Citation Nr: 0735121 Decision Date: 11/07/07 Archive Date: 11/26/07 DOCKET NO. 99-13 813 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office (RO) in Huntington, West Virginia THE ISSUE Whether new and material evidence has been submitted to reopen a claim of service connection for a back disability. REPRESENTATION Appellant represented by: Kathy A. Lieberman, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Jason R. Davitian, Counsel INTRODUCTION The veteran served on active duty from June 1949 to October 1952. The veteran also had a subsequent period of service with a reserve component from April 1956 to April 1959. In November 1996, the Board of Veterans' Appeals (Board), inter alia, denied an application to reopen the veteran's claim of service connection for a back disorder. The November 1996 Board decision is final and this claim may be reopened only on the filing of new and material evidence. 38 U.S.C.A. §§ 5108, 7104. This matter originally came before the Board on appeal from an April 1999 rating decision by the Huntington, West Virginia, RO that denied the veteran's application to reopen the claim of service connection for a back disorder. In January 2001, the Board found that the veteran had not submitted new and material evidence since the final November 1996 Board decision and denied his claim to reopen. Thereafter, the veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In July 2001, VA General Counsel filed a motion to vacate the Board's January 2001 decision which motion the veteran did not oppose. By a September 2001 order, the Court vacated the Board's decision in accordance with the motion and remanded the case to the Board for further action. In a June 2003 decision, the Board again found that, inter alia, the veteran had not submitted new and material evidence and denied his claim to reopen. The veteran appealed the Board's June 2003 decision to the Court. In a May 2006 order, the Court vacated that part of the Board's June 2003 decision that determined that new and material evidence had not been submitted to reopen the veteran's claim for service connection for a back disability and remanded the matter to the Board for readjudication consistent with the order. The Court found that a remand was warranted because the Board had failed to specifically consider a statement submitted by the veteran's sister. The Board observes that after the June 2003 Board decision, but before the December 2006 Court order, the veteran's attorney submitted an August 2003 VA examination report and medical opinion from Ahmed D. Faheem, M.D. The veteran did not waive review of this evidence by the agency of original jurisdiction. The Board notes that this opinion essentially duplicates an earlier statement by Dr. Faheem that the RO did address. As a result, the Board can adjudicate the merits of the present claim without prejudice to the veteran. The case is now before the Board for final appellate consideration. The issue of eligibility for Service Disabled Veterans Insurance (RH) under 38 U.S.C.A. § 1922(a) will be addressed in a separate decision. FINDINGS OF FACT 1. In November 1996, the Board denied the veteran's application to reopen the claim for service connection for a back disorder. 2. The November 1996 Board decision is final. 3. The evidence received since the November 1996 Board decision is either cumulative or redundant and, when considered with all of the evidence of record, it has no significant effect upon the facts previously considered. CONCLUSION OF LAW The evidence received since the November 1996 Board decision, which denied an application to reopen a claim of service connection for a back disability, is not new and material and the veteran's claim for that benefit is not reopened. 38 U.S.C.A. §§ 1110, 1131, 5108, 7104 (West 2002 & Supp 2007); 38 C.F.R. § 3.156 (2001); 38 C.F.R. §§ 3.303, 20.1100 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, 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 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim 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). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the U.S. Court of Appeals for Veterans Claims clarified VA's duty to notify in the context of claims to reopen. With respect to such claims, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. To satisfy this requirement, the Secretary is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. Here, the VCAA duty to notify has not been satisfied with respect to informing the veteran of the information and evidence not of record necessary to substantiate the claim. Specifically, VA provided the veteran notice in the April 1999 rating decision, the July 2001 Board decision and Board letters dated in January 2002, May 2002 and September 2002. This is impermissible reliance on various pre-and postdecisional documents in violation of the Federal Circuit's holding in Mayfield, 444 F.3d at 1335. In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The Federal Circuit stated that requiring an appellant to demonstrate prejudice as a result of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-claimant benefits system. Instead, the Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. In this case, the Board finds that the notice error did not affect the essential fairness of the adjudication. In this case, the veteran was not prejudiced by any notice deficiency, as he demonstrated actual knowledge of the requirements for substantiating his claim. In a September 2002 correspondence to his U.S. Senator, which was forwarded to VA by the Senator's office, the veteran described the advice his attorneys had given him and his efforts to secure useful medical opinions from his doctors. The veteran wrote to his Senator I specifically high-lighted the outstanding six points that needed to be addressed for my success in my claim. They are as follows: (1) he/she has examined you and also reviewed your claims file; (2) a current diagnosis for each of the conditions you are claiming; (3) each of the current condition [sic] is related to service, but he/she must give a rationale as to why, and not simply so state; (4) that there is some proof that the incident happened in service for the doctor review[ ] (5) that the symptoms you are experiencing today are the same as those when you were discharged.... The veteran's September 2002 correspondence to his Senator demonstrates that he was aware of the evidence necessary to substantiate the underlying claim for service connection, namely medical evidence of a current disability (point 2 above); evidence of in-service incurrence or aggravation of an injury (point 4 above); and medical evidence of a nexus between the claimed in-service injury and the present disability (points 3 and 5 above). See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table). This is one part of the evidentiary notice required by Kent, 20 Vet. App. at 9. In the 1996 final Board decision, the Board stated that, if the appellant were to submit "competent (i.e. medical) evidence or opinion that he had osteoarthritis of the back to a compensable degree within one year after separation from service or that his current back disability is of service origin or is otherwise related to service, the claim could be reopened." This is a statement of what would be required to reopen the claim, the other part of the evidentiary notice required by Kent, 20 Vet. App. at 9. In this instance, the evidence necessary to reopen overlaps with the requirement for submission of nexus evidence, which the appellant acknowledged was necessary in his letter to his Senator (points 3 and 5 above). In light of the foregoing, the Board concludes that the veteran had actual knowledge of what was required to reopen and substantiate his claim. Any failure by VA to provide him with notice of those requirements was not prejudicial. VA also 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 observes that the review of the record contains no indication that there is additional outstanding evidence that is necessary for a fair adjudication of this claim. Further, VA is not obligated to provide a medical examination if the veteran has not presented new and material evidence to reopen a final claim. 38 U.S.C.A. § 5103A(f). In light of the foregoing, adjudication of the claim at this juncture may go forward because it poses no risk of prejudice to the veteran. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided); Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. II. Analysis The veteran contends that he has a back disability that was incurred in service. In November 1996, the Board denied an application to reopen the claim of service connection for a back disorder. At that time, the Board denied the claim because the evidence did not show the disability was related to military service or that arthritis of the back manifested itself to a compensable degree within one year of the veteran's separation from military service. As a result of the previous denial, the veteran's current claim of service connection may now be considered only if new and material evidence has been submitted since the time of the prior final decision. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. §§ 3.156, 20.1103 (2001); Hodge v. West, 155 F.3d 1356 (Fed.Cir. 1998); Elkins v. West, 12 Vet. App. 209 (1999) (en banc); Winters v. West, 12 Vet. App. 203 (1999) (en banc); Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of determining whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). "New and material evidence" is defined by regulation as follows: New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is 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. 38 C.F.R. § 3.156(a) (2001) (Emphasis added). (The Board notes that, while the above definition of new and material has recently changed, these changes only apply to claims filed after August 29, 2001, and have no impact on the current appeal which arose from a claim filed in October 1998. See 66 Fed. Reg. 45620 to 45632 (August 29, 2001) (to be codified as amended at 38 C.F.R. § 3.156). i. The Facts Evidence available to the Board at the time of the final November 1996 decision, included a DD-214, service medical records, and morning reports. While the veteran's DD-214 showed he served as a radio operator, the other records, which included morning reports from November 1949 as well as a September 1952 separation examination, were negative for complaints, diagnoses, or treatment for a back disability. Specifically, while November 1949 morning reports show the veteran, on two occasions, reported for sick call, the nature of his illness was not recorded at that time. And, the September 1952 separation examination, noted that the veteran's spine examination was normal. The record at the time of the November 1996 Board decision also contained a March 1956 reserve component enlistment examination, private treatment records and employment health records, dated from December 1952 to May 1991, VA treatment records, dated from June 1991 to October 1993, a March 1994 decision from the Social Security Administration (SSA), testimony from May 1992 and June 1996 personal hearings, and the veteran's, his mother's, and his wife's written statements to the RO. As to the veteran's back disability, medical records show that the veteran sought treatment for back pain as early as 1955. See chronological record of medical care dated in November 1955. Thereafter, the record shows his periodic complaints and/or treatment for back pain. See chronological record of medical care dated in December 1956 and January 1957; February 1980 treatment records from Oak Hill Hospital; May 1991 letter from a nurse of a Dr. Bernard Collins; February 1961 letter from B.F. Puckett, M.D.; and VA treatment record dated in August 1991. The veteran's back disability was variously diagnosed as possible back strain (see chronological record of medical care dated in November 1955 and December 1956) and, beginning in 1980, arthritis (see February 1980 treatment records from Oak Hill Hospital; VA treatment records dated in August 1991). Likewise, the March 1994 SSA decision reported that the veteran had arthritis of the entire spine. As to the origins or etiology of the veteran's back disability, in February 1961, Dr. Puckett reported that the veteran came to him complaining of "recurrent back troubles which dated back to his time of service in the army." Similarly, the veteran's wife and his mother, in March and April 1961 statements, reported, in substance, that the veteran injured his back while in military service and had had trouble with it since that time. The veteran made similar contentions in an October 1992 statement. (Interestingly, the veteran's March 1956 reserve component enlistment examination was negative for complaints, diagnoses, or treatment for any of the claimed disabilities.) At the veteran's May 1992 and June 1996 personal hearings, he testified that he injured his back while unloading an airplane at Keesler Air Force Base, was treated with heat, and that he first sought treatment for back problems after service in February 1953. He also testified that he had re- injured his back in the early 1950's, that he now had arthritis of the back, and that he was retired from the postal service, in part, because of his back. Evidence received since the November 1996 Board denial consists of a September 1998 letter from Dr. Faheem; the veteran's testimony at a March 2000 video hearing; written statements from the veteran dated in October 1992, September 2003 and May 2004; a March 2003 letter from Craig N. Bash, M.D., an Associate Professor of Radiology and Nuclear Medicine; an April 2003 letter from the veteran's sister; and an August 2003 VA examination report with medical opinion by Dr. Faheem. In the September 1998 letter, Dr. Faheem stated he treated the veteran for a major affective illness (depression) and for a recurrent and generalized anxiety disorder. Dr. Faheem went on to say that: [The veteran] also injured his back while he was in the [s]ervice . . . [The veteran] has continued to have major problems with his back, which has resulted in him having chronic pain and inability to do the type of things that he could in the past . . . [The veteran] has continued to have major problems with his back, his leg, and his hearing impairment which have directly contributed to his psychiatric difficulties including depression and anxiety. Based upon my contact with [the veteran] his course of treatment at [VA], I have come to the conclusion that his depression and anxiety are related to his [s]ervice connected disability of his back and his ears with decreased-hearing . . . At the March 2000 video hearings, the veteran read, in part, the contents of the above September 1998 letter from Dr. Faheem and opined that it was new and material evidence as to all of the issues on appeals. The veteran's wife testified that she met the veteran immediately after his separation from military service and, at that time, he complained of chronic back pain. Moreover, she reported that, at that time, she could see that he had problems with his back. Next, she reported that the veteran, because of his need for a job, did not report his back problems to his employer. However, because that job entailed shoveling metals into a furnace, his back problem became worse shortly after taking the job. She stated that because of their continued need for money, the veteran neither complained of the problem nor sought medical attention. She reported that she did not know the veteran at that time he injured his back. In addition, she testified that in 1961 the veteran's mother (know deceased) and a Dr. Puckett, as well as herself, wrote VA and verified that the veteran had a current back problem and that it was due to his military service. Lastly, she testified that all of her and the veteran's attempts to obtain statements from men who had served with the veteran had met with failure. In 1999, the veteran submitted statements reasserting the contentions made during his March 2000 Board video hearing. In these statements, the veteran claimed he had a back disorder that was incurred while in military service. He also stated that he had submitted new and material evidence to reopen his claim of service connection. The veteran made the same contentions in correspondence dated in September 2003 and May 2004. In his March 2003 letter, Dr. Bash reported that he had reviewed the veteran's medical records, which records included service medical records and post service medical records, for the purpose of providing a medical opinion concerning the veteran's "spine problems" and concluded that it was his ". . . opinion that this patient's in- service spine injury caused him to develop his current lumbar degenerative disc/facet disease and associated neurological problems." The Board received an undated letter in April 2003 from the veteran's sister, with a waiver of initial review by the agency of original jurisdiction. The veteran's sister stated that she was a registered nurse. She stated that prior to the veteran's enlistment in 1949, she did not note or hear him complain of any back problems. After he returned from service, she did hear him complain that his back hurt. This occurred during her occasional visits with him. She was living out of state at that time. In 1963, she moved to West Virginia and was able to see the veteran more frequently. She observed that he complained more often of back pain. She moved to Texas in 2000. At this time, the veteran complained of back pain every time she saw him. In the report of an August 2003 VA psychiatric examination, Dr. Faheem noted that he had reviewed the veteran's claims file. He stated that the veteran now had depression as a result of a back problem and a hearing problem he developed while on active duty. ii. Application to Reopen the Claim for Service Connection for a Back Disability The Board finds that the October 1992 statement submitted by the veteran is an exact copy of evidence that was of record at the time of the 1996 final Board decision. Thus, it is not new evidence to reopen the veteran's claim of service connection for a back disorder. The Board finds that the September 1998 statement from Dr. Faheem, the March 2003 letter from Dr. Bash and the August 2003 medical opinion from Dr. Faheem are not new evidence. The statements are not new because they are cumulative of evidence previously of record in that they are of the same substance as a February 1961 letter from Dr. Puckett (which was previously of record at the time of the final 1996 Board decision). It is clear that the September 1998 statement from Dr. Faheem, the March 2003 letter from Dr. Bash, and the August 2003 medical opinion from Dr. Faheem are simply recitation of the lay history reported by the veteran, even though Dr. Bash and Dr. Faheem each reported having reviewed the veteran's service medical records. The Board reaches this conclusion because the actual evidence from service does not show either evidence of a back injury while in military service or an evidence of a chronic back disorder while in military service. Therefore, because these opinions are based on an inaccurate factual premise, they have no probative value. Lee v. Brown, 10 Vet. App. 336 (1997); Reonal v. Brown, 5 Vet. App. 458 (1993). A mere recitation of a veteran's lay history cannot constitute material evidence to reopen the veteran's claim for service connection. LeShore v. Brown, 8 Vet. App. 406 (1995). The Board finds that the additional statements submitted in 1999, the March 2000 hearing testimony and the veteran's statements dated in September 2003 and May 2004 are not new evidence to reopen the veteran's claim of service connection for a back disorder. The veteran's additional written statements and the 2000 hearing testimony are reiterations of his previously considered assertions, and as such are not new evidence. Reid v. Derwinski, 2 Vet. App. 312 (1992). Moreover, his assertions that he has a back disorder which had its onset in service is not new evidence to reopen the claim because, as a layman, he has no competence to give a medical opinion on the diagnosis or etiology of a condition. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Similarly, the veteran's wife's testimony cannot act as new evidence. While the Board acknowledges that lay witnesses are competent under the law to describe symptoms they have seen or experienced (see King v. Brown, 5 Vet. App. 19, 21 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); Caldwell v. Derwinski, 1 Vet. App. 466 (1991)), she conceded that she first met the veteran after his separation from military service. Therefore, her testimony as to the veteran's alleged in-service back problems is once again a mere recitation of the history provided by the veteran. The Board finds that the undated statement from the veteran's sister, received in April 2003, fails to constitute new and material evidence to reopen the claim for service connection for a back disability. The veteran's sister states that she heard him complain about his back after he returned from service but had never heard him voice such complaints prior to his entry into service, thereby suggesting that he had back problems during service. This statement cannot be considered new or material evidence to reopen the claim of service connection. This statement is cumulative of other statements of record indicating that the veteran's current back disability is realated to service. This assertion was rejected ast the time of the November 1996 Board decision and as, such cannot be considered new evidence. Additionally, to the extent that the veteran's sister is submitting a medical statement in her capacity as a registered nurse, the Board finds her statement not to be new. In this regard, it appears that her statement was based on an inaccurate factual premise that the veteran had a back disability/problems in servie. As previously noted, the veteran's service medical records are negative for any complaints or diagnosis of a back disorder. Service medical records shows that his spine was normal. Furthermore, at the time of the November 1996 Board decision, a medical statement from a phyisican was rejected on the basis that his opinion was based on the inaccurate factual premise that the veteran had back problems in service. Given such, the Board cannot find the veteran's sister statement to be new evidence. Given the above, the Board concludes that new evidence has not been submitted to reopen the claim for service connection for a back disorder. Thus, the November 1996 Board decision remains final as to this issue. Lastly, the Board notes that the RO applied the "materiality" test adopted by the Court in the case of Colvin, supra, in adjudicating the veteran's applications to reopen. See April 1999 RO decision and June 1999 statement of the case. However, the Court in Vargas-Gonzalez v. West, 12 Vet. App. 63 (1998), stated as follows: [t]he Federal Circuit in Hodge dealt with the test for determining whether newly presented evidence is material, but not with the test for determining whether such evidence is new, for purposes of reopening previously and finally disallowed claims. Hodge, 155 F.3d at 1360 . . . More specifically, the Federal Circuit clearly implied in Hodge that a decision concerning the materiality of evidence submitted to reopen follows, and is separate from, a decision as to whether the evidence is new. Hodge, 155 F.3d at 1360 . . . Where, as in this case, the Board has determined that newly presented evidence is cumulative of previously considered evidence and thus is not "new" for purposes of reopening a claim, that should end the Board's analysis of whether the evidence is "new and material". See Smith (Russell) v. West, __ Vet. App. __, __, No. 95-638, slip op. at 5 (April 7, 1999). Therefore, because the Board has found that the veteran has failed to submit new evidence to reopen his claim of service connection for a back disorder, a remand is (CONTINUED ON NEXT PAGE) not required to avoid prejudice to the veteran. 38 C.F.R. § 19.29 (2007); Vargas-Gonzalez, supra; Bernard v. Brown, 4 Vet. App. 384, 393 (1993). ORDER New and material evidence having not been submitted to reopen a claim of service connection for a back disorder, the appeal is denied. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs