Citation Nr: 0814906 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 06-14 677 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for residuals of a low back injury. 2. Entitlement to service connection for a disability manifested by left foot numbness, including as secondary to low back injury. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD L. Jeng, Associate Counsel INTRODUCTION The veteran had active duty from January 1986 to July 1992. This matter comes before the Board of Veterans' Appeals (Board) from a May 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The veteran perfected an appeal for service connection for muscle/nervous twitches. In a August 2007 rating decision, the RO granted service connection for myoclonic jerks. As this represents the full grant of the benefit sought, the issue is no longer before the Board. FINDINGS OF FACT 1. Service connection for residuals of a low back injury was denied in February 1993; the veteran did not appeal that decision. 2. Evidence received since the February 1993 rating action does not relate to a previously unestablished fact and does not raise a reasonable possibility of substantiating the veteran's service connection claim for residuals of a low back injury. 3. A disability manifested by left foot numbness is not shown on clinical evaluation. CONCLUSIONS OF LAW 1. The February 1993 rating action, denying service connection for residuals of a low back injury, is final. 38 U.S.C.A. § 7105 (West 1991 & Supp. 2000); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1992); currently 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2007). 2. New and material evidence has not been submitted sufficient to reopen the veteran's claim for entitlement to service connection for residuals of a low back injury. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). 3. A disability manifested by manifested by left foot numbness was not incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In correspondence dated in February 2005, the RO satisfied its duty to notify the veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2007). Specifically, the RO notified the veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the veteran was expected to provide. The veteran was instructed to submit any evidence in his possession that pertained to his claims. In light of the Board's denial of the appellant's claims, no disability rating or effective date will be assigned, so there can be no possibility of any prejudice to the appellant under the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). As to the claim for whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for residuals of a low back injury, the requirements set forth in Kent v. Nicholson, 20 Vet. App. 1 (2006) regarding new and material evidence claims have been met. The veteran has been notified of the evidence and information necessary needed to reopen his claim, to substantiate each element of the underlying service connection claim, and to substantiate the elements needed for service connection that were found insufficient in the prior denial on the merits. VA has done everything reasonably possible to assist the veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2007). Service medical records have been associated with the claims file. All identified and available treatment records have been secured. The veteran has been medically evaluated in conjunction with his claims. The duties to notify and assist have been met. Analysis Low Back Injury Initially, in December 1992, without review of service medical records, the RO denied service connection for a low back injury. Subsequently, after receipt and review of the veteran's service medical records, the RO denied service connection for status post low back injury in February 1993. The veteran was informed of that decision and he did not file a timely appeal. The February 1993 decision denying service connection for low back injury is final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302, 20.1103. In January 2005, the veteran sought to reopen his claim of service connection for residuals of a low back injury. To reopen the claim, the veteran must submit new and material evidence. See 38 U.S.C.A. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). 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. Id. 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. Id. If new and material evidence is submitted, the claim will be reopened and adjudicated on the merits. 38 U.S.C.A. § 5108. "The Board does not have jurisdiction to consider [the previously adjudicated claim] 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). T he Board is neither required nor permitted to analyze the merits of a previously disallowed claim if new and material evidence has not been submitted. Butler v. Brown, 9 Vet. App. 167, 171 (1996). No other standard than that articulated in the regulation applies to the determination whether evidence is new and material. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The evidence before VA at the time of the prior final decision consisted of the veteran's service medical records and a VA examination report. In denying the claim, the RO found that there was no indication of a low back disability in service, and contemporary evidence did not demonstrate residuals of a low back injury and there was only a showing of musculoskeletal low back pain. The Board finds that the evidence received since the last final decision in February 1993 while not cumulative of other evidence of record, does not relate to an unestablished fact and does not raise a reasonable possibility of substantiating his claim. Among the new evidence received since the February 1993 rating decision are VA and private treatment records and VA examination reports. In particular, a March 2006 private x- ray noted a normal lumbar spine. A July 2007 VA examination report noted an impression of mild to moderate multilevel degenerative changes in the lower cervical spine without evidence of cord impingement. While this evidence is new and is not cumulative or redundant, it does not relate to an unestablished fact and raise a reasonable possibility of substantiating the claim. Although the veteran has a cervical spine disability, there is no indication of residuals of a low back disability or a current low back disability related to service. Accordingly, the veteran's attempt to reopen his claim of entitlement to service connection for residuals of a low back injury fails. Disability Manifested by Left Foot Numbness The veteran contends that he has a disability manifested by left foot numbness as a result of his low back injury. When seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 C.F.R. § 3.303(a). Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service. 38 C.F.R. § 3.303(b). Establishing service connection on a secondary basis essentially requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). In this case, on VA examination in July 2007, the examiner noted the veteran's complaints of intermittent numbness of the left foot/leg in cold weather. Examination revealed normal sensation, pulses, skin and strength in the left foot. The examiner found no abnormality of the left foot. Service connection presupposes a diagnosis of a current disease. See Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Symptoms alone, without a diagnosed or identifiable underlying malady or condition, do not in and of themselves constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). In conclusion, the Board finds that there is no objective evidence of a disability manifested by left foot numbness. As the preponderance of the evidence is against the service connection 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). ORDER New and material evidence having not been submitted to reopen a claim of service connection for residuals of a low back injury, the appeal is denied. Service connection for a disability manifested by left foot numbness, including as secondary to low back injury is denied. ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs