Citation Nr: 0813166 Decision Date: 04/21/08 Archive Date: 05/01/08 DOCKET NO. 05-18 497 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for a low back strain. REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESSES AT HEARING ON APPEAL The appellant and his wife ATTORNEY FOR THE BOARD Jessica J. Wills, Associate Counsel INTRODUCTION The veteran served on active duty from March 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the benefits sought on appeal. The veteran appealed that decision to BVA, and the case was referred to the Board for appellate review. The Board remanded the case for further development in April 2007. That development was completed, and the case has since been returned to the Board for appellate review. A hearing was held on August 31, 2006, by means of video conferencing equipment with the appellant in St. Louis, Missouri, before Kathleen K. Gallagher, a member of the Board sitting in Washington, DC, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. The Board notes that regardless of what the RO has done in cases such as this, "the Board does not have jurisdiction to consider a claim which it previously adjudicated unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find." Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Although this claim does not involve a prior final denial by the Board but rather by the RO, the same statutory reopening requirements apply to prior final RO decisions. Suttmann v. Brown, 5 Vet. App. 127, 135 (1993). Therefore, the Board is required by statute to review whether new and material evidence has been submitted to reopen the claim. Thus, the Board has characterized the issue on appeal as whether the appellant has submitted new and material evidence to reopen the previously denied claim for service connection for a low back strain. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. An unappealed June 1971 rating decision most recently denied service connection for a low back strain. 3. The evidence received since the June 1971 rating decision, by itself, or in conjunction with previously considered evidence, does not relate to an unestablished fact necessary to substantiate the claim for service connection for a low back strain. CONCLUSIONS OF LAW 1. The June 1971 rating decision, which denied service connection for a low back strain, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.204, 20.1103 (2007). 2. The evidence received subsequent to the June 1971 rating decision is not new and material, and the claim for service connection for a low back strain is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.156(a), 20.1105 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In this case, the RO did provide the appellant with notice in July 2004, prior to the initial decision on the claim in September 2004, as well as in March 2006 and April 2007. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. The RO informed the veteran in the notice letters about the information and evidence that is necessary to reopen his previously denied claim. Specifically, the July 2004 and April 2007 letters stated that the evidence must show that the veteran had an injury in military service or a disease that began in, or was made worse during military service, or that there was an event in service that caused injury or disease; that he has a current physical or mental disability; and, that there is a relationship between his current disability and an injury, disease, or event in military service. The April 2007 letter also noted that the veteran's claim for service connection for a low back strain had been previously denied and informed him that new and material evidence was needed to reopen his claim. The April 2007 letter explained that new means that the evidence must be in existence and be submitted to VA for the first time. It was also noted that the additional existing evidence must pertain to the reason the claim was previously denied in order to qualify as material. The April 2007 letter further stated that the new and material evidence must raise a reasonable possibility of substantiating the claim and that the evidence cannot simply be repetitive or cumulative of the evidence considered in the previous denial. In addition, the April 2007 letter specifically stated that his claim was previously denied because there was no evidence showing a relationship between the in-service strain and his current disorder. The letter also explained that he must submit evidence related to that fact. As such, the April 2007 letter notified the veteran to look to the bases for the previous denial to determine what evidence would be new and material to reopen the claim. See Kent v. Nicholson, No. 04- 181, slip op. at 10 (U.S. Vet. App. Mar. 31, 2006) (law requires VA to look at the bases for the denial in the prior decision and to respond with notice that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial). Additionally, the May 2005 statement of the case (SOC) and the February 2006 and December 2007 supplemental statements of the case (SSOC) notified the veteran of the reasons for the denial of his application and, in so doing, informed him of the evidence that was needed to substantiate his claim. In addition, the RO notified the veteran in the notice letters about the information and evidence that VA will seek to provide. In particular, the July 2004 and April 2007 letters indicated that reasonable efforts would be made to help him obtain evidence necessary to support his claim, including that VA would request all records held by Federal agencies, such as service medical records, military records, and VA medical records. The veteran was also informed that a medical examination would be provided or that a medical opinion would be obtained if it was determined that such evidence was necessary to make a decision on his claim. The RO also informed the veteran about the information and evidence that he was expected to provide. Specifically, the July 2004 and April 2007 letters notified the veteran that he must provide enough information about his records so that they could be requested from the agency or person that has them. The July 2004 letter also requested that he complete and return the enclosed VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs, if there were any private medical records that he would like VA to obtain on his behalf. In addition, the July 2004 and April 2007 letters stated that it was the veteran's responsibility to ensure that VA receives all requested records that are not in the possession of a Federal department or agency. Finally, the July 2004 and April 2007 letters specifically notified the claimant that he should submit any evidence in his possession that pertains to the claim. Because each of the four notice requirements has been fully satisfied in this case, any error in not providing a single notice to the appellant covering all the requirements is harmless error. Further, during the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473, noted above, which 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. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In the present appeal, the veteran was provided with notice of the type of evidence necessary to establish a disability rating and effective date. In this regard, the Board notes that the March 2006 and April 2007 letters informed him that a disability rating was assigned when a disability was determined to be service-connected and that such a rating could be changed if there were changes in his condition. The letters also explained how disability ratings and effective dates were determined. In addition, the duty to assist the veteran has also been satisfied in this case. The veteran's service medical records as well as all available VA and private medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the veteran's claim. The veteran was also afforded a VA examination in September 2004 in connection with his claim for service connection for a low back strain, and he was provided the opportunity to testify at a hearing before the Board. The Board further observes that the duty to provide a medical examination and/or obtain a medical opinion in a claim for disability compensation benefits does not apply in cases involving an attempt to reopen a finally adjudicated claim unless new and material evidence is presented or secured. See 38 C.F.R. § 3.159(c)(4)(iii) (2007). VA has further assisted the veteran and his representative throughout the course of this appeal by providing them with a SOC and SSOCs, which informed them of the laws and regulations relevant to the veteran's claim. For these reasons, the Board concludes that VA has fulfilled the duty to assist the veteran in this case. Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). The Board observes that the veteran's claim for service connection for a low back strain was previously considered and denied by the RO in a rating decision dated in June 1971. The veteran was notified of that decision and of his appellate rights. In general, rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. In June 2004, the veteran essentially requested that his claim for service connection for a low back strain be reopened. In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. For applications to reopen filed after August 29, 2001, as was the application to reopen the claims in this case, new and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). As noted above, the veteran's claim for service connection for a low back strain was previously considered and denied. In that decision, the RO observed that the veteran's service medical records show that he was treated for low back pain in June 1970 and that he was diagnosed with a muscle strain at that time. However, the RO also noted that the veteran's separation examination made no reference to a back disorder and that he did not have any recurrent problem since that time. Therefore, the RO determined that service connection for a low back strain was not warranted. The evidence associated with the claims file subsequent to the June 1971 rating decision includes private medical records, September 2004 and January 2006 VA examination reports, and hearing testimony as well as the veteran's own assertions. However, the Board finds that such evidence is not new and material within the meaning of the laws and regulations set forth above, and as such, there is no basis to reopen the claim for service connection for a low back strain. With respect to the private medical records, the Board finds that they are new in that they were certainly not of record at the time of the June 1971 rating decision. However, despite documenting current treatment for a back disorder, those records are not probative in that they do not provide an opinion relating a current back disorder to his military service. As such, the records do not raise a reasonable possibility of substantiating the claim. Therefore, the Board finds that the private medical records are not new and material. As for the VA examination reports, the Board finds that they are new in that they were certainly not of record at the time of the June 1971 rating decision. However, the September 2004 and January 2006 VA joints examination reports are not probative in that they do not discuss the veteran's back disorder. The Board does observe that the September 2004 VA spine examination report did diagnose the veteran with degenerative joint disease of the lumbosacral spine. The examiner also opined that it was not likely that the disorder was secondary to his left knee disorder. However, the September 2004 VA spine examination report is not probative because it does not raise a reasonable possibility of substantiating the claim. Instead, the examiner's opinion weighs against the veteran's claim. Therefore, the Board finds that the September 2004 and January 2006 VA examination reports are not new and material. With respect to the veteran's hearing testimony as well as his other statements, the Board finds that the veteran's assertions alone cannot be dispositive of the issues for purposes of reopening the claims. The record on appeal does not indicate that the appellant has the expertise to provide an opinion that requires specialized knowledge, skill, experience, training or education, such as an opinion as to the etiology of hypertension or status post heart attack. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Generally, laypersons are not competent witnesses when it comes to offering medical opinions or diagnoses, and such evidence does not provide a basis on which to reopen a claim of service connection. Moray v. Brown, 5 Vet. App. 211 (1993). Thus, the veteran's assertions are not deemed to be "new and material evidence" and cannot serve to reopen the claim. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Significantly, the evidence missing at the time of the June 1971 rating decision continues to be absent. Specifically, there remains no medical evidence showing that the veteran currently has a low back strain that is related to his military service. Accordingly, the Board finds that new and material evidence has not been presented to reopen the veteran's previously denied claim for service connection for a low back strain. ORDER New and material evidence not having been submitted, the application to reopen a claim of entitlement to service connection for a low back strain is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs