Citation Nr: 0813171 Decision Date: 04/22/08 Archive Date: 05/01/08 DOCKET NO. 03-32 156A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of service connection for degenerative disc disease (DDD) of the cervical spine with C-7 radiculopathy. 2. Entitlement to service connection for DDD of the cervical spine with C-7 radiculopathy to include as secondary to service-connected residuals of an injury to the right scapula. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD A.M. Ivory, Associate Counsel INTRODUCTION The veteran had active military service from an October 1954 to October 1956. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2003 RO rating decision. The veteran testified at a hearing before the undersigned Veterans Law Judge in March 2008. The Board in this case must initially address the question of whether new and material evidence has been received to reopen the claims, because the issues go to the Board's jurisdiction to reach and adjudicate the underlying claims de novo. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). In other words, the Board is required to first address whether new and material evidence has been presented before the merits of a claim can be considered. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The veteran's appeal has been advanced on the Board's docket be reason of his advanced age. See 38 U.S.C.A. § 7107(a)(2)(C) (West 2002); 38 C.F.R. § 20.900(c) (2007). FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issues on appeal has been accomplished. 2. After the veteran timely appealed from an October 1998 rating decision denying his original claim of service connection for a neck disorder, the Board in a decision promulgated in a July 2000 denied the appeal on the basis that the veteran had not presented a well-grounded claim; the veteran did enter a timely appeal. 3. The evidence received since the July 2000 Board decision when considered by itself or in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim for service connection. 4. The currently demonstrated DDD of the cervical spine is not shown to be due to any injury or other event or incident of his active service; nor is it shown to have been caused or aggravated by the service-connected residuals of an injury to the right scapula. CONCLUSIONS OF LAW 1. New and material evidence has been submitted to reopen the previously denied claim of service connection for DDD of the cervical spine. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2007); 38 C.F.R. § 3.156 (2007). 2. The veteran's disability manifested by DDD of the cervical spine is not due to disease or injury that was incurred in or aggravated by service; nor is it proximately due to or the result of the service-connected residuals of an injury to the right scapula. 38 U.S.C.A. §§ 1101, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist Initially, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2005). To implement the provisions of the law, VA promulgated regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Considering the duties imposed by VCAA and its implementing regulations, the Board finds that all notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. In September 2001, prior to the rating decision on appeal, the RO sent the veteran a letter informing him that to establish entitlement to service-connected compensation benefits the evidence must show credible supporting evidence of a disease or injury that began in or was made worse during service, or that there was an event in service which caused injury or disease; a current physical or mental disability; and a relationship between the current disability and an injury, disease or event in service. The September 2001 letter also notified the veteran of the reopening criteria and the criteria for establishing the underlying claim for service connection. Kent v. Nicholson, 20 Vet. App. 1 (2006). The veteran was afforded time to respond before the RO issued the May 2003 rating decision on appeal. The Board accordingly finds that the veteran has received sufficient notice of the information and evidence needed to support his claim and has been afforded ample opportunity to submit such information and evidence. The September 2001letter also satisfies the statutory and regulatory requirement that VA notify a claimant, what evidence, if any, will be obtained by the claimant and what if any evidence will be obtained by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). The September 2001 letter advised the veteran that VA is responsible for getting relevant records from any Federal Agency including medical records from the military, VA hospitals (including private facilities where VA authorized treatment), or from the Social Security Administration. The letter also advised the veteran that VA must make reasonable efforts to help the veteran get relevant records not held by any Federal agency, including State or local governments, private doctors and hospitals, or current or former employers. A March 2006 letter stated that if you have any information or evidence that you have not previously told us about or given, to us, and that information or evidence concerns the level of your disability or when it began please tell us or give us the evidence now. In the decision of Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that proper VCAA notice should notify the veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; (3) the evidence, if any, to be provided by the claimant; and (4) a request by VA that the claimant provide any evidence in the claimant's possession that pertains to the claim(s). As explained, all four content-of-notice requirements have been met in this appeal. Pelegrini also held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," the Secretary receives a complete or substantially complete application for VA-administered benefits. In that case, the Court determined that VA had failed to demonstrate that a lack of such pre-adjudication notice was not prejudicial to the claimant. As indicated, in the matters now before the Board, documents fully meeting the VCAA's notice requirements were provided to the veteran after the rating action on appeal. However, the Board finds that any arguable lack of full pre-adjudication notice in this appeal has not, in any way, prejudiced the veteran. The Board notes that the Court has held that an error in the adjudicative process is not prejudicial unless it "affects a substantial right so as to injure an interest that the statutory or regulatory provision involved was designed to protect such that the error affects 'the essential fairness of the [adjudication].'" Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board finds that, in this appeal, any delay in issuing section 5103(a) notice was not prejudicial to the veteran because it did not affect the essential fairness of the adjudication, in that his claim was fully developed and readjudicated after notice was provided. As indicated, the RO gave the veteran notice of what was required to substantiate the claim on appeal, and he was afforded an opportunity to submit such information and/or evidence. Hence, the Board finds that any failure on VA's part in not completely fulfilling the VCAA notice requirements prior to the RO's initial adjudication of the claims is harmless. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998); Cf. 38 C.F.R. § 20.1102 (2006). More recently, the Board notes that, on March 3, 2006, during the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), 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 (veteran status, existence of a disability, connection between the veteran's service and that disability, degree of disability, and effective date pertaining to the disability). In this appeal, the first Dingess element (veteran status) is not at issue, and as noted above the September 2001 letter advised the veteran of the second and third Dingess elements (existence of a disability and connection between the veteran's service and that disability). In regard to fourth and fifth Dingess elements (degree of disability, and effective date pertaining to the disability), the RO advised the veteran of these elements in March 2006. The Board's decision denies service connection for the claimed disability, so no degree of disability or effective date will be assigned. There is accordingly no possibility of prejudice to the veteran under the notice requirements of Dingess. The Board also notes that there is no indication whatsoever that any additional action is needed to comply with the duty to assist the veteran in connection with the claim on appeal. The veteran's service medical records and post-service VA medical records have been associated with the claims file. Neither the veteran nor his representative has identified, and the file does not otherwise indicate, that there are any other VA or non-VA medical providers having existing records that should be obtained before the claims are adjudicated. The veteran was afforded a VA examination in April 2003. The veteran was afforded a hearing before the undersigned Veterans Law Judge in March 2008. Under these circumstances, the Board finds that the veteran is not prejudiced by the Board proceeding, at this juncture, with an appellate decision on the claim for service connection for cervical spine with C7 radiculopathy secondary to service-connected for injury of the right scapula. II. Analysis A. Petition to Reopen The Board notes that VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the claimant. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Regarding petitions to reopen filed prior to August 29, 2001, as in this appeal, Title 38, Code of Federal Regulations, 3.156(a) defines new and material evidence as evidence that was not previously submitted to agency decision makers which bears directly and substantially on the specific matter under consideration, which is neither cumulative nor redundant and which is, by itself or in combination with other evidence, so significant that it must be considered in order to fairly adjudicate the claim. 38 C.F.R. § 3.156(a) (2000). "New and material evidence" can be construed as that which would contribute to a more complete picture of the circumstances surrounding the origin of a veteran's disability or injury, even when it would not be enough to convince the Board to grant the claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In determining whether new and material evidence has been received, VA must initially decide whether evidence associated with the claims file since the prior final denial is, in fact, new. The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). For purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The veteran submitted his original claim of service connection for a cervical spine condition in June 1998. An RO October 1998 rating decision denied the claim, and a July 2000 decision of the Board denied the appeal on the basis that the veteran had not presented a well-grounded claim in that he had not shown competent evidence of a current cervical spine disability. The evidence that was associated with the record at the time of the July 2000 Board decision included the veteran's service medical records, the transcript of the veteran's March 2000 hearing and a July 1998 VA medical examination. The evidence associated with the record since the July 2000 Board decision includes an April 2003 VA examination and the veteran's March 2008 hearing testimony in March 2008. The Board finds that the additional material associated with the record since July 2000 includes new and material evidence. Specifically, the April 2003 VA examination. This evidence is new and material because it was not previously submitted to agency decision makers and it bears directly and substantially on the specific matter of whether the veteran's DDD of the cervical spine is due to the documented injury to the right scapula in service. These statements must be considered in order to fairly adjudicate the claim. B. Service connection for DDD of the cervical spine Service connection may be granted for disability resulting from disease or injury incurred or aggravated during a veteran's active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2006). Service connection also may be granted for disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service- connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). A careful review of the entire record shows that the veteran did not manifest complaints of a cervical spine disorder in service or for many years thereafter. The veteran had a VA examination in April 2003 that revealed some tenderness to palpation at the base of the cervical spine on the left side and some slight palpable spasm. The examiner noted that, in 2001, the veteran was diagnosed with DDD of the cervical spine; however, a nerve conduction test showed no evidence of acute right cervical radiculopathy. The VA examiner diagnosed DDD of the cervical spine per x-ray study, bilateral cervical spine neural exit foraminal encroachment per x-ray study, and moderate chronic C7 radiculopathy per EMG with nerve conduction velocities. The VA examiner opined that the veteran's current neck condition was "not related to his remote history shoulder injury." There is no competent evidence to show that the claimed neck or cervical spine condition is causally linked to any event or incident of the veteran's active service. The Board notes that generally when a veteran contends that a service-connected disorder has caused or aggravated a secondary disability, there must be competent medical evidence of such causation or aggravation. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995); Jones v. Brown, 7 Vet. App. 134 (1994). To prevail on the issue of secondary service causation, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin, supra. The Board notes that the veteran testified that that he had been treated and told that his cervical spine was secondary to his service-connected residuals of an injury of right scapula. A layperson is competent to testify in regard to the onset and continuity of symptomatology, including pain. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); (Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, a layperson is not considered capable of opining, however sincerely, in regard to causation of a disability. Routen v. Brown, 10 Vet. App. 183, 187 (1997), aff'd sub nom Routen v. West, 142 F3d 1434 (Fed. Cir. 1998). Significantly, the veteran has presented no competent evidence to support his assertions that the currently demonstrated cervical spine DDD was either caused or aggravated by his service-connected right shoulder disability. Given these facts, the Board finds that the reopened claim of service connection for DDD of the cervical spine to include as secondary to his service-connected residuals of an injury to the right scapula must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). ORDER As new and material evidence has been presented to reopen the claim of service connection for DDD of the cervical spine with C-7 radiculopathy secondary to his service-connected residuals of an injury to the right scapula, the appeal to this extent is allowed. Service connection for DDD of the cervical spine with C-7 radiculopathy secondary to his service-connected residuals of an injury to the right scapula is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs