Citation Nr: 1007187 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 08-19 144 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Muhlfeld, Associate Counsel INTRODUCTION The Veteran had active military service from November 30, 1975, through February 2, 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. FINDINGS OF FACT 1. By way of a June 1980 rating decision, the RO denied service connection for a low back disability; the Veteran did not appeal. 2. Evidence received since the June 1980 rating decision, which consists solely of statements by the Veteran, is new to the record in that it was not previously submitted to agency decisionmakers, but the newly submitted evidence does not raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence sufficient to reopen a claim of entitlement to service connection for a low back disability has not been received. 38 U.S.C.A. §§ 1131, 5108 (West 2002); 38 C.F.R. §§ 3.156, 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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). The 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 attempt to obtain on behalf of the claimant, and (3) any evidence that the claimant is expected to provide. 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. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board notes that effective May 30, 2008, VA amended its regulations governing VA's duty to provide notice to a claimant regarding the information necessary to substantiate a claim. The new version of 38 CFR 3.159(b)(1), removes the portion of the regulation which states that VA will request that the claimant provide any evidence in the claimant's possession that pertains to the claim. See 73 Fed. Reg., 23353-54 (April 30, 2008). Although the VCAA has changed the standard for processing Veterans' claims, the VCAA has left intact the requirement that new and material evidence be received in order to reopen a previously and finally denied claim under 38 U.S.C.A. § 5108. It is specifically noted that nothing in the Act shall be construed to require the Secretary 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). The Board notes that the Veteran was apprised of VA's duties to both notify and assist in correspondence dated in May 2007, prior to the adjudication of the Veteran's claim to reopen. Specifically regarding VA's duty to notify, the notifications to the Veteran apprised him of what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. The Veteran was also apprised of the criteria for assigning disability ratings and for award of an effective date, see Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Furthermore, he was informed of the requirement that new and material evidence must be received in order to reopen a claim, the reasons that his previous claim was denied, and what was required to substantiate the underlying service connection claim in his case. Kent v. Nicholson, 20 Vet. App. 1 (2006). Regarding VA's duty to assist, the Veteran has not identified any private or VA medical records that need to be obtained. In regards to obtaining a VA examination, the Board observes that VA need not conduct an examination with respect to whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection because the duty under 38 C.F.R. § 3.159(c)(4) applies only if new and material evidence is presented or secured. Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003) (VA need not provide a medical examination or medical opinion until a claim is reopened). As discussed below, the Board has determined that new and material evidence to reopen the claim of service connection for a low back disability has not been received. Accordingly, VA did not have a duty to provide him with a medical examination. A decision of the RO becomes final and is not subject to revision on the same factual basis except when a notice of disagreement is filed within one year of the notice of decision. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). In this case, a June 1980 rating decision denied service connection for a low back disability; the Veteran did not appeal. Because the Veteran did not appeal, this decision became final based on the evidence then of record and is not subject to revision upon the same factual basis. See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. The Board recognizes that the Veteran has claimed that he did not receive notice of his right to appeal in 1980; however, the notice letter sent to him included an enclosure that provided information regarding his right to appeal and the time limit for submitting an appeal-VA Form 1-4107. Therefore, the Board finds that the 1980 denial is a final determination. Id; 38 C.F.R. §§ 19.112, 19.118 (1979). The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. Barnett, supra. Further analysis, beyond consideration of whether the evidence received is new and material is neither required nor permitted. Id. at 1384; see also Butler v. Brown, 9 Vet. App. 167, 171 (1996). "New" evidence is evidence not previously submitted to agency decision makers. "Material" evidence is 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 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). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). The pertinent law states that service connection may be granted for disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). Further, it is not enough that an injury or disease occurred in service; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Thus, the Veteran's claim may not be reopened unless VA has received evidence that was both not of record at the time of the 1980 denial, and that also raises a reasonable possibility of substantiating the claim that the Veteran's low back disability is attributable to military service. At the time of the June 1980 denial, the relevant evidence of record consisted of the service treatment records (STRs), which contained a December 1974 entrance examination where the Veteran reported occasional backaches, but examination of his back was negative. The STRs also contained a December 1974 Report of Medical History, where the Veteran checked yes to the question have you ever had or do you now have recurrent back pain. A November 1975 entry noted that the Veteran injured his back during physical training and the examiner rendered an assessment of lumbosacral strain. A January 1975 clinical record, noted a provisional diagnosis of chronic back injury, noting that the Veteran had a history of back injury prior to service. A January 1976 entry noted that the Veteran had a history of a previous back injury, and now had the onset of sudden left paraspinal pain while lifting a heavy object. The pain was in the left lower thoracic region and did not radiate. Another January 1976 entry noted that while the Veteran was lifting bunks, he felt his back pop, and was unable to come to an erect position. An Orthopedic clinic note dated in January 1976 noted that a spine x-ray was negative, and the examiner rendered a provisional diagnosis of recurrent lower back sprain. In addition to the STRs, other evidence of record at the time of the last prior final denial includes a May 1980 VA examination, where the Veteran reported that he injured his back in 1975 during basic military training when he sustained a direct blow to his back, noting that he had experienced chronic low and mid-back pain, which was non radiating. The examiner diagnosed the Veteran with chronic lumbosacral strain. A radiographic report taken at the time revealed the presence of a L-5 transitional vertebrae of the lumbosacral spine. Since the June 1980 denial, newly submitted evidence includes a statement made by the Veteran where he noted that his low back disability began in 1975, (see May 2007 Application for Compensation and Pension), and a June 2007 statement where the Veteran described being hurt during basic training, and waking up day and night due to low back pain. Here, despite the newly added statements from the Veteran where he noted that his low back disability began in 1975, and described injuring his back during basic training, these statements are cumulative of the information previously of record. He had previously stated the same contentions regarding an injury to his back in 1975 during basic training. The newly submitted evidence does not contain medical evidence providing a diagnosis of a low back disability, or a link between a current low back disability and military service. In fact, the only new evidence received consists of the Veteran's Application for Compensation and Pension; and his June 2007 Notice of Disagreement (NOD), which contained the Veteran's statements mentioned above. The newly received information, when considered alone or with previous evidence of record, does not suggest the medical possibility of a nexus between any current low back disability and service, nor does the newly received evidence contain a current diagnosis of a low back disability. The new information merely repeats what was argued before. Thus, these newly received information does not raise a reasonable possibility of substantiating the claim and is insufficient to reopen the previously denied claim of service connection for a low back disability. Based on the foregoing, the Board finds that new and material evidence to reopen the previously denied claim of service connection for a low back disability has not been received, and the application to reopen will therefore be denied. ORDER New and material evidence has not been received to reopen a claim of service connection for a low back disability; the appeal of this issue is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs