Citation Nr: 0814255 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 03-19 393 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim for entitlement to service connection for lumbosacral strain. 2. Whether new and material evidence has been presented to reopen a claim for entitlement to service connection for defective vision due to macular degeneration. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD April Maddox, Associate Counsel INTRODUCTION The veteran served on active duty from February 1971 to February 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The veteran testified before the undersigned at a Travel Board hearing in November 2005. At that time he was represented by Texas Veterans Commission (TVC). A transcript of this hearing is associated with the claims folder. This claim was previously before the Board in March 2006 and was remanded for further development. In October 2006 the veteran revoked TVC as his representative and appointed Disabled American Veterans as his new representative. FINDINGS OF FACT 1. The RO has provided all required notice and obtained all relevant evidence necessary for the equitable disposition of the appellant's appeal. 2. The RO denied service connection for lumbosacral strain and defective vision, macular degeneration, bilateral in an unappealed rating decision dated in February 1973. 3. In an unappealed January 1988 rating decision, the RO denied the request to reopen the claims for service connection for defective vision and a lumbosacral back disorder. 4. Evidence received since the January 1988 rating decision regarding the veteran's claim for service connection for lumbosacral strain and defective vision, macular degeneration, bilateral is cumulative and redundant of the evidence previously of record and does not raise a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. The February 1973 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2007). 2. The January 1988 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2007). 3. New and material evidence has not been presented to reopen a claim for service connection for lumbosacral strain, and the appeal is denied. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). 4. New and material evidence has not been presented to reopen a claim for service connection for defective vision, macular degeneration, bilateral, and the appeal is denied. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This appeal arises out of the veteran's claim that his current lumbosacral strain and defective vision are related to his service in the United States Army from February 1971 to February 1973. With regard to the back, he essentially argues that although he first injured his back prior to service in 1969, he aggravated his back disorder while in service. With regard to the defective vision disorder, he argues that he had no problems with his eyes prior to service but first developed defective vision shortly after basic training and was, at that time, diagnosed with macular degeneration. In a November 2004 statement, the veteran indicated that although his vision disorder is inherited, he believes it got worse during basic training in service. Veterans Claims Assistance Act of 2000 Before proceeding with an analysis of this appeal, the Board must examine whether the requirements under the Veterans Claims Assistance Act of 2000 (VCAA) have been satisfied. The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA 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; (3) that the claimant is expected to provide; and (4) must ask the claimant provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to the claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). The Board finds that VA satisfied its duty to notify by means of letters sent to the veteran in November 2002, August 2003, and April 2006. These letters informed the veteran of what evidence was required to substantiate his claims and of his and VA's respective duties for obtaining evidence. Specifically, the November 2002 letter informed the veteran that he was previously denied service connection for a back disorder in February 1973 and that in order to reopen his claim, he must submit "new and material evidence" such as "documents, statements from lay persons, medical reports, or other similar evidence" which "bears directly and substantially upon the issue for consideration" and is not cumulative or redundant evidence which reinforces a previously established point. The August 2003 letter informed the veteran of the status of his claim. Finally, in the April 2006 letter the veteran was informed of the specific reasons that his claims for service connection for a back disorder and eye disorder were previously denied. He was informed that the evidence needed in his case must relate to the reasons for the prior denial. Additionally, the April 2006 letter informed the veteran that if "there is any other evidence or information that you think will support your claim, please let us know." See 38 C.F.R. § 3.159(b)(1). In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the U.S. Court of Appeals for Veterans Claims held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. The Board recognizes that the November 2002 letter failed to mention that in addition to the veteran's claim for lumbosacral strain, his claim for defective vision was also previously denied in February 1973 and thus required the submission of new and material evidence to reopen the claim. This error was corrected, however, by the April 2006 letter. The Board also recognizes that the April 2006 was provided to the claimant after the initial unfavorable AOJ decision in January 2003. However, the Board finds that any defect with respect to the timing of the VCAA notice requirement was harmless error. Although the April 2006 notice was provided to the appellant after the initial adjudication the claim it was subsequently readjudicated in a September 2006 SSOC. Thus, the Board finds that the veteran has not been prejudiced in this regard. See Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006) (if compliant VCAA notification is not provided prior to VA's decision on the claim, this timing defect may be cured by sending new (compliant) VCAA notification, followed by readjudication of the claim); Prickett v. Nicholson, 20 Vet. App. 370, 377 (2006). 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 (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. 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, 19 Vet. App. at 483. 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. The April 2006 notice letter contains the requirements set out in Dingess/Hartman. Also 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 appeal of Kent v. Nicholson, 20 Vet. App. 1 (2006). That decision held, in essence, that VA must notify a claimant of the evidence and information that is necessary to reopen the claim, as well as the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit sought. In the present case, as discussed above, in the April 2006 letter, VA provided adequate notice as to the evidence required to both reopen the claims for the back and defective vision disorders as well as establish entitlement for service connection for these disorders. As the Board finds that the duty to notify the veteran as to the evidence needed to substantiate his claim was satisfied, the Board must now examine whether the duty to assist was satisfied. The VCAA provides that VA has a duty to assist a claimant in obtaining evidence necessary to substantiate his or her claim for VA benefits. See 38 U.S.C.A. § 5103A. This assistance specifically includes obtaining all relevant records medical records. 38 U.S.C.A. § 5103A(c)(2) and (d). In the present case, the claims folder contains all available service medical records, VA treatment records, and available private medical records. In November 2006 the veteran submitted a recent private treatment record dated in October 2006. Subsequently, in April 2007 he submitted a waiver of RO consideration of this report. 38 C.F.R. § 20.1304(c). In written statements, the veteran indicated that his VA treatment was at the VA medical facility in Palestine, Texas, and such records are contained in the claims file. At the November 2005 hearing, the veteran indicated that he was not currently receiving treatment for his back or his vision. The Board has carefully reviewed the record, and is satisfied that all relevant records are in the file. Although a VA examination was not provided, the requirement to provide a VA examination only applies to a claim to reopen a finally adjudicated claim if new and material evidence was presented. 38 C.F.R. § 3.159(c)(4)(C)(iii). As the Board finds that new and material evidence was not presented in this case, there is no duty to provide a VA examination. Accordingly, the Board finds that VA has satisfied its duty to notify and to assist pursuant to the VCAA, see 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159, and the Board will proceed with an analysis of this appeal. Analysis The veteran submitted an original claim for service connection for a back and defective vision disorders in February 1973. The RO denied that claim in a February 1973 rating decision, finding that the veteran's lumbosacral strain and defective vision due to macular degeneration both pre-existed service and were not aggravated during service. Specifically, the RO noted that private medical records dated prior to service in March 1969 show a back injury in a packing plant accident. The RO also noted that an October 1971 in-service eye examination showed that the veteran's macular degeneration existed prior to service and was not aggravated in service. Although the RO provided notice of the denial, the veteran did not initiate an appeal. Thus, the rating decision of February 1973 is final. 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2007); 38 U.S.C.A. § 7105(c) (West 2002). In December 1987 the veteran filed a claim for reconsideration of his back and eye disorders. He submitted private treatment records dated from March 1987 through November 1987 showing treatment for blindness resulting from juvenile macular degeneration. In a March 1987 private retinal consultation, the veteran reported that he had 20/20 vision upon entering service at age 21 but soon thereafter began slowly loosing the central vision in both of his eyes. The examiner noted that the veteran showed clinical signs suggestive of juvenile macular degeneration. By rating decision dated in January 1988 the RO continued the previous denial of service connection for the eye disorder, despite the new medical evidence, and found no new evidence pertaining to the back disorder. The RO provided notice of the denial in January 1988, but the veteran did not initiate an appeal and the rating decision became final. 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2007); 38 U.S.C.A. § 7105(c) (West 2002). In September 2002 the veteran filed a third claim for both the back and defective vision disorders. By rating decision dated in January 2003, the RO continued the denial of service connection for lumbosacral strain and defective vision due to macular degeneration, finding that the veteran had failed to submit new and material evidence to reopen his claims. The veteran submitted a notice of disagreement in February 2003 and a timely appeal was filed in July 2003. The matter is now before the Board for appellate review. As noted earlier, the RO's February 1973 decision, which denied service connection for lumbosacral strain and defective vision due to macular degeneration, and the January 1988 decision, which continued to deny those claims, are both final decisions. When a veteran seeks to reopen a final decision, the first inquiry is whether the evidence presented or secured since the last final disallowance of the claim is "new and material." Under 38 C.F.R. § 3.156(a), "new" evidence means existing evidence not previously submitted to agency decisionmakers. "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). If new and material evidence is presented or secured with respect to a claim that has been finally disallowed, the claim shall be reopened and reviewed. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. In the present case, the February 1973 rating decision denied service connection because both the back and defective vision disorders were shown to have pre-existed service, and there was no medical evidence that these disorders were aggravated by the veteran's service. 38 C.F.R. §§ 3.303; 3.306. The January 1988 rating decision denied a request to reopen those claims as there was no new evidence pertaining to the back disorder and the "new" evidence regarding the eye disorder did not establish service connection. Thus, in order to reopen his claims, the veteran must submit medical evidence of aggravation of his disorders in service. Since the January 1988 denial, the RO has obtained several VA outpatient treatment records dated from October 2002 to May 2007 regarding the veteran's back disorder. Generally, these reports show complaints of chronic low back pain due to degenerative arthritis of the spine. Specifically, an October 2002 (CT) computed tomography scan of the lumbosacral spine showed "extensive productive thoracic spondylosis." Also, a May 2003 CT scan showed mild hypertrophic degenerative spurring at L2-3, L3-4, L4-5 and L5-S1 facet joints, mild anterior osteophyte formation at multiple lumbar vertebral end-plates. There was no evidence of herniated nucleus pulposus, significant disk bulging, or spinal stenosis. At the November 2005 hearing, the veteran admitted that prior to entering the Army in February 1971, he injured his back at a meat packing plant in 1969. However, the veteran testified that he completely recovered from that injury and had a normal back upon entering service. He also testified that he was treated for back pain while in service. The veteran has also submitted several lay statement stating the veteran's back problems were aggravated while in service. With regard to the defective vision claim, since the RO's January 1988 denial, the veteran has submitted a private medical record dated in October 2006, which notes a diagnosis of juvenile macular degeneration. The RO has also obtained several VA outpatient treatment records dated from October 2002 to May 2007. These records show continued diagnoses of macular degeneration. At the November 2005 hearing, the veteran testified that prior to entering the Army in February 1971, he had normal vision. He testified that he began having difficulty with his vision shortly at the end of Basic Training, at which point his vision began to rapidly deteriorate. He stated that he was basically blind by the time he left service. The veteran has also submitted numerous lay statements that essentially report observations of the veteran's vision worsening over the years. In a November 2004 statement, the veteran indicated that although his vision problem was "inherited" it was "activated" due to gas training in service. Upon review of the record, the Board finds that some of the evidence presented since the prior final denial of his claims in January 1988 is new, in that it was not previously of record, but it is not material, in that it does not raise a reasonable possibility of substantiating the claims. As noted, the basis of denial in February 1973, and the confirmed denial in January 1988, was that both the back and defective vision disorders were shown to have pre-existed service and there was no medical evidence that these disorders were aggravated by the veteran's service. This denial was confirmed in the January 1988 rating decision. The record shows that the veteran was complaining of back pain prior to service. In his September 1970 pre-induction Report of Medical History, the veteran noted the 1969 pre- service injury to his back and wrote "I have pains in lower back." He also responded "yes" when asked if he experienced back trouble. While the veteran's service medical records show complaints of back pain in February and March 1971, there appear to be no other complaints of back pain throughout the rest of the veteran's service and until February 1973. The first indication of a back disorder after service is an October 2002 CT scan showing spondylosis approximately 29 years after service. The newly submitted VA outpatient treatment records do not indicate that the veteran's back lumbosacral strain was aggravated in service. The record also shows that the veteran had trouble with his eyes prior to service. In his September 1970 pre-induction Report of Medical History, the veteran responded "yes" when asked if experienced "eye trouble." While the first diagnosis of macular degeneration appeared in service, an October 1971 in-service medical report shows that this disorder probably existed prior to service and was not service aggravated. The March 1987 and October 2006 private medical reports appears to support the theory that the veteran's macular degeneration existed prior to service with the diagnosis of juvenile macular degeneration. In summary, the Board has carefully reviewed all the evidence of record, but finds that the "new" evidence does not contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability. See Hodge, supra. Given that none of the new records raise a reasonable possibility of substantiating the claim, the evidence is not new and material, within the meaning of 38 C.F.R. § 3.156(a), and the claim is not reopened. 38 U.S.C.A. § 5108 (West 2002). The Board acknowledges the veteran's statements that he believes that his back and defective vision were aggravated by active service. However, although the veteran is competent to state that he observed a worsening of these disorders during service, the question as to whether they were aggravated by an incident of active service, within the meaning of 38 C.F.R. § 3.306(a) is a medical determination. At the time of the prior final denial of these claims, medical evidence of aggravation was not present in the file. To date, the file still contains no such evidence. Moreover, the veteran's contentions and testimony, while new, are essentially cumulative of prior contentions of record (i.e. those present at the time of the January 1988 and February 1973 denials). In conclusion, in the absence of new evidence that establishes a reasonable possibility that the veteran's back and defective vision disorders were aggravated during active service, beyond the natural progress of the disorders, there is no basis to reopen the claims, and the appeal is denied. ORDER New and material evidence not having not been received, the claim for service connection for lumbosacral strain, is not reopened, and the appeal is denied. New and material evidence not having not been received, the claim for service connection for defective vision due to macular degeneration, is not reopened, and the appeal is denied. ____________________________________________ LAURA H. ESKENAZI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs