Citation Nr: 0814954 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 07-32 265 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Clifford R. Olson, Counsel INTRODUCTION The veteran served on active duty from July 1948 to June 1952, with active duty for training including May to June 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. FINDINGS OF FACT 1. A claim for service connection for a back disorder was previously denied in April 2002. 2. The evidence submitted subsequent to April 2002 does not relate to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The April 2002 decision denying the claim of service connection for a back injury is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1104 (2007). 2. New and material evidence sufficient to reopen the claim of service connection for a back disorder has not been presented. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.156(a), 20.1100 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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 his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the VCAA duty to notify was satisfied by way of a letter sent to the veteran in April 2006 that fully addressed all four notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the veteran of what evidence was required to substantiate the claim and of the veteran's and VA's respective duties for obtaining evidence. The veteran was also asked to submit evidence and/or information in his possession to the AOJ. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the U.S. Court of Appeals for Veterans Claims (Court) clarified VA's duty to notify in the context of claims to reopen. With respect to such claims, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. To satisfy this requirement, the Secretary is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. Specific to requests to reopen, the claimant must be notified of both the reopening criteria and the criteria for establishing the underlying claim for service connection. See Kent. In this case, the notice letter provided to the veteran in April 2006 included the criteria for reopening a previously denied claim, the criteria for establishing service connection, and information concerning why the claim was previously denied. Consequently, the Board finds that adequate notice has been provided, as the veteran was informed about what evidence is necessary to substantiate the elements required to establish service connection that were found insufficient in the previous denial. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, upon receipt of an application for a service- connection claim, 38 U.S.C. § 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, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the veteran's claim, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to this claimed condition. Service Connection In order to establish service connection, three elements must be established. There must be medical evidence of a current disability; medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 U.S.C.A. §§ 101(16), 1110 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Arthritis may be presumed to have been incurred during active military service if it is manifest to a degree of 10 percent within the first year following active service. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). Reopened Claims The veteran's claim for service connection for his back disorder was previously denied, most recently by the RO in April 2002. The veteran did not submit a notice of disagreement with that decision in a timely manner, so it is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2007). However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the claim will be reopened and the former disposition reviewed. 38 U.S.C.A. § 5108 (West 2002). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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 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). Discussion At the time of the April 2002 RO decision the evidence included the following: Medical records for the period of service from July 1948 to June 1952 do not show any back injury, complaints, findings or diagnoses. On examination for separation from service, in June 1952, the veteran's spine and other musculoskeletal organs were normal. There is no competent medical evidence of arthritis during the first year after the veteran completed his active service. The earliest record of a back disability was made in October 1970, over 18 years after the veteran left active service. At that time, the veteran was a civilian employee at an Air Force base. He was admitted to the base hospital with severe low back pain. It was reported that he had chronic mild low back pain since 1963, which would be years after service. Over the last several days, the pain had increased suddenly with acute radiation into the right thigh and posterior calf. It was reported that he had not had any significant injuries, other than a fracture of the medial tibial plateau in the right knee, in 1966. X-rays showed the vertebral bodies were intact and disc spaces appeared normal. However, neurologic findings and pain led to diagnoses of herniated nucleus pulposus, L5-S1, on the right; and, degenerative disc disease. The veteran was briefly rehospitalized in December 1970 following the acute onset of right leg and low back pain. The diagnosis was degenerative disc disease L5-S1. In June 1971, while on active duty for training, he experienced acute low back pain. It was reported that the condition had previously resulted in 3 hospitalizations, but he responded to conservative treatment. The initial episode of back pain reportedly dated back 11 years (again, many years after service) when attempting to lift a foot locker. He was not hospitalized on that occasion. The October 1970 hospitalization was discussed. The current episode began when lifting some gear at an encampment and he felt sudden low back pain. X-rays were normal. The diagnosis was herniated nucleus pulposus, probably central, level undetermined. The veteran was transferred for further treatment in June 1971. He gave a history of low back pain since 1965, which had been intermittent. The last episode was in June 1971, when he felt something crack in his back. A myelogram disclosed a large L4-L5 defect on the right. A laminectomy at L4-L5, with diskectomy was performed. The final diagnosis was herniated nucleus pulposus, right, L4-L5. Service connection for a back injury was first denied in July 1972. The RO explained that it was incurred prior to the veteran's recent active duty for training and was not chronically aggravated during that period of active duty for training. The veteran was afforded a VA neurological consultation in September 1972. The veteran's history was discussed. It was reported that he had a history of back trouble dating back to approximately 1958, but it did not become severe until his June 1971 injury. Examination and testing resulted in a diagnosis of herniated nucleus pulposus, L5-S1, post operative, with residual hypesthesia, weakness and loss of reflexes. It was possible that the veteran might have another recurrent herniated disc at that time. In the September 1972 statement of the case, the RO explained that the veteran's back condition was incurred prior to his military service in May and June 1971, and followed its normally anticipated course. The veteran perfected an appeal and the Board affirmed the denial. In January 1984, the veteran reasserted his claim for service connection for a back injury while on active duty in June 1971. In January 1984, the RO responded that service connection for a back injury was previously denied and no evidence had been submitted to reopen that part of the claim. The veteran filed a notice of disagreement in March 1984 and the RO sent a statement of the case later that month. The veteran did not perfect a timely substantive appeal. The veteran sought to reopen his claim in February 2001. He stated that he injured his back for the first time while serving in Korea in 1951. He stated that that he was assigned as an air crash and rescue firefighter. During an attempt to save a pilot, he was knocked down and injured his back, but received no treatment, except "APC's" for pain. His second injury was reported to have been while on active duty for training in July 1971. At that time he was lifting equipment into a Jeep trailer. He reported that he continued to have back pain, which he treated with over-the-counter medication. He had surgery by a private physician in North Dakota, in the 1980's. He also reported his recent treatment. In a statement dated in February 2001, J. D. C., D.O., stated that upon review of the veteran's medical file, it was his opinion that the veteran's back disability was as likely as not a result of his injuries on active duty in 1951 and 1971. In a letter dated in March 2001, S. E. T., D.O., wrote that the veteran's service related activity contributed to his multi-level degenerative disc disease and subsequent lumbar decompression. The above evidence was of record and considered by the RO in its April 2002 decision, which found that the veteran had failed to provide new and material evidence to reopen his claim. He did not file a timely notice of disagreement. The current claim was received in February 2006. In it, the veteran repeated his report of injury while serving in a crash rescue capacity, in Korea, in 1951. The evidence received to reopen the claim consists of the following: Private hospital records for the veteran's March 1986 surgery. The history given at that time related a long history of back problems with surgery performed in 1971. This information is of record and is not new. The history went on to state that the veteran had a right lower extremity fracture in 1967, which led to shortening of the right lower extremity and subsequent low back problems. While this is a new medical opinion as to the cause of the veteran's back disorder, it does not support a connection to service, so it is not material to the claim. Another history was taken the following day. The veteran had chronic low back pain for many years, at least since 1969. The only injury to his back, in his memory was a pop followed by severe low back and bilateral leg pain, when in college lifting a heavy set of books. It was also noted that he had broken his right knee in 1967 and his right leg had been shorter than the left since then. There is nothing in the medical records of the 1986 surgery and follow-up that connects the veteran's back disorder to service, either by direct onset or increased disability. Therefore, these records are not material to reopen the claim. In July 2006, the RO received copies of the clinical records of S. E. T., D.O., covering the period from June 1995 to September 2000. The records noted previous surgeries, including laminectomy and discectomy times 2 at L4-L5. The most recent injury occurred in February 1994 when the boat the veteran was in hit a big wave and he fell, landing on his buttocks. There is no dispute that the veteran currently has a back disorder. Evidence of a current back disorder is cumulative and redundant and not new. There is nothing in these records that connects the current disorder to service; so, they are not material. In October 2006, copies of clinical notes covering the period from January 2005 to September 2006 were received from private physician R. O., M.D. Again, there is nothing in these records that connects the current disorder to service; so, they are not material. Conclusion In trying to reopen his claim, the veteran has repeated his report of a back injury in service, in 1951, while attempting to rescue a pilot. This information s not new, but redundant and cumulative. Medical records have also been obtained. These too are redundant and cumulative showing that the veteran has a current back disorder. There is nothing in the recently received records that connects a current back disorder to service, by incurrence or aggravation. The representative has specifically requested that the case be remanded to search for records of the 1951 crash, which the veteran has reported to be the incident when he hurt his back. Without new and material evidence, the claim cannot be reopened and remanded for further development. Also, such evidence would not be new or material. As a lay witness, the veteran is competent to report that the crash happened and that he experienced back pain at the time. The veteran previously provided that information for the claim decided in April 2002, so it would not be new. Further, it would not be material because whether the crash happened or whether the veteran experienced back symptoms at that time is not the issue. The issue is whether a chronic back disability resulted and evidence as to the crash would not produce that kind of medical opinion evidence. The Board has reviewed everything received since the last final denial in April 2002 and we can find nothing that is new and material to reopen the claim. ORDER New and material evidence has not been presented to reopen a claim for service connection for a back disorder. The request to reopen the claim is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs