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