Citation Nr: 0814913 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 05-40 755 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for degenerative joint disease of the lumbar spine (low back disability). REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Sorisio, Associate Counsel INTRODUCTION The veteran had active service from October 1948 to October 1950. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a July 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Louis, Missouri. In March 2008, a Travel Board hearing was held before the undersigned Veterans Law Judge and a transcript of that hearing is of record. FINDINGS OF FACT 1. In an unappealed October 1995 rating decision (veteran was notified on November 2, 1995), the RO denied the veteran's original claim of entitlement to service connection for a back condition on the bases of no in-service incurrence and no medical nexus to service. 2. Evidence submitted subsequent to the October 1995 rating decision does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim of service connection for a low back disability. CONCLUSIONS OF LAW 1. The RO's October 1995 rating decision denial of service connection for a back condition is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2007). 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for a low back disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (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, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 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 to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In March 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, 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. Upon receipt of an application for "service connection," therefore, VA is required 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. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court issued a decision that established new requirements with respect to the content of the VCAA notice for reopening claims. According to the Court, in the context of a claim to reopen, the Secretary must look at the bases for the denial in the prior decision and to respond by providing the appellant with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. Regarding the veteran's petition to reopen the claim for service connection for a low back disability, VA satisfied its duty to notify as to the claim by means of a February 2005 letter from the RO to the appellant. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The veteran was also asked to submit pertinent evidence and/or information in his possession to the AOJ. The February 2005 letter also referenced the previous final denial of a claim for service connection for a low back condition in October 1995 and noted that the service connection claim was denied because service medical records were negative for treatment of the claimed condition. Kent, 20 Vet. App. at 10. A March 2006 letter also informed the veteran as to the law pertaining to the assignment of a disability rating and effective date as the Court required in Dingess/Hartman. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that compliance with 38 U.S.C.A. § 5103 required that VCAA notice be provided prior to an initial unfavorable agency of original jurisdiction decision. Because the VCAA notice in this case was not completed prior to the initial AOJ adjudication denying the claim, the timing of the notice does not comply with the express requirements of the law as found by the Court in Pelegrini. Here, the Board finds that any defect with respect to the timing of the VCAA notice was harmless error. Although the notice was provided to the appellant after the initial adjudication, the claim was readjudicated thereafter, and the appellant has not been prejudiced thereby. The content of the notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and Dingess/Hartman. After the notice was provided, the case was readjudicated and a Supplemental Statement of the Case was provided to the veteran in December 2007. The veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. Therefore, not withstanding Pelegrini, to decide the appeal would not be prejudicial to him. Duty to assist With regard to the duty to assist, the claims file contains the veteran's service medical records and reports of post- service VA treatment and examination. Additionally, the claims file contains the veteran's statements in support of his claim, to include testimony at a Travel Board hearing. The Board has carefully reviewed his statements and testimony and concludes that there has been no identification of further available evidence not already of record. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the veteran's claim to reopen. The Board notes that VA does not have a duty to provide a VA examination if the claim is not reopened. The VCAA explicitly states that, regardless of any assistance provided to the claimant, new and material evidence must still be submitted to reopen a claim. 38 U.S.C.A. § 5103A(f); 38 C.F.R. § 3.159(c)(4)(C)(iii). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. New and material evidence 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). In this regard, the RO, as noted in the July 2005 rating decision, found that new and material evidence had not been submitted and denied reopening the claim. The July 2005 rating decision noted that the veteran had not provided any evidence that indicates a current back problem is related to service. Nevertheless, the question of whether new and material evidence has been received to reopen each claim must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). If the Board finds that no such evidence has been offered, this is where the Board's analysis must end; hence, what the RO may have determined in this regard is irrelevant. Jackson, 265 F.3d at 1369; Barnett, 83 F.3d at 1383. The Board has characterized the claim accordingly. It should be pointed out that VA promulgated amended regulations implementing the VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). There was a new provision, 38 C.F.R. § 3.156(a), which redefines the definition of "new and material evidence." This provision is applicable only for claims filed on or after August 29, 2001. The appellant's petition to reopen the claim for entitlement to service connection was received in 2004. As such, the amended provision is for application in this case and is set forth below. "New" evidence is defined as 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. 38 C.F.R. § 3.156(a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). However, lay assertions of medical causation cannot serve as the predicate to reopen a claim under 38 U.S.C.A. § 5108. See Moray v. Brown, 5 Vet. App. 211, 214 (1993). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for his claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999), but see 38 U.S.C.A. § 5103A (West 2002) (eliminating the concept of a well-grounded claim). The United States Court of Appeals for the Federal Circuit (Federal Circuit) recently held that the term "factual basis" is defined as the veteran's underlying disease or injury, rather than as symptoms of that disease or injury. Boggs v. Peake, 520 F.3d 1330, 1334-35 (Fed. Cir. 2008). Claims based on distinctly diagnosed diseases or injuries must be considered as separate and distinct claims. Id. at 1335. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in active service or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Discussion Historically, an October 1995 rating decision denied the veteran's original claim seeking service connection for a back condition based on a lack of complaint or treatment for a back condition in service and the lack of a medical nexus. The veteran was notified of the October 1995 rating decision via a letter dated November 2, 1995. The appellant did not perfect an appeal of this decision, and it became final. 38 U.S.C.A. § 7105. The Board notes that the claim denied in October 1995 and the current claim to reopen are based on the same factual basis as they are both claims involving the diagnosed disability of degenerative joint disease of the lumbar spine. See Boggs, 520 F.3d at 1334-35. Indeed, since filing his petition to reopen, the record does not reflect that additional medical evidence related to the veteran's low back disability has been added to the claims file. The Board will now review the evidence of record at the time of the last final denial for a low back disability in October 1995. The veteran's available service medical records include an October 1950 report of medical examination that revealed no significant abnormalities of the veteran's spine. The record, in October 1995, also contained a daily sick report log from March 1950 to August 1950, which indicated that the veteran reported to sick call three times during this period of time. However, the daily sick report log does not indicate the reason for the veteran's visit to sick call. The Board further notes a VA Form 21-3101, dated in July 1995, indicates that veteran's service medical records are missing and that no Surgeon General's Office (SGO) records were available. The VA Form 21-3101 also indicated that if these records were on file on July 12, 1973 they may have been destroyed in a fire on that date. In a statement, dated in September 1995, the veteran stated that he had no military medical records in his possession. Additionally, at the time of the last final denial, the record also contained a letter by D.L.R., D.C., dated in June 1995, indicating that the veteran had been in a car accident in 1990 and that X-rays were made of his spine, but no treatment was given. Also of record was the report of a VA examination conducted in October 1995. The VA examiner diagnosed the veteran with an essentially "normal back examination, spinal examination." X-rays taken at that time revealed an impression of a narrowing of the spinal canal at L4-L5, with narrowing of the intervertebral disk space and degenerative joint disease of the articular face of L5. The Board notes that neither the VA examination report nor the record from the private doctor contained nexus opinions. The evidence added to the record subsequent to the last final denial, in October 1995, includes statements and testimony by the veteran that he received treatment for a low back condition while stationed in Japan during active duty. After getting the dates of treatment in Japan from the veteran as indicated in a VA Form 119, dated in January 2004, a request was made for the veteran's active duty clinical records using the information provided by the veteran. A response to this request indicated that veteran's clinical records were retired to the veteran's personnel jacket, which were fire related. See Request/Response, dated in February 2005. The record also contains a RO memorandum, dated in July 2005, finding that the veteran's service records were unavailable. This memorandum documented the efforts taken to secure the veteran's service records. A letter, dated in July 2005, notified the veteran of the unsuccessful attempts to obtain his service records from the National Personnel Records Center. It is also noted that the veteran, in a February 2005 statement, indicated that he had received treatment for his back condition from VA in the 1950s. The RO requested the veteran's VA records from the 1950s, but an e-mail of record, dated in March 2007, indicated that the there were no records for the veteran from the 1950s. The e-mail suggested another location for these records. The RO requested the veteran's records from the newly identified location, but a response noted that the records were not retrievable based on the provided information and that after a thorough search of the archives, the records were not found. See Response by Medical Records Technician, dated in August 2007. See also VA Memorandum, dated in November 2007 (finding formally that the veteran's treatment records from the St. Louis VA Medical Center from 1950 to 1959 were unavailable). Since the last final denial in October 1995, VA treatment records were added to the record. A review of these records did not reveal treatment for a low back disability. No other competent clinical evidence was added to the record since the veteran requested that his claim be reopened in 2004. After a review of the evidence submitted by the veteran since the October 1995 rating decision, the Board finds that it is cumulative and redundant of the evidence of record at the time of the last prior final denial and it does not raise a reasonable possibility of substantiating the claim. The new evidence, as described above, only confirms the unavailability of the veteran service medical records. Moreover, there is no competent medical evidence of record linking a current low back disability to his period of active duty. The only evidence doing so consists of the veteran's statements and testimony to that effect. Since the veteran has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical causation, he is not competent to express a probative opinion regarding medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In the absence of clinical evidence establishing a nexus to service, the Board concludes that the additional evidence is not new and material and the claim for service connection for degenerative joint disease of the lumbar spine denied. Further, the Board finds that the veteran's statements do not raise a reasonable possibility that a current low back disability is linked to service when considered in conjunction with the record as a whole. Accordingly, the Board finds that what was missing at the time of the prior final denial in October 1995 remains deficient, namely evidence that the veteran currently has a current low back disability that is related to his military service. The Board has considered the doctrine of giving the benefit of the doubt to the veteran, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2007), but does not find that the evidence is of such approximate balance as to warrant its application. ORDER New and material evidence not having been received, the claim for service connection for degenerative joint disease of the lumbar spine is not reopened. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs