Citation Nr: 1109260 Decision Date: 03/09/11 Archive Date: 03/17/11 DOCKET NO. 08-18 011 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran served on active duty from June 1974 to March 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO), which determined that new and material evidence had not been submitted to reopen the claim of service connection for a low back disorder. In the VA Form 9, Appeal to the Board of Veterans' Appeals, dated June 2008, the Veteran indicated that he wished to testify at a hearing before the Board at the local RO. In July 2008, the Veteran informed the RO that he preferred a central office hearing. As such, the Veteran was scheduled for a central office hearing on January 20, 2011. However, on January 19, 2001, the Veteran contacted the RO and stated that he wished to withdraw his hearing request because he could not attend the scheduled central office hearing nor could he make it to Waco for a travel board hearing. Thus, the Board finds that there is no hearing request pending at this time. See 38 C.F.R. § 20.702(e) (2010). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. Service connection for a low back disorder was denied in an August 2001 rating decision. The Veteran was notified of this decision and of his appeal rights. He did not appeal the decision. 3. The evidence received since the August 2001 rating decision was not previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for a low back disorder. 4. Competent evidence of a nexus between the post service diagnosis of chronic lumbosacral strain with mild wedging of L1 and service is not of record. CONCLUSIONS OF LAW 1. The August 2001 rating decision that denied entitlement to service connection for a low back disorder is final. 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2010); 38 C.F.R. §§ 20.302(b), 20.1103 (2010). 2. The evidence received since the August 2001 rating decision is new and material, and the claim is reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2010); 38 C.F.R. § 3.156(a) (2010). 3. A low back disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the Court held that VA must 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. The Board finds that the VCAA notice requirements have been satisfied by the November 2007 letter sent to the Veteran. In the letter, the Veteran was informed that in order to substantiate a claim for service connection, the evidence needed to show he had a current disability, a disease or injury in service, and evidence of a nexus between the post-service disability and the disease or injury in service, which was usually shown by medical records or medical opinions. As to informing the Veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf, VA informed him it had a duty to obtain any records held by any federal agency. It also informed him that on his behalf, VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. The letter stated that he would need to give VA enough information about the records so that it could obtain them for him. On March 31, 2006, the Court issued a decision in the appeal of Kent v. Nicholson, 20 Vet. App. 1 (2006), which establishes new requirements regarding the VCAA notice and reopening claims. The Court held that the VCAA notice must include the bases for the denial in the prior decision and VA must respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. Id. The question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied. See Evans v. Brown, 9 Vet. App. 273, 283 (1996) (holding evidence is material if it is relevant to and probative of an issue that was a specified basis for the last final disallowance). The Veteran has been apprised of the information necessary to reopen his claim for service connection for a low back disorder in the November 2007 VCAA letter. In addition to the foregoing analysis, to whatever extent the decision of the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date, the Board finds no prejudice to the Veteran in proceeding with the present decision. Since the claim is being denied, any such effective date questions are moot. The Veteran has had ample opportunities to meaningfully participate in the adjudicative claims process. Any error or deficiency in this regard is harmless, and not prejudicial. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA obtained the Veteran's service treatment records and VA outpatient treatment records from July 1997 to August 2008. VA also provided the Veteran with a VA examination. The examiner reviewed the Veteran's medical history, recorded pertinent examination findings, and provided a conclusion with supportive rationale. The Board finds that the VA examination report is probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. The evidence of record provides sufficient information to adequately evaluate the claim. Therefore, no further assistance to the Veteran with the development of evidence is required, nor is there notice delay or deficiency resulting in any prejudice to the Veteran. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). II. Applicable Laws and Regulations A. New and Material Evidence Pursuant to 38 U.S.C.A. § 7105(c), a decision by the RO may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered. The exception to this rule is described under 38 U.S.C.A. § 5108, which provides 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." Therefore, once a rating decision has been issued, absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by VA. 38 U.S.C.A. §§ 5108, 7105(c); See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as 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). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Additionally, when determining whether the claimant has submitted new and material evidence to reopen a claim, consideration must be given to all the evidence since the last final denial of the claim. Evans v. Brown, 9 Vet. App. 273 (1996). In Evans, the United States Court of Appeals for Veterans Claims (Court) indicated that the newly presented evidence need not be probative of all the elements required to award the claim, but need only tend to prove each element that was a specified basis for the last disallowance. Id. at 284. B. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002). Service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2009). Establishing service connection generally 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 claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumptive period and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997). In addition, if a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the clam or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. Analysis At the time of the August 2001 rating decision, which denied service connection for low back pain, the evidence of record consisted of the Veteran's service treatment records, VA outpatient treatment records from July 1997 to December 1999, and a July 1999 formal application for compensation benefits. In the August 2001 rating decision, the RO noted that while service treatment records show that the Veteran complained of recurrent back pain at separation on his March 1975 report of medical history, there was no established back disability during his military service. Furthermore, post service treatment records were void of any diagnosis of a low back disability. The RO determined that since there was no diagnosis of a chronic back disability, service connection must be denied. The Veteran was notified of the denial in an August 2001 letter, including his appeal rights, and he did not appeal the decision. Thus, it is final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. The Board has reviewed the evidence of record and finds that the Veteran has submitted new and material evidence to reopen the claim of service connection for a low back disorder. Since the August 2001 rating decision, the evidence received into the record includes VA outpatient treatment records from January 1998 to August 2008 and results from a VA examination conducted in December 2008. General lower back pain (lumbago) is consistently listed under the Veteran's past medical history as reflected in VA outpatient treatment records. More importantly, the December 2008 VA examiner diagnosed him with chronic lumbosacral strain and mild wedging of L1, and provided an opinion as to the etiology of his current low back disorder. Given the state of the current record and the newly-received evidence, the Board finds that new and material evidence has been submitted. Thus, the claim is reopened and will be discussed on the merits below. Because the Veteran has had opportunity to address the merits of this claim, the Board may proceed with a final adjudication of the merits of the claims because there is no prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Review of the Veteran's service treatment records reflects no complaints, treatment, or diagnosis of a back disability during his military service. However, upon discharge from service, the Veteran reported having or had previously recurrent back pain on his March 1975 report of medical history. After discharge from service, post service treatment records reveal complaints and for low back pain. Beginning in January 2008, VA outpatient treatment records note general lower back pain (lumbago). In June 2008, the Veteran returned to his local VA outpatient treatment facility with complaints of lower back pain. Finally, an August 2008 VA outpatient treatment note lists lumbago under his past medical history. In this decision, the Board has considered all lay and medical evidence as it pertains to the issue. 38 U.S.C.A. § 7104(a) ("decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) (VA "shall consider all information and lay and medical evidence of record in a case"); 38 C.F.R. § 3.303(a) (service connection claims "must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence"). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A Veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). In determining whether statements submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). As part of the current VA disability compensation claim, the Veteran has asserted that his symptoms relating to his chronic low back disorder have been continuous since service. Specifically, at the December 2008 VA examination, the Veteran stated that he injured his back in basic training after jumping off a cliff in a night course. He explained that he developed immediate pain and was seen by physicians for treatment. The Veteran further added that he was placed on a profile for approximately eight days and returned to duty thereafter. The Veteran stated that since his discharge from service, he continues to have daily back pain and attributes the current pain to his military service. In this case, after a review of all the lay and medical evidence, the Board finds that the weight of the evidence demonstrates that the Veteran did not experience continuous symptoms of his chronic low back disorder after service separation. Further, the Board concludes that his assertion of continued symptomatology since active service, while competent, is not credible. First, although not determinative, the multi-year gap between discharge from active duty service (1975) and initial reported symptoms of a lumbar spine disability in 2008 (approximately 33 years) is significant. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where Veteran failed to account for lengthy time period between service and initial symptoms of disability). Second, the Board notes that the Veteran's reported history regarding what occurred in service, and regarding continued back symptoms since service is inconsistent with the other evidence of record, and is self-contradictory. While he now maintains that his low back disorder began in service, the service treatment records are void of any complaints, treatment, or diagnosis of a low back disorder. Further, he has remained silent as to what specific event or injury caused his current low back disorder up until the December 2008 VA examination. As mentioned, the Veteran reported to the VA examiner that he incurred his low back disorder after suffering an injury in boot camp. However, when filing his initial claim for service connection in July 1999, and his informal claim to reopen in September 2007, there was no mention of the claimed in-service incident. Again, there was mention of the in-service incident in his September 2001 and March 2008 notices of disagreement (NODs) and in his June 2008 substantive appeal to the Board. As to why the Veteran waited until the December 2008 VA examination to explain the in-service incident remains unexplained, and significantly reduces the credibility the Board can attach to the Veteran's historical account. As such, the Board finds that the Veteran's current recollections and statements made in connection with his claim for benefits to be of lesser probative value than the normal discharge examination and absence of treatment records for a considerable time after service. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the Veteran's statements, it may consider whether self-interest may be a factor in making such statements). Therefore, continuity has not been established either through the medical evidence or through the Veteran's statements. Next, service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence is against attribution of the Veteran's low back disorder to active duty, despite his contentions to the contrary. In December 2008, the Veteran was afforded a VA examination. As mentioned above, he informed the VA examiner that he originally injured his back in service after jumping off a cliff in a night course while in basic training. He explained that he received treatment from physicians and placed on a profile for eight days. He admitted to having problems after the incident and returned to sick call periodically for pain medication. After discharge from service, the Veteran indicated that his daily back pain has continued and is aggravated by long walking, long standing, and bending. He further added that he worked as a truck driver, but had to quit in 2003 because of his back pain and other medical conditions. After physical examination of the Veteran and review of the current x-ray findings, the VA examiner diagnosed the Veteran with chronic lumbosacral strain and mild wedging of L1. The VA examiner opined that "it is less likely than not" that the Veteran's current back pain is related to his active military service. The VA examiner explained that while it appears the Veteran may have had a soft tissue injury in service due to the notation on his March 1975 report of medical history, he admitted to working until 2003. The VA examiner attributed the Veteran's current disability to wear and tear of the overall aging process. There is no contrary medical opinion or medical evidence in the record, and neither the Veteran nor his representative has identified or alluded to such medical evidence or opinion. The VA examination report clearly states that the Veteran's claims file was available and reviewed. The VA examiner reviewed the Veteran's subjective history, clinical findings, and rendered an opinion with supportive rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Thus, the Board considers the December 2008 VA opinion adequate, and service connection for a low back disorder must be denied. The Veteran himself believes that this current low back disorder is causally related to active service. However, he has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical causation. As such, his lay opinion does not constitute competent medical evidence and lacks probative value. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Moreover, to the extent that the holding in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) can be interpreted to enable a lay person to speak as to etiology in some limited circumstances involving only observable factors, the question of causation here involves complex issues that the Veteran is not competent to address. Accordingly, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for a low back disorder, and the benefit-of-the-doubt rule is not for application. See Gilbert, 1 Vet. App. at 55. ORDER New and material evidence having been received, the claim for service connection for a low back disorder is reopened. Entitlement to service connection for a low back disorder is denied. ____________________________________________ K.J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs