Citation Nr: 1045461 Decision Date: 12/06/10 Archive Date: 12/14/10 DOCKET NO. 09-03 559 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for a chronic low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his stepbrother, E.G. ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The Veteran served on active duty for training from September 1976 to October 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the Veteran's application to reopen his previously denied claim of entitlement to service connection for a chronic low back disability for failure to submit new and material evidence. During the course of the appeal, the Veteran and his representative, accompanied by the Veteran's stepbrother, appeared at the RO to present oral testimony in support of his claim before the undersigned Veterans Law Judge at an October 2010 videoconference hearing. A transcript of this hearing has been obtained and associated with the Veteran's claims file for the Board's consideration. FINDINGS OF FACT 1. In an appellate decision dated in August 1977, the Board denied the Veteran's original claim of entitlement to service connection for a chronic low back disability on the merits. 2. Subsequent applications by the Veteran to reopen his claim for service connection for a chronic low back disability were denied for lack of submission of new and material evidence by the VA Regional Office in final decisions dated in March 1990, December 1993, and May 2000, and by the Board in appellate decisions dated in February 1991, August 1996, and December 2003. 3. Evidence received since the most recent prior Board decision in December 2003, denying the Veteran's application to reopen his claim of entitlement to service connection for a chronic low back disability, is either duplicative of evidence previously submitted or the evidence, by itself or when considered with previous evidence of record, does not relate to an unestablished fact necessary to substantiate this claim. CONCLUSION OF LAW The criteria for reopening the previously denied and final claim of entitlement to service connection for a chronic low back disability are not met, and the claim is not reopened. 38 U.S.C.A. §§ 5108, 7104(b) (West 2002 & Supp. 2010); 38 C.F.R. § 3.156 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the new and material evidence claim on appeal, under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The pertinent law, regulations, and caselaw have held that VA must at least inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice should be provided prior to initial adjudication of the claim. In addition, the case of Kent v. Nicholson, 20 Vet. App. 1 (2006), requires that, prior to the adjudication of petitions to reopen service connection claims, the claimant be given notice of the elements of service connection, the elements of new and material evidence, and the reasons for the prior final denial. The current appeal pertains to the Veteran's most recent application to reopen his previously denied claim for service connection for a chronic low back disability, which was received by VA in May 2007. In response, VA furnished a letter dated in June 2007, and again in August 2007, which provided notice of the elements of new and material evidence and the reasons for the prior final denials. Thereafter, the application to reopen the low back disability claim was adjudicated in a March 2008 rating decision, which is now on appeal to the Board. The notice criteria of Kent are thus deemed to have been satisfied. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The Board also concludes VA's duty to assist has been satisfied with respect to the new and material evidence claim on appeal. The claims file includes all evidence associated with the record at the time of the prior final Board decision of August 1977 that denied the claim for service connection for a chronic low back disability on the merits. Among these records are the Veteran's service treatment reports and the January 1977 report of a VA medical examination addressing his low back disorder. The claims file also includes evidence submitted since the August 1977 Board decision, consisting of extensive private medical records relating to the Veteran's treatment for orthopedic complaints including a chronic low back disability, dating back to August 1975 - September 1976 (prior to the Veteran's entry into active duty) and post-service treatment for spine symptoms dating from November 1976 -May 2008, as well as documents and medical records related to his claim for workmen's compensation for injuries to head and cervical spine that were sustained at his place of employment in July 1989, transcripts of the Veteran's oral testimony presented at VA hearings in August 1990 and October 2010, and his personal statements in support of his claim. Furthermore, all evidence dated since the prior final Board decision of August 1977 that the Veteran has identified as relevant to his application to reopen his low back claim has been obtained and associated with his claims folder; otherwise, VA has conducted attempts in good faith to obtain such evidence. The Board notes that the Veteran has reported receiving Social Security Administration (SSA) benefits, and a 1993 attorney's letter related to the Veteran's then-pending claim for workmen's compensation indicates that the Veteran was entitled to SSA benefits. Although a review of the Veteran's claims folder indicates that records pertinent to his SSA claim are not presently associated with the evidence, the Veteran himself has not indicated that his receipt of SSA benefits is predicated on his low back disability or is otherwise pertinent to the matter on appeal. Further, he testified before the Board that he saw no doctors regarding his low back disability between 1977/78 and 1996. As such, the Board concludes as a factual matter that the Veteran's SSA records are not relevant to his low back disability claim and thus a remand for their inclusion in the evidence is not warranted. The Board also notes that the Veteran has not referenced any other outstanding records that he wanted VA to obtain or that he felt were relevant to the matter on appeal that VA has either not obtained or made an effort to obtain. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. In attempts to reopen previously denied claims for service connection, however, the duty to assist does not include provision of medical examinations or opinions, unless new and material evidence has been secured. See 38 C.F.R. § 3.159 (c)(4)(iii) (2010). 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 with respect to whether new and material evidence has been submitted to reopen the claim for service connection for a chronic low back disability, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board will therefore proceed with the adjudication of the matter on appeal. In general, unappealed rating decisions of the RO and the Board are final. See 38 U.S.C.A. §§ 5108, 7104, 7105 (West 2002 & Supp. 2009). In order to reopen a claim there must be added to the record "new and material evidence." See 38 U.S.C.A. § 5108 (West 2002 & Supp. 2009). 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. See 38 C.F.R. § 3.156 (2010). The law provides that new and material evidence necessary to reopen previously and finally disallowed claims must be secured or presented since the time that the claims were finally disallowed on any basis, not only since the time the claims were last disallowed on the merits. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). The Veteran's original claim for service connection for a chronic low back disability was denied on the merits in an August 1977 Board decision. Evidence reviewed by the Board at the time of the August 1977 appellate decision included the Veteran's service treatment records for his periods of service from September - October 1976, which also included copies of his pre-service private medical records showing that he sustained a low back injury in August 1975 while lifting a heavy cross tie, resulting in a herniated nucleus pulposus at his L4-L5 vertebrae that was treated with surgery in October 1975. The surgical records show that a lumbar laminectomy and excision of the herniated disc at L4-5 was performed. Thereafter, although no musculoskeletal defects were noted on service enlistment examination in August 1976, the Veteran reported on his medical history that he had a prior history of back surgery for a "slipped disc." He was deemed acceptable for service, but shortly after his admission into service he began receiving treatment for recurrent complaints of low back pain, which reportedly began after he was running with a full duffel bag, engaging in physical exercise, and lifting a heavy can while on duty. The service records show that these symptoms were residuals of his herniated nucleus pulposus at L4-5, status post surgery, and were judged to have existed prior to service based on the pre-service medical records, and to not be incident to service or aggravated by active duty. An October 1976 service medical board determined that the Veteran was physically unfit for active duty and he was medically discharged from service in October 1976. The January 1977 post-service VA examination shows a lumbar diagnosis of post-laminectomy syndrome with no definite neurological changes. After considering the aforementioned evidence and the Veteran's contentions that his low back disability was aggravated (which is to say permanently worsened beyond its natural clinical progression) by active duty, the Board denied the Veteran's claim for service connection for a chronic low back disability in a final decision dated August 1977. Thereafter, the Veteran's claims file shows that since the August 1977 Board decision to the present time, he made numerous unsuccessful attempts to reopen his claim for VA compensation for a chronic low back disorder for de novo consideration on the merits. The claims file shows that these applications were denied for failure to submit new and material evidence in VA Regional Office decisions dated in March 1990, December 1993, and May 2000, and by the Board in appellate decisions dated in February 1991, August 1996, and December 2003. The Veteran did not appeal the adverse Board decisions to the United States Court of Appeals for Veterans Claims and they each, in their turn, became final. Evidence submitted with respect to these prior applications to reopen the low back disability claim includes, in pertinent part, private medical records dated 1975 - 2002, which show ongoing treatment for low back pain and neurological symptoms associated with the Veteran's chronic lumbosacral disability, including notations showing a history of post-service traumatic injury to his low back in December 1976 after falling from a porch onto his buttocks. The transcript of an August 1990 RO hearing, as well as written assertions from the Veteran, reflect that he continued to assert that his pre-existing low back disability was aggravated by his active military service. None of these medical reports contains any objective opinion that links the Veteran's chronic low back diagnoses to his military service on a direct basis or as a pre-existing disorder aggravated by service. The most recent application to reopen the low back disability claim was denied on the merits in a December 2003 Board decision for failure to submit new and material evidence. The current appeal stems from the Veteran's application to reopen his claim for service connection for a chronic low back disability that was received by VA in May 2007. Evidence submitted in association with this application includes duplicates of the aforementioned evidence, recent records of orthopedic treatment for sciatica associated with his chronic low back disability dated 2007 - 2008, a February 2008 written statement from his private treating physician, George M. Jennings, D.O., reflecting that he was treating the Veteran for chronic low back pain due to degenerative spondylosis of the lumbar spine with central canal compromise, and disc protrusion on the right side at L4-L5 with bilateral interior neural foraminal encroachment, and the transcript of the Veteran's October 2010 videoconference hearing and his written statements in support of his claim, in which he continued to assert that his pre-existing low back disability was aggravated by his military service following a straining injury that he sustained while lifting a heavy trash can during KP duty. However, the Board finds that this evidence is not new and material to the Veteran's claim for VA compensation for a chronic low back disability, as it is cumulative and redundant of prior records showing that the Veteran reported the same history. Furthermore, the evidence does not show that the Veteran's chronic low back disability, which has been previously determined by VA to have pre-existed his entry into military service, was aggravated (which is to say permanently worsened beyond its normal progression) by active duty or otherwise present a new opinion stating that his current lumbosacral diagnosis did not pre-exist service but rather had its first onset in service. In the absence of any such opinions, the evidence submitted does not raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156 (2010). In view of the foregoing discussion, the Board concludes that the current written and oral assertions of the Veteran are cumulative and redundant of the evidence of record at the time of the most recent final denial of entitlement to VA compensation for a chronic low back disability in December 2003, and that the medical evidence submitted since the time of this final decision does not raise the possibility of substantiating the current claim for service connection for a chronic low back disability. Therefore, the evidence is not new and material and the petition to reopen the Veteran's claim for VA compensation for a chronic low back disability is denied. See 38 C.F.R. § 3.156(a) (2010). The preponderance of the evidence is against the claim. 38 C.F.R. § 3.102 (2010). (CONTINUED ON NEXT PAGE) ORDER New and material evidence having not been submitted, the application to reopen the claim of entitlement to service connection for a chronic low back disability is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs