Citation Nr: 9811681 Decision Date: 04/15/98 Archive Date: 05/06/98 DOCKET NO. 96 - 20 442 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for muscle spasms of the neck and back. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Frank L. Christian, Counsel INTRODUCTION The veteran served on active duty from July 1970 to March 1972, including service in the Republic of Vietnam from May 1971 to February 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of May 1995 from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the RO erred in failing to grant entitlement to service connection for muscle spasms of the neck and back because it did not take into account or properly weigh the medical and other evidence of record. It is contended that he was seen for complaints of neck and back pain in July 1971, while on active duty, and that he has continued to experience painful muscle spasms of the neck and back since that time. It is further contended that lay statements and private and VA treatment records establish continuity of treatment for the claimed disabilities following service separation, and that the veteran is thus entitled to service connection for the disabilities at issue. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that new and material evidence has not been submitted to reopen a claim of entitlement to service connection for muscle spasms of the neck and back. FINDINGS OF FACT 1. A rating decision of October 1985 denied entitlement to service connection for muscle spasms of the neck and back; the veteran failed to initiate an appeal, and that decision became final after one year. 2. In January 1995, the veteran undertook to reopen his claim of entitlement to service connection for muscle spasms of the neck and back by submitting additional evidence. 3. The additional evidence submitted subsequent to the rating decision of October 1985 denying entitlement to service connection for muscle spasms of the neck and back includes no evidence which is not cumulative or duplicative of evidence previously received and considered and which is sufficiently relevant and probative, when considered with the evidence previously of record, to raise a reasonable possibility of a different outcome. CONCLUSION OF LAW New and material evidence has not been submitted to reopen a claim of entitlement to service connection for muscle spasms of the neck and back. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1997). REASONS AND BASES FOR FINDINGS AND CONCLUSION A review of the claims file shows that a rating action of October 1985 denied entitlement to service connection for muscle spasms of the neck and back. The veteran failed to initiate an appeal, and that decision became final after one year. In January 1995, the veteran undertook to reopen his claim of entitlement to service connection for muscle spasms of the neck and back by submitting additional evidence. His claim was again denied by a rating decision of May 1995 on the grounds that new and material evidence had not been submitted to reopen that claim. The veteran initiated the instant appeal. In determining whether new and material evidence has been submitted which is sufficient to warrant reopening of a claim under the provisions of 38 U.S.C.A. § 5108, consideration must be given to all of the evidence submitted since the last final disallowance of the claim. Evans v. Brown, 9 Vet. App. 273, 285 (1996). In this case, the last final disallowance of the veteran’s claim for service connection for muscle spasms of the neck and back is the unappealed rating decision of October 1985. Governing law and regulations provide that the claim will be reopened if new and material evidence has been submitted. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Thus, the evidence received since the October 1985 rating decision must be analyzed to determine whether it is sufficiently new and material to warrant reopening of the claim for service connection for muscle spasms of the neck and back. The Board’s review of the claims folders shows that the evidence contained in the record at the time of the rating decision of October 1985 included the veteran’s service medical records; medical records from the Ohio Department of Corrections, dated from June 1976 to November 1979; lay statements from the veteran’s mother, dated in December 1973 and in March 1980; a lay statement from the veteran’s brother, dated in March 1980; VA outpatient treatment records dated from December 1980 to October 1981; a report of VA examination, conducted in December 1981; emergency room records from Marymount Hospital, dated in October 1982; and a VA hospital summary dated from May to June 1985. The veteran’s service medical records show that the veteran was seen on one occasion in July 1971 with complaints of neck, back, and left side pain of two weeks’ duration. No clinical findings were reported on examination, and a laboratory report reflected an elevated albumin level with a normal white cell count. There was no diagnosis. The service medical records are silent for complaint, treatment, findings, or diagnosis of muscle spasm during the veteran’s remaining period of active service. A report of medical history prepared by the veteran in connection with his service separation examination denied any history of swollen or painful joints or back trouble of any kind. His report of service separation examination disclosed no abnormalities of the neck, back, upper extremities, or musculoskeletal system. The lay statements from the veteran’s mother show that he was twice taken to the VA hospital in December 1973 due to neck pain, while the statement from the veteran’s brother indicates that he took the veteran to the VA hospital on one occasion in December 1973. The medical records from the Ohio Department of Corrections, dated from June 1976 to November 1979, show that at the time of his incarceration, the veteran’s neck, spine and musculoskeletal system were normal. It was noted that the veteran offered a history of a back injury from a car accident. VA outpatient treatment records dated from December 1980 to October 1981 show that in October 1981, the veteran described the onset of muscle spasm of the neck and elbows in May 1972. A report of VA examination, conducted in December 1981, states that an avulsion fracture of the C-12 vertebral body was shown on X-ray studies. The diagnoses included arthralgia of the lumbosacral spine and shoulders. Emergency room records from Marymount Hospital, dated in October 1982, show that the veteran was seen for complaints of muscle spasm of the neck, etiology unknown. VA hospital summaries, dated from September to November 1983 and from May to June 1985, shows no complaint, treatment, finding, or diagnosis of a muscle spasm of the neck and back. None of the postservice private or VA medical evidence previously of record linked or related any neck or back complaint of the veteran to his period of active service. The evidence added to the record since the unappealed rating decision of October 1985 includes duplicate copies of portions of the veteran’s service medical records; duplicate copies of the March 1980 lay statement from the veteran’s mother; duplicate copies of emergency room records from Marymount Hospital, dated in October 1982; VA hospital summaries dated in October 1981 and from September to November 1989; VA outpatient clinic records dated from October 1982 to March 1987; a report of VA psychiatric examination of the veteran in June 1986; additional emergency room records from Marymount Hospital, dated in May 1984; private treatment records from St. Alexis Hospital, including X-ray studies, dated in August 1996; private treatment records from MetroHealth Medical Center, dated in September 1996; a September 1996 letter from physicians at MetroHealth Medical Center; private treatment records from University Hospital of Cleveland, dated in October 1996; VA outpatient treatment records and hospital summaries and treatment notes dated from July 1982 through October 1995; the transcript of a personal hearing held at the RO in September 1996; and rehabilitation records from St. Alexis Hospital Rehabilitation Services, dated in March 1997. The Board must now determine whether the additional evidence submitted since the rating decision of October 1985 is both new and material to the claim of entitlement to service connection for muscle spasms of the neck and back. Analysis Evidence is new and material when it is not cumulative of other evidence in the record, is relevant and probative of the issue at hand, and raises a reasonable possibility that, when considered in the context of all the evidence, it would change the outcome of the claim. Manio v. Derwinski, 1 Vet. App. 140 (1991). The Board has carefully considered the additional evidence submitted by the veteran in his effort to reopen his claim of entitlement to service connection for muscle spasms of the neck and back. The duplicate copies of evidence previously submitted by the veteran are not new, but are duplicates of evidence previously reviewed and considered at the time of the prior denial of the veteran’s claim in October 1985. Such evidence includes the veteran’s service medical records; duplicate copies of the March 1980 lay statement from the veteran’s mother; and duplicate copies of emergency room records from Marymount Hospital, dated in October 1982. The Board further finds that a significant portion of the additional evidence submitted by the veteran does not constitute new evidence but is merely cumulative and duplicative of evidence previously previously reviewed and considered at the time of the prior denial of the veteran’s claim in October 1985. For example, the testimony of the veteran at his September 1996 hearing is cumulative and duplicative because it merely reiterates opinions and contentions previously expressed by the veteran and previously considered. Further, the majority of the additional evidence submitted makes no reference to muscle spasm of the neck and back, and thus cannot be material to the veteran’s claim. Finally, such medical evidence as does refer to the veteran’s complaints of muscle spasm of the neck and back does not link or relate such findings to the veteran’s period of active service. Evidence which does not relate the veteran’s muscle spasm of the neck and back to his period of active service cannot be material to the issue of service connection for that disability. As the veteran is not medically qualified to render an opinion as to causation or etiology of disability, his lay opinions are not competent and therefore cannot be probative or material. Simply put, the evidence shows that the veteran was seen on a single occasion during active service for complaints of neck, back, and side pain; that the service medical records are silent for complaint, treatment, or findings of muscle spasm of the neck and back during his remaining period of active service or on service separation examination; that the first objective evidence of neck complaints following service separation is dated in October 1982, more than 10 years following final service separation; and that the record is devoid of any competent evidence that provides a nexus between the veteran’s inservice symptoms and any current neck or back disability. Based upon the foregoing, the Board finds that the additional evidence submitted subsequent to the rating decision of October 1985 denying entitlement to service connection for muscle spasms of the neck and back includes no evidence which is not cumulative or duplicative of evidence previously received and considered and which is sufficiently relevant and probative, when considered with the evidence previously of record, to raise a reasonable possibility of a different outcome. Accordingly, the claim of entitlement to service connection for muscle spasms of the neck and back is not reopened, and the rating decision of October 1985 remains final. ORDER New and material evidence not having been submitted, the claim of entitlement to service connection for muscle spasms of the neck and back is denied. F. JUDGE FLOWERS Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -