Citation Nr: 1123563 Decision Date: 06/21/11 Archive Date: 06/28/11 DOCKET NO. 07-17 962 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for residuals of a back injury. 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for residuals of an injury to the right side of the chest, claimed as a rib fracture. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. A. Wasik, Counsel INTRODUCTION The Veteran had honorable active duty service from January 1944 to May 1946. His discharge from a period of active duty service from June 1948 to September 1950 was determined to be under dishonorable conditions. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The issues on appeal were before the Board in November 2009 when they were remanded for additional evidentiary development. The issues of entitlement to service connection for residuals of a head injury and for a ringing in the head (but not ringing in the ears) have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The preponderance of the competent evidence of record demonstrates the currently existing back disorders are not etiologically linked to the Veteran's active duty service. 2. In November 1986, the RO determined that service connection was not warranted for residuals of an injury to the right side of the chest; the Veteran was notified thereof and provided his appellate rights by letter dated in December 1986, but did not appeal the determination, and the decision is final. 3. In April 2005, the Veteran sought to reopen the claim of entitlement to service connection for residuals of an injury to the right side of the chest. 4. The evidence received subsequent to the November 1986 rating decision which denied service connection for residuals of an injury to the right side of the chest 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 the claim. CONCLUSIONS OF LAW 1. Residuals of a back injury were not incurred in or aggravated by the Veteran's active duty service. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2010). 2. The November 1986 rating decision that denied service connection for residuals of an injury to the right side of the chest is final. 38 U.S.C.A. § 7105(c) (West 2002). 3. The evidence received since the November 1986 rating decision that denied service connection for residuals of an injury to the right chest is not new and material, and the claim for that benefit has not been reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations set forth certain notice and assistance provisions. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). After reviewing the claims folder, the Board finds that the appellant has been notified of the applicable laws and regulations which set forth the criteria for entitlement to VA benefits. Specifically, the discussions in October 2005 and January 2008 VCAA letters have informed the appellant of the information and evidence necessary to warrant entitlement to service connection for residuals of an injury to the right side of the chest and for a back injury. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board finds that all notices required by VCAA and implementing regulations were furnished to the appellant and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. In this case, the RO's decision came before complete notification of the Veteran's rights under the VCAA. It is arguable that the VCAA notice was not timely. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds, however, that any defect with respect to the timing of the VCAA notice in this case was harmless error for the reasons specified below. Subsequent to the rating decision on appeal, the RO did provide notice to the claimant regarding what information and evidence was needed to substantiate the claims and the Veteran has had the chance to submit evidence in response to the VCAA letter. Under these circumstances, the Board finds that all notification and development action needed to render a fair decision on the claims decided herein have been accomplished and that adjudication of the claims, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993). On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (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. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. See Dingess/Hartman, supra. In the present appeal, the Veteran was provided with notice of what types of information and evidence were needed to substantiate his claims and also was provided with notice of the types of evidence necessary to establish a rating and effective date for the disabilities on appeal in the October 2005 and January 2008 VCAA letters. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that in order to successfully reopen a previously and finally disallowed claim, the law requires the presentation of a special type of evidence-evidence that is both new and material. The terms "new" and "material" have specific, technical meanings that are not commonly known to VA claimants. Because these requirements define particular types of evidence, when providing the notice required by the VCAA it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of evidence that must be presented. This notice obligation does not modify the requirement that VA must provide a claimant notice of what is required to substantiate each element of a service- connection claim. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Accordingly, 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 his or her entitlement to the underlying claim for the benefit sought. The appellant was provided with proper notice as required by Kent in the January 2008 VCAA letter. All the VCAA requires is that the duty to notify is satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). The Board finds that there has been compliance with the assistance provisions set forth in the new law and regulation. With regard to the low back claim, the Board finds the Veteran has been an afforded an appropriate VA examination. The examination was based on a review of the evidence in the claims file and on physical examination of the Veteran. The examiner provided the Board with pertinent evidence regarding the extent and etiology of the Veteran's back complaints. The etiology opinion was supported by an adequate rationale with reference to pertinent clinical findings. The requirements of 38 C.F.R. § 3.159(c)(4) have been met. With regard to the claim for service connection for residuals of an injury to the right side of the chest the Board finds, as set forth below, that the claim is not being reopened as the Board has determined that new and material evidence has not been received to reopen the claim. Thus, no examination is necessary. See 38 C.F.R. § 3.159(c)(4)(C)(iii) (providing that the duty to provide a VA medical examination applies only if new and material evidence is presented or secured). In November 2009, the Board remanded the issues on appeal in order to obtain outstanding Social Security records. In February 2011, VA was informed that there were no Social Security records for the Veteran. The Board notes that its November 2009 remand instructions directed that the Veteran be informed if the Social Security records could not be obtained and the efforts taken to obtain them and a description of any further action to be taken. While the Veteran was not provided with a letter which provided the necessary information, the Board notes the Veteran's representative has referenced the fact that the Social Security records were not available in a May 2011 Post-Remand Brief. This knowledge is imputed to the Veteran. No additional pertinent evidence has been identified by the appellant as relevant to the issues decided herein for which attempts to obtain the evidence have not been made. Under the circumstances of this particular case, no further action is necessary to assist the appellant. Competency and Credibility The appellant can attest to factual matters of which he had first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the appellant as a lay person has not been shown to be capable of making medical conclusions; thus, his statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions. See Duenas v. Principi, 18 Vet. App. 512, 520 (2004). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998). While the appellant is competent to report what comes to him through his senses, he does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465 (1994). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court indicated that varicose veins was a condition involving "veins that are unnaturally distended or abnormally swollen and tortuous." Such symptomatology, the Court concluded, was observable and identifiable by lay people. Because varicose veins "may be diagnosed by their unique and readily identifiable features, the presence of varicose veins was not a determination 'medical in nature' and was capable of lay observation." The Court found the veteran's lay testimony regarding varicose vein symptomatology in service represented competent evidence. In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. Although the appellant is competent in certain situations to provide a diagnosis of a simple condition such as varicose veins, the appellant is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Entitlement to service connection for residuals of a back injury In April 2005, the Veteran submitted a claim of entitlement, in pertinent part, to service connection for a back injury. He has claimed that his back was injured when he was struck in the head by a load of bamboo on a native truck. This accident occurred in September 1945. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ , 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be 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). Direct service connection may not be granted without medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including arthritis, to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). There is evidence in the service treatment records documenting that the Veteran was struck by a truck during active duty. A service treatment record demonstrates that, in September 1945, the Veteran was treated for a contusion of the right chest. He reported he had been struck by a truck. He reported he was briefly rendered unconscious. The only complaint was pain in the chest. There was no evidence of a fractured rib found. The rest of the service treatment records are silent as to complaints of, diagnosis of or treatment for back problems. No pertinent abnormalities were noted on the report of service examinations which were conducted in March 1946, June 1948, February 1950 and September 1950. There is competent evidence of the presence of current back disabilities. This evidence is dated many years after the Veteran's discharge. The vast majority of the evidence either does not indicate when the disorder began or indicates the disorder began after active duty. In December 1976, the Veteran reported he had had bouts of low back ache. A November 1978 spine X-ray was interpreted as revealing spondylolisthesis at L-5 with marked osteoarthritis. In March 1979, the Veteran complained of low back pain but thought the cause was his prostate. In April 1983, the Veteran informed a clinician that he had had arthritis in his back which began ten years to twelve years prior. In July 1986, the Veteran sought treatment for low back pain which he reported had been present intermittently for years. He also reported tingling in the left leg. The assessment was low back pain with tingling of the leg. An X-ray of the spine was interpreted as revealing rather severe degenerative changes of the lumbar spine. In August 1986, the Veteran informed a clinician that he had had progressive back pain for the preceding ten years. The assessment was chronic low back pain. In August 1998, the Veteran informed a clinician that, two weeks prior, he twisted his back while walking and had low back pain. The pain had decreased but he reported he was still sore. In July 2005, a statement was received from a private physician indicating that he had been treating the Veteran for a back injury and arthritis of the spine since 1986. A record from a private physician indicates the Veteran reported he had back pain from an old injury which occurred in 1945. The assessment was arthritis of the spine. In February 2006, the Veteran complained of low back pain. The assessment was acute prostatitis. In April 2006, the Veteran's sister reported that the Veteran had written her a letter in 1945 indicating that the Veteran had been hit by a load of bamboo from a native truck. A May 2007 X-ray of the lumbar spine was interpreted as revealing severe degenerative disc disease and spondylolysis. The Board finds that service connection must be denied for residuals of a low back injury. The Board finds that there is no competent evidence linking any current residuals of a low back injury to the Veteran's active duty service. The mere recitation in a clinical record that the Veteran alleged his back problems began during active duty does not constitute competent evidence linking a back disorder to active duty. A bare transcription of lay history, unenhanced by additional comment by the transcriber, is not competent medical evidence merely because the transcriber is a health care professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). No health care professional is on record as indicating that the Veteran experiences a current back disorder which was etiologically linked to his active duty service. The Veteran's allegations as to the etiology of his back problems are without probative value as he is not competent to make such a connection. He is a lay person without specialized medical training. The determination as to the etiology of the current back disorder is not a simple diagnosis. As set out above, the Veteran is not competent to link the currently existing back disorder to his active duty service. The Board also finds that the preponderance of the evidence is against a finding of continuity of symptomatology of back problems from discharge until many years after discharge. The service treatment records were silent as to complaints of, diagnosis of or treatment for back problems subsequent to September 1945. No pertinent abnormalities were noted on the subsequent in-service examinations which were conducted up until 1950. Furthermore, there is no evidence of medical treatment for back problems for many years after discharge. The Veteran has not alleged that he was treated for back problems anywhere near contemporaneous with his military service. There is competent evidence of record which indicates that the current back disabilities are not etiologically linked to the Veteran's active duty service. A VA spine examination was conducted in July 2008. The Veteran informed the examiner that he felt he was injured when he was struck by a truck and sustained a head injury. He reported he was hospitalized with rib pain and a head laceration. X-rays were negative for rib fractures. The examiner noted that there was no complaint of back pain at the time of the accident or subsequent to that time prior to the Veteran's discharge. Additionally, the examiner noted that there were no complaints of back pain at the time of the discharge examination. The pertinent diagnosis from the VA examination was degenerative disc disease of the lumbar spine. The examiner opined that the Veteran's back disorder was not caused by or the result of being struck by a truck during active duty. The rationale provided was that there was no evidence of injury to the Veteran's spine when he was struck on September 16, 1945. There was no evidence of a spine condition at the time of discharge or within one year of discharge. The Veteran did not state that he had had back pain at the time of the initial injury. Complaints in the service treatment records were regarding the lateral chest. X-rays were noted to be negative for rib fractures. There was no evidence at any time in service or the period soon after service of any spine or back conditions. The examiner concluded by opining that the Veteran's current degenerative disc disease is a common finding as part of the aging process. The Board finds this report of VA examination constitutes competent medical evidence which weighs against the Veteran's claim. There is no competent evidence of record of the presence of arthritis of the spine to a compensable degree within one year of discharge which would allow for the grant of service connection on a presumptive basis. There are no medical records dated within one year of the Veteran's discharge and the Veteran is not competent to report on the presence of arthritis. Based on the above, the Board finds that service connection must be denied as the competent evidence of record demonstrates that a current back disorder is not etiologically linked to the Veteran's active duty service. The Board has considered the applicability of the benefit of the doubt doctrine. The Board finds, however, that the preponderance of the evidence of record weighs against the claim. As such, that doctrine is not applicable in the instant appeal, and the Veteran's claim must be denied. 38 U.S.C.A. § 5107. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for residuals of an injury to the right side of the chest claimed as a rib fracture In August 1986, the Veteran submitted a claim of entitlement to service connection, in pertinent part, for a right side injury. In November 1986, the RO denied service connection for residuals of an injury to the right side. The Veteran was notified of the rating decision and of his procedural and appellate rights in December 1986. The Veteran did not appeal the denial of service connection for residuals of a right side injury and the November 1986 rating decision became final. 38 U.S.C.A. § 7105. In April 2005, the Veteran submitted another claim of entitlement to service connection for residuals of an injury to the right side of the chest claimed as rib fractures. When a claim is the subject of a prior final denial, it may nevertheless be reopened if new and material evidence is presented or secured. 38 U.S.C.A. § 5108. If new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review it on a de novo basis. Manio v. Derwinski, 1 Vet. App 145 (1991). New evidence means existing evidence not previously submitted to agency decision makers. 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). The evidence received subsequent to the prior final rating decision is presumed credible for the purposes of reopening the claim unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence of record at the time of the November 1986 rating decision which denied service connection for residuals of a right side chest injury consists of the service treatment records and VA and private medical records. A service treatment record demonstrates that, in September 1945, the Veteran was treated for a contusion of the right chest. He reported he had been struck by a truck. He reported he was briefly rendered unconscious. The only complaint was pain in the chest. There was no evidence of a fractured rib found. The rest of the service treatment records are silent as to complaints of, diagnosis of or treatment for residuals of an injury to the right side of the chest. No pertinent abnormalities were noted on the reports of service examinations which were conducted in March 1946, June 1948, February 1950 and September 1950. Additionally, an August 1950 chest X-ray was interpreted as being negative. The private medical records were silent as to complaints of, diagnosis of or treatment for residuals of an injury to the right side of the chest. The RO denied service connection for residuals of an injury to the right side of the chest in November 1986 as no residuals of a rib injury were found. The evidence added to the record subsequent to the November 1986 rating decision which denied service connection for residuals of an injury to the right side of the chest consists of private and VA medical records, a statement from the Veteran's sister, statements from the Veteran and a report of a VA examination. The Board finds that none of this evidence satisfies the definition of new and material evidence. The VA and private medical records are new as they were not of record at the time of the prior final decision. The evidence is not material because it does not indicate in any way that the Veteran currently has residuals of a right chest injury to include fractured ribs. The medical evidence is devoid of references to problems with the right side of the chest or for rib fractures. The statement from the Veteran's sister is not new and material. In April 2006, the Veteran's sister reported that the Veteran had written her a letter in 1945 indicating that the Veteran had been hit by a load of bamboo from a native truck. The fact that the Veteran was involved in an accident with a truck during active duty was of record at the time of the prior final decision. The statements from the Veteran do not satisfy the definition of new and material evidence. The statements from the Veteran indicate he was claiming that he injured his chest while on active duty. The fact that the Veteran was alleging he sustained an injury to the right side of the chest during active duty as a result of being struck by a truck was of record at the time of the prior final decision. The report of the July 2008 VA examination is new but not material. The evidence was not of record at the time of the prior final decision. Significantly, the report of the July 2008 VA examination of the Veteran's spine does not indicate that the Veteran currently has residuals of an injury to the right side of the chest nor does it link such injury to the Veteran's active duty service. The Board finds that none of the evidence received subsequent to the November 1986 rating decision which denied service connection for residuals of a right side of the chest injury satisfies the definition of new and material as set out under 38 C.F.R. § 3.156(a). The claim of entitlement to service connection for residuals of an injury to the right side of the chest claimed as rib fractures has not been reopened. ORDER The appeals are denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs