Citation Nr: 0812857 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 04-32 852 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been received to reopen the veteran's claim of entitlement to service connection for a lower back disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Ernest Lee, Associate Counsel INTRODUCTION The veteran had active military service from February 1966 to February 1968. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of September 2003 by the Department of Veterans Affairs (VA) St. Petersburg, Florida Regional Office (RO). FINDINGS OF FACT 1. The veteran's claim for service connection for a lower back disorder was originally denied by the RO in May 1979. The RO also issued subsequent denials in March 1989, April 1989, October 1989, March 1993, April 1993, and November 1995. 2. The veteran was notified of the decisions and his appellate rights, but he did not perfect an appeal of any of the decisions. 3. The veteran sought to reopen his claim for service connection for a lower back disorder in July 2003. 4. The only additional evidence which has been presented since the November 1995 decision consists of treatment records from many years after service which do not contain any medical opinion linking a current lower back disorder to service. 5. The additional evidence presented since the November 1995 decision does not raise a reasonable possibility of substantiating the claim for service connection for a lower back disorder. CONCLUSIONS OF LAW 1. The November 1995 rating decision which denied the veteran's application to reopen the claim of service connection for a lower back disorder is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103 (2007). 2. New and material evidence has not been presented to reopen the claim of service connection for a lower back disorder, the claim remains denied. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claim for service connection for a lower back disorder was initially denied in May 1979. The RO issued subsequent decisions in March 1989, April 1989, October 1989, March 1993, April 1993, September 2003 and November 1995 determining that new and material evidence had not been received to reopen the claim of service connection for a low back disability. The prior decisions denying service connection for a lower back disorder are final based on the evidence then of record. 38 U.S.C.A. § 7105(c) (West 2007); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2007). The veteran requested that his claim be reopened in July 2003. The veteran is appealing the latest RO decision from September 2003 which reaffirms the finality of the prior decisions. A claim will be reopened if new and material evidence is submitted. See Hodge v. West, 155 F.3rd 1356 (Fed. Cir. 1998), 38 U.S.C.A. §5108; 38 C.F.R. § 3.156(a) (2007). 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. See Evans v. Brown, 9 Vet. App. 273 (1996); 38 C.F.R. § 3.156(a). If the Board determines that the evidence is new and material, the case is reopened and evaluated in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). In making this determination, the Board must look at all of the evidence submitted since the time that the claim was finally disallowed on any basis, not only since the time that the claim was last disallowed on the merits. The claim of service connection for a back disability was initially denied by an RO rating decision dated in May 1979. The RO determined that the veteran had not submitted medical evidence demonstrating a chronic back disability in service. Subsequent rating decisions in 1989, 1993 and November 1995 determined that new and material evidence had not been submitted to reopen the claim of service connection for a back disorder. In making this determination the RO, in essence, found that none of the additional evidence showed that the veteran had a chronic back disability which was incurred in service. The November 1995 rating decision is the last final rating decision of record. Evidence on file at the time of November 1995 rating decision included the veteran's service medical records from his period of service from February 1966 to February 1968. When treated in February 1967, the veteran related sustaining an injury to his lower back from lifting a piece of tank equipment. According to the service medical record, the veteran's course of treatment consisted of a combination of medication and physical therapy. The Board notes that the January 1968 Report of Medical History contains an answer of "yes" regarding the existence of recurrent back pain. However, a January 1968 Report of Medical Examination conducted for the purpose of separation from service indicated that the spine was within the normal range. A February 1968 treatment record shows that the veteran complained of back pain. The examiner stated: "pain occasionally radiates through back." The evidence of record also included an April 1979 VA examination report. This report shows that the veteran stated that he had a back disability which was incurred during an injury while in service. Physical examination revealed paravertebral muscle spasms and positive straight leg raising at 60 degrees. X-ray studies of the lumbar spine showed slight anterior lipping in the L4 and L5 segments. The examiner diagnosed symptomatic lumbosacral sprain. Also of record was a hospital discharge report from November 1988 to January 1989 which shows diagnoses of alcohol dependence and degenerative osteoarthritis. VA outpatient treatment records from 1994 and 1995 were also on file at the time of the November 1995 final decision. These records show that the veteran received treatment for complaints of low back pain, including sciatica. X-ray studies in 1995 showed lipping of all lumbar vertebrae. He was diagnosed as having mild degenerative joint disease. Evidence submitted following the November 1995 final rating decision includes VA treatment records from 2002 and 2003 which shows that the veteran received treatment for low back pain. He was diagnosed as having degenerative changes of the lumbar spine. Diagnostic studies performed between 2002 and 2003 showed abnormalities of the lumbar spine. A CT scan of the low back showed severe L4/5 end plate degeneration, L4/5 and L5/S1 facet degeneration and anterior auto-fusing bone spur at L3/4. A MRI of the lumbar spine showed severe L4/5 spinal stenosis with moderate L5/S1 spinal stenosis. The additional evidence showing that the veteran currently has a disability of the lumbar spine is not new, as evidence prior to the final November 1995 RO rating decision showed that he had a disability of the lumbar spine. The additional evidence is also not material. In this regard, none of the additional medical evidence shows that the veteran's current back disability is related to service. The Board notes that the evidence of record contains duplicate copies of the veteran's service medical records which were submitted to the RO in July 2003. The Board finds that these documents are not new and material because the information contained in the service medical records was previously considered by the RO at the time of the final November 1995 rating decision. The Board observes that the veteran has submitted additional arguments and assertions to the effect that his current back disability is related to service. This argument is duplicative of arguments made at the time of the last final RO decision in November 1995. Therefore, these arguments cannot be considered new. The additional arguments and assertions are also not material. In this regard, the veteran is not competent to offer opinions concerning the etiology of a medical disability. Thus, his assertion that his current back disability is related to service cannot be considered material evidence. In conclusion, the additional evidence, which has been presented since the last final decision in November 1995, consists only of treatment records from many years after service which do not contain any medical opinion attributing a current low back disorder to service. As such, the additional evidence presented since the final November 1995 decision does not raise a reasonable possibility of substantiating the claim for service connection for a low back disorder. In light of the above, the Board must conclude that, as new and material evidence to reopen the claim for service connection for a lower back condition has not been submitted, the claim must remain denied. Duty to Assist The Board finds the duty to assist and duty to notify provisions of the Veterans Claims Assistance Act of 2000 (VCAA) have been fulfilled and no further action is necessary under the mandate of the VCAA. The Board finds that the content requirements of a duty to assist notice have been fully satisfied. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The Board finds that an August 2003 VCAA letter meets the standards set forth in the case of Kent v. Nicholson, 20 Vet. App. 1, with respect to informing the veteran as to what additional information the RO requires to reopen his claim. See Kent v. Nicholson, 20 Vet. App. 1, 10 (2006). The August 2003 letter explains that the claim was previously denied in several past decisions, and that in order to reopen the claim, the veteran would have to submit new and material evidence to show that the condition was caused or aggravated by military service. The August 2003 letter provided a definition as to what constitutes new and material evidence. The August 2003 letter also explains the type of evidence that is necessary to support the underlying claim of service connection. He was also notified that VA would be responsible for obtaining service medical records and VA medical records, and that it would be the veteran's responsibility to ensure that the VA received any other medical records that were not held by a federal department or agency. The VA has no outstanding duty to inform the appellant that any additional information or evidence is needed. The Board concludes, therefore, that the appeal may be adjudicated without a remand for further notification. The Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. The veteran's service medical records and post service VA treatment records have been obtained. A hearing was scheduled in January 2008 but later cancelled by the veteran. The veteran has not requested another hearing. The Board does not have notice of any additional relevant evidence which is available but has not been obtained. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the veteran's claim. Therefore, no further assistance to the veteran with the development of evidence is required. ORDER New and material evidence has not been presented to reopen a claim for service connection for a low back disorder and the petition to reopen is denied. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs