Citation Nr: 0809786 Decision Date: 03/24/08 Archive Date: 04/09/08 DOCKET NO. 05-35 260 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Whether new and material evidence has been presented to reopen a claim for service connection for a back disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD W. R. Harryman, Counsel INTRODUCTION The appellant had active duty from October 1943 to February 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In July 2006, a hearing was conducted before the Board at the RO in New York, New York; the undersigned Veterans Law Judge presided. For good cause shown - the appellant's advanced age - the Board advanced this case on the docket at the hearing in July 2006 and again in March 2007. See 38 U.S.C.A. § 7107(a) (West 2002); 38 C.F.R. § 20.900(c) (2007). This case was remanded by the Board in April 2007 for the agency of original jurisdiction to consider the additional evidence submitted at the July 2006 hearing without a waiver of such consideration, as well as to ensure the appellant was provided proper notice pursuant to 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159 (2007); Kent v. Nicholson, 20 Vet. App. 1 (2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The requested actions have been completed and the case is ready for final appellate consideration. FINDINGS OF FACT 1. A Board decision in January 2004 found that new and material evidence had not been presented to reopen a claim for service connection for a back disorder; that decision is final. 2. Evidence added to the record since the January 2004 Board decision is either cumulative or redundant or, when considered by itself or with previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim; it does not raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW Evidence received since the final January 2004 Board decision, which denied the appellant's claim for service connection for a back disorder, is not new and material, and the claim is not reopened. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. §§ 3.156(a), 20.1100 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Analysis Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). A claim disallowed by the Board is final. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. In order to reopen a previously and finally disallowed claim, the United States Court of Appeals for Veterans Claims (Court) has indicated that a two-step analysis is required. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156; Manio v. Derwinski, 1 Vet. App. 140 (1991); see also Elkins v. West, 12 Vet. App. 209 (1999); Winters v. West, 12 Vet. App. 203 (1999). The first step is to determine whether new and material evidence has been presented or secured since the time that the claim was previously and finally disallowed on any basis. It should be pointed out that, in determining whether evidence is material, "credibility of the evidence must be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). Further, evidentiary assertions by the appellant must be accepted as true for these purposes, except where the evidentiary assertion is inherently incredible. King v. Brown, 5 Vet. App. 19 (1993). Lay assertions of medical causation or diagnosis do not constitute credible evidence, as lay persons are not competent to offer medical opinions. Tirpak v. Derwinski, 2 Vet. App. 609, 610-11 (1992); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). If new and material evidence has been received, then the Secretary must immediately proceed to the second step, i.e., evaluating the merits of the claim, but only after ensuring that the duty to assist the claimant under 38 U.S.C.A. § 5107(a) has been fulfilled. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Service connection for a back disorder has been denied several times, most recently by a decision of the Board in January 2004. That decision found that new and material evidence had not been presented to reopen the appellant's claim. The evidence that was of record at the time of the January 2004 Board decision included the available service medical records, the deck logs of the ship on which the appellant was stationed during service, private treatment records dated since 1973, as well as several lay statements. The service records did not document any back injury, any back complaints, or any pertinent diagnosis or abnormal clinical findings, and the treatment records did not show any back disorder prior to 1973. The lay statements did not provide evidence of a back disorder during service, nor were they competent medical evidence of a nexus between the appellant's current back disorder and service. Further, the medical records did not contain any evidence, i.e., opinion by competent medical personnel, indicating that the appellant's current back condition was in any way related to service. The evidence added to the record since the January 2004 Board decision includes duplicate records that had been previously considered, such as a page from the ship's deck logs, copies of two lay statements, and a statement from a private physician dated in 1982. In addition, the appellant submitted a statement dated in July 2006 from a physician and a statement dated in June 2005 from an acquaintance. The author of the June 2005 statement indicated he had known the appellant for the previous 12 years. The statement included a description of the incident during service in which the appellant has claimed he injured his back. The author also noted his own observations of the appellant's painful gait. In addition, he attested to the appellant's good character. The duplicate records are not new. Moreover, although the author of the new lay statement provided his description of the in-service incident, that description must have been based on information supplied by the appellant, since the author did not become acquainted with him until many years after his separation service. He is, of course, competent to comment on his own observations of the appellant, but he is not competent to establish a medical nexus between the appellant's current symptoms and service. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (holding that lay testimony is competent to establish only symptoms of illness); see also Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992) (holding that persons without medical training are not competent to comment upon medical observations or to make medical diagnoses). The July 2006 statement from a doctor contains information essentially similar to that provided in statements by the same doctor that had been previously considered and, hence, is not new. At his Board hearing, the appellant again described the incident during service in which he claims he injured his back - as he did at a previous Board hearing in 2003 during his most recent appeal. He also again recounted the treatment he previously testified he received for his back after service. To the extent that the appellant's hearing testimony is duplicative of his previous testimony, is it also not new and does not provide any basis to reopen his claim. The Board finds, therefore, that the evidence received since the January 2004 Board decision is either duplicative, or provides no evidence tending to establish either missing factor - that the appellant had a chronic back disorder during service, or that his current back disorder is otherwise related to service; the additional evidence does not raise a reasonable possibility of substantiating the claim. Accordingly, the Board concludes that new and material evidence has not been presented to reopen the appellant's claim for service connection for a back disorder. In the absence of new and material evidence, the application to reopen the claim for service connection for a back disorder must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the- doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the current appeal. 38 U.S.C.A. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1991); Alemany v. Brown, 9 Vet. App. 518, 519 (1996). II. Duties to notify and to assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his 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) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice 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; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). In the present case, VA satisfied its duty to notify by means of a January 2005 letter from the agency of original jurisdiction (AOJ) to the appellant. The letter informed the appellant of what evidence was required to substantiate his claim, and of his and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in his possession to the AOJ. The required notice was provided before the adverse decision in March 2005. However, in a subsequent decision in Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that, where the issue is whether new and material evidence has been presented to reopen a previously denied claim, the claimant must be notified as to the specific information and evidence needed to reopen the claim, based on the reason(s) for the prior denial. Also, in a subsequent decision in Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, as the degree of disability and effective date of the disability are part of a claim for service connection, VA has a duty to notify claimants of the evidence needed to prove those parts of the claim. Although the appellant has the right to content-complying notice and proper subsequent VA process, he was not initially sent that notice. But the error in not providing the specific notice required by Kent and Dingess prior to the adverse decision was cured by the May 2007 letter, prior to the December 2007 supplemental statement of the case, and so is harmless. Moreover, the appellant has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices, including at a hearing. The Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity, including at a hearing, to participate effectively in the processing of his claim and appeal. For these reasons, it is not prejudicial to the appellant for the Board to decide this appeal. The law also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2007). This "duty to assist" ordinarily contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody. In this case, the Board finds that the duty to assist has been fulfilled. Because the appellant has not submitted new and material evidence to reopen his claim, no further development action is necessary. (CONTINUED ON NEXT PAGE) ORDER New and material evidence having not been presented, the claim for service connection for a back disorder is not reopened. ____________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs