Citation Nr: 0810115 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 05-07 148 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Whether new and material evidence has been presented to reopen the claim of service connection for residuals of a lumbar spine sprain. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Associate Counsel INTRODUCTION The veteran, who is the appellant, served on active duty from August 1967 to July 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in October 2004 of a Department of Veterans Affairs (VA) Regional Office (RO). The Board has jurisdictional responsibility to consider whether it is proper for a claim to be reopened, and what the RO determined in this regard is not relevant. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). FINDINGS OF FACT 1. In a rating decision in January 2002, the RO reopened the claim of service connection for a lumbar spine sprain and then denied the claim on the merits; after he was notified of the adverse determination and of his procedural and appellate rights, he did not appeal the adverse determination. 2. The additional evidence presented since the rating decision in January 2002 by the RO relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 3. Chronic residuals of a lumbar spine sprain were not affirmatively shown to have been present during service, the current lumbar spine sprain to include degenerative disc disease, is unrelated to service on the basis of continuity of symptomatology, and the current lumbar spine sprain to include degenerative disc disease, is otherwise unrelated to an injury, disease, or event of service origin. CONCLUSIONS OF LAW 1. The rating decision of January 2002 by the RO, denying the claim of service connection for a lumbar spine sprain, became final. 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2007). 2. The additional evidence presented since the rating decision by the RO in January 2002, denying claim of service connection a lumbar spine sprain, is new and material, and the claim of service connection for residuals of a lumbar spine sprain is reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2007); 38 C.F.R. § 3.156(a) (2007). 3. Residuals of a lumbar spine sprain to include degenerative disc disease were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Under 38 C.F.R. § 3.159, VA must request that the claimant provide any evidence in the claimant's possession that pertains to the claim. In a new and material evidence claim, notice must include the evidence and information that is necessary to reopen the claim and the evidence and information that is necessary to establish the underlying claim for the benefit sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication VCAA notice by letter, dated in June 2004. The veteran was notified that new and material was needed to reopen the claim of service connection, that is, evidence not previously considered, which was not redundant or cumulative of evidence previously considered and that pertained to the reason the claim was previously denied, that is, the lack of evidence linking the current back disability to service. The notice included the type of evidence needed to substantiate the underlying claim of service connection, namely, evidence of an injury or disease or event, causing an injury or disease, during service; evidence of current disability; and evidence of a relationship between the current disability and the injury or disease or event, causing an injury or disease, during service. The veteran was informed that VA would obtain service medical records, VA records, and records from other Federal agencies, and that he could submit private medical records or authorize VA to obtain the records on his behalf. He was asked to submit evidence that would include evidence in his possession that pertained to the claim. The notice included the provision for the effective date of the claim. As for content of the VCAA notice, the document substantially complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (38 C.F.R. § 3.159 notice); of Kent v. Nicholson, 20 Vet. App. 1 (2006) (notice of the evidence necessary to reopen the claim and the evidence necessary to establish the underlying claim for the benefit sought); and of Dingess v. Nicholson, 19 Vet. App. 473 (2006) (notice of the elements of the claims, except for the degree of disability assignable). To the extent that the VCAA notice about the degree of disability assignable came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. As the claim is denied no disability rating can be awarded as a matter of law and therefore there is no possibility of any prejudice to the veteran with respect to the timing error as to degree of disability assignable. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim. The veteran was afforded a VA examination. As the veteran has not identified any additional evidence pertinent to his claim, not already of record, and as there are no additional records to obtain, the Board concludes that the duty-to-assist provisions of the VCAA have been complied with. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Procedural and Factual Background In a rating decision in January 2002, the RO reopened the claim of service connection for lumbar spine sprain and then denied the claim on the merits. After the RO notified the veteran of the adverse determination and of his procedural and appellate rights, the veteran did not appeal the adverse determination and the determination became final by operation of law based on the evidence record. 38 U.S.C.A. § 7105(c); 38 C.F.R. §3.104. The pertinent evidence of record and considered by the RO at the time of the rating decision in January 2002 is summarized as follows: The service medical records which show that on December 11, 1967, the veteran injured his back when he fell down some stairs aboard ship. The pertinent findings were abrasions and tenderness in the lumbar region, and the impression was paravertebral muscle strain with full range of motion. He was prescribed no-duty for one day. On separation examination in July 1971, there was no complaint or history of a back abnormality, and the spine was clinically evaluated as normal. After service, private medical records disclose that in September 1997 the veteran complained of low back pain radiating into the left lower extremity with onset a week earlier. On a surgical consultation also in September 1997, the veteran complained of back and left lower extremity pain. It was noted that he had had similar symptoms some time ago, which had resolved, but six weeks earlier he had progressive intractable pain to the point he could not work. A MRI revealed displacement of the left L5-S1 disc. The veteran subsequently had a left discectomy at L5. VA records disclose that in November 2000 history included a back injury in the 1960s with chronic pain. X-rays revealed degenerative changes. In February 2001, the veteran stated that he injured his back three years earlier. On VA examination in March 2001, the veteran stated that he injured his lower back in 1967, while carrying a trash can and fell on the stairs for which he underwent physical therapy, and three years ago he ruptured a disc for which he had surgery. The diagnosis was lumbar spine sprain. Current Application Although the prior rating decision of January 2002 by the RO became final, it may nevertheless be reopened if new and material evidence is presented. 38 U.S.C.A. §§ 7105(c) and 5108. The veteran's application to reopen the claim of service connection was received in May 2004. As the claim to reopen was received after August 29, 2001, the current regulatory definition of new and material evidence under 38 C.F.R. § 3.156 applies. New evidence means existing evidence not previously submitted to agency decision makers. 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. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In determining whether the evidence is new and material, the specified basis for the last final disallowance must be considered. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In order that the additional evidence may be considered new and material under the current regulatory definition of new and material evidence, the evidence must relate to the basis for the prior denial of the claim, that is, the lack of evidence that the current lumbar sprain was incurred in service. Additional Evidence and Analysis The additional evidence, in part, presented since the rating decision in January 2002 consists of a statement from a private physician. In a statement, dated in September 2004, R.H.L., MD, referring to the back injury in service, stated that given the nature of the fall as described by the veteran, the minimal evaluation done at the time of the injury, and the veteran's contention of continued pain since the incident, although he did not seek further help, it would be prudent to assume that his back problems began at the time of the injury. The physician noted that the veteran had back surgery in 1997. The physician expressed the opinion that the current back condition was more likely than not that a result of his injury while serving on active duty aboard ship. The private physician's statement is new and material evidence because the evidence relates to an unestablished fact necessary to substantiate the claim, that is, evidence that the veteran's current back problem is related to the documented in-service injury, the absence of such evidence was the basis for the previous denial of the claim. Accordingly, the claim of service connection for lumbar spine sprain is reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Merits Determination As the claim of service connection for lumbar spine strain is reopened, the Board will now consider the claim on the merits as did the RO as evidenced by the statement of the case, dated in February 2005, without further procedural due process. Principles of Service Connection Service connection may be granted for a disability resulting from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Analysis The veteran contends that his current back problem is the result of an in-service back injury. On the basis of the service medical records, current lumbar spine sprain, diagnosed after surgery for lumbar disc disease, was not affirmatively shown during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). The service medical records do show that in December 1967 the veteran injured his back when he fell down some stairs. The pertinent findings were abrasions and tenderness in the lumbar region, and the impression was paravertebral muscle strain with full range of motion. He was prescribed no-duty for one day. On separation examination in July 1971, there was no complaint or history of a back abnormality, and the spine was clinically evaluated as normal. As there was a single, isolated finding of paravertebral muscle strain in the lumbar region, the required combination of manifestations sufficient to identify the disease entity, current lumbar spine sprain, following surgery for disc disease, and sufficient observation to establish chronicity during service are not adequately supported by the service medical records, and as the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). After service, records of a private hospital show that in August 1997 the veteran complained of back pain. He stated that he had hurt his back three to four years earlier and that he now felt that he had a pinched nerve. Private medical records disclose that in September 1997 the veteran complained of low back pain radiating into the left lower extremity with onset a week earlier. On a surgical consultation also in September 1997, the veteran complained of back and left lower extremity pain. It was noted that he had had similar symptoms some time ago, which had resolved, but six weeks earlier he had progressive intractable pain to the point he could not work. In a statement, received in July 2004, D.S., the veteran's ex-wife, stated that she met the veteran in 1975 and they were married until 2000. She stated that the veteran had problems with his back for as long as she had known him, and she believed that the veteran hurt his back aboard ship when he was in the Navy, before she met him. In a statement, received in July 2004, L.S., the veteran's ex-wife, stated that she was married to the veteran at the time he was in the Navy and that he hurt his back aboard ship and that he has had problems and pain ever since. At hearings in June 2006 and in February 2008, the veteran described his back injury during service. He testified that after the injury he had back pain and he was offered pain medication, but it made him sick so he did not take it. He stated that after service he continued to have back pain and he sought periodic treatment. He stated that from 1975 to 1995 he worked at a hospital, where he would receive treatment for his back, but the hospital kept no records until 1985 and then the hospital had only three records from 1993 or 1994. The Board finds that the veteran is competent to describe post-service low back pain and his testimony as to continuing back symptoms is credible, but as it does not necessarily follow that there is a relationship between the symptoms described by the veteran and the current lumbar spine sprain, following surgery for disc disease, medical evidence is required to demonstrate such a relationship based on continuity of symptomatology unless such a relationship is one as to which a lay person's observation is competent. Savage v. Gober, 10 Vet. App. 488, 497 (1997). To the extent that the statements of the ex-wifes are offered as proof of a relationship between the veteran's back symptoms, which they observed, and the current lumbar spine sprain, while the witnesses are competent to describe what they have personal knowledge of and as their statements are credible, once the witnesses begin to assert that the veteran has a particular injury, which goes beyond their personal knowledge and personal observations, the witnesses are not competent. For this reason, the lay statements are not competent evidence to support a relationship between the symptoms they describe and the current lumbar spine sprain, following surgery for disc disease. ,continuity of symptomatology. Layno v. Brown, 6 Vet. App. 465, 470-71 (1994) (Lay witness competency is not unlimited, and the fact that a lay witness may personally know the veteran and may have had the opportunity to observe him does not render the witness' testimony universally competent in proceeding to determine service connection; lay testimony is competent in proceeding to establish service connection only when it regards symptoms of the veteran's injury and lay testimony is not competent to prove the veteran had or was diagnosed with a particular injury.). Also, lumbar spine sprain is not a condition under case law, where lay observation has been found to be an exception to the requirement that medical evidence is required to demonstrate continuity of symptomatology, that is, a relationship between the symptoms described by the veteran and the current lumbar spine sprain, following surgery for disc disease in 1997. Savage, 10 Vet. App. at 497; Barr v. Nicholson, 21 Vet. App. 303, 306-10 (2006). The competent medical evidence in favor of continuity consists of the opinion of a private physician, who stated that the veteran's current back condition was more likely than not the result of his injury while serving on active duty aboard ship. The evidence against the claim consists of the report of VA examination in March 2005. The examiner recounted the veteran's history of the in-service injury in 1967, when he fell down some stairs, and the initial impression of lumbar sprain. The examiner stated that the condition was not chronic during service, that after service the veteran worked for many years, during which time his back got worse, and that in 1997 he developed severe back pain with radiation into the left leg because of ruptured disc for which he had surgery. The examiner reported that after the surgery the veteran continued to have back pain. The examiner expressed the opinion that it was less likely than not that the current degenerative disc disease of the lumbar spine and the post-operative repair were secondary to the back sprain sustained in 1967 in service. The examiner pointed out that the remaining service medical records did not reflect any continuity or diagnosis of trauma at the time of discharge from service, and that there was no injury associated with the severe back pain in 1997, resulting in the surgery. With regard to medical opinions, the weight to be attached to a medical opinion is within the Board's province as finder of fact. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Greater weight may be placed on one opinion over another depending on factors such as reasoning employed and whether or not and the extent to which the prior clinical records and other evidence were reviewed. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Factors for assessing the probative value of a medical opinion are the person's access to the claims file and the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). In this case, the Board assigns less weight to the favorable opinion of R.H.L., MD, who stated that the veteran's current back condition was more likely than not the result of his injury while serving on active duty aboard ship, because there is no indication that the physician reviewed the veteran's file to include the service medical records and the opinion does not explain how the veteran's current back problems, which started with the sudden onset of low back pain, radiating into the left leg in 1997, due to a ruptured disc, resulting in surgery, primarily a neurological manifestation, is related to lumbar strain of the paravertebral musculature without neurological abnormality in 1967. In contrast, the VA examiner reviewed the veteran's file and after the review of the record, the VA examiner expressed the opinion that it was less likely than not that the current degenerative disc disease of the lumbar spine and the post- operative repair were secondary to the back sprain sustained in 1967 in service. The examiner pointed out that the remaining service medical records did not reflect any continuity or diagnosis of back trauma at the time of discharge from service, and that the severe back pain in 1997, resulting in the surgery, was not associated with in- service trauma. As the value of a medical opinion is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion, Bloom v. West, 12 Vet. App. 185, 187 (1999), and as the medical opinion against the claim was based on a review of the entire record and contained a rationale for the opinion, which was consistent with the facts in the record, the Board finds that the opinion of the VA examiner, which opposes rather than supports the claim, more probative of the question of whether the current lumbar spine sprain, following disc surgery in 1997, is related to a single episode of back strain during service, and the opinion outweighs the favorable opinion. As the evidence does not show that the current lumbar spine sprain to include disc disease is related to service on the basis of continuity of symptomatology, the evidence also does not show that the current lumbar spine sprain to include disc disease, initial documented after service, is related to the in-service injury under 38 C.F.R. § 3.303(d). As for the veteran's statements relating his current back disability to service, where as here, the question is one of medical causation, competent medical evidence is required to substantiate the claim because a lay person is not qualified through education, training, and expertise to offer an opinion on medical causation. 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore the veteran's statements are not competent evidence on the question of medical causation, that is, the relationship between the current lumbar spine sprain to include degenerative disc disease and service. As the Board may consider only independent medical evidence to support its finding as to a question involving medical causation, which is not capable of lay observation, and as the preponderance of the evidence is against the claim of service connection for the reasons articulated, the benefit- of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER As new and material evidence has been presented, the claim of service connection for lumbar spine sprain is reopened. To this extent only, the appeal is granted. On the merits of the claim, service connection for residuals of a lumbar spine sprain is denied. ___________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs