Citation Nr: 1004615	
Decision Date: 01/29/10    Archive Date: 02/16/10

DOCKET NO.  04-41 999	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in 
Louisville, Kentucky


THE ISSUES

1.  Whether new and material evidence has been submitted to 
reopen a claim for service connection for a back disability 
involving the cervical and lumbosacral spines.  

2.  Entitlement to service connection for a back disability 
involving the cervical and lumbosacral spines. 


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. Donohue, Associate Counsel 


INTRODUCTION

The Veteran served on active duty in the United States Air 
Force from December 1966 to May 1968.  
This matter comes before the Board of Veterans' Appeals 
(Board) on appeal of a June 2003 rating decision by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Louisville, Kentucky. 

Procedural history

In an August 1982 rating decision, the RO denied the 
Veteran's claim of entitlement to service connection for 
residuals of a back injury.  The Veteran appealed and his 
claim was denied by the Board in an October 1983 decision. 

The Veteran attempted to reopen his previously-denied claim 
in November 1998.  His claim was denied by the RO in an 
October 1999 rating decision.  The Veteran was properly 
notified of the RO's decision.  He did not appeal.

In July 2002, the Veteran filed a new request to reopen his 
claim of entitlement to service connection for a back 
disability involving the cervical and lumbosacral spine.  
His claim was denied by the RO in the above-mentioned June 
2003 rating decision.  He has perfected an appeal.

In October 2007 and March 2009 the Board remanded the 
Veteran's claim for additional development.  A supplemental 
statement of the case (SSOC) was issued in September 2009 by 
the VA Appeals Management Center (AMC), which reopened and 
denied the Veteran's claim.  The case is once again before 
the Board. 


FINDINGS OF FACT

1.  In an unappealed October 1999 rating decision, the RO 
denied the Veteran's claim of entitlement to service 
connection for a back disability involving the cervical and 
lumbosacral spine.



2.  The evidence received since the RO's October 1999 
decision includes an etiological opinion suggesting a link 
between the Veteran's current disability and his active 
service which is so significant that it must be considered 
in order to fairly decide the merits of the claim.

3.  The evidence of record does not support a finding that a 
relationship exists between the Veteran's currently 
diagnosed degenerative joint disease of the cervical and 
lumbar spine and his military service.


CONCLUSIONS OF LAW

1.  The October 1999 RO decision denying service connection 
for a back disability involving the cervical and lumbosacral 
spine is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 
20.1103 (2009).

2.  Since the October 1999 rating decision, new and material 
evidence has been received to reopen the claim of 
entitlement to service connection for a back disability 
involving the cervical and lumbosacral spine.  38 U.S.C.A. § 
5108 (West 2002); 38 C.F.R. § 3.156 (2009).

3.  A back disability involving the cervical and lumbosacral 
spine was not incurred in or aggravated by the Veteran's 
active service, and may not be so presumed. 38 U.S.C.A. § 
1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309(a) 
(2009).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In October 2007 and March 2009, the Board remanded this case 
to the AMC in order to fulfill the notice requirements of 
the Veterans Claims Assistance Act of 2000 (the VCAA).  The 
Board also requested the AMC obtain the Veteran's VA 
outpatient treatment records from the Huntington, Kentucky 
VA Medical Center, records associated with his workers 
compensation claim, and records from the Social Security 
Administration (SSA).  The Veteran's claim was then to be 
readjudicated. 

The record reveals that the AMC sent the Veteran a 
corrective VCAA notice letter on October 30, 2007.  His VA 
treatment records, workers compensation records, and SSA 
records have been obtained and associated with his claims 
folder.  The Veteran's claim was then readjudicated in the 
September 2009 SSOC.  Thus, the Board's remand instructions 
have been fully complied with.  See Stegall v. West, 11 Vet. 
App. 268, 271 (1998) [where the remand orders of the Board 
are not complied with, the Board errs as a matter of law 
when it fails to ensure compliance]. 


Veterans Claims Assistance Act

The Board has given consideration to the VCAA.  The VCAA 
includes an enhanced duty on the part of VA to notify a 
claimant as to the information and evidence necessary to 
substantiate claims for VA benefits.  The VCAA also 
redefines the obligations of VA with respect to its 
statutory duty to assist claimants in the development of 
their claims.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002).  

The VCAA alters the legal landscape in three distinct ways: 
standard of review, notice and duty to assist.  The Board 
will now address these concepts within the context of the 
circumstances presented in this case.

After the evidence has been assembled, it is the Board's 
responsibility to evaluate the entire record.  See 38 
U.S.C.A. § 7104(a) (West 2002).  When there is an 
approximate balance of evidence regarding the merits of an 
issue material to the determination of the matter, the 
benefit of the doubt in resolving each such issue shall be 
given to the claimant.  See 38 U.S.C.A. § 5107 (West 2002); 
38 C.F.R. § 3.102 (2009).  

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the 
United States Court of Appeals for Veterans Claims (the 
Court) stated that "a veteran need only demonstrate that 
there is an 'approximate balance of positive and negative 
evidence' in order to prevail."  To deny a claim on its 
merits, the preponderance of the evidence must be against 
the claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 
(1996), citing Gilbert, 1 Vet. App. at 54.  As explained 
elsewhere in this decision, this standard does not apply to 
claims to reopen until such claims have in fact been 
reopened.

The VCAA requires VA to notify the claimant and the 
claimant's representative, if any, of any information and 
any medical or lay evidence not previously provided to VA 
that is necessary to substantiate the claim.  As part of the 
notice, VA is to specifically inform the claimant and the 
claimant's representative, if any, of which portion, if any, 
of the evidence is to be provided by the claimant and which 
part, if any, VA will attempt to obtain on behalf of the 
claimant.  See 38 U.S.C.A. § 5103 (West 2002); see also 
Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter 
from VA to an appellant describing evidence potentially 
helpful to the appellant but not mentioning who is 
responsible for obtaining such evidence did not meet the 
standard erected by the VCAA].

In addition, in Kent v. Nicholson, 20 Vet. App. 1 (2006), 
the United States Court of Appeals for Veterans Claims (the 
Court) specifically addressed VCAA notice requirements in 
the context of a veteran's request to reopen a previously 
and finally denied claim.  The Court found that VA must 
notify a claimant of the evidence and information that is 
necessary to reopen the claim, and must provide notice that 
describes what evidence would be necessary to substantiate 
the element or elements required to establish service 
connection that were not found in the previous denial.  

After careful review, the Board has concluded that the 
notice requirements of the VCAA have been satisfied with 
respect to the Veteran's claim to reopen the previously 
disallowed claim for service connection.  The Board observes 
that the Veteran was informed of the relevant law and 
regulations pertaining to his claims in a letters from the 
RO dated March 1, 2007, and October 30, 2007, which 
specifically detailed the evidentiary requirements for new 
and material evidence to reopen a previously-denied service 
connection claim, along with the evidentiary requirements 
for service connection.

The October 2007 VCAA letter informed the Veteran that his 
previous claim of entitlement to service connection for a 
back disability was denied and that this decision was final.  
He was informed that in order for VA to reconsider this 
issue, he must submit "new and material evidence."  
Specifically, he was advised that new evidence consists of 
evidence in existence that has been "submitted to the VA for 
the first time."  Material evidence was explained as 
evidence that pertains to the reason why the claim was 
previously denied.  The October 2007 VCAA letter further 
informed the Veteran that: "New and material evidence must 
raise a reasonable possibility of substantiating your claim. 
The evidence cannot simply be repetitive or cumulative of 
the evidence we had when we previously decided your claim."  
The Board notes that this language complies with the holding 
of the Court in Kent v. Nicholson, 20 Vet. App. 1 (2006).  
See also 38 C.F.R. § 3.156 (2009).

The Board notes that the language used in the October 2007 
letter substantially follows the regulatory language of 38 
C.F.R. § 3.156.  The Board further notes that the Veteran 
was provided with specific notice as to why his claim was 
denied and what evidence would be material to his claim in 
the last final denial of record. To wit, the RO informed the 
Veteran: "Your claim was previously denied because . . . VA 
examination found no residual disability for injury to the 
low back as a result of [an] in-service automobile accident.  
Therefore, the evidence you submit must relate to this 
fact."  As such, the Veteran was advised of the bases for 
the previous denial and what evidence would be necessary to 
reopen the claim. See Kent supra.  In any event, since the 
claim is being reopened, there can be no error based on any 
inadequate Kent notice.

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court 
observed that a claim of entitlement to service connection 
consists of five elements:  (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.  Because a service 
connection claim is comprised of five elements, the Court 
further held that the notice requirements of section 5103(a) 
apply generally to all five elements of that claim.  
Therefore, upon receipt of an application for a service 
connection claim, section 5103(a) and section 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.  This includes 
notice that a disability rating and an effective date for 
the award of benefits will be assigned if service connection 
is awarded.  

The Veteran was provided specific notice of the Dingess 
decision in the above-referenced March 2007 and October 2007 
letters which detailed the evidence considered in 
determining a disability rating, including "nature and 
symptoms of the condition; severity and duration of the 
symptoms; and impact of the condition and symptoms on 
employment."  The Veteran was also advised in the letter as 
to examples of evidence that would be pertinent to a 
disability rating, such as on-going treatment records, 
recent Social Security determinations and statements from 
employers as to job performance and time lost due to 
service-connected disabilities.  

With respect to effective date, these letters instructed the 
Veteran of the factors relevant in determining effective 
dates.  The Veteran was also advised of evidence that would 
be pertinent to an effective date determination, such as 
information about continuous treatment or when treatment 
began, service medical records the Veteran may not have 
submitted and reports of treatment while attending training 
in the Guard or Reserve. 

Furthermore, the letters informed the Veteran that VA would 
assist him with obtaining "relevant records from any Federal 
agency.  This may include medical records from the military, 
from VA Medical Centers (including private facilities where 
VA authorized treatment), or from the Social Security 
Administration."  With respect to private treatment records, 
the letter informed the Veteran that the VA would make 
reasonable efforts to obtain private or non-Federal medical 
records to include "records from State or local government, 
private doctors and hospitals, or current or former 
employers."  Furthermore, the VA included copies of VA Form 
21-4142, Authorization and Consent to Release Information, 
which the Veteran could complete to release private medical 
records to the VA.  

The letters further emphasized:  "If [there is] evidence 
[that] is not in your possession, you must give us enough 
information about the evidence so that we can request it 
from the person or agency that has it.  If the holder of the 
evidence declines to give it to us, asks for a fee to 
provide it, or VA otherwise cannot get the evidence, we will 
notify you.  It is your responsibility to make sure we 
receive all requested records that are not in the possession 
of a Federal department or agency." [Emphasis as in the 
original]

The Board acknowledges that the Veteran was not provided 
complete notice of the VCAA prior to the initial 
adjudication of his claims in June 2002.  The Board is of 
course aware of the Court's decision in Pelegrini v. 
Principi, 17 Vet. App. 412 (2004), which stands for the 
proposition that VCAA notice must be sent prior to 
adjudication of an issue by the RO.  However, following the 
issuance of October 2007 VCAA notice letter, the Veteran was 
allowed the opportunity to present evidence and argument in 
response.  His claim was readjudicated in the September 2009 
SSOC.  See Overton v. Nicholson, 20 Vet. App. 427, 437 
(2006) [a timing error may be cured by a new VCAA 
notification followed by a readjudication of the claim].  
Accordingly, the Veteran has not been prejudiced by the 
timing of the VCAA notice letter. 

In short, the record indicates that the Veteran received 
appropriate notice pursuant to the VCAA.

With respect to the duty to assist, the VCAA provides that 
VA shall make reasonable efforts to assist a claimant in 
obtaining evidence necessary to substantiate a claim for VA 
benefits, unless no reasonable possibility exists that such 
assistance would aid in substantiating the claim. See 38 
U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2009).  
However, the VCAA appears to have left intact the 
requirement that an appellant must first present new and 
material evidence in order to reopen a previously and 
finally denied claim under 38 U.S.C.A. § 5108 before the 
Board may determine whether the duty to assist is fulfilled 
and proceeding to evaluate the merits of that claim. It is 
specifically noted that nothing in the VCAA shall be 
construed to require VA to reopen a claim that has been 
disallowed except when new and material evidence is 
presented or secured, as described in 38 U.S.C.A. § 5108. 
See 38 U.S.C.A. § 5103A(f) (West 2002).

Once a claim is reopened, the VCAA provides that VA shall 
make reasonable efforts to assist a claimant in obtaining 
evidence necessary to substantiate the claimant's claim for 
a benefit under a law administered by the Secretary, unless 
no reasonable possibility exists that such assistance would 
aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 
2002).

The Board additionally observes that all appropriate due 
process concerns have been satisfied with respect to the 
Veteran's claim to reopen. See 38 C.F.R. § 3.103 (2009). The 
Veteran has been accorded the opportunity to present 
evidence and argument in support of his claim.  He has 
declined to exercise his option of a personal hearing. 

With respect to the Veteran's claim for service connection 
on the merits, the Board finds that reasonable efforts have 
been made to assist the Veteran in obtaining evidence 
necessary to substantiate his claim, and that there is no 
reasonable possibility that further assistance would aid in 
substantiating it.  In particular, the VA has obtained the 
Veteran's service treatment records, VA outpatient treatment 
records, records from the SSA, and workman's compensation 
records.  

Furthermore, the Veteran was provided with VA examinations 
in March 2005 and December 2006.  While the March 2005 
examiner did not have access to the Veteran's claims file or 
medical records, the reports of the December 2006 
examination reflects that the examiner reviewed the recorded 
the Veteran's current complaints, conducted an appropriate 
physical examination and rendered appropriate diagnoses and 
opinions consistent with the remainder of the evidence of 
record.  See Barr v. Nicholson, 21 Vet. App. 303 (2007); 
Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The 
Board therefore concludes that the December 2006 examination 
is adequate for rating purposes.  See 38 C.F.R. § 4.2 
(2009).  

The Board additionally observes that all appropriate due 
process concerns have been satisfied.  See 38 C.F.R. § 3.103 
(2009).  The Veteran has been accorded the opportunity to 
present evidence and argument in support of his claim.  He 
has declined to exercise his option of a personal hearing. 

Based on the foregoing, the Board concludes that VA has 
fulfilled all duties under the VCAA.  


Claim to Reopen

In general, service connection may be granted for disability 
or injury incurred in or aggravated by active military 
service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 
(2009).  

In order to establish service connection for the claimed 
disorder, there must be (1) medical evidence of a current 
disability; (2) medical, or in certain circumstances, lay 
evidence of in-service incurrence or aggravation of a 
disease or injury; and (3) medical evidence of a nexus 
between the claimed in-service disease or injury and the 
current disability.  See Hickson v. West, 12 Vet. App. 247, 
253 (1999).  The determination as to whether these 
requirements are met is based on an analysis of all the 
evidence of record and the evaluation of its credibility and 
probative value.  See Baldwin v. West, 13 Vet. App. 1, 8 
(1999).

In general, VA rating decisions that are not timely appealed 
are final.  See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 
20.1103 (2009).  Pursuant to 38 U.S.C.A. § 5108, a finally 
disallowed claim may be reopened when new and material 
evidence is presented or secured with respect to that claim.

The Board notes that the definition of material evidence was 
revised in August 2001.  See 66 Fed. Reg. 45,620, 45,630 
(Aug. 29, 2001) [codified at 38 C.F.R. § 3.156 (2009)].  
This change in the law pertains only to claims filed on or 
after August 29, 2001.  Because the Veteran's claim to 
reopen was initiated in July 2002, the claim will be 
adjudicated by applying the revised section 3.156, which is 
set out in the paragraph immediately following.

The revised regulation provides that new evidence means 
existing evidence not previously submitted to agency 
decision makers.  Material evidence means existing evidence 
that, by itself or when considered with previous evidence of 
record, related 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.  See 38 C.F.R. § 
3.156(a) (2009).

In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), 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 
Veteran's injury or disability, even where it would not be 
enough to convince the Board to grant a claim.

There must be new and material evidence as to each and every 
aspect of the claim that was lacking at the time of the last 
final denial in order for there to be new and material 
evidence to reopen the claim.  See Evans v. Brown, 9 Vet. 
App. 273 (1996).

For the purpose of establishing whether new and material 
evidence has been submitted, the credibility of the 
evidence, although not its weight, is presumed. See Justus 
v. Principi, 3 Vet. App. 510, 513 (1992).

Analysis

When the Veteran's claim for entitlement to service 
connection for a back disability was denied by the RO in 
October 1999, the record contained the Veteran's service 
treatment records, private medical records, and a July 1982 
VA examination report. 

The Veteran's service treatment records include his February 
1966 preentry examination which revealed his spine to be 
normal.  In February 1967, the Veteran was treated for 
complaints of neck pain; he indicated that he was involved 
in a swimming accident prior to enlistment that resulted in 
a fractured cervical vertebrae.  An X-ray of the cervical 
spine was negative for any bone or joint abnormality.  
Subsequent treatment records show that the Veteran was 
treated for complaints of back pain after falling in the 
latrine.  Mild back spasms were noted and he was diagnosed 
with a low back strain.  In April 1967, the Veteran was 
involved in a motor vehicle accident.  He complained of a 
sore neck and was observed to have neck muscle spasms but a 
full range of motion.  A September 1967 in-service 
examination noted that the Veteran had recurrent back pain 
from March 1967.  His May 1968 separation examination was 
negative for any complaints or diagnosis of a back 
disability. 

During a July 1982 VA neurological examination, the Veteran 
indicated that he fell and injured his back at work on 
February 11, 1980.  A July 1982 general medical examination 
did not reveal any disabilities of the spine.  On the 
contrary, X-rays revealed a normal lumbosacral spine and 
normal cervical spine.  

The record indicates that the Veteran was involved in a 
motor vehicle accident in February 1996.  Specifically, a 
tractor trailer the Veteran was driving hit a low overpass.  
Private treatment records from May 1996 document the 
Veteran's complaints of back and neck pain.  Physical 
examination revealed a loss of motion in the cervical and 
lumbar spine.  The private physician, Dr. G., stated that 
"x-ray reports of the cervical and lumbosacral spine . . . 
show some old compressive wedging and minimal spurring of 
the L2-3 vertebra and compressive wedging of his cervical 
spine."  A June 1996 X-ray revealed "very slight increased 
activity" of the T12 vertebrae "which may be degenerative in 
nature." 

In the October 1999 rating decision, the RO essentially 
found that the Veteran had not submitted evidence 
demonstrating that his current back disabilities were 
related to his military service. [Hickson element (3)].   
The Veteran was informed of the October 1999 rating decision 
in a letter from the RO dated October 13, 1999.  He did not 
perfect an appeal.  Accordingly, the decision became final. 
See 38 C.F.R. § 20.1103 (2009).

In July 2002, the Veteran requested that his claim be 
reopened.  After the RO denied the Veteran's claim in June 
2003, this appeal followed.  The Board notes that the RO 
subsequently found that the Veteran has submitted new and 
material evidence and reopened his claim for service 
connection.  See the September 2009 SSOC.  However, the 
Board must still determine on its own whether new and 
material evidence has been submitted before reopening the 
claim and adjudicating it on the merits.  See Barnett v. 
Brown, 83 F.3d 1380 (Fed. Cir. 1996) [before considering a 
previously adjudicated claim, the Board must determine that 
new and material evidence was presented or secured for 
claim, making RO determination in that regard irrelevant.]. 
See also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 
2001) [the Board has a jurisdictional responsibility to 
consider whether it was proper for the RO to reopen a 
previously denied claim].

In the October 1999 rating decision, the RO noted that the 
evidence did not demonstrate a relationship between the 
Veteran's current cervical and lumbosacral spine 
disabilities and his military service.  In essence, the RO 
denied the claim because Hickson element (3) was missing. 

In this case, the Board finds that the recently received 
evidence, specifically, a March 2005 VA examination and 
opinion, described in detail below, constitutes new and 
material evidence.  In short, the VA examiner stated that 
the Veteran's degenerative changes of the cervical spine are 
at least as likely as not caused by his 1967 and 1996 motor 
vehicle accidents.  This medical opinion is so significant 
that it must be considered in order to fairly decide the 
merits of the claim. See 38 C.F.R. § 3.156 (2009).  
Accordingly, the claim for service connection for a back 
disability involving the cervical and lumbosacral spines is 
reopened.




Claim on the Merits

The Board has reopened the Veteran's service connection 
claim and is considering moving forward to discuss the 
claims on their merits.  Before doing so, however, the Board 
must consider certain procedural concerns.

In Bernard v. Brown, 4 Vet. App. 384 (1993), the Court held 
that before the Board may address a matter that has not been 
addressed by the RO, it must consider whether the claimant 
has been given adequate notice of the need to submit 
evidence or argument, an opportunity to submit such evidence 
or argument, and an opportunity to address the question at a 
hearing, and whether the claimant has been prejudiced by any 
denials of those opportunities.

In the present case, the RO reopened the Veteran's claim and 
denied it on its merits in the January 2007 and September 
2009 SSOC.  The Veteran was informed why his claim for 
service connection failed on the merits, and he himself has 
submitted argument directly to the Board, which focused on 
the merits of his claim rather than on the narrower matter 
of whether new and material evidence was submitted. Thus, 
there are no due process problems, and there is no prejudice 
to him in the Board's considering his claim on the merits.

Upon reopening the claim, after the evidence has been 
assembled, it is the Board's responsibility to evaluate the 
entire record.  See 38 U.S.C.A. § 7104(a) (West 2002). When 
there is an approximate balance of evidence regarding the 
merits of an issue material to the determination of the 
matter, the benefit of the doubt in resolving each such 
issue shall be given to the claimant. See 38 U.S.C.A. § 5107 
(West 2002); 38 C.F.R. § 3.102 (2009).

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the 
Court stated that "a veteran need only demonstrate that 
there is an 'approximate balance of positive and negative 
evidence' in order to prevail." To deny a claim on its 
merits, the preponderance of the evidence must be against 
the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 
(1996), citing Gilbert, 1 Vet. App. at 54.

Crucially, the Justus presumption of credibility does not 
attach after a claim has been reopened. In evaluating the 
evidence and rendering a decision on the merits, the Board 
is required to assess the credibility, and therefore the 
probative value, of proffered evidence in the context of the 
record as a whole. See Madden v. Gober, 125 F.3d 1477, 1481 
(Fed. Cir. 1997).

The Board wishes to make it clear that although there may be 
of record new and material evidence sufficient to reopen the 
claim, this does not mean that the claim must be allowed 
based on such evidence.  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 veteran's injury or disability, even where it 
would not be enough to convince the Board to grant a claim.

Analysis

As noted above, in order for service connection to be 
granted, three elements must be present: (1) a current 
disability; (2) in-service incurrence of disease or injury; 
and (3) medical nexus. See Hickson, supra.

In this case it is undisputed that the Veteran has 
degenerative joint disease of the cervical and lumbar spine.  
See, e.g., the May 2003 VA examination report.  Hickson 
element (1) has therefore been satisfied.  

With respect to Hickson element (2), as discussed in detail 
above, the Veteran's service treatment records indicate that 
he fell in the latrine and was involved in a motor vehicle 
accident.  He was treated in-service for complaints of neck 
and back pain.  Accordingly, Hickson element (2) has been 
met. 

With respect to Hickson element (3), as noted above, the 
March 2005 VA examiner stated that the degenerative changes 
of the Veteran's cervical spine disability were at least as 
likely as not caused by his post-service tractor trailer 
accident and the in-service car accident.  In contrast, the 
December 2006 VA examiner stated that the Veteran's spine 
disabilities were not related to his active military service 
but instead are the result of his post-service injuries. 

In adjudicating a claim, the Board is charged with the duty 
to assess the credibility and weight given to evidence.  See 
Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. 
denied, 523 U.S. 1046 (1998).  Indeed, in Jefferson v. 
Principi, 271 F.3d 1072, 1076 (Fed. Cir. 2001), the United 
States Court of Appeals for the Federal Circuit, citing its 
decision in Madden, recognized that that Board had inherent 
fact-finding ability.  

The March 2005 VA examiner stated that the Veteran's 
cervical spine disability is at least as likely caused by 
his 1996 tractor trailer accident and the in-service motor 
vehicle accident. Based on a review of the VA examiner's 
report, as well as the medical evidence contained in the 
Veteran's claims folder, it is clear that this opinion is 
premised on statements made by the Veteran. See, e.g., Swann 
v. Brown, 5 Vet. App. 229, 233 (1993) [generally observing 
that a medical opinion premised upon an unsubstantiated 
account is of no probative value, and does not serve to 
verify the occurrences described]; see also LeShore v. 
Brown, 8 Vet. App. 406, 409 (1995) ["a bare transcription of 
a lay history is not transformed into 'competent medical 
evidence' merely because the transcriber happens to be a 
medical professional"].

In Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005), the 
Court reaffirmed that in evaluating medical opinion 
evidence, the Board may reject a medical opinion that is 
based on facts provided by the veteran that have been found 
to be inaccurate.  The Board may not, however, disregard a 
medical opinion solely on the rationale that the medical 
opinion was based on a history given by the veteran.  In 
this case, while the May 2005 VA examiner's opinion was 
based on the history provided by the Veteran, he did not 
adequately explain the almost thirty year gap between the 
Veteran's separation from service and his first diagnosed 
back disability, the lack of pertinent findings in the 1982 
VA examination, and the Veteran's postservice 1996 motor 
vehicle accident.  See Hernandez-Toyens v. West, 11 Vet. 
App. 379, 382 (1998) [the failure of the physician to 
provide a basis for his/her opinion goes to the weight or 
credibility of the evidence].

In contrast, the December 2006 VA examination report 
indicates that prior to rendering a medical opinion, the VA 
examiner reviewed the Veteran's claims folder, to include 
his medical history and service treatment records. After 
reviewing all the evidence, the examiner specifically noted 
that the Veteran was not diagnosed with a back disability 
upon separation from service and wasn't diagnosed with 
degenerative joint disease or degenerative joint disease 
until more than 30 years after separating from service.  The 
examiner concluded that the evidence indicates that the 
Veteran's "mild injuries during service have no role to play 
in his present problems." 

Because of its reliance on Veteran's medical history 
including a review of service treatment records and post 
service treatment records, the Board finds the opinion of 
the December 2006 VA examiner to be more probative than the 
opinion of March 2005 VA examiner who did not explain the 
basis of his opinion or review the Veteran's claims folder.  
In addition, the December 2006 VA examiner's conclusion 
appears to be congruent with the objective medical record 
over several decades, which does not contain evidence 
indicating that a chronic back disability existed prior to 
the February 1996 motor vehicle accident. 

The Board observes that in May 1996, Dr. G. stated that X-
ray reports "show some old compressive wedging and some 
minimal spurring off of the L2-3 vertebra and compressive 
wedging of his cervical spine which was determined [to be] 
old."  Dr. G. does not opine on the etiology of these 
findings.  However as noted above, the December 2006 VA 
examiner reviewed the Veteran's claims folder which included 
Dr. G.'s note and specifically found that the Veteran's 
current disability is the result of his post-service 
injuries.  Specifically, that the Veteran's in-service 
injuries had "no role to play in his present problems with 
[the] spine." 

To the extent that the Veteran and his representative 
contend that a medical relationship exists between his back 
disability and service, any such statements offered in 
support of the Veteran's claim do not constitute competent 
medical evidence and cannot be accepted by the Board.  See 
Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); 
see also 38 C.F.R. § 3.159(a)(1) [competent medical evidence 
means evidence provided by a person who is qualified through 
education, training, or experience to offer medical 
diagnoses, statements, or opinions].

Moreover, the Board cannot overlook that the evidence of 
record contains multiple statements from the Veteran 
indicating that his back disability began in 1996 and not 
during his military service.  For example, while seeking 
treatment in April 1996, the Veteran stated that he was in 
"good health" until February 1996 when he was involved with 
the tractor trailer accident.  He also denied "any previous 
history of . . . neck or back problems."  In connection with 
claim for benefits from the SSA, the Veteran "testified that 
his alleged disabling condition [cervical and lumbar strain] 
is directly related to injuries he received from the [1996] 
truck accident."  See the February 1999 SSA decision, page 
3; see also the claim for benefits, indicating that the 
disability first started on February 2, 1996.  To the extent 
the Veteran now argues that his back and neck disabilities 
are a result of his military service, the Board finds 
statements are not credible.  In this case there is no 
medical evidence of a chronic back disability until after 
the Veteran's 1996 post-service accident.  See Maxon v. 
Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) [noting that it 
was proper to consider the veteran's entire medical history, 
including the lengthy period of absence of complaint with 
respect to the condition now raised].

In this case, the weight of the probative evidence of record 
is against a finding of a nexus between the Veteran's spine 
disabilities and his military service.  Accordingly, Hickson 
element (3), medical nexus, has not been satisfied, and the 
Veteran's claim fails on this basis alone.

The Board observes where a veteran served for at least 90 
days during a period of war or after December 31, 1946, and 
manifests arthritis to a degree of 10 percent within one 
year from the date of termination of such service, such 
disease shall be presumed to have been incurred or 
aggravated in service, even though there is no evidence of 
such disease during the period of service.  38 U.S.C.A. §§ 
1101, 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309.  
However, the evidence does not show that the Veteran 
developed arthritis of the cervical or lumbosacral spines 
within one year of his separation from active duty.  On the 
contrary, X-rays of the Veteran's lumbosacral and cervical 
spines taken during the 1982 VA examination were interpreted 
as normal.  Accordingly service connection on a presumptive 
basis is not warranted.  

As noted above, the Veteran's service treatment records 
include the Veteran's report that he fractured a cervical 
vertebra prior to enlistment.  The Board observes that there 
is a statutory presumption of soundness on enlistment.  
Specifically, a veteran will be considered to have been in 
sound condition when examined, accepted and enrolled for 
service, except as to defects, infirmities, or disorders 
noted at entrance into service, or where clear and 
unmistakable (obvious or manifest) evidence demonstrates 
that an injury or disease existed prior thereto. 38 U.S.C.A. 
§ 1111 (West 2002); 38 C.F.R. § 3.304(b) (2009).  

With respect to the Veteran's statements that his cervical 
spine disability was aggravated during service, in this case 
the Board finds that the statutory presumption of soundness 
has not been rebutted by clear and unmistakable evidence.  
In particular, the Veteran's enlistment examination did not 
reveal any cervical spine abnormalities and an X-ray of the 
Veteran's cervical spine taken in February 1967 was negative 
for any bone or joint abnormality.  Since the statutory 
presumption of soundness on enlistment has not been 
rebutted, the matter of aggravation is moot.   

In sum, for reasons and bases expressed above, the Board 
concludes that a preponderance of the evidence is against 
the Veteran's claim of entitlement to service connection for 
a back disability involving the cervical and lumbosacral 
spine.  The benefits sought on appeal are accordingly 
denied.


	(CONTINUED ON NEXT PAGE)



ORDER

New and material evidence having been submitted, the claim 
for service connection for a back disability involving the 
cervical and lumbosacral spines is reopened, to this extent 
the appeal is granted.  

Service connection for a back disability involving the 
cervical and lumbosacral spine is denied.



____________________________________________
DAVID L. WIGHT
Acting Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs