Citation Nr: 0812763 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 06-13 451 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, currently diagnosed as a schizoaffective disorder. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a low back disorder, claimed as spinal stenosis with a herniated disc at L4-5 region. 3. Entitlement to service connection for a low back disorder, claimed as spinal stenosis with a herniated disc at L4-5 region. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Ann-Monique Clark, Associate Counsel INTRODUCTION The veteran had active service in the Air Force from July 1975 to June 1976, and active service with the Navy from May 1979 to September 1981. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. FINDINGS OF FACT 1. The evidence of record does not reflect that a chronic psychiatric disorder was shown in service or for many years thereafter. 2. The competent evidence does not demonstrate that the veteran's current schizoaffective disorder is causally related to active service. 3. In an unappealed June 2002 decision, the RO denied a claim of entitlement to service connection for spinal stenosis with a herniated disc at the L4-5 region. 4. In November 2004, the veteran filed a claim to reopen a low back disorder. 5. The evidence added to the record since June 2002, when viewed by itself or in the context of the entire record, is so significant that it must be considered in order to fairly decide the merits of the claim. 6. A diagnosis of spinal stenosis is currently shown. 7. The competent evidence does not establish that spinal stenosis occurred in nor was caused by service. CONCLUSIONS OF LAW 1. An acquired psychiatric disorder, currently diagnosed as a schizoaffective disorder, was not incurred in or aggravated by active service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2007). 2. The June 2002 rating decision which denied entitlement to service connection for spinal stenosis with a herniated disc at the L4-5 region, is final. 38 U.S.C.A. § 7105 (West 2002). 3. The evidence received subsequent to the June 2002 rating decision is new and material, and the requirements to reopen a claim of entitlement to service connection for a low back disorder, claimed as spinal stenosis with a herniated disc at the L4-5 region, have been met. 38 U.S.C.A. §§ 5103(a), 5103A, 5107(b), 5108, 7104 (West 2002); 38 C.F.R. §§ 3.156, 3.159 (2007). 4. A low back disorder, claimed as spinal stenosis with a herniated disc at the L4-% region, was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to each claim. I. Entitlement to Service Connection for an Acquired Psychiatric Disorder Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2007). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2007). Further, service connection may also 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 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2007). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the veteran's service medical records are presumed to have been lost. In a November 2005 letter, the RO explained that various unsuccessful attempts were made to obtain his service medical records. Given the absence of such records, the Board has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)(the BVA has a heightened duty in a case where the service medical records are presumed destroyed). The claims folder does, however, contain some documents from the veteran's service in the Air Force, between July 1975 and June 1976. These documents do not include any medical records, rather they consist of administrative documents, including his DD-214, discharge documents, and service infractions. Although these records discuss some behavioral issues, none indicate any psychiatric complaints or treatment. Based on the foregoing, none of the available service records demonstrate that a schizoaffective disorder was incurred in active service. However, this does not in itself preclude a grant of service connection. Indeed, service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). Nevertheless, a review of the post-service evidence does not support the conclusion that any current psychiatric problems are causally related to active service, for the reasons discussed below. Although post-service evidence reflects a current diagnosis of schizoaffective disorder, this evidence does not reflect complaints or treatment for a psychiatric disability until 2005, over two decades following service. The Board acknowledges one VA outpatient record which documents a prescription for antidepressants in 1992, however there is no additional discussion of the veteran's mental condition until 2005. Even assuming psychiatric pathology as early as 1992, the post-service clinical records do not reveal a continuity of symptomatology such as to enable a finding that the currently-diagnosed schizoaffective disorder is causally related to service. Indeed, evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service (more than 10 years), can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, other than stating in a memorandum by his representative that "his injuries [originate] from his period of service," the veteran has not expressly contended that he experienced schizoaffective disorder continuously since his active service. Moreover, the competent evidence does not otherwise show that the currently-diagnosed schizoaffective disorder is causally related to active service. Specifically, no medical professional has established a relationship between the veteran's current schizoaffective disorder and active duty. The Board has additionally considered the veteran's implied statements that his schizoaffective disorder was incurred during active duty. As a lay person however, he is not competent to offer opinions on medical diagnosis or causation, and the Board may not accept unsupported lay speculation with regard to medical issues. See Espiritu v. Derwinski, 2 Vet. App. 482 (1992); Moray v. Brown, 5 Vet. App. 211 (1993). Again, the Board notes that it is unfortunate that the majority of the veteran's service medical records are not available in their entirety. Nevertheless, the Board has had the benefit of reviewing administrative records from his service in the Air Force. This evidence, in conjunction with numerous post-service clinical records and his own statements have allowed the Board to thoroughly consider his claim and to provide a well-reasoned analysis as mandated by O'Hare. Next, the Board has considered whether presumptive service connection for chronic disease is warranted in the instant case. Under 38 C.F.R. § 3.309(a), psychoses are regarded as a chronic disease. However, in order for the presumption to operate, such disease must become manifest to a degree of 10 percent or more within 1 year from the date of separation from service. See 38 C.F.R. § 3.307(a)(3). Moreover, the regulations provide that the term "psychosis" refers to, among others, a schizoaffective disorder. See 38 C.F.R. § 3.384. As the evidence of record fails to establish any clinical manifestations of schizoaffective disorder within the applicable time period, the criteria for presumptive service connection on the basis of a chronic disease have not been satisfied. In sum, the Board acknowledges that the veteran has a current diagnosis of schizoaffective disorder. However, because of the absence of a medical nexus between his current complaints and active duty, and the amount of time that elapsed since military service without treatment, the evidence does not support a grant of service connection for a schizoaffective disorder. Further, a grant of service connection based on a presumptive basis is inappropriate in this case. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54- 56 (1990). II. Claim to Reopen Based on New and Material Evidence The veteran is additionally claiming entitlement to service connection for spinal stenosis with a herniated disc at the L4-5 region. The Board observes that a rating decision denying service connection was issued in June 2002. At that time, it was determined that his back disorder neither occurred in nor was caused by service. He did not appeal that decision and it became final. See 38 C.F.R. § 7105. He subsequently requested that his claim be reopened in November 2004, which was denied by the RO in December 2005. This December 2005 rating decision is the subject of the instant appeal. Based on the procedural history outlined above, the issue for consideration as to the veteran's back disorder is whether new and material evidence has been received to reopen the claim. There has been a regulatory change with respect to new and material evidence which applies prospectively to all claims made on or after August 29, 2001. See 66 Fed. Reg. 45,620-30 (Aug. 29, 2001) (codified at 38 C.F.R. § 3.156(a)). Because the veteran filed his most recent claim to reopen in November 2004, after this date, the new version of the law is applicable in this case. Under the revised regulation, "new" evidence is defined as 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) (2007). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). However, lay assertions of medical causation cannot serve as the predicate to reopen a claim under § 5108. See Moray v. Brown, 5 Vet. App. 211, 214 (1993). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for his claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999), but see 38 U.S.C.A. § 5103A (West 2002)(eliminates the concept of a well-grounded claim). As previously noted, the veteran's back condition claim was originally considered in June 2002. At that time, the claim was denied on the basis that his back condition neither occurred in nor was caused by service. That decision became final. When his request to reopen was last considered by the RO in December 2005, it was found that new and material evidence had not been received. In sum, the evidence of record at the time of the last final rating decision in June 2002, did not establish that any back disability was incurred in nor caused by active service. Evidence added to the record since the time of the last final RO denial in June 2002 includes: VA outpatient and inpatient treatment records from January 1990 through July 1996, and February through April 2005. The evidence also now includes administrative records from the veteran's service in the Air Force. The Board finds that the VA clinical records noted above serve as a basis for reopening the veteran's previously denied claim of entitlement to service connection for spinal stenosis with a herniated disc at the L4-5 region. Indeed, this evidence was not previously before agency decision makers and is not cumulative or redundant of evidence associated with the claims file at the time of the last final June 2002 denial. Moreover, because this evidence indicates a current disability of spinal stenosis, which had been lacking in June 2002, it relates to an unestablished fact necessary to substantiate the claim. In sum, the requirements under 38 C.F.R. § 3.156(a) have been satisfied and the claim of entitlement to service connection for spinal stenosis is reopened. Because it appears that the RO previously considered the merits of the underlying service connection claim in a December 2006 supplemental statement of the case, the Board may proceed with appellate review at this time without prejudicing the veteran. See Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993). III. Entitlement to Service Connection for a Low Back Disorder, Claimed as Spinal Stenosis with a Herniated Disc Having reopened the claim, the Board will now consider the veteran's claim on the merits. As mentioned above, service connection is warranted if it is shown that a veteran has a disability resulting from an injury incurred or a disease contracted in the line of duty, or for aggravation of a preexisting injury or disease in active military service. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. The Board has again considered the fact that the veteran's service medical records are presumed lost. Based on the documents available from service, it is noted that none demonstrate that a back disorder was incurred in active service. However, this does not in itself preclude a grant of service connection. Indeed, service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). Nevertheless, a review of the post-service evidence does not support the conclusion that any current back problems are causally related to active service, for the reasons discussed below. Although post-service evidence reflects a diagnosis of spinal stenosis as early as September 1992, the evidence also reflects normal back findings in February 1990, December 1991, and April 1992. A VA treatment report in September 1992 and a subsequent treatment note from November 1992 additionally report that the veteran had had recurrent back pain since a motor vehicle accident in 1989, several years after discharge. A medical examination in April 1992 contains a statement from the veteran that he began to have back pain around 1979, however it did not become worse until 1989. It is noted that 1989 is the year that the veteran has indicated in treatment records that he was involved in a motor vehicle accident. An additional treatment note from November 1992 diagnoses the veteran's back problems as "congenital spinal stenosis." Based on the foregoing inconsistencies, the post-service clinical records do not reveal a continuity of symptomatology such as to enable a finding that the currently-diagnosed spinal stenosis is causally related to service. In fact, it appears that although the veteran has suffered and continues to presently suffer from back pain, there are periods of time in his treatment history where he has not had any reported back problems. He additionally has suffered from back pain as a result of a motor vehicle accident subsequent to service. In any event, evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Although the veteran contends that he has experienced back problems continuously since service, the earliest treatment record available in his file is from the 1990's, ten years following active service. The competent evidence does not otherwise show that the currently diagnosed spinal stenosis disorder is causally related to active service, in fact there is one report which diagnosis the veteran's back problems as congenital in nature. Specifically, no medical professional has established a relationship between the veteran's current back problems and active duty. The Board has additionally considered the veteran's statements that his back disorder was incurred during active duty. As a lay person however, he is not competent to offer opinions on medical diagnosis or causation, and the Board may not accept unsupported lay speculation with regard to medical issues. See Espiritu v. Derwinski, 2 Vet. App. 482 (1992); Moray v. Brown, 5 Vet. App. 211 (1993). Again, the Board notes that it is unfortunate that the veteran's service medical records are not available. Nevertheless, the Board has had the benefit of reviewing administrative records from the veteran's service in the Air Force. This evidence, in conjunction with numerous post- service clinical records and the veteran's own statements have allowed the Board to thoroughly consider the veteran's claim and to provide a well-reasoned analysis as mandated by O'Hare. Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Proper notice from VA must inform the claimant of any information and medical or lay 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 ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In claims to reopen, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy this requirement, the Secretary is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. In this case, the notice letter provided to the veteran in December 2004 included the criteria for establishing service connection for depression and spinal stenosis with a herniated disc at the L4-L5 region, and a notice letter in May 2007 included the criteria for reopening a previously denied claim and information concerning why the claim was previously denied. Although the May 2007 notice letter was sent to the veteran following the supplemental statement of the case, any question as to the adequacy of this notice is moot, as the claim has been reopened. Here, the VCAA duty to notify was satisfied by way of a letter sent to the veteran in December 2004 that fully addressed all four notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. He was also asked to submit evidence and/or information in his possession to the RO. There is no allegation from the veteran that he has any evidence in his possession that is needed for full and fair adjudication of these claims. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With respect to the Dingess requirements, in March 2006, the RO provided the veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. With that letter, the RO effectively satisfied the remaining notice requirements with respect to the issues on appeal. Therefore, adequate notice was provided to the veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist the veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. It is noted that the veteran's service medical records are presumed to have been lost. Given the absence of such records, the Board has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the- doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)(the BVA has a heightened duty in a case where the service medical records are presumed destroyed). It is noted that the claims folder does contain an in-service administrative records for the veteran's period of active service with the Air Force. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Due to the absence of consistent findings of a psychiatric disability and back disability for a decade following separation, the Board concludes that an examination is not necessary here. In this case, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA outpatient and inpatient treatment records. The RO additionally notified him on several occasions regarding the difficulty in obtaining his service medical records. A letter dated November 2005 informed him that several attempts had been made to obtain his records however these attempts were all unsuccessful. Significantly, neither the veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for an acquired psychiatric disorder, currently diagnosed as a schizoaffective disorder, is denied. New and material evidence having been received, the veteran's claim of entitlement to service connection for a low back disorder, claimed as spinal stenosis with a herniated disc at the L4-5 region, is reopened. The claim is granted to this extent. Service connection for a low back disorder, claimed as spinal stenosis with a herniated disc at the L4-5 region, is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs