Citation Nr: 1301065 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 10-01 050 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether there was clear and unmistakable error in a rating decision by the RO in December 2005, denying service connection for a disability of the lumbosacral spine. 2. Whether new and material evidence has been presented to reopen the claim of service connection for a disability of the lumbosacral spine. ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). The Veteran, who is the appellant, served on active duty from October 1959 to January 1962. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in July 2008 of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2011, the Board deferred a decision on whether there was clear and unmistakable error in a rating decision by the RO in December 2005, denying service connection for a disability of the lumbosacral spine, and remanded the claim of new and material evidence for a disability of the lumbosacral spine for further development. No further action to ensure compliance with the Board's remand directives is required. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. In a rating decision in December 2005, the RO denied service connection for a back disability on the grounds that a current back disability was not incurred in or caused by service, and on the grounds that a congenital back disability was not aggravated by service beyond the natural progression of the disability, and the correct facts, as the facts were known at the time, were before the RO and the statutory and regulatory provisions extant at the time, governing a grant of service connection, were correctly applied. 2. The evidence presented since the RO's December 2005 rating decision does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim of service connection for a disability of the lumbosacral spine. CONCLUSION OF LAWS 1. The RO's December 2005 rating decision, which denied service connection for a disability of the lumbosacral spine, was not clearly and unmistakably erroneous; and it is final. 38 U.S.C.A. §§ 5109A, 7105 (West Supp. 2012); 38 C.F.R. §§ 3.104, 3.105(a) (2012). 2. The additional evidence presented since the decision in December 2005 by the RO, denying service connection for a back disability, is not new and material, and the claim is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2012). The Veterans Claims Assistance Act of 2000 (VCAA) Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The U.S. Court of Appeals for Veterans Claims has held that the statutory and regulatory provisions pertaining to VA's duty to notify and to assist under the VCAA do not apply to allegations of clear and unmistakable error. See Parker v. Principi, 15 Vet. App. 407, 412 (2002) (holding VCAA inapplicable to a claim that a RO decision contained clear and unmistakable error, citing Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001) (en banc)). In a new and material evidence claim, the VCAA notice must include notice of the evidence and information that is necessary to reopen the claim and the evidence and information that is necessary to establish the underlying claim for the benefit sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). The RO provided pre-adjudication VCAA notice by letter, dated in March 2008; which notified the Veteran that new and material evidence was needed to reopen the claim, that is, evidence not previously considered, which was not redundant or cumulative of evidence previously considered, and notice included the reason the claim was previously denied. The Veteran was also notified of the type of evidence needed to substantiate the underlying claim for service connection, namely, evidence of current disability; evidence of an injury or disease in service or an event in service, causing injury or disease; and evidence of a relationship between the current disability and the injury, disease, or event in service. The Veteran was further notified that VA would obtain service records, VA records, and records of other Federal agencies and that he could submit records not in the custody of a Federal agency, such as private medical records, or with his authorization VA would obtain any non-Federal records he identified. The VCAA notice included the provisions for determining the effective date of a claim and the degree of disability assignable. As for the content and the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (pre-adjudication VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473 (notice of the elements of the claim); and of Kent v. Nicholson, 20 Vet. App. 1 (2006) (new and material evidence claim). And no further VCAA notice is required. Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service treatment records, VA records, and private medical records. In addition, pursuant to the Board's remand, records of the Social Security Administration were requested, but the records have been destroyed. Also, the Veteran was asked to authorize release of private medical records, including records, pertaining to a Workers' Compensation claim, but the Veteran has not done so. 38 C.F.R. § 3.159(c)(providing that a claimant must cooperate fully with VA's reasonable efforts to obtain relevant records from federal and non-Federal agency or department custodians; including, when necessary, authorization for the release of existing records in a form acceptable to the person, company, agency, or other custodian holding the records). As the Veteran has not identified any additional evidence pertinent to the claims and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In a rating decision dated in December 2005 the RO denied service connection for congenital variant lumbosacral junction (claimed as back injury) on the grounds that a current back disability was not incurred in or caused by service, and on the grounds that a congenital back disability was not aggravated by service beyond the natural progression of the disorder. Facts of Record at the Time of the Rating Decision in December 2005 The evidence of record at the time of the December 2005 rating decision included a 1958 preinduction examination report, and a 1959 induction examination report. No back complaints were made, and none were detected, during either examination. The service treatment records also included Orthopedic Clinic records dating from November 1959 to March 1960, which document the Veteran as complaining of pain in the thoracolumbar area for the past year following a motor vehicle accident. X-rays were within normal limits. Low back strain and lumbago were documented. No back complaints were made and no abnormalities were found on separation examination. After service private medical records in October 1990 pertain to a workplace accident. In November 1990 a CT scan showed degeneration at L4-5 and a disc herniation. In December 1990, a private physician stated that the Veteran had no more problems with his back after a transient bout back pain in service until October 3, 1990, when he slipped and fell at his workplace. The evidence also included private medical records in July 1991 that showed that a herniated lumbar disc due to injury at work in October 1990. In July 1991, a private physician again stated that the Veteran's back trouble was related to the injury at work in October 1990. In addition on VA examination in October 2005, the Veteran stated that he had been unemployed since leaving his job as a machinist in 1992. The Veteran stated that he had received treatment for back complaints during service, and on only one occasion in 1990, after service. X-rays of the lumbosacral spine showed congenital variant lumbosacral junction with multiple levels of degenerative changes, including facet arthropathy. The diagnosis was congenital variant lumbosacral junction (hemisacralization right L5) with multiple level degenerative disc disease and facet arthropathy. In an addendum in December 2005, the VA examiner stated that the congenital variant at the lumbosacral junction was not aggravated beyond the normal progression during service and that the current degenerative low back disability was not causally related to any incident of service, because the Veteran's in-service complaints resolved within 8 months of onset with no residuals. The VA examiner stated that the history provided by the Veteran downplayed the post-service injury and exaggerated the in-service treatment, and that the Veteran's only back complaints after service were related to an injury in October 1990, nearly 30 years after service. Clear and Unmistakable Error In his allegation of clear and unmistakable error the Veteran stated that the RO failed to make a specific finding that any increase in his pre-existing back condition was due to the natural progress of the disease. A claimant whose VA claim has been adjudicated by the RO has one year after the issuance of written notification in which to initiate an appeal to the Board by filing a notice of disagreement. If no appeal is filed, the decision is final, and is not subject to revision on the same factual basis. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§3.104(a), 20.302, 20.1103. A final and binding RO decision will be accepted as correct in the absence of clear and unmistakable error. Such a final decision may, however, be reversed or amended where evidence establishes that it was a product of clear and unmistakable error and the reversal or amendment will have the same effect as if the corrected decision had been made on the same date as the reversed or amended decision. 38 C.F.R. § 3.105(a). Clear and unmistakable error is defined as follows: either the correct facts, as they were known at the time, were not before the adjudicator; or the statutory provisions extant at the time were incorrectly applied. It is the sort of error which, had it not been made, would have manifestly changed the outcome at the time it was made. It is an undebatable error, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed. A determination that there was clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question. Russell v. Principi, 3 Vet. App. 310 (1992) (en banc). Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error of fact or of law that when called to the attention of later reviewers compels the conclusion to which reasonable minds could not differ that the result would have been manifestly different but for the error such that even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable error. Fugo v. Brown, 6 Vet. App. 40, 43-45 (1993). If a claimant wishes to reasonably raise clear and unmistakable error there must be some degree of specificity as to what the alleged error is; and, unless it is the kind of error that, if true, would be clear and unmistakable error on its face, persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error. Fugo at 44. Applicable Law for Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service. 38 U.S.C.A. § 1131 (peacetime service). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306(a). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Analysis Contrary to the Veteran's assertion, the RO did make a formal finding that the congenital variant at the lumbosacral junction was not aggravated by military service beyond the normal progression. And the RO's finding, which was based on a VA examiner's opinion was corroborated by the Veteran in 1991, when he told his attorney and treating physician that his in-service back complaints had completely resolved during service. Moreover, the RO also found that, while there was a record of treatment for low back strain during service, there was no permanent residual or chronic disability subject to service connection. Accordingly, the Board concludes that the rating decision by the RO in December 2005, denying service connection for a disability of the lumbosacral spine, was not clearly and unmistakably erroneous, and reversal or amendment of the rating decision is not warranted. New and Material Evidence In a rating decision in December 2005, the RO denied service connection for a back disability on the grounds that a current back disability was not incurred in or caused by service, and on the grounds that a congenital back disability was not aggravated by service beyond the natural progression of the disorder. After appropriate notice of the decision and of his appeal rights, the Veteran did not appeal, and no evidence pertaining to the issue was either physically or constructively received by VA within one year of the rating decision, and the rating decision became final as a matter of law. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 3.104. In correspondence in January 2008 the Veteran requested that his claim of service connection for a back disability be reopened. In a rating decision in July 2008, the RO denied the Veteran's request to reopen the claim for service connection for a lumbar spine disability on the grounds that new and material evidence had not been presented. The Veteran appealed the rating decision by the RO. Although the rating decision in December 2005 became final, the claim of service connection may be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108. Where, as here, a claim of service connection has been previously denied, a subsequent claim of service connection for the same disability may not be considered on the merits unless new and material evidence has been presented. And whether or not the RO reopened a claim is not dispositive, as it is the Board's jurisdiction responsibility to consider whether it is proper for a claim to be reopened. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial). As the application to reopen the claims was received after August 29, 2001, the current regulatory definition of new and material evidence under 38 C.F.R. § 3.156 applies. 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. In order that the additional evidence may be considered new and material, the evidence must relate to the basis for the prior denial of the claim. In determining whether evidence is new and material, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The presumption of credibility is rebuttable when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). The additional evidence presented since the rating decision in December 2005 consists of the following: * Statements of Dr. E.D., dated in June 2006, November 2008, and May 2011, are cumulative of the evidence of record at the time of the prior denial on the merits, and cumulative evidence does not constitute new and material evidence under 38 C.F.R. § 3.156. * A private medical record, dated in September 2008, shows arthritis by X-ray, which is cumulative of the evidence of record at the time of the prior denial on the merits, and cumulative evidence does not constitute new and material evidence under 38 C.F.R. § 3.156. * Private medical records, documenting pain management for lumbar radiculitis, myofascial pain, sacroilitis, and lumbar spondylosis, is not new and material, because the evidence does not relate to the reason the claim was previously denied, that is, either aggravation of congenital back disability or relating the post-service back disability to service. In the absence of new and material evidence, the claim of service connection for a disability of the lumbosacral spine is not reopened, and the benefit-of-the-doubt standard of proof does not apply. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). (The Order follows on the next page.). ORDER Service connection for a disability of the lumbosacral spine based on clear and unmistakable error is denied. As new and material evidence has not been presented, the claim of service connection for a disability of the lumbosacral spine, variously diagnosed as congenital variant lumbosacral junction disorder and lumbosacral degenerative disc disease, is not reopened, and the appeal is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs