Citation Nr: 1119085 Decision Date: 05/17/11 Archive Date: 05/26/11 DOCKET NO. 08-17 807 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a back disorder. 2. Entitlement to service connection for a back disorder. ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran had active service from December 1975 to April 1976 and December 1976 to November 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). In May and October 2010, the Board remanded the appeal to the RO to afford the Veteran a Board hearing at the RO via videoconference. The Veteran was scheduled for a videoconference hearing in April 2011. However, he failed to report to the hearing. Thus, his request for a Board hearing is considered withdrawn. See 38 C.F.R. § 20.704(d) (2010). FINDINGS OF FACT 1. The October 1983 rating decision, which denied service connection for a back disorder, is final. 2. New evidence raising a reasonable possibility of substantiating the claim of entitlement to service connection for a back disorder has been received. 3. The competent evidence does not show that the Veteran's back disorder had its onset in service or within one year thereafter, or that it is otherwise related to any incident of service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for a back disorder. 38 U.S.C.A. § 5108, 7105(d) (West 2002); 38 C.F.R. § 3.156(a) (2010). 2. The criteria for service connection for a back disorder have not been met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). 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). 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, 20 Vet. 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 addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, 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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA 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). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In light of the Board's favorable determination with respect to the claim to reopen, no further discussion of VCAA compliance is required with respect to the component of the claim relating to new and material evidence. The Board also finds that proceeding with the merits of the underlying claim of entitlement to service connection for a back disorder will not result in any prejudice to the Veteran. Initially, as will be described below, the Veteran has been provided VCAA notice regarding the underlying service connection claim. Next, the Veteran has submitted statements asserting that he injured his back during service. He also submitted a letter from a childhood friend who stated that he had indicated in postcards and letters during service that working in warehouses was hard on his back. The friend also stated that he has had more trouble with his back than their school mates and close friends. Further, in a May 2008 statement of the case (SOC), the RO essentially adjudicated the merits of the underlying service connection claim. The RO continued to adjudicate the merits of the claim in February and May 2010 supplemental SOCs. Therefore, the Board finds that no prejudice to the Veteran will result from proceeding with the merits of the claim of entitlement to service connection for a back disorder. Rather, remanding this case back to the RO would be an essentially redundant exercise and would result only in additional delay with no benefit to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). See also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). With respect to VCAA notice for the underlying claim of entitlement to service connection for a back disorder, the Veteran was sent a letter in October 2006 that fully addressed all notice elements and was issued prior to the initial RO decision in this matter. The letter provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. Moreover, the letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA 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). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, the Veteran's statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran 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). Claim to Reopen The claim of entitlement to service connection for a back disorder was originally denied in an October 1983 rating decision. The claim was denied because, although there was evidence of in-service treatment for a back injury, there was no evidence of current disability, or of a link between the claimed disorder and service. The Veteran did not submit any evidence and failed to report for a scheduled VA examination. He did not appeal the decision. Thus, the decision became final. Generally, a final decision issued by the RO may not thereafter be reopened and allowed, and a claim based on the same factual basis may not be considered. See 38 U.S.C.A. § 7105(c), (d) (West 2002). The exception to this rule is 38 U.S.C.A. § 5108 (West 2002), which states, in part, that "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." "New evidence" is evidence that has not previously been reviewed by VA adjudicators. "Material evidence" is 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 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) (2010). Furthermore, in determining whether evidence is new and material, the credibility of the newly presented evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Additionally, the Board must review all of the evidence submitted since the last final disallowance of the claim on any basis in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). The pertinent evidence received since the October 1983 denial includes private and VA medical records showing that the Veteran currently has a low back disability, and a letter from a childhood friend who had received postcards and letters from the Veteran during service in which he stated that working in warehouses was hard on his back. The friend also observed that, over the years, the Veteran has had more trouble with his back than their school mates and close friends. At the time of the prior denial, there was no evidence of disability or a link between the claimed disability and service. The record now contains a current diagnosed low back disorder and lay evidence of a link between the disorder and service. Thus, the new evidence relates to an unestablished fact that may provide a reasonable possibility of substantiating the claim. Accordingly, the Board concludes that the criteria for reopening the claim of entitlement to service connection for a back disorder have been met and the claim is reopened. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. As the RO has considered the underlying issue of service connection, the Board may proceed with adjudication on the merits at the present time. See Bernard, 4 Vet. App. 384. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a) (2010). If arthritis is manifested to a degree of 10 percent within one year after separation from service, the disorder may be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2010). Service connection may be also granted for any disease 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). Establishing service connection 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 current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The determination as to whether the requirements for service connection are met is based on an analysis of all of the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 3.303(a). See Baldwin v. West, 13 Vet. App. 1 (1999). After a careful review, the Board finds that service connection for the Veteran's back disorder is not warranted here. The service treatment records reflect that the Veteran strained his back moving furniture in February 1979. He complained of pain from the back of the neck radiating down to the lower back. A back pain history and examination sheet reflects complaints of acute pain, as opposed to a recurring problem, and a diagnosis of thoracic strain. The treatment plan included medication and back exercises. He was to return if there was no improvement. There are no subsequent complaints of back pain in the service treatment records. During his discharge examination, the Veteran reported a history of ear trouble but denied any other problems, including recurrent back pain. Examination revealed a normal spine. The service treatment records also indicate that the Veteran was in a motor vehicle accident in March 1977. However, he only complained of striking his nose on the steering wheel and there were no references to a back injury relating to this accident. He also complained of a backache along with dizziness, coughing, sore throat, tinnitus, itchy eyes, and nasal congestion in January 1979. However, he was given cough medication, antihistamine, and gargle, and the diagnosis appears was a questionable flu syndrome. Post-service, during an August 1999 visit to the emergency department at the Fayetteville VA Medical Center for his right knee, the Veteran denied any history of arthritis or joint pains. In April 2002, he complained of more low backache over the last month, noting that he had to lift weights and jump at work. VA treatment notes dated in January 2004 reflect complaints of chronic low back pain due to heavy lifting at work. More recent records, including those dated in 2008, reflect continued complaints of back pain, without discussing a date of onset or addressing the question of nexus to service. In September 2007, a childhood friend of the Veteran submitted a letter recounting correspondence the Veteran had sent during active service. Such postcards and letters indicated that the Veteran had been working in warehouses, and that such activity was hard on his back. The friend observed that the Veteran has had more trouble with his back than their school mates and close friends. An October 2007 VA examination report reflects a history of chronic low back pain since service, due to loading trucks. The examiner noted that there was one record of low back pain/strain in service in 1979. Post service, the Veteran reported working as a truck driver most of his life. After examining the Veteran, the examiner provided a diagnosis of chronic low back strain and stated that the current back disorder was not caused by or a result of one 1979 visit in service for back pain. No other medical evidence of record relates the current back disorder to the Veteran's active service. Given the above, the competent evidence does not show that the Veteran's back disorder had its onset in service or within one year thereafter, or that it is otherwise related to any incident of service. Although there is evidence of an acute back strain in service in February 1979, there is no evidence of a chronic back disorder developing during the remainder of service and evaluation of the spine at discharge was normal. Further, the first post-service evidence of back pain appears in April 2002, over 22 years after discharge from service. The passage of many years between discharge from active service and any medical complaints or documentation of a claimed disability is a factor that weighs against a claim for service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The post-service evidence also indicates that his low back pain is due to heavy lifting at work. The Board notes the letter from his friend indicating that his duties in service were tough on his back; however, the Board finds the contemporaneous service treatment records showing only one complaint of back pain to be of greater probative value. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993). Lastly, the October 2007 VA examination report reflects the examiner's opinion that the current back strain was not caused by service. The Board acknowledges the Veteran's assertion that he has experienced back problems since service. The Board notes that he is competent to give evidence about observable symptoms such as pain. Layno v. Brown, 6 Vet. App. 465 (1994). Furthermore, lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). To the extent that he is claiming to have experienced continuous back problems since active service, he is not found to be credible. Again, he denied recurrent back pain on discharge and his discharge examination report reflects a normal evaluation of the spine. There is no medical evidence of a back disorder after discharge until April 2002, at which time he reported only a one-month history of symptoms. Lastly, if he had experienced back problems continuously since active service, it would be reasonable to expect that he would have filed a disability claim sooner than in 1983 and, when that claim was denied, it would be reasonable to expect that he would have filed a subsequent claim much sooner than in July 2006, 23 years later. For all these reasons, the Board finds that the statements alleging or implying continuity of symptoms are not credible here. Therefore, continuity of symptomatology is not established by either the competent evidence or the Veteran's own statements. Moreover, the probative medical evidence of record does not relate the current back disorder to active service. Thus, service connection for a back disorder is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2010); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence having been received, the claim of entitlement to service connection for a back disorder is reopened. Service connection for a back disorder is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs