Citation Nr: 0810450 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 03-31 302 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a disability of the cervical spine. 2. Entitlement to service connection for a back disability, to include lumbosacral strain and scoliosis in the thoracic and lumbar spine. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. T. Sprague, Associate Counsel INTRODUCTION The veteran had active service in the United States Army from September 1975 to October 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 1980, September 1995 and April 2003 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. As noted in a Board remand of this appeal in March 2006, in August 1980, the RO denied service connection for back and bilateral knee disabilities. The veteran was informed of this decision by mail later that month. The file contains an envelope postmarked in October 1980. It also contains a notice of disagreement (NOD), date stamped as having been received at the RO in October 1980. Since the rating decision was issued in August 1980, this was a timely NOD. It was date stamped later in October 1980 at the Washington, D.C. RO. Subsequent stamps reflect its return to the Albuquerque, RO in November 1981. In November 1981, the RO wrote to the veteran and told him that the one year time limit to file an appeal had expired. The file does not show why the RO chose the later date stamps over the earlier, timely ones. The Board found in March 2006 that the RO erred in not finding a timely NOD and, there fore, the RO was ordered to issue SOC. Manlincon v. West, 12 Vet. App. 238 (1999). The Board also noted in its March 2006 remand that there were subsequent claims that were denied on the basis that the veteran had not submitted new and material evidence. Because that is a higher standard of proof, it did not cure the failure of due process in the original claim. Consequently, the RO adjudicated the claims for service connection for a back and bilateral disabilities without regard to the law and regulations governing finality of unappealed RO decisions. Pursuant to the Board's remand, the RO subsequently issued a SOC reflecting that the veteran appealed the denial of his original claims for service connection for bilateral knee and back disabilities. The veteran also appealed that part of the RO's April 2003 decision that denied his application to reopen his claims for service connection for right and left knee disabilities. Following the Board's remand ordering the RO to adjudicate these claims on a de novo basis for the reasons noted above, in a September 2007 decision, the RO granted service connection for degenerative arthritis of both knees. A 10 percent rating was assigned for each knee, effective from December 19, 2002. While the veteran has not yet appealed the rating or effective date assigned for either knee disability, aside from the fact that he has until September 2008 to file a timely NOD, the Board raises a claim for entitlement to an earlier effective date for the grant of service connection for the veteran's right and left knee disabilities, prior to December 19, 2002. See discussion regarding the timely appeal of the 1980 RO decision noted above. This matter must be adjudicated by the RO following any indicated development. The appeal for service connection for a back disability, to include lumbosacral strain and scoliosis in the thoracic and lumbar spine, is REMANDED to the RO via the VA's Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant if further action is required on his part. FINDINGS OF FACT 1. An unappealed September 1995 rating decision denied entitlement to service connection for a disorder of the cervical spine; the decision is final. 2. Evidence received since the September 1995 rating decision, which denied service connection for a disorder of the cervical spine, does not relate specifically to an unestablished fact necessary to substantiate the claim; it does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The September 1995 rating decision, which denied entitlement to service connection for a cervical spine disability, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104 (2007). 2. New and material evidence has not been received to reopen the claim for service connection for a disorder of the cervical spine. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2006); 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 must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the VA will seek to provide; (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. See 38 C.F.R. § 3.159. Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits is issued by the agency of original jurisdiction. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The veteran in this case received notification in February 2003, prior to the rating which is the subject of this appeal; however, this letter did not fully comply with VCAA notification requirements. The Board, in a March 2006 remand, determined that the issue of entitlement to service connection for a back disability was not a petition to reopen, and also noted that the February 2003 letter was deficient regarding the explanation of what constitutes new and material evidence in a petition to reopen a previously denied claim for entitlement to service connection for a cervical spine disability. Subsequent to this, a March 2006 VCAA letter was dispatched to the veteran which fully cured the defects as to notice, and advised the veteran of what was required to substantiate a claim for reopening (see Kent v. Nicholson, 20 Vet.App. 1, 10 (2006)) as well as a claim for service connection. This action was followed by the issuance of a supplemental statement of the case, curing any defect regarding the timing of notice. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). VA has made all reasonable efforts to assist the veteran in the development of his claims, has notified him of the information and evidence necessary to substantiate the claims, and has fully disclosed the government's duties to assist him. In February 2003 and March 2006 letters, the veteran was notified of the information and evidence needed to substantiate and complete his claims. The veteran was specifically informed as to what evidence he was to provide and to what evidence VA would attempt to obtain on his behalf. He was also notified of the need to give VA any evidence pertaining to his claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); see Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005); Mayfield v. Nicholson, 19 Vet. App. 103, 109-12 (2005) (Mayfield I) rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). With respect to the Dingess requirements, the veteran was notified of the evidence necessary to establish the disability rating and effective date of award should his claim be granted; however, such notice was after the RO's initial denial. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). To the extent that the deficiency with regard to the Dingess requirements raises a presumption of prejudice, such defect would not have operated to alter the outcome in the instant case where the preponderance of the evidence is against reopening and service connection. That is, the timing defect did not affect the essential fairness of the adjudication. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007) (recognizing that "a demonstration that the outcome would not have been different in the absence of the error would demonstrate that there was no prejudice and thus, the presumption of prejudice is rebutted). Simply put, because the Board has rendered an unfavorable opinion in the instant case, denying service connection, any defect in such Dingess notice is moot. Christman v. American Cyanamid Co., 578 F. Supp. 63, 67 (D.W.Va. 1983) (noting that "mootness means that no actual controversy exists which is subject to judicial resolution"). The veteran has been provided the opportunity to respond to VA correspondence and over the course of the appeal has had multiple opportunities to submit and identify evidence. Furthermore, the veteran has been provided a meaningful opportunity to participate effectively in the processing of his claims by VA. The VCAA places an enhanced duty on VA to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The service medical records are included in the file. The RO has obtained all relevant medical records identified by the veteran. The veteran contends that VA has not made efforts to obtain service treatment reports from his time stationed in Germany. Upon review, the Board notes that all service medical records, to include his Germany service, are included in the file. A thorough VA orthopedic examination addressing the nature and etiology of the claimed disorders has been provided. Under these circumstances, there is no duty to provide another examination or competent opinion. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or assistance is necessary, and deciding the appeal at this time is not prejudicial to the veteran. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Legal Criteria-New and Material Evidence In general, decisions of the agency of original jurisdiction (the RO) or the Board that are not appealed in the prescribed time period are final. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. See Knightly v. Brown, 6 Vet. App. 200 (1994). Evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence had been presented), will be evaluated in the context of the entire record. See Evans v. Brown, 9 Vet. App. 273 (1996). 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. 38 C.F.R. § 3.156(a). Legal Criteria-Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131. With a chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support a claim of service connection. Id. Service connection may 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). For certain chronic disorders, including arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 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). Alternatively, the nexus between service and the current disability can be satisfied by medical or lay evidence of continuity of symptomatology and medical evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). In the case of any veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof for service connection if the evidence is consistent with the circumstances, condition or hardships of such service, even though there is no official record of such incurrence or aggravation. Every reasonable doubt shall be resolved in favor of the veteran. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d). Analysis-New and Material Evidence, Cervical Spine The veteran seeks to reopen a previously denied claim for entitlement to service connection for a cervical spine disability. The record indicates that this claim was originally denied in a September 1995 rating decision. At that time, the veteran's claim was considered "not well grounded" (an evidentiary standard no longer in use), as there was no evidence of a cervical spine disability in service or until many years thereafter. No appeal was filed regarding this decision, and it became final within a year of notification. While consideration of the "well grounded" nature of a claim for service connection is no longer relevant, the principal reason for the denial (that there was no evidence of in-service neck symptomatology), is still an element of service connection which was fully evaluated on the merits in the 1995 decision. That is, at the time of the original denial, the veteran had a current neck disability; however, there was nothing to indicate that the disability originated during service or was causally linked to any incident or event of service. It follows, that the veteran must show evidence which relates to an in-service neck disability or a nexus of a current neck disability to his service, if he is to be successful in the reopening of his claim. See 38 C.F.R. § 3.156. Since the final decision of record, the veteran has not shown any evidence which shows an onset of his neck disability in service. An October 2006 VA examination recorded the veteran's subjective history of experiencing a neck injury in service; however, the record remains devoid of any evidence to show that the alleged treatment for a neck injury actually took place. Furthermore, the examiner indicated in a February 2007 addendum that he had not reviewed the claims file at the time of examining the veteran. In the February 2007 note, it is apparent that the examiner had reviewed the claims file, and an opinion was entered which stated that it was less likely that the veteran's neck injury was related to service given that there were no documented in-service hospitalization records for such an injury. The reports of the VA examiner are new, in that they were not of record at the time of the original denial. The evidence is, however, not material, in that the negative nexus opinion and notation of a lack of treatment in service is a previously established fact, and the opinion does not help to substantiate the claim for service connection. Additional medical records and statements by the veteran are also new; however, there is nothing submitted which suggests a causal link of a cervical spine disability with military service. As such, the record has not been enhanced with material evidence, and the petition to reopen must be denied. ORDER New and material evidence has not been received to reopen a claim for service connection for a cervical spin disability; the claim to reopen is denied. REMAND Service Connection, Back (to include Lumbosacral and Thoracic Spine) The veteran contends that his back disability began during or as the result of service. He specifically attributes his back disability to being bumped or struck by a heavy hatch of an armored personnel carrier (APC) on numerous occasions. The veteran also alleges that he was engaged in combat during his service in Cold War West Germany during this time. He claims that he was fired upon, assumedly by East German and/or Soviet forces, while escorting German tractor drivers near the border with the "Iron Curtain" (i.e. Soviet Bloc). He asserts, in essence, that he was struck by an APC hatch while engaged in combat. The veteran's military occupational specialty was that of an infantryman, and thus he had the qualifications required to engage in combat with enemy forces, but his service personnel records do not show that he received any medal or decoration evincing combat duty. In fact, he did not have active duty in a combat zone or during a period of war as defined by 38 C.F.R. § 3.2. Regarding the service medical records, the Board notes that there is no indication of treatment, complaint, or diagnosis of a lumbosacral or thoracic spine disability during the veteran's period of active service. The report of the separation examination did not list any musculoskeletal abnormalities. A chronic lumbosacral strain was diagnosed in May 1980, less than 7 months after service, and there was X- ray evidence of minimal scoliosis of the lumbar spine with minimal irregularity of the superior end plate at L3 with questionable Schmorl's node noted at that time. There is also X-ray evidence of a current disability, diagnosed as mild thoracolumbar disc space narrowing, with spondylosis at L2/3, along with clinical evidence of pain and limitation of motion of the thoracolumbar spine in recent years. As to the alleged nexus, in a report of an October 2006 VA examination, the veteran's back disability was linked to the claimed bump of the APC hatch. This report was based upon the veteran's subjective history as the examiner noted that he was unable to review the claims file at the time of evaluation. The Board is cognizant of Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005), wherein the Court of Appeals for Veterans Claims (Court) held that the VA and Board may not simply disregard a medical opinion solely on the rationale that the medical opinion was based on a history given by the veteran. See also Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006). However, in Kowalski, the Court also cited its decisions in Swann v. Brown, 5 Vet. App. 229, 233 (1993) and Reonal v. Brown, 5 Vet. App. 458, 461 (1993) in reaffirming that in evaluating medical opinion evidence, the Board may reject a medical opinion that is based on facts provided by the veteran that have been found to be inaccurate or because other facts present in the record contradict the facts provided by the veteran that formed the basis for the opinion. Here, the service medical records do not show that the veteran sustained the alleged injuries to his back and he denied any back injury or disability when examined for his separation from service. In a February 2007 addendum to the October 2006 report, the examiner concluded that, as the veteran had no history of hospitalization in service, and that as his separation record was free of musculoskeletal defect, it was less than likely that his back disorder was caused by military service. While the evidence summarized above weighs against a nexus between a back disability and service, the February 2007 medical opinion failed to take into consideration a report of a May 1980 VA physical examination, which contains a diagnosis of a chronic lumbosacral strain, and a report of an X-ray examination, also dated in May 1980, which contains findings of minimal scoliosis of the lumbar spine with minimal irregularity of the superior end plate at L3 and a questionable Schmorl's node. Since this clinical and radiological evidence is dated less than 7 months after service, it is obviously relevant and must be considered not only in formulating any opinion regarding the contended causal relationship between a current back disability and service but also whether the X-ray evidence showed arthritis or findings consistent with trauma. (See 38 C.F.R. §§ 3.307, 3.309 relating to the one year presumption for service connection for arthritis.) It is also pertinent to note that the veteran filed a claim for service connection for a back disability less than 5 months after his separation from service. While he did not give a history of sustaining repeated in-service back injuries at that time as now claimed, he did state in May 1980 that his back pain began in 1976 (during service). As this latter history is essentially consistent with history obtained and statements received in support of the current appeal, the Board does not dispute the allegation that back pain began during service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465 (1994). In view of the foregoing, the claims file must be returned to the physician who performed the October 2006 VA examination and authored the February 2007 addendum to that examination to review this additional evidence before providing opinions on the two questions at hand relating to the alleged causal link and the question of arthritis within one year of service. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. Review the record and ensure compliance with all notice and assistance requirements set forth in the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.159 (2007). 2. The claims file must be sent to the physician (Richard Worrell, M.D.) who conducted the October 2006 VA examination and who provided the February 2007 addendum to review reports of May 1980 physical and X-ray examinations, which included a history of back pain beginning in 1976 (during service) and resulted in a diagnosis of a chronic lumbosacral strain and X-ray evidence of minimal scoliosis of the lumbar spine with minimal irregularity of the superior end plate at L3 and a questionable Schmorl's node, and address the questions of whether the veteran had X- ray evidence of arthritis within one year of service and whether his current back disability is linked to service. Following a review of the relevant medical evidence in the claims file, to include the reports of the May 1980 VA physical and X-ray examinations, the examiner is asked to provide an opinion on the following: In light of the undisputed history of back pain beginning in 1976 while on active duty (September 1975 to October 1979) and with consideration of the May 1980 reports of VA physical and X-ray examinations, (a) is it at least as likely as not (50 percent or greater probability) that the veteran had X-ray evidence of arthritis of the lumbar spine in May 1980; (b) is it at least as likely as not (50 percent or greater probability) that any of the May 1980 X-ray findings are post- traumatic in origin; and (c) is it at least as likely as not (50 percent or greater probability) that the veteran has a current back disability that began during service. The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. The examiner is also requested to provide a rationale for any opinion expressed and is advised that if a conclusion cannot be reached without resort to speculation, he or she should so indicate in the examination report. 3. After the development requested above has been completed to the extent possible, re-adjudicate the claim for service connection for a back condition. If the benefit sought on appeal is denied, the veteran should be furnished a supplemental statement of the case and given the opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ R. F. WILLIAMS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs