Citation Nr: 1007691 Decision Date: 03/02/10 Archive Date: 03/11/10 DOCKET NO. 07-06 199 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David S. Ames, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1969 to March 1971. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina (RO). FINDINGS OF FACT 1. A June 1971 rating decision denied the Veteran's claim of entitlement to service connection for a back injury. 2. Evidence associated with the claims file since the June 1971 rating decision was not of record at the time of the June 1971 rating decision and relates to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection for a low back disorder. 3. The evidence of record clearly and unmistakably shows that the Veteran's low back disorder preexisted military service and clearly and unmistakably did not undergo a permanent increase in the underlying severity during military service. CONCLUSIONS OF LAW 1. Evidence submitted to reopen the claim of entitlement to service connection for a low back disorder is new and material, and therefore, the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2009). 2. A low back disorder was not incurred in or aggravated by military service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1111, 1153, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2009). Prior to initial adjudication, a letter dated in October 2004 satisfied the duty to notify provisions. Additional letters were also provided to the Veteran in February 2005, August 2005, and December 2006, after which the claim was readjudicated. See 38 C.F.R. § 3.159(b)(1); Overton v. Nicholson, 20 Vet. App. 427 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Kent v. Nicholson, 20 Vet. App. 1 (2006). The Veteran's service treatment records, VA medical treatment records, and indicated private medical records have been obtained. An adequate VA examination was provided to the Veteran in connection with his claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). There is no indication in the record that additional evidence relevant to the issue decided herein is available and not part of the claims file. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. 473. Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, to include the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007); Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007) (holding that although VCAA notice errors are presumed prejudicial, reversal is not required if VA can demonstrate that the error did not affect the essential fairness of the adjudication). New and Material An unappealed rating decision in June 1971 denied the Veteran's claim of entitlement to service connection for a back injury on the basis that the evidence of record did not show that the Veteran's pre-existing back condition was aggravated during active military service. The relevant evidence of record at the time of the June 1971 rating decision consisted of the Veteran's service treatment records and a May 1971 VA medical examination report. The Veteran did not file a notice of disagreement after the June 1971 rating decision. Therefore, the June 1971 rating decision is final based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103 (2009). A finally decided claim will be reopened in the event that new and material evidence is presented. 38 U.S.C.A. § 5108. "New" evidence means existing evidence not previously submitted to VA. "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. Although the RO determined in December 2006 that new and material evidence was presented to reopen the claim of entitlement to service connection for a low back disorder, this decision is not binding on the Board. The Board must first decide whether evidence has been received that is both new and material to reopen the claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); McGinnis v. Brown, 4 Vet. App. 239 (1993) (Board reopening is unlawful when new and material evidence has not been submitted). Consequently, the Board will adjudicate the question of whether new and material evidence has been received, furnishing a complete explanation as to its reasons and bases for such a decision. In September 2004, a claim to reopen the issue of entitlement to service-connection for a low back disorder was received. Evidence of record received since the June 1971 rating decision includes an October 2005 private medical report. The October 2005 private medical report is "new" in that it was not of record at the time of the June 1971 rating decision. In addition, the October 2005 private medical report stated that, after a review of the Veteran's service treatment records, it was the private physician's "professional opinion that his current back condition is as likely as not to have begun in the service." At the time of the June 1971 rating decision, there was no medical evidence of record which related a currently diagnosed low back disorder to military service. As such, the October 2005 private medical report contains evidence which was not shown at the time of the June 1971 rating decision. Therefore, the October 2005 private medical report raises a reasonable possibility of substantiating the Veteran's claim. 38 C.F.R. § 3.156(a). Accordingly, the Veteran's claim of entitlement to service connection for a low back disorder is reopened. Service Connection Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorders, 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). Alternatively, under 38 C.F.R. § 3.303(b), service connection may be awarded for a "chronic" condition when (1) a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the Veteran presently has the same condition; or (2) a disease manifests itself during service, or during the presumptive period, but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the Veteran's present condition. Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). For certain chronic disorders, including arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. When determining whether a disability or disease was incurred in service, or preexisted service, 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 the time of the examination, acceptance, and enrollment into service, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304; VAOPGCPREC 3-03; 69 Fed. Reg. 25178 (2004). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. §§ 3.304, 3.306(b). A preexisting disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). Aggravation for purposes of entitlement to VA compensation benefits requires more than that a preexisting disorder become intermittently symptomatic during service; rather, there must be permanent advancement of the underlying pathology. Aggravation is characterized by an increase in the severity of a disability during service, and a finding of aggravation is not appropriate in cases where the evidence specifically shows that the increase is due to the natural progress of the disease. Furthermore, temporary or intermittent flare-ups of a preexisting disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, is worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991); Verdon v. Brown, 8 Vet. App. 529, 536-7 (1996). The Veteran's service treatment records include numerous complaints and diagnoses of low back disorders. On the Veteran's January 1969 induction report of medical history, he reported that he had, or had previously had, back trouble. The Veteran reported that he had a "mild low back strain, low back area, several years ago" which was not currently disabling. Thereafter, in a June 1969 service treatment report, the Veteran complained of low back pain for the previous 12 days. He reported he had hurt his back 2 years before lifting a heavy object. After physical examination, the impression was low back pain. An October 1969 service radiographic report stated that the Veteran was seen for complaints of lumbosacral pain. On views of the lumbar spine, the L4 vertebra was irregular and slightly sclerotic, with a separate bony fragment measuring 5 to 6 millimeters, which represented a limbus type vertebra, which was reported to have been a fragment from "anterior herniation of the disc material at one time." The impression was limbus vertebra, L4. In a December 1969 service treatment report, the Veteran complained of pain in his back after he fell out of a hammock 5 days before. He reported that he also had a medical history of back trouble. In a second December 1969 service treatment report, the Veteran complained of a long history of back pain which existed prior to military service. A December 1970 physical profile report stated that the Veteran had a small fracture of the spine, which was healed. The Veteran was placed on restricted duty as a result of this and other disabilities. In a January 1971 service treatment report, the Veteran complained of chronic low back pain. The examiner stated that the x-ray examination revealed "some old defect." In the Veteran's March 1971 separation report of medical history, he reported that he had, or had previously had, back trouble. The Veteran reported that he had a history of a chipped L4 vertebra. After separation from military service, in a May 1971 VA medical examination report, the Veteran reported that he began experiencing back pain at the age of 14. He reported that after entering military service, spinal x-rays showed a "chipped spine." The Veteran reported that during military service he experienced localized back pain in the L1, L2, and L3 areas after falling from a hammock. He reported that since his discharge from military service, he had resumed work as a brick layer and had not missed any work due to back pain. On physical examination, no back abnormalities were found. As a result of the lack of physical findings, and after a review of the Veteran's social and medical history, the examiner stated that "this examiner has reason to believe that a major part of this [V]eteran's back pain is not organic and may represent a passive-aggressive personality disorder." The diagnosis was history of chronic low back strain. A November 1992 letter from a private physician stated that the Veteran "picked up a box of plugs at work approximately three months ago and had low back pain. He thought [t]he pain would go away and did not go to the doctor. The pain has gradually increased." The letter also stated that the Veteran had experienced back pain 5 years before, "but got over it." After physical examination, the diagnosis was chronic lumbosacral strain versus possible herniated nucleus pulposus. The medical evidence of record shows that a low back disorder has been consistently diagnosed since November 1992. A November 1992 private medical report stated that the Veteran "was injured in [July 1992] while picking up a box. . . . He states he was picking up a box with a twisting motion and began having rather modest level of lumbar pain." A May 1994 private medical report stated that the Veteran "suffered an injury at work [in July 1992] . . . He evidently has been in and out of work since this time. . . . He was released to return to work with [a] permanent partial disability of the back in September of [19]92." An October 2005 private medical report stated that the Veteran complained of low back pain. The examiner stated that the Veteran has brought in his records from 1969 and 1970. I have reviewed his records and I think after careful review of his service medical records and review of current medical records, it is my professional opinion that his current back condition is as likely as not to have begun in the service. A November 2006 VA spine examination report stated that the Veteran's claims file and medical records had been reviewed, to specifically include the Veteran's service treatment records, private medical records, and VA medical records. The report noted the Veteran's history of pre-service and in-service back problems, as well as his back complaints from 1992 onwards. After physical examination, the diagnosis was degenerative disc disease of the lumbar spine. The examiner stated that the Veteran's back disorder is less likely as not (less than 50/50 probability) caused by or a result of in-service low back injury. [Service treatment record] notes state [V]eteran had back condition prior to [service]. Spine X[-rays] at the time of in-service injury showed "old" fracture, which would have existed prior to the in-service injury. On entry into service, his X[-rays] were said to have shown a "chipped" spine. In 1971, [lumbosacral] spine showed a[n] ununited or malunited epiphysis of the upper and anterior margin of L4. The evidence suggests he had a pre-existing spine abnormality that was temporarily aggravated during military [service]. Subsequently, 20 years period with no documentation of back problems. It is unlikely that falling from a hammock in 1969 permanently aggravated his pre-existing lumbar spine abnormality. The medical evidence of record clearly and unmistakably shows that the Veteran's low back disorder preexisted military service and this preexisting back disorder clearly and unmistakably was not aggravated by military service. 38 U.S.C.A. § 1111. On enlistment, the Veteran reported having experienced low back pain prior to entry into military service. The Veteran's service treatment records show that he continued to state that he had injured his back prior to entry into military service in June 1969 and December 1969. The October 1969 service radiographic report, conducted prior to the incident when the Veteran fell out of a hammock, found that the Veteran had previously had an "anterior herniation of the disc material." The January 1971 service treatment report also specifically characterized the Veteran's spinal abnormality as "old." The Veteran's claims that he had a pre-existing back disorder continued after separation from military service, as demonstrated by the May 1971 VA medical examination report, in which the Veteran reported that he began experiencing back pain at the age of 14. Accordingly, the presumption of soundness has been rebutted. 38 U.S.C.A. § 1111. In addition, the medical evidence of record shows that the Veteran's low back disorder did not undergo a permanent increase in the underlying severity during military service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. The Veteran's service treatment records include numerous complaints and diagnoses of back disorders. However, the May 1971 VA medical examination report found no abnormalities on examination of the Veteran's back and concluded that any pain present was not organic in nature. At that time the Veteran reported that he was working as a bricklayer and denied missing any work due to back symptoms. Furthermore, there is no medical evidence of record that the Veteran experienced any back symptoms from the time of his separation from military service in March 1971 until 1987, approximately 16 years later. Specifically, in the November 1992 and May 1994 private medical reports, the Veteran stated that his back pain began in July 1992 after a work-related injury. In addition, in November 1992 the Veteran reported that he had experienced back pain 5 years before, but that it had resolved. Accordingly, the medical evidence of record shows that the Veteran's low back disorder was non-symptomatic in May 1971, 2 months after separation from military service at a time when he was working as a bricklayer, and remained non-symptomatic until July 1992, with the exception of a single episode of back pain in approximately 1987 which was transitory. As such, the medical evidence of record shows that the Veteran's pre-existing low back disorder was essentially non-symptomatic for approximately 16 years after separation from military service, and that he did not seek medical treatment for his low back disorder for approximately 21 years after separation from military service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that aggravation in service may be rebutted by the absence of medical treatment for the claimed condition for many years after service). The only medical evidence of record that relates the Veteran's currently diagnosed back disorder to military service is the October 2005 private medical report. While that report stated that the Veteran's back disorder "is as likely as not to have begun in the service," this finding was based on a review of the Veteran's 1969 and 1970 service treatment records. There is no evidence of record that the examiner considered the Veteran's 1971 service treatment records, the May 1971 VA medical examination report, or any of the post-service medical records which specifically stated that the Veteran's current low back symptoms began after a July 1992 work-related injury. Indeed, the October 2005 private medical report completely failed to mention the numerous statements in the Veteran's 1969 and 1970 service treatment records that he had a pre-existing back disorder. In contrast, the November 2006 VA spine examination report specifically reviewed all of the Veteran's service treatment records and post-service medical records. That report noted the Veteran's numerous reports of a pre-existing back disorder and the lengthy post-service period without documentation of any back disorder. As such, the Board gives greater probative value to the November 2006 VA spine examination report than to the October 2005 private medical report. The Veteran's statements are not sufficient to prove that the back symptoms he experienced during military service represented a permanent advancement of the underlying pathology of his preexisting low back disorder. Medical diagnosis and causation involve questions that are beyond the range of common experience and common knowledge and require the special knowledge and experience of a trained physician. As he is not a physician, the Veteran's statements are not competent evidence that his in-service back symptoms represented a permanent advancement of the underlying pathology of his preexisting low back disorder. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). As a result, the evidence of record clearly and unmistakably shows that the Veteran's low back disorder preexisted military service and clearly and unmistakably did not undergo a permanent increase in the underlying severity during military service. See Jensen, 4 Vet. App. at 306-07; Hunt, 1 Vet. App. 292; Verdon, 8 Vet. App. at 536-7. Accordingly, the preponderance of the evidence of record does not show that the Veteran's low back disorder was incurred in or aggravated by military service. As such, service connection for a low back disorder is not warranted. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as the evidence of record clearly and unmistakably shows that the Veteran's low back disorder preexisted military service and clearly and unmistakably did not undergo a permanent increase in the underlying severity during military service, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a low back disorder is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs