Citation Nr: 0920630 Decision Date: 06/02/09 Archive Date: 06/09/09 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: Daniel G. Krasnegor, Esq. WITNESSES AT HEARING ON APPEAL Appellant and his sister ATTORNEY FOR THE BOARD Robert J. Burriesci, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1969 to October 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. When this case was previously before the Board in October 2002, the Board found that the Veteran had submitted new and material evidence to reopen his claim of entitlement to service connection for a low back disability; however, the Board denied the Veteran entitlement to service connection for a low back disability on the merits. The Veteran appealed the Board's October 2002 decision to the United States Court of Appeals for Veterans Claims (Court), which in a June 2004 decision and order, vacated the Board's decision and remanded the matter for further consideration. In a March 2008 per curiam opinion, the United States Court of Appeals for the Federal Circuit (Federal Circuit) summarily affirmed the Court's June 2004 decision. Subsequently, in October 2008, the Board again found that the Veteran had submitted new and material evidence to reopen his claim of entitlement to service connection for a low back disability and remand the claim for further development. The required development having been completed, this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. 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. 2. The RO's October 1999 decision represents the last final disallowance of entitlement to service connection for a low back disorder on any basis. 3. The undated VA physician letter received in May 2001 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. 4. There is no evidence of a chronic low back disorder in service or for years thereafter. 5. 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 October 1985, July 1998, and October 1999 RO decisions that denied service connection for a low back disorder are final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (2008). 2. 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); 38 C.F.R. § 3.156 (2001); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). 3. A low back disorder was not incurred in or aggravated during the Veteran's period of military service. 38 U.S.C.A. §§ 1110, 5103A (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2008). REASONS AND BASES FOR FINDING AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, in regard to the Veteran's claim of entitlement to service connection for a low back disability, the duty to notify was not satisfied prior to the initial unfavorable decision on the claim by the AOJ. Under such circumstances, VA's duty to notify may not be "satisfied by various post- decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). In this case, the VCAA duty to notify was satisfied subsequent to the initial AOJ decision by way of a letter sent to the appellant in December 2008 that fully addressed all notice elements. The letter informed the appellant of what evidence was required to substantiate the claim and of the appellant's and VA's respective duties for obtaining evidence. Although the notice letter was not sent before the initial AOJ decision in this matter, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the AOJ also readjudicated the case by way of a supplemental statement of the case issued in March 2002 and February 2008 after the notice was provided. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, upon receipt of an application for a service- connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the appellant's claim, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to this claimed condition. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained all pertinent VA treatment records and the records regarding the Veteran's award of Social Security Administration disability benefits. The Veteran submitted private treatment records from Drs. T.F., B.S.; Castleview Hospital; and Hurst Chiropractic Center. The appellant was afforded VA medical examinations in February 2002 and Janaury 2009. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Application to Reopen 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 Court (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." 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). The Board notes that the law was 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 38 C.F.R. § 3.156(a) (2008). 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. 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, subsequent to the most recent denial, the Veteran submitted a written statement from a VA treating physician, dated in May 2001, 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. III. Service Connection 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.A. §§ 101(16), 1110, 1137; 38 C.F.R. § 3.303. 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 C.F.R. § 3.303(d). Generally, to establish service connection, there must be (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in- service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a Veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The Court has also held that where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Although the Board has reviewed in detail the three volumes of lay and medical evidence, the Board will focus on the evidence that addresses whether the condition is related to service. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). In determining whether service connection is warranted for a disability, 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.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran claims entitlement to service connection for a low back disability. The Veteran contend that he was diagnosed with and treated for a chronic back disorder in service. The Veteran's service treatment 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). 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. In addition, the Board places significant probative value on the report of a January 2009 VA medical examination. The examiner diagnosed the Veteran with slight antereolateral vertebral spurring of the lumbar spine and rendered the opinion that the Veteran's low back condition was less likely as not caused by or a result of military service. The examiner based his opinion on the Veteran's lack of complaint, diagnosis, or treatment for any low back condition after service prior to a reported back injury while working at a fencing company. 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 and January 2009 medical opinions. 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. 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. Entitlement to service connection for a low back disability is denied. ____________________________________________ D. C. SPICKLER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs