Citation Nr: 0501762 Decision Date: 01/25/05 Archive Date: 02/07/05 DOCKET NO. 00-11 324 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a low back disorder, and, if so, whether the reopened claim should be granted. REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney at Law WITNESSES AT HEARINGS ON APPEAL Appellant and consulting physician ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The veteran served on active duty from March 1973 to March 1976, as well as for more than two years prior to that time. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2000 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In July 2001, the Board issued a decision denying the veteran's appeal to reopen his claim for entitlement to service connection for a low back disorder. The veteran appealed the July 2001 decision. In January 2003, the United States Court of Appeals for Veterans Claims (Court) granted a joint motion to remand and to stay proceedings. The Court's Order vacated the July 2001 Board decision, and remanded the veteran's claim to the Board for readjudication. The Board remanded the veteran's claim for further development in October 2003. The veteran testified before the undersigned Veterans Law Judge in October 2004. At this hearing, the veteran submitted additional medical evidence, along with a waiver of RO review of the newly submitted medical evidence. Accordingly, the veteran's claim is now ready for appellate review by the Board. FINDINGS OF FACT 1. In an unappealed rating decision dated in July 1996, the RO denied entitlement to service connection for a low back disorder. 2. Evidence received since the July 1996 final rating decision includes evidence not previously submitted, which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and when considered in conjunction with the evidence of record, is so significant that it must be considered in order to fairly decide the merits of the claim for entitlement to service connection for a low back disorder. 4. Competent clinical evidence of record establishes that the veteran has low back arthritis and degenerative disc disease that is related to service. CONCLUSIONS OF LAW 1. The unappealed July 1996 RO decision which denied entitlement to service connection for a low back disorder is final. 38 U.S.C.A. § 7105 (West 2002). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a low back disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (a) (as in effect prior to August 29, 2001). 3. Low back arthritis and degenerative disc disease were incurred as a result of active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)). This new law eliminates the concept of a well-grounded claim, and redefines the obligations of the VA with respect to the duties to notify and to assist claimants in the development of their claims. First, the VA has a duty to notify the appellant and his representative, if represented, of any information and evidence needed to substantiate and complete a claim. VCAA, § 3(a), 114 Stat. 2096, 2096-97 (2000). See 38 U.S.C.A. §§ 5102 and 5103 (West. 2002). In this regard, VA will inform the veteran of which information and evidence, if any, that he is to provide and which information and evidence, if any, VA will attempt to obtain on his behalf. Second, the VA has a duty to assist the appellant in obtaining evidence necessary to substantiate the claims. VCAA, § 3(a), 114 Stat. 2096, 2097-98 (2000). See 38 U.S.C.A. § 5103A. In general, the VCAA also provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. In light of the favorable determination contained herein, further development with regard to VA's duties to notify and assist would serve no useful purpose. A remand is inappropriate where there is no possibility of any benefit flowing to the veteran. Soyini v. Derwinski, 1 Vet. App. 540 (1991). Materiality Regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. §§ 20.200, 20.302 (2003). Absent appeal, a decision of a duly constituted rating agency or other agency of original jurisdiction shall be final and binding on all VA field offices as to conclusions based on evidence on file at the time VA issues written notification. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2003). The veteran's claim of entitlement to service connection for a low back disability was denied by the July 1996 rating action. The veteran did not submit a notice of disagreement and the July 1996 rating decision is final. A previously denied claim will be reopened if new and material evidence is submitted in support thereof. 38 U.S.C.A. § 5108. For requests to reopen received prior to August 29, 2001, as in this case, "new and material evidence" means existing evidence not previously submitted to agency decisionmakers, which bears directly and substantially upon the specific matter under consideration. 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 when considered with previous evidence of record, is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156 (a). The evidence of record prior to the July 1996 final rating decision included the veteran's service medical records, private medical records, VA medical records, and a VA examination report. The service medical records showed treatment for low back pain, and at the time of examination for separation from service, the veteran reported a medical history of recurrent back pain. The separation examination in February 1976 revealed a normal spine. None of the post service medical evidence of record at the time of the July 1996 rating decision indicated that the veteran had a chronic low back disability that was related to service. The newly submitted evidence contains an October 2004 written private medical opinion, and October 2004 testimony from a private physician at a hearing before the undersigned. The private physician opined that the veteran's current back disability is directly related to in-service back injury. This newly submitted private medical evidence provides a direct link between the veteran's current low back disability and his military service. Accordingly, the Board finds that new and material evidence has been received to reopen the claim for entitlement to service connection for a low back disability. De Novo Review Service connection may be granted for disability due to disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. 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). The service medical records show that the veteran received treatment for low back pain during service and that impressions made included chronic low back pain. On one occasion the veteran was noted to have bilateral lumbar muscle spasms. On discharge examination in February 1976 the veteran's spine was noted to be normal. On his Report of Medical History the veteran indicated that he had had, or currently had, recurrent back pain. An August 1977 Army reserves Report of Medical Examination indicates that the veteran's spine was normal. On the Report of Medical History, the veteran indicated that he had not had or ever had recurrent back pain. Medical reports from Mayfield Neurological Institute dated from 1982 to 1989 contain a February 1989 documentation showing that the veteran reported that in January 1986 a 150- pound crate fell off of a loading dock and landed on his chest and legs, pinning him against his van. It was noted that, after conservative therapy, he returned to work although he had exacerbations of low back pain which resolved with conservative treatment. The veteran also reported that in February 1988 he injured his back while lifting and had low back pain as a result of that incident. MRI scan reports dated in April and November 1998 showed desiccation of the L5-S1 disc with associated bulging. Medical reports from L.F.P., M.D., dated from 1992 to 1995 show that the veteran was involved in a motor vehicle accident in November 1992 and had low back pain radiating to the right lower extremity, less so on the left. The impressions made included suspected herniated lumbar disc with right sciatica and degeneration of L5-S1 disc with a mild bulge. On VA examination in March 1995, the veteran attributed his back disorder to three separate incidents occurring during service. He reported initially injuring his back after falling down a flight of stairs during basic training. He recalled being treated and being placed on light duty for two-weeks thereafter. Thereafter, he reinjured his back while lifting tent boxes weighing approximately 250-pounds. He again received treatment and was placed on light duty for three months. The veteran reported injuring his back on a third occasion while setting up computers. After that injury, he received treatment and was placed on light duty. After physical examination in 1995, the diagnosis was chronic low back pain with decreased range of motion and normal X- rays. August 1991 VA outpatient reports show that the veteran received treatment for back pain after falling off of a ladder while painting a house, and that the assessment was coccydynia. An August 1998 VA X-ray examination of the spine revealed spurring and minimal narrowing of the L5-S1 disc space. A VA hospital report dated in September 1998 shows that the veteran underwent a left L5-S1 lumbar micro- discectomy, and that the diagnosis was left L5-S1 herniated disc. The veteran appeared before the undersigned Veterans Law Judge in October 1998 and May 2001. The veteran asserted that he injured his back during service and that he had had continuous back problems ever since. VA outpatient treatment records dated from April 1999 to November 2003 indicate that the veteran had degenerative disc disease of the lumbar spine and chronic low back pain. The veteran submitted a March 2002 letter from a fellow serviceman. His comrade stated that he had served in the Army with the veteran from August to October 1970, and that he remembered that the veteran hurt his back during training and had been on sick call for two weeks. The veteran submitted an "Independent Medical Evaluation" report dated in October 2004. C.N.B., M.D., stated that he had reviewed the veteran's medical history, that he had talked to the veteran on the phone, and that he had examined the veteran. Dr. B. also stated that he had reviewed the medical literature. Dr. B. noted that the veteran had been noted to have back problems on 11 occasions in his service medical records. He stated that it was clear that the veteran had at least two serious spine injuries while in service. He further stated that it was well known that injuries to the spine early in life often lead to advanced degenerative changes later in life due to the resultant chronic ligament laxity and spine instability. Dr. B. was of the opinion that had the veteran not had his in-service spine injury, he would not have had severe spine injury in 1986, 1987, and 1992, and therefore would not have likely needed spinal surgeries in 1998 and 1999. To support his opinion Dr. B. noted that, the veteran entered service fit for duty, that the veteran had two serious in-service spine injures, which required at least 11 visits to medical personnel, and that the medical literature supports an association between spine injuries early in life and the development of advanced degenerative arthritis. Dr. B. noted that the veteran currently has advanced degenerative arthritis and disc disease. It was his opinion that the veteran's spine injuries subsequent to service were all likely significantly contributed to and/or caused by his preexisting in-service spine injury. He stated that the chronicity of the in- service spine injury and the fact that the veteran likely weakened his spine ligaments in service supported his opinions. The veteran and Dr. B. testified before the undersigned Veterans Law Judge in October 2004. The veteran stated that he had fallen down stairs when he was in basic training. The veteran indicated that this injured his back and that he was on bed rest for two weeks following the fall. The veteran reported that when he was leaving service he had not been given any separation examination that required him to take off his clothes. He asserted that following service he continued to experience extreme lower back pain with numbness and tingling radiating down both legs. Dr. B. testified that the veteran's back injury in service compromised the veteran's back and made him more susceptible to reinjury. He stated that the veteran's injury in service resulted in chronic pain and that after service the chronic pain had been exacerbated on several occasions and had led to the subsequent surgeries. Dr. B. did not think that the veteran would have had as severe injury in 1986, 1988, or 1992, if he had not had his in-service back injury. Dr. B. was of the opinion that the veteran's separation examination, and the August 1977 reserve enlistment examination did not include a detailed examination of the spine. He noted that since there had been several visits of back complaints during service, there should have been some evaluation of the spine other than a check mark to say that the back was normal. Dr. B. also noted that even a negative examination would not have changed the veteran's increased risk for having further injuries to the spine later on. Dr. B. further stated that if the veteran had had intermittent pain and an exam was made at a time of no pain, the veteran actually might have had a fairly normal examination. In this case the record does show that the veteran experienced significant back injuries after leaving service. However, the service medical records do indicate that the veteran had some back disability during service. Furthermore, there is a medical opinion that the veteran's back disability in service was chronic in nature and that it made the veteran experience greater injury during the subsequent post service back injuries than otherwise would have occurred. Additionally, there is no medical evidence of record which opines that the veteran's back problems during service were acute and transitory in nature, or that the veteran's current back disability is totally unrelated to service. Since there is medical evidence supporting the veteran's claim, and no medical evidence against the veteran's claim, the Board is of the opinion that the evidence supports a finding that the veteran has current low back arthritis and degenerative disc disease due to service. Accordingly, service connection for a low back arthritis and degenerative disc disease is warranted. ORDER New and material evidence having been received, the claim for entitlement to service connection for a low back disorder is reopened. Entitlement to service connection for low back arthritis and degenerative disc disease is granted. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs