Citation Nr: 1300630 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 11-08 764A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for post-operative intervertebral disc syndrome, lumbar spine with degenerative arthritis (hereinafter, "low back disorder"). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from December 1941 to October 1945. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions promulgated in June and August 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which found that new and material evidence had not been received to reopen the previously denied claim of service connection for a low back disorder. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Service connection was originally denied for a low back disorder by a November 1965 rating decision. The Veteran was informed of this decision, including his right to appeal, and did not appeal. 2. A December 2002 rating decision found that new and material evidence had not been received to reopen the Veteran's claim of service connection for a low back disorder. The Veteran was informed of this decision, including his right to appeal, and did not appeal. 3. Although the evidence received since the last prior denial of service connection for a low back disorder was not previously submitted to agency decisionmakers, it does not relate to an unestablished fact necessary to substantiate the claim, is cumulative and redundant of the evidence of record at the time of the last prior final denial, and does not raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence not having been received, the claim of entitlement to service connection for a low back disorder has not been reopened. 38 U.S.C.A. §§ 1110, 1131, 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.156(a), 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Preliminary Matters The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veterans Claims (Court) has held that adequate notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). Further, in Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court clarified the requirements with respect to the content of the notice necessary for those cases involving the reopening of previously denied claims. Specifically, 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. 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 this case, the Veteran was sent VCAA-compliant notification via letters dated in April and May 2010, both of which were prior to the rating decisions that are the subject of this appeal. A review of the April 2010 letter reflects that it informed the Veteran of what information and evidence is needed to substantiate a service connection claim. The May 2010 letter noted that the low back claim had been previously denied. Although this letter noted a different prior final denial than as found by the Board in this decision, the letter did accurately note the reason why service connection had been denied, that new and material evidence was necessary to reopen the claim, and described the standard for new and material evidence by language consistent with the relevant regulatory criteria. Further, both letters notified the Veteran as to what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. In view of the foregoing, the Board finds that the duty to notify has been satisfied, to include the requirements of Kent, supra. In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In addition, the Board finds that the duty to assist a claimant in the development of his case has been satisfied. The Veteran's service treatment records are on file, as are various post-service medical records. Further, the Veteran has had the opportunity to present evidence and argument in support of his claim, and nothing indicates he has identified the existence of any relevant evidence that has not been obtained or requested. Although he contended in his March 2010 claim that his service treatment records had been destroyed in a fire, such is not the case as they are on file. His contention appears to be in reference to a fire at the National Personnel Records Center (NPRC) that occurred in July 1973 and did destroy service records for multiple service men. However, his service treatment records were requested and associated with his claims file prior to the date of that fire. As such, there does not appear to be any basis to find that there are missing service treatment records in this case. The Board also notes that as part of his April 2011 Substantive Appeal, the Veteran indicated that no hearing was desired in conjunction with this case. Moreover, under the law, an examination is not required in the context of new and material evidence claims. 38 C.F.R. § 3.159(c)(4)(iii); see also 66 Fed. Reg. 45,620, 45,628 (August 29, 2001). Consequently, the Board finds that the duty to assist the Veteran has been satisfied in this case. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Legal Criteria and Analysis 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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Service connection was originally denied for a low back disorder by a November 1965 rating decision. Thereafter, a December 2002 rating decision found that new and material evidence had not been received to reopen the Veteran's claim of service connection for a low back disorder. The Veteran was informed of these decisions, including his right to appeal, and did not appeal. Therefore, these decisions are final. See 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 20.1100, 20.1103. Despite the finality of a prior decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The Court has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Further, the Court has also held that in order to reopen a previously and finally disallowed claim there must be new and material evidence presented since the time that the claim was finally disallowed on any basis, not only since the time that the claim was last disallowed on the merits. Evans v. Brown, 9 Vet. App. 273, 285 (1996) (overruled on other grounds). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the Court stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. In this case, the evidence of record at the time of the prior denials included statements from the Veteran, his service treatment records, and post-service medical records which covered a period through 2002. The Veteran's service treatment records contain no findings indicative of back problems while on active duty to include on his October 1945 separation examination. His post-service medical records reflect that he was hospitalized from July to September 1958 for herniated nucleous pulposus, L-5, S-1 right side due to undetermined cause; and hernia, inguinal, indirect, left. The hospitalization report reflects the Veteran reported that his back pain developed upon arising from bed in the morning about 2 weeks earlier. He also reported back pain 2 years earlier that developed while cutting wood. Although he reported that the hernia was first noted shortly after discharge in 1945, he did not indicate that his back problems originated while on active duty or that he otherwise had any such problems at that time. Subsequent records continued to show treatment for his low back disorder. Nothing in the medical records related the etiology of the low back disorder to active service. The evidence received since the last prior denial includes additional statements by and on behalf of the Veteran, as well as additional post-service medical records which cover a period through 2011. The Board acknowledges that this evidence is "new" to the extent it was not previously of record. However, this evidence is not "material" in that it does not warrant reopening the claim pursuant to 38 C.F.R. § 3.156(a). In pertinent part, the Board notes that the additional post-service treatment records continue to show findings of a low back disorder. However, there was evidence of such a disability at the time of the prior denials. There is still nothing in the medical records which relates the etiology of this disability to the Veteran's active service. As such, the Board finds that these records are cumulative and redundant of the evidence previously of record, do not relate to an unestablished fact necessary to substantiate the claim, and do not present a reasonable possibility of substantiating the claim. As part of his March 2010 claim to reopen, the Veteran reported that he injured his back in 1945 while aboard ship, had surgery in 1946, and indicated that he had had continuity of symptomatology since that time. Although the statements from the Veteran at the time of the prior denial focused primarily on the severity of the disability, he did indicate on a September 1965 VA Form 21-526 (Application for Compensation or Pension) that his back problems developed while on active duty. He also previously indicated continuity of symptomatology. As such, this statement appears to be cumulative and redundant of the evidence previously of record. Nothing in this statement, or the other statements submitted by and on behalf of the Veteran appears to provide any additional details that were not known at the time of the prior denials, or which would, when considered with the evidence of record, at least trigger VA's duty to assist by providing a medical opinion. There being no other relevant evidence received as part of the Veteran's application to reopen, the Board finds that while the evidence received since the last prior denial of service connection for a low back disorder was not previously submitted to agency decisionmakers, it does not relate to an unestablished fact necessary to substantiate the claim, is cumulative and redundant of the evidence of record at the time of the last prior final denial, and does not raise a reasonable possibility of substantiating the claim. Accordingly, new and material evidence has not been received pursuant to 38 C.F.R. § 3.156(a), and the claim is not reopened. Inasmuch as new and material evidence has not been received, the Board does not have jurisdiction to consider the claim or to order additional development. See Barnett v. Brown, 83 F.3d. 1380 (Fed. Cir. 1996). Therefore, the benefit sought on appeal is denied. ORDER New and material evidence not having been received to reopen the claim of entitlement to service connection for a low back disorder, the benefit sought on appeal is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs