Citation Nr: 1123909 Decision Date: 06/23/11 Archive Date: 06/29/11 DOCKET NO. 10-21 461 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Whether new and material evidence has been submitted in order to reopen a claim for a low back disorder. ATTORNEY FOR THE BOARD B. Thomas Knope, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1977 to January 1980. This matter is on appeal from a July 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In hi May 2010 substantive appeal, the Veteran requested a hearing at the RO. A hearing before a VA Decision Review Officer was scheduled in June 2010. The evidence indicates that he did not report for his scheduled hearing. Then, in a Report of Contact dated July 2010, the Veteran indicated that he did not wish to reschedule his hearing. Accordingly, his right to a hearing at the RO is therefore deemed waived. See 38 C.F.R. § 3.103(a) (2010). FINDINGS OF FACT 1. In a December 2006 rating decision, the RO denied the Veteran's application to reopen a previously denied claim for entitlement to service connection for a low back disorder; this decision became final when the period allowed for an appeal expired. 2. The additional evidence received since the December 2006 RO decision is not new and material and does not raise a reasonable possibility of substantiating the claim for entitlement to service connection for a low back disorder. CONCLUSION OF LAW New and material evidence not having been submitted, the requirements to reopen a claim for entitlement to service connection for a low back disorder have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5108, 7105 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.156, 3.159 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 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, 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. 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. In claims to reopen based on new and material evidence, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and 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, VA 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, the notice letter provided to the Veteran in March 2009 included the criteria for reopening a previously denied claim, the criteria for establishing service connection, and information concerning why the claim was previously denied. He was specifically advised that his claim had been denied based on the finding that the evidence failed to link his post-service low back problems with his active service. Consequently, the Board finds that adequate notice has been provided, as he was informed about what evidence was necessary to substantiate the elements required to establish service connection that were found insufficient in the previous denial. Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010). After a careful review of the file, 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). First, the RO has obtained the Veteran's service treatment records and VA outpatient treatment records. Further, the Veteran submitted private treatment records related to the claim on appeal. Significantly, the Veteran has not 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. Next, a specific VA medical opinion or examination is not needed to consider whether the Veteran has submitted new and material evidence but, rather, the Board has reviewed all the evidence submitted to the claims file since the last final denial. Therefore, as relevant here, a remand for a VA examination and opinion is not warranted for the Veteran's low back disorder. See 38 C.F.R. § 3.159(c)(4)(iii) (2010). Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. 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). New and Material Evidence In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. Manio v. Derwinski, 1 Vet. App. 140 (1991). Under the relevant regulation, "new" evidence is defined as 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. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). However, lay assertions of medical causation cannot serve as the predicate to reopen a claim under 38 U.S.C.A. § 5108. See Moray v. Brown, 5 Vet. App. 211, 214 (1993). 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). If it finds that the submitted evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999); but see 38 U.S.C.A. § 5103A (eliminates the concept of a well-grounded claim). Because the Board has the jurisdictional responsibility to consider whether it was proper to reopen the claim, regardless of the RO's determination on the question of reopening, the Board will determine whether new and material evidence has been received and, if so, consider entitlement to service connection on the merits. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In this case, the Veteran is claiming entitlement to service connection for a low back disorder. This claim was originally denied by the RO in October 1980 on the basis that, while he complained of back pain for two days while on active duty, the diagnosis was limited to a muscle spasm and there was no evidence of a recurrence. The RO determined that any back problem was an acute condition and not related to his post-service diagnosis of myositis. In adjudicating this claim, the RO reviewed the Veteran's service treatment records and afforded the Veteran a VA examination in March 1980. This decision was not appealed and became final one year later. In May 2006, the Veteran again filed a claim for entitlement to service connection for a low back disorder. In support of this claim, he submitted a treatment records from 1992 to November 2005 to include radiographic imaging of the lumbar spine from February 1992 and May 1996. Many of these records were also associated with his Army Reserve treatment records. However, in December 2006, the RO again denied the claim on the basis that none of this evidence was both new and material to issue on appeal. It bears noting that some treatment records appear to have been associated with the claims file within the year following the December 2006 decision. In this regard, the Court of Appeals for Veterans Claims has held that, if new and material evidence has been submitted within a year of the RO decision, 38 C.F.R. 3.156(b) requires that any subsequent decision based on such evidence relate back to the original claim. Buie v. Shinseki, 24 Vet. App. 242, 242-52 (2010). Thus, the December 2006 decision is final unless the evidence submitted within a year of that date is new and material to the claim. Accordingly, the Board has reviewed this evidence, but concludes that none of it is both new and material to the claim. Specifically, these outstanding treatment records were associated with the Veteran's Army Reserve treatment record folder, which was evidence reviewed by the RO prior to its December 2006 decision. Accordingly, this evidence is not new and, as the Veteran did not appeal this decision, it became final one year later. In February 2009, the Veteran submitted the current claim on appeal. In support of this claim, he has submitted private treatment records from 2006, as well as additional treatment records from 2008 to 2009. However, the Board has reviewed this evidence and concludes that none of these records are both new and material to the Veteran's claim. First, the treatment records from 2006 are records what were incorporated in the Veteran's treatment records associated with his Army Reserve file. As was discussed previously, the December 2006 decision indicates that his Army Reserve records were reviewed prior to that decision. Therefore, as these records have already been considered, they are not "new". Next, as to the records reflecting treatment from 2008 and 2009, they are clearly new, as they were generated since the last final denial of the claim. However, none of these records are material, as they do not relate to an unestablished fact necessary to support the claim. Specifically, the new evidence includes records of treatment to the cervical spine (specifically, complaints of "neck pain") from approximately March to June 2008, to include an MRI of the cervical spine in March 2008. However, as the current claim on appeal relates to the Veteran's lumbar spine, these records are not material to the claim. Additionally, the remaining new evidence is merely a number of blood laboratory analysis reports. None of these reports indicate a lumbar spine disorder, or even note symptoms that may be related to such a disorder. Thus, these records are also not material to the claim on appeal. Therefore, after a review of the evidence submitted since the last final denial of the claim on appeal, the Board concludes that some, but not all, of this evidence is new in that it was generated since the last final denial of the claim. However, none of the new evidence is material, as it does not relate to an unestablished fact necessary to support the claim. Finally, consideration has been given to the additional statements about the Veteran's condition. Specifically, he has asserted that his service treatment records indicate in-service symptomatology related to a low back disorder. However, these statements do not further his claim, as the presence of low back symptomatology has already been established. Moreover, the statement are not "new" to the extent that the statements assert a connection between the Veteran's current low back disorders and his active service. Bostain v. West, 11 Vet. App. 124 (1998) (lay hearing testimony that is cumulative of previous contentions considered by decision maker at time of prior final disallowance of the claim is not new evidence); see also Reid v. Derwinski, 2 Vet App. 312, 315 (1992). Further, even if the statements disclosed new information, which they do not, such assertions would not be sufficient to reopen the claim, as a lay person is not competent to offer an opinion that requires medical expertise, such as a current diagnosis or whether that diagnosis is related to his active duty service. Consequently, the statements do not constitute new and material evidence to reopen the claim. Moray v. Brown, 5 Vet. App. 211, 214 (1995) (holding that lay assertions of medical causation cannot serve as a predicate to reopen a previously denied claim). Therefore, in this case, the Board finds that none of the current evidence submitted by the Veteran since the final rating decision is new and material under 38 C.F.R. § 3.156(a). Thus, the Veteran's claim to reopen must be denied. (CONTINUED NEXT PAGE) ORDER New and material evidence having not been submitted, the application to reopen a claim for entitlement to service connection for a low back disorder is denied. ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs