Citation Nr: 0812297 Decision Date: 04/14/08 Archive Date: 05/01/08 DOCKET NO. 06-15 767 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a low back condition. 2. Entitlement to service connection for a low back condition. ATTORNEY FOR THE BOARD B. A. Jonas, Associate Counsel INTRODUCTION The veteran served on active duty from October 1950 to July 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. FINDINGS OF FACT 1. In February 1955, the Boston RO denied entitlement to service connection for a low back condition. The veteran did not file a timely appeal. 2. The evidence associated with the claims file subsequent to the February 1955 rating decision does raise a reasonable possibility of substantiating the claim of entitlement to service connection for a low back condition. 3. The veteran's current back condition is not related to his active military service. CONCLUSIONS OF LAW 1. The February 1955 decision denying entitlement to service connection for a low back condition is final. 38 U.S.C.A. § 7104 (West 2002 & Supp. 2007); 38 C.F.R. § 20.1100 (2007). 2. The additional evidence presented since the February 1955 decision is new and material, and the claim for entitlement to service connection for a low back condition is reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2007); 38 C.F.R. § 3.156 (2007). 3. The veteran's current back condition was not incurred during his active military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. New and material evidence Generally a claim which has been denied in a final rating or Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104, 7105(c). 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. Under 38 C.F.R. § 3.156(a), a claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. 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 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. The Board must initially consider whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that new and material evidence is not offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. Id. Further analysis, beyond consideration of whether the evidence received is new and material, is neither required nor permitted. Id. at 1384. The United States Court of Appeals for Veterans Claims (Court) has held that the Board is required to review all of the evidence submitted by a claimant since the last final disallowance of a claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). In addition, for the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Boston RO denied service connection in a February 1955 rating decision. Although the veteran was treated for back pain in service, the discharge examination showed no residual disability. Also, the January 1955 VA examination's diagnosis section stated, "No orthopedic disease noted." After issuance of the February 1955 rating decision, the veteran requested a form to appeal, and VA sent the form to him. However, the veteran never submitted his appeal and the decision became final. Evidence received after the February 1955 rating decision includes diagnostic and treatment records pertaining to a roofing accident in October 1988. The veteran contends that the T12 compression fracture discovered at that time was an old injury that existed but was not discovered during service. Taken at face value, this is new and material evidence and the claim is reopened. Accordingly, the Board will proceed to the merits of the claim. II. Service connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To establish direct service connection, three requirements must be met: (1) the existence of a current disability; (2) an injury or disease was incurred during active military service; and (3) a relationship exists between the current disability and the inservice injury or disease. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) (a determination of service connection requires a finding of the existence of a current disability and a determination of the relationship between that disability and an injury or disease incurred in service). As was noted in the February 1955 rating decision, the service medical records show diagnosis and treatment for low back pain. At the time of that rating decision, there was no current disability. The veteran was involved in a roofing accident in October 1988. According to the emergency room report, he fell 8 to 10 feet off of a ladder, landed upright, and then fell backwards. X-rays taken one day after the accident showed an anterior compression fracture of T12 and a fracture through the inferior aspect of the T11 spinous process. The Board finds that the T12 compression fracture was caused by the fall from the ladder in October 1988 and not by any event in service as the veteran contends. A November 1988 follow up examination by Peter F. Sturm, M.D., states that the veteran was one month status post a T12 compression fracture. The veteran points to a February 1993 report from the South Shore MRI Center that describes an old wedge compression fracture of T12. This examination occurred over four years after the roofing accident. That would constitute an old injury. Given the totality of the circumstances, it is not reasonable to interpret the notation as evidence that the T12 fracture was approximately 50 years old. The same is true for a July 2001 report from the Lahey Clinic that employs similar language. All of the new medical evidence of record dates from the late 1980s to the present. There was a considerable length of time, more than 30 years, between the veteran's separation from service and his treatment for back pain. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd., 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service). Given the length of time between the veteran's separation from military service and his treatment for back pain, the record is against finding a continuity of objectively verifiable symptomatology. 38 C.F.R. § 3.303(d). Service connection for a low back condition is denied. III. Duties to notify and assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 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) (West 2002 & Supp. 2005); 38 C.F.R. § 3.159(b)(2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Proper notice must also ask the claimant to provide any evidence in his or her possession that pertains to the claim. Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). There is no issue as to providing an appropriate application form or completeness of the application. VA notified the veteran in September 2004 of the information and evidence needed to substantiate and complete a claim for service connection, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. In addition, the notice provided in September 2004 addressed the specific information and evidence necessary to reopen the claim for service connection for a low back condition, and adequately informed him of the specific basis for the prior denial of his claim. See Kent v. Nicholson, 20 Vet. App. 1 (2006) (in claim to reopen a previously denied claim for service connection, 38 U.S.C.A. § 5103(a) requires that VA issue a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial). VA has fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate a claim. VA informed the claimant of the need to submit all pertinent evidence in his possession. The claimant was afforded a meaningful opportunity to participate in the adjudication of the claim. The Board acknowledges that the veteran was not provided notice of the appropriate disability rating and effective date of any grant of service connection until September 2007. There is no prejudice to the veteran in proceeding with the issuance of a final decision despite VA's failure to provide more timely notice, as his claim for service connection is being denied. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). In sum, there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication. ORDER New and material evidence has been submitted to reopen a claim of entitlement to service connection for a low back condition. Entitlement to service connection for a low back condition is denied. ____________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs