Citation Nr: 0810790 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 05-03 617 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for degenerative disc disease of the lumbar spine. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Riley, Associate Counsel INTRODUCTION The veteran served on active duty from June 1967 to October 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which, in pertinent part, denied entitlement to the above condition. Although the RO has reopened the claim for service connection, the Board must initially determine whether new and material evidence has been submitted regardless of the RO's actions. Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996). The Board must address the question of new and material evidence in the first instance because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996) (applying an identical analysis to claims previously and finally denied, whether by the Board or the RO). Only where the Board concludes that new and material evidence has been received does it have jurisdiction to consider the merits of the claim. Barnett; Hickson v. West, 11 Vet. App. 374, 377 (1998). Thus, despite the various characterizations of the issue throughout the appeal, the Board must make an independent determination as to whether new and material evidence has been presented to reopen the claim of entitlement to service connection for degenerative disc disease before reaching the merits of the service connection claim. FINDINGS OF FACT 1. The veteran's claim for entitlement to service connection for a low back disability namely lumbosacral strain and post- operative residuals of herniated nucleus pulposus of the lumbar spine was denied in an unappealed May 1989 rating decision. 2. The evidence received since the May 1989 decision includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient to raise a reasonable possibility of substantiating the claim. 3. The veteran's current low back disability, consisting of the post-operative residuals of herniated nucleus pulposus is not etiologically related to service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen a claim seeking service connection for degenerative disc disease of the lumbar spine. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). 2. A low back disability was neither incurred in nor aggravated by active service. 38 U.S.C.A. §§ 1110, 1112 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007) redefined VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). Under the VCAA, 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 request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The evidence currently of record is sufficient to substantiate the veteran's application to reopen his claim for entitlement to service connection for degenerative disc disease of the lumbar spine. Therefore, no further development of the record is required with respect to that aspect of the claim. With respect to the reopened claim, in a letter issued in August 2005, subsequent to the initial adjudication of the claim, the RO notified the veteran of the evidence needed to substantiate his claim for service connection. The letter also satisfied the second and third elements of the duty to notify by informing the veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. With respect to the fourth element of VCAA notice, the August 2005 letter contained a notation that the veteran should submit any evidence in his possession pertinent to the claim on appeal. The veteran was notified of the first three elements of the Dingess notice by the August 2005 letter. He also received information regarding the effective date and disability rating elements of his claim in March 2006. The Board notes that in Pelegrini II, the Court also held that VCAA notice should be given before an initial AOJ decision is issued on a claim. Pelegrini II, 18 Vet. App. at 119-120. While complete VCAA notice was provided after the initial adjudication of the claims, this timing deficiency was remedied by the issuance of VCAA notice followed by readjudication of the claim. Mayfield v. Nicholson, 444 F. 3d 1328 (Fed. Cir. 2006). The claim was readjudicated in the June 2006 SSOC. Therefore, any timing deficiency has been remedied. The Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the veteran, including service medical records, records from various federal agencies, and private medical records. Additionally, the veteran was provided a VA examination in April 2005 and an additional medical opinion was obtained in July 2005. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Claim to Reopen A claim which has been finally denied in an unappealed rating decision or Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). 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 which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The veteran was denied entitlement to service connection for a low back disability in an unappealed rating decision in May 1989. The RO noted that the veteran's service treatment records showed 37 days of hospitalization for low back pain, but as the veteran was not found to have any physical or neurologic findings during his hospitalization, it determined that his in-service back pain was acute and transitory. The RO concluded that the veteran's chronic low back disability was not related to his active duty service. The subsequently received evidence includes reports of private treatment and a February 2004 statement from the veteran's physician, Dr. F, who reviewed the veteran's service medical records and found that the veteran's current chronic back problems stemmed from his initial injury during service in 1968. Similar opinions were reported by a VA examiner in April 2005 and others. This evidence is clearly new and material as it provides a nexus between the veteran's current disability and his in-service injury, and reopening of the claim is in order. Reopened Claim Legal Criteria Inasmuch as this claim was adjudicated on a de novo basis by the RO, the veteran is not prejudice by the Board's adjudication of his claim on the merits. Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Lay persons are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson; see Grover v. West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet); Espiritu, 2 Vet. App. at 494- 95 (lay person may provide eyewitness account of medical symptoms). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2007). Additionally, for veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). With chronic diseases shown as such in service, or within the presumptive period after service, so as to permit a finding of service connection, subsequent manifestation 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) (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis The veteran contends that his current degenerative disc disease of the lumbar spine is due to an in-service injury to his back as the result of a shell blast during service in Vietnam. Service treatment records show that the veteran was knocked into a trench by an enemy rocket concussion in April 1968 and was hospitalized for 37 days to undergo treatment for low back pain. X-rays of his lumbar spine were normal, and there were no physical or neurologic findings. The veteran was not diagnosed with a chronic back disorder. The veteran's doctor noted that the injury was not likely to result in a permanent disability. The enlistment examination for separation from September 1970 shows that the veteran's spine was found to be normal. The post-service medical evidence of record establishes that the veteran was treated for a sudden onset of low back pain in March 1984. In April 1984, he had a central disc removed from the L5-S1 portion of his spine. He did not report a past history of back problems. The veteran underwent additional treatment and surgery for his low back in June 1991 and was diagnosed with degenerative lumbar disc disease. He began treatment at the Duke University Medical Center with Dr. F in March 1992 and provided a history of multiple lumbar laminectomies. Upon VA examination in April 2005, the veteran was diagnosed with degenerative disc disease of the lumbar spine as well as chronic intractable lower back pain. The examiner determined that the veteran's low back problems were service-connected. The Board notes that the examination report did not indicate that the examiner reviewed the veteran's claims folders. In July 2005, the veteran's claims folders were provided to the Chief of Neurosurgery at the Durham VA Medical Center (VAMC) to determine whether the veteran's low back disability was related to service. The physician thoroughly discussed the veteran's medical history and noted that during a VA examination in 1976 the veteran did not report any complaints pertaining to his back. As there was no contemporaneous evidence of persistent back pain between 1968 and the veteran's subsequent back injury in 1984, the reviewing physician concluded that there was no connection between the veteran's in-service lumbar strain and his subsequent injury in 1984 which lead to his continuing string of surgeries. In support of his claim, the veteran has submitted several statements from his private physicians linking his current degenerative disc disease to his in-service back injury. The record shows that the veteran participated in combat in Vietnam. Service connection has been established for post- traumatic stress disorder, evaluated as 100 percent disabling, based on combat stressors. Service department records show that portions of his service treatment records were destroyed in an enemy barrage in January 1968. Accordingly, his reported back injury during combat is presumed to have occurred. 38 U.S.C.A. § 1154(b) (West 2002). The current back disability is well documented. Hence two of the elements for service connection-an in-service injury, and a current disability are established. The April 2005 VA examiner's opinion, the February 2004 statement from Dr. F, and other private opinions provide competent evidence of a link between the current disability and the injury in service. None of these opinions, however, acknowledge the negative medical findings at the time of the veteran's separation or the negative medical evidence and absence of pertinent complaints for many years thereafter. Instead these opinions relied on the veteran's current reports of ongoing back pain since service. While Dr. F's February 2004 letter in support of the veteran's claim reports that he reviewed the veteran's service medical reports, it discussed only the in-service injury and did not discuss medical records created later in service or in the years immediately after service. At best these opinions appear to be based on an incomplete history. The July 2005 opinion was rendered by the Chief of Neurosurgery at the Durham VAMC and was made following complete review of the veteran's claims folders, including service and post-service medical records. In addition, the July 2005 physician provided a complete rationale for his opinion, noting that there was no evidence of persistent back pain from 1968 to 1984. The Chief of Neurosurgery has provided the only medical opinion discussing this history. The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Because the Chief of Neurosurgery is the only competent medical professional to discuss a complete history, his opinion is the most probative. The Board has also considered the statements of the veteran. He is competent to report a continuity of symptomatology. His recent reports must, however, be weighed against the history he reported at the time of his separation from service, on the initial post-service VA examination in 1976, and when initially treated after service in 1984. In 1984 the veteran reported that his back pain was of sudden onset. He underwent orthopedic evaluation on the VA examination in 1976, but made no mention of back symptoms. These contemporaneous statements are of more probative value than recollections reported decades after the events in question and in the course of claims for benefits. As a lay person, the veteran is not competent to provide an opinion as to a nexus between his current disability and service since laypersons, such as the veteran, are not qualified to render an opinion concerning medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). In sum, the most probative evidence is against a link between the current back disability and a disease or injury in service. Accordingly, the preponderance of the evidence is against the claim, and it is therefore, denied. 38 U.S.C.A. § 5107(b) (West 2002). ORDER The claim for entitlement to service connection for degenerative disc disease of the lumbar spine is reopened. Entitlement to service connection for degenerative disc disease of the lumbar spine is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs