendering an opinion. Therefore, the Board finds the claim cannot be granted based on a single suggestion that there "may be" a relationship between the veteran's current complaints and military duty as it contradicts the weight of medical evidence showing no such relationship. To that end, the Board places significant probative value on a February 2002 VA medical opinion that the veteran's "current low back disability [was] not the result of his in- service injuries." Specifically, the Board is particularly persuaded to assign greater probative weight to the February 2002 medical opinion because the physician-reviewer had the claims file for review, outlined the veteran's in-service injuries, discussed the post-service work-related injuries, and considered multiple outpatient treatment records and VA examination reports already of record prior to rendering his opinion. Moreover, the Board finds the physician-reviewer's recitation of the facts to be consistent with the medical evidence of record. Further, the physician-reviewer focused on the critical inquiry in this appeal - whether there is a causal relationship between the veteran's in-service complaints and current low back pathology. The physician-reviewer noted a normal service separation examination and reflected that it would have been difficult for the veteran to have been performing physically demanding work after military separation if he had been experiencing significant low back pain. The physician-reviewer stressed that because of the types of injuries in service, no problems recorded at discharge, as well as no treatment for back problem for several years, he concluded that there was no causal relationship between the veteran's current complaints and military service. Because the physician-reviewer was aware of the veteran's in-service back injury and had access to the claims file, the Board assigns significant probative weight to the medical opinion. The Board has also considered the statements and sworn testimony of the veteran and his sister and the statements of his family and a service buddy. Specifically, in an August 2001 personal hearing, he testified that he injured his back during service and continued to have problems since discharge. He noted that he was treated for back pain in July 1970 and was placed on light duty for the remainder of his military service. His sister reflected that she talked with him or his wife by telephone after he was discharged and knew he was having problems with his back. He acknowledged that he did not seek any treatment for low back pain after service separation but used pain pills and alcohol for pain management. Further, the Board has reviewed statements from his wife and mother-in-law submitted in the late 1980s to the effect that the veteran hurt his lower back in service and continued to have pain. More recently, a service buddy indicated that the veteran injured his back during active duty and had experienced pain since. After considering the veteran's testimony and the other statements in support of his claim, the Board notes that neither the veteran, his family, nor a friend have the medical expertise to clinically establish that his current complaints resulted from an injury during active military duty. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Despite his testimony, the service medical records are negative for a chronic low back disorder. Further, post- service medical evidence is devoid of complaints related to the veteran's low back until a work-related injury several years after service separation. The mere contentions of the veteran, no matter how well-meaning, without supporting medical evidence that would etiologically relate his current complaints with an event or incurrence while in service, are not of sufficient probative value to rebut the February 2002 medical opinion. Caluza v. Brown, 7 Vet. App. 498 (1995); Lathan v. Brown, 7 Vet. App. 359 (1995); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1994); King v. Brown, 5 Vet. App. 19 (1993). In this case, there is no evidence that the veteran, his family, or friend have any medical expertise, or are otherwise qualified to render a medical opinion. Consequently, his statements and the statements of his family and a friend, without some form of objective medical corroboration, are not deemed to be of significant probative value. Given that there was no evidence of a chronic low back disorder in service, no complaints related to the veteran's low back for several years after discharge, and the recent opinion by a VA physician-reviewer that there is no causal relationship between the veteran's current complaints and military service, the Board is compelled to deny the veteran's claim. For all these reasons, the veteran's claim for entitlement to service connection for a low back disorder is denied. Finally, in denying the veteran's claim, the Board has considered the Veterans Claims Assistance Act of 2000 (VCAA), which, among other things, redefined the obligations of VA with respect to the duty to assist and included an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The law also eliminated the concept of well-groundedness and is applicable to all claims filed on or after the date of enactment or those filed before the date of enactment but not yet final as of that date. See 38 U.S.C.A. § 5103A (West 2002). Additionally, in August 2001, VA issued regulations implementing the provisions of VCAA "to establish clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who files a substantially complete application for VA benefits." See 66 Fed. Reg. 45620-45632 (Aug. 29, 2001). In this case, VA's duties have been fulfilled to the extent possible with regard to the issue decided in this decision. VA must notify the veteran of evidence and information necessary to substantiate his claim and inform him whether he or VA bears the burden of producing or obtaining that evidence or information. 38 U.S.C.A. § 5103(a) (West Supp. 2002); 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. § 3.159(b)); Quartuccio v. Principi, 16 Vet. App. 183 (2002). By virtue of the information contained in the statement and supplemental statements of the case issued during the pendency of the appeal, the veteran and his representative were given notice of the information, medical evidence, or lay evidence necessary to substantiate the claim. To this end, the Board notes that the March 2001 statement of the case outlined the provisions of the VCAA. In addition, the Board notes that the RO provided the veteran with a letter informing him of his due process rights under the VCAA in September 2001. In addition, the veteran asked and was provided with an opportunity to present testimony before the RO in an August 2001 hearing. Further, it appears that all medical records identified by the veteran have been associated with the claims file. He was specifically asked at his personal hearing about additional post-service medical evidence but indicated that no further evidence was available. Moreover, the claims file was recently provided to a physician-reviewer to specifically address the issue on appeal. As such, the Board finds that the record as it stands is sufficient to decide the claim and no additional development is needed. Therefore, the Board finds that the mandates of the VCAA have been satisfied. ORDER New and material evidence having been submitted, the claim for entitlement to service connection for a low back disorder is reopened and the appeal is granted to this extent. The claim for entitlement to service connection for a low back disorder is denied on the merits. Gary L. Gick Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you