Citation Nr: 1007406	
Decision Date: 03/01/10    Archive Date: 03/11/10

DOCKET NO.  06-31 568 	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to an increased rating for right knee 
patellofemoral pain syndrome, 
currently evaluated as 10 percent disabling.

2.  Whether new and material evidence has been received to 
reopen a claim of entitlement to service connection for a low 
back disability and if so, whether service connection is 
warranted.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

Jennifer Margulies, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1998 to May 2001.  

This case comes before the Board of Veterans' Appeals (Board) 
on appeal from a March 2006 rating decision of the Waco, 
Texas, Department of Veterans Affairs (VA) Regional Office 
(RO) which continued a 10 percent evaluation for service-
connected right knee patellofemoral pain syndrome and denied 
service connection for low back strain.  

The Board notes that the Veteran requested a hearing in his 
August 2006 substantive appeal.  The request for a hearing 
was withdrawn in a letter dated June 2009.  Therefore, no 
additional action in this regard is required.  See 38 C.F.R. 
§ 20.704(e) (2009).

The issue of an increased rating for right knee 
patellofemoral pain syndrome, 
currently evaluated as 10 percent disabling is addressed in 
the REMAND portion of the decision below and is REMANDED to 
the RO via the Appeals Management Center (AMC), in 
Washington, DC.


FINDINGS OF FACT

1.  In an unappealed September 2004 rating decision, the RO 
denied a claim of entitlement to service connection for a low 
back disability.

2.  Since the September 2004 rating decision, relevant 
records which relate to an unestablished fact necessary to 
substantiate the claim have been added to the claims folder.   

3.  Competent evidence of a nexus between a low back 
disability and active military service is not of record.



CONCLUSIONS OF LAW

1.  The September 2004 rating decision that denied the claim 
of service connection for a low back disability is final.  38 
U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 
20.1103 (2009).

2.  Evidence received since the September 2004 rating 
decision is new and material, and the claim is reopened.  38 
U.S.C.A. § 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 
3.156(c) (2009).

3.  A low back disability was not incurred in or aggravated 
by active military service.  38 U.S.C.A. §§ 1131, 5103, 
5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 
3.303 (2009).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  New and Material Evidence 

Pertinent Law and Regulations

Rating actions from which an appeal is not perfected become 
final.  38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103.  The 
governing regulations provide that an appeal consists of a 
timely filed notice of disagreement in writing and, after a 
statement of the case has been furnished, a timely filed 
substantive appeal.  38 C.F.R. § 20.200.

A final decision cannot be reopened unless new and material 
evidence is presented.  Pursuant to 38 U.S.C.A. § 5108.  The 
Secretary must reopen a finally disallowed claim when new and 
material evidence is presented or secured with respect to 
that claim.  Knightly v. Brown, 6 Vet. App. 200 (1994).

For claims filed on and after August 29, 2001, 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 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) (2009).

Only evidence presented since the last final denial on any 
basis (either upon the merits of the case, or upon a previous 
adjudication that no new and material evidence had been 
presented), will be evaluated in the context of the entire 
record.  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 to be presumed.  Justus v. 
Principi, 3 Vet. App. 510, 513 (1992).

Analysis 

In the September 2004 rating decision, the RO denied the 
claim of entitlement to service connection for a low back 
disability on the basis that there was no evidence of a 
chronic disability.  The evidence of record at the time of 
the decision consisted of the Veteran's service treatment 
records dated from February 1998 to March 2001 and treatment 
records from Temple VA Medical Center dated from September 
2001 to April 2002.  The Veteran was notified of the decision 
in September 2004.  He did not file an appeal however, and 
the September 2004 rating decision became final.  38 U.S.C.A. 
§ 7105; 38 C.F.R. § 20.1103.

In November 2005, the Veteran again requested service 
connection for a low back disability.  In order to reopen 
this claim, new and material evidence must be received.  
38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.  

The relevant evidence submitted since the last final 
September 2004 rating decision includes treatment records 
from Dallas VA Medical Center dated from April 2005 to 
December 2005 and from April 2006 to May 2006 and a VA 
examination dated in July 2006.  

The Board finds that the above evidence, received after the 
September 2004 rating decision, is new.  It was not 
previously of record, and is neither cumulative nor redundant 
of evidence previously considered by the RO.  Such evidence 
is also material.  Specifically, the records contain evidence 
of a diagnosis of myofascial lumbar back pain and also 
contain treatment records stating that the Veteran's back 
pain is status post motor vehicle accident in service.  This 
new evidence raises a reasonable possibility of 
substantiating the claim.  Thus, this evidence is new and 
material and the requirements to reopen a claim under 
38 C.F.R. § 3.156(a) have been satisfied.

In conclusion, the Board finds that the evidence received 
since the September 2004 rating decision is new and material, 
and the claim of entitlement to service connection for a low 
back disability is reopened.

II.  Service Connection 

Pertinent Law and Regulations

In order to establish service connection, the facts, as shown 
by evidence, must demonstrate that a particular disease or 
injury resulting in current disability was incurred during 
service or, if preexisting active service, was aggravated 
therein.  38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a).  

The chronicity provision of 38 C.F.R. § 3.303(b) is 
applicable where the evidence, regardless of its date, shows 
that the Veteran had a chronic disability in service or 
during an applicable presumptive period and still has such 
disability.  Such evidence must be medical unless it relates 
to a disability as to which, under the United States Court of 
Appeals for Veterans Claims' (Court's) case law, lay 
observation is competent.  Savage v. Gober, 10 Vet. App. 488, 
498 (1997).  In addition, if a disability noted during 
service is not shown to be chronic, then generally a showing 
of continuity of symptomatology after service is required for 
service connection.  38 C.F.R. § 3.303(b).

Service connection may also be granted for a disease first 
diagnosed after discharge when all of the evidence, including 
that pertinent to service, establishes that the disease was 
incurred in service.  38 C.F.R. § 3.303(d) (2009).  

Establishing service connection generally requires medical 
or, in certain circumstances, lay evidence of (1) a current 
disability; (2) an in-service incurrence or aggravation of a 
disease or injury; and (3) a nexus between the claimed in-
service disease or injury and the present disability.  
Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 

When all the evidence is assembled, VA is responsible for 
determining whether the evidence supports the claim or is in 
relative balance, with the Veteran prevailing in either 
event, or whether a preponderance of the evidence is against 
a claim, in which case, the claim is denied.  Gilbert v.  
Derwinski, 1 Vet. App. 49, 53 (1990); 38 U.S.C.A. § 5107(b) 
(West 2002). 

Analysis 

The Veteran asserts that he is entitled to service connection 
for a low back disability as a result of a motor vehicle 
accident incurred in service.  Evaluation of the evidence 
shows that service connection is not warranted.  

A review of the Veteran's service treatment records shows 
that upon enlistment in February 1998, the Veteran was 
healthy and had no problems with his spine.  The Veteran's 
service treatment records show that he was in a car accident 
in December 1998 and did not seek medical attention.  In 
January 1999, he complained of lower back pain with movement 
and there was slight tenderness at the L4/L5 area.  The 
Veteran displayed full range of motion with some difficulty.  
He reported constant pain for the past three weeks.  No 
additional complaints regarding the Veteran's back are 
located in his service treatment records and his separation 
physical in March 2001 showed normal spine and did not note 
any back pain.  

The first evidence of back problems post service is in August 
2005.  August 2005 records show that the Veteran was in a car 
wreck while in service and has had pain in his lower back 
since that time.  April 2006 records reveal complaints of low 
back pain.  The examiner listed the back disability as 
"status post motor vehicle accident."

The Veteran was afforded a VA examination in July 2006 and 
the examiner had the opportunity to review the Veteran's 
entire case file.  The examiner diagnosed myofascial lumbar 
back pain.  The Veteran reported that he was injured in a 
motor vehicle accident while on leave during active duty in 
December 1998.  He had lower back pain at the time and is now 
having pain in his lower back, particularly with walking or 
standing.  The examiner opined that the Veteran's current 
back pain is not related to the previous injury as he had no 
bony involvement on x-rays in service and continues to have 
no bony involvement on x-rays taken recently at the VA 
medical center.  The examiner went on to state that 85 
percent of the population will have lower back pain at some 
point in their lives and this is more of the mechanical type 
of back pain from a myofascial lumbar condition and is in no 
way related to the previous injury sustained eight years ago.

A review of the Veteran's records show a back injury in 
service and post-service back pain.  The Veteran's treatment 
records note the Veteran's subjective complaints or 
historical recollection which attribute his back pain to the 
in-service motor vehicle accident.  However, a bare 
transcription of lay history is not transformed into 
"competent medical evidence" merely because the transcriber 
happens to be a medical professional.  LeShore v. Brown, 8 
Vet. App. 406 (1995).  In fact, the treatment reports do not 
contain an opinion by a medical provider etiologically 
relating the Veteran's current complaints to service or any 
event of service.

The VA examination afforded to the Veteran in July 2006 
concluded that the Veteran's myofascial lumbar back pain is 
less likely than not related to service because there is no 
bony involvement.  The examiner had the opportunity to review 
the Veteran's entire case file, noted the Veteran's in-
service injury and provided rational for his opinion.  
Therefore, the medical examiner's opinion is of high 
probative value and supports a denial of service connection 
for a low back disability.

With regard to the Veteran's opinions regarding the etiology 
of his back disability, he is competent to testify as to his 
observations, Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 
(Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 
(Fed. Cir. 2006), and lay witnesses may, in some 
circumstances, opine on questions of diagnosis and etiology.  
See Davidson, 581 F.3d at 1316 (Board's categorical statement 
that "a valid medical opinion" was required to establish 
nexus, and that a layperson was "not competent" to provide 
testimony as to nexus because she was a layperson, conflicts 
with Jandreau).  However, in this case, testimony that the 
Veteran's back disability is due to an in-service motor 
vehicle accident is an etiological question unlike testimony 
as to a separated shoulder, varicose veins, or flat feet, 
which are capable of direct observation.  See Jandreau, 492 
F.3d at 1376 (lay witness capable of diagnosing dislocated 
shoulder); Barr, 21 Vet. App. at 308-309 (lay testimony is 
competent to establish the presence of varicose veins); 
Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike 
varicose veins or a dislocated shoulder, rheumatic fever is 
not a condition capable of lay diagnosis).  The record does 
not show, nor does the Veteran contend, that he has 
specialized education, training, or experience that would 
qualify him to provide an opinion on this matter.  
Accordingly, the Veteran's lay statements are entitled to 
limited or no probative value in this regard.  See Bostain v. 
West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. 
Derwinski, 2 Vet. App. 492 (1992).  See also Routen v. Brown, 
10 Vet. App. 183, 186 (1997).  

As previously noted, under 38 C.F.R. § 3.303(b), service 
connection may be awarded for a "chronic" condition when 
there is (1) evidence that a condition was "noted" during 
service; (2) evidence showing postservice continuity of 
symptomatology; and (3) medical or, in certain circumstances, 
lay evidence of a nexus between the present disability and 
the postservice symptomatology.  Barr v. Nicholson, 21 Vet. 
App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 
488, 495-98; 38 C.F.R. § 3.303(b).  

Indeed the record shows that the Veteran was involved in a 
motor vehicle accident during service and that he received 
treatment for back complaints.  In addition, the Veteran is 
competent to assert that he has experienced back pain since 
service.  Nonetheless, the Board finds that the Veteran's 
statements are not credible in light of the other objective 
evidence of record, to include the lack thereof in some 
instances.  Again, the service treatment records show 
complaints of back pain in 1999, but on discharge 
examination, findings were normal.  The Veteran filed a claim 
with VA in 2001; he made no reference to a back disorder.  
The Veteran's claim for a back disorder was not filed with VA 
until 2004, and the medical reports first note complaints of 
back pain in 2005, several years after service separation.  
In light of the aforementioned, the Board finds that 
continuity of symptoms has not been established.  Evidence of 
a prolonged period without medical complaint can be 
considered, along with other factors concerning the veteran's 
health and medical treatment during and after military 
service."  Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 
2000).  In addition, the medical evidence of record clearly 
finds that the Veteran's current complaints are not related 
to service or any event or symptoms from service.  For these 
reasons, the Board finds that service connection for a back 
disorder is not warranted based on continuity of 
symptomatology.   

As the preponderance of the evidence is against the claim, 
the benefit-of-the-doubt doctrine is not applicable.  38 
U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49 
(1990).  Therefore, the preponderance of the evidence is 
against the claim for service connection for a low back 
disability and the claim is denied. 

III.  Duty to Notify and Assist 

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. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 
3.326(a) (2009).

Proper notice from VA must inform the claimant of any 
information and medical or lay evidence not of record (1) 
that is necessary to substantiate the claim; (2) that VA will 
seek to provide; and (3) that the claimant is expected to 
provide.  38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 
Vet. App. 183 (2002).  This notice must be provided prior to 
an initial unfavorable decision on a claim by the RO. 
Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); 
Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In addition, the notice requirements of the VCAA apply to all 
five elements of a service connection claim, including: (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.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 
473 (2006).  Further, this notice must include information 
that a disability rating and an effective date for the award 
of benefits will be assigned if service connection is 
awarded. Id. at 486.

Regarding the Veteran's claim of entitlement to service 
connection for a low back disability, the Board notes that in 
claims to reopen, 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.  Kent v. 
Nicholson, 20Vet. App. 1 (2006).

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.

In this case, a notice letter was issued in December 2005, 
prior to the adjudication of the claim.  The letter notified 
the Veteran of what information and evidence must be 
submitted to substantiate the claim for service connection.  
The December 2005 notice letter also satisfied the 
requirements under Kent.  It is further observed that notice 
regarding assignment of disability ratings and effective date 
was not provided.  However, because the claim is denied, no 
rating or effective date will be assigned.  Therefore, any 
deficiency as to the notice is moot.  Based on the foregoing, 
no further efforts are required with respect to the duty to 
notify.

VA also has a duty to assist the Veteran in the development 
of the claim.  This duty includes assisting him in the 
procurement of service treatment records and pertinent 
treatment records and providing an examination when 
necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

The Board finds that all necessary development has been 
accomplished, and therefore appellate review may proceed 
without prejudice to the Veteran.  See Bernard v. Brown, 4 
Vet. App. 384 (1993).  Significantly, neither he nor his 
representative has identified, and the record does not 
otherwise indicate, any additional existing evidence that is 
necessary for a fair adjudication of the claim that has not 
been obtained.  The Board notes that the Veteran's service 
treatment records and VA treatment records are on file.  
Furthermore, the Veteran was afforded a VA examination in 
July 2006, in which an opinion of etiology was provided, 
along with accompanying rationale.  

Hence, no further notice or assistance to the Veteran is 
required to fulfill VA's duty to assist in the development of 
the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 
281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 
Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 
Vet. App. 183 (2002).


ORDER

New and material evidence having been received, the request 
to reopen a claim of entitlement to service connection for a 
low back disability is granted.  

Entitlement to service connection for a low back disability 
is denied.





REMAND

The Veteran asserts that he is entitled to an increased 
rating for his service-connected right knee patellofemoral 
pain syndrome because the pain in his knee is severely 
disabling and it prohibits him from engaging in most 
activities.  He stated that he could not stand for more than 
20 minutes at a time without experiencing blinding pain.  He 
also stated that he takes pain medication on a daily basis 
and that his knee pain limits employment possibilities 
severely.  

The Veteran's records do not present a thorough description 
of the Veteran's current disability.  His most recent VA 
examination was provided in July 2006, while the Veteran was 
a student.  As the examination was provided over four years 
ago and as the Veteran asserts that his employment is 
affected, an updated VA examination is needed to ascertain 
the severity of the disability.  See VAOPGCPREC 11-95 (While 
the Board is not required to direct a new examination simply 
because of the passage of time, VA's General Counsel has 
indicated that a new examination is appropriate when the 
claimant asserts that the disability in question has 
undergone an increase in severity since the time of the last 
examination.)

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for an 
appropriate VA examination to determine 
the current nature and severity of his 
service-connected right knee 
patellofemoral pain syndrome.  The claims 
file should be made available to the 
examiner in connection with the 
examination.  A notation to the effect 
that this record review took place should 
be included in the report of the 
examination.  All appropriate tests and 
studies should be accomplished.  The 
examiner should discuss the Veteran's 
subjective complaints, pertinent clinical 
findings and whether the Veteran's ability 
to work is restricted by his disabilities, 
and if so to what degree.  

2.  After accomplishing any additional 
development deemed appropriate, 
readjudicate the issue on appeal.  If the 
desired benefits are not granted to the 
Veteran's satisfaction, a supplemental 
statement of the case should be furnished 
to the Veteran and his representative, and 
the appropriate time period within which 
to respond should be provided.

The appellant has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals or by the United States Court of Appeals 
for Veterans Claims for additional development or other 
appropriate action must be handled in an expeditious manner.  
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).



____________________________________________
C. CRAWFORD 
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs