Citation Nr: 1303346 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 09-08 517 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for chronic back disability (claimed as residuals of in-service back injury). 2. Entitlement to service connection for chronic athlete's foot. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Y. Hawkins, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1980 to June 1982. These matters come to the Board of Veterans' Appeals ("Board") on appeal from an April 2008 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in North Little Rock, Arkansas, which denied the Veteran's application to reopen his previously denied claim of entitlement to service connection for a chronic low back disability for failing to receive new and material evidence, and also denied his claim of entitlement to service connection for chronic athlete's foot. In November 2009, the Veteran testified at a Board video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims folder. The Board has previously considered this appeal. In November 2010, the Board remanded the claims for further development. This was accomplished and in March 2012, the Appeals Management Center ("AMC") in Washington, DC, issued a Supplemental Statement of the Case ("SSOC"), in which it continued to deny the Veteran's claims. The claims folder has since been returned to the Board for further appellate proceedings. The record reflects that the appellant has submitted additional evidence to the Board in conjunction with this case, accompanied by a waiver of initial review of the evidence by the agency of original jurisdiction in accordance with 38 C.F.R. § 20.1304 (2011). The issue of entitlement to service connection for athlete's foot is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC. The Veteran will be notified if additional action is required on his part. FINDINGS OF FACT 1. An unappealed November 1982 rating decision denied the Veteran's claim of entitlement to service connection for a chronic back disability based on a finding that there were no disabling residuals of a back disability (injury) found at the time of the last VA examination. 2. The evidence received since the November 1982 rating decision is either cumulative or redundant, and when considered with the previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The November 1982 rating decision that denied entitlement to service connection for a chronic back disability is final. 38 U.S.C.A. § 7104(b) (West 2002 & Supp. 2011); 38 C.F.R. § 20.1100 (2011). 2. New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for a chronic back disability has not been received. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2011); 38 C.F.R. § 3.156(a) (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 ("VCAA") With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2011). A.) Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her 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) (West 2002); 38 C.F.R. § 3.159(b) (2011); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) ("Pelegrini II"), 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; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Element (4), the requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim, was eliminated by the Secretary of VA (the "Secretary") during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini, effective May 30, 2008). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability and effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Additionally, in Kent v. Nicholson, 20 Vet. App. 1, 10 (2006), the Court held that VA must notify a claimant of the evidence and information that is necessary to reopen the claim as well as the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit sought by the claimant. The duty to notify requires, in the context of a claim to reopen, that the Secretary look at the bases for the denial in the prior decision and to 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. In this case, a letter dated August 2007 informed the Veteran of the types of evidence needed in order to substantiate the underlying service connection claim (along with the reason(s) for the initial denial of his claim), the division of responsibility between the appellant and VA for obtaining the required evidence, and requested that the appellant provide any information or evidence in his possession that pertained to such claim. 38 U.S.C.A. §5103(a); 38 C.F.R. § 3.159(b). An October 2007 letter also satisfied Dingess/Hartman by informing the Veteran of how VA determines the disability rating and effective date elements of a claim. B.) Duty to Assist The Board concludes that VA's duty to assist has been satisfied. The claims file contains the Veteran's service and post-service treatment records and a VA spine examination report dated October 2008. Additionally, the claims file contains the Veteran's statements in support of his claim. The Veteran has not referenced any outstanding, available records that he wanted VA to obtain or that he felt were relevant to his claim that have not already been associated with the claims folder. The Board notes that the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. In this case, a VA examination is not necessary, since, until a claim is reopened, VA does not have a duty to provide a medical examination or obtain a medical opinion. 38 C.F.R. § 3.159(c)(1). However, the Court has held that, once VA provides an examination, it must be adequate or VA must notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In this case, review of the October 2008 examination reveals that the VA examiner reviewed the pertinent treatment reports of record, performed a comprehensive physical evaluation along with a review of diagnostic test results, and reported the findings from the examination. For these reasons, the Board concludes that the examination report is adequate upon which to base a decision in this case. It therefore appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative have identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. Accordingly, the Board concludes that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of his claim. See 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, supra. In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal and, for the reasons expressed above, finds that the development of the claim has been consistent with the provisions of the VCAA. The appellant has been provided every opportunity to submit evidence and argument in support of his claim and to respond to the VCAA notice. The purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his appealed claim. Accordingly, the Board will proceed to a decision on the merits. II. Analysis The Board has thoroughly reviewed all of the evidence in the Veteran's claims folder. 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 Veteran 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). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Under 38 U.S.C.A. § 1154(a), VA is also required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit ("Federal Circuit") held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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." (footnote omitted). However, the Court has held that "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Service connection may be established for a disability resulting from personal injury suffered, or disease contracted, in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Additionally, service connection for arthritis may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one (1) year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2011). In order to establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) the in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Alternatively, under 38 C.F.R. § 3.303(b), service connection may be awarded for a "chronic" condition when (1) a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the veteran presently has the same condition; or (2) a disease manifests itself during service, or during the presumptive period, but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the Veteran's present condition. Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2011). By an unappealed rating decision, dated November 1982, the RO denied the Veteran's claim of entitlement to service connection for a chronic back disability because there was no evidence that the condition manifested during service or arthritis within one year of separation of service. Following the issuance of the rating decision and a December 1982 notification letter, which informed the Veteran of his right to appeal, a timely notice of disagreement was not received within one year of the date of the notice letter. Therefore, that decision became final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. As such, the decision is not subject to revision except on the receipt of new and material evidence. 38 U.S.C.A. § 5108, 7104; 38 C.F.R. § 3.156(a). 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 that has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). "New" evidence means 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). According to the Court, the pertinent VA law requires that in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. See Evans v. Browns, 9 Vet. App. 273 (1996). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). The evidence of record since the last final denial includes the Veteran's VA Medical Center ("VAMC") treatment reports, dated October 2002 to December 2010, private chiropractor treatment reports, dated December 2010 to May 2012, a VA spine examination report, dated October 2008, and the Veteran's statements/testimony in support of his claim, as well as statements from his friends and family. The VAMC and private chiropractor treatment records show that the Veteran has undergone treatment for low back pain since approximately 2004, when magnetic resonance imaging (MRI) showed moderate spinal stenosis. An April 2009 treatment report shows the Veteran was seen in the VAMC outpatient clinic for complaints of intermittent low back pain without clinical findings and no explanation for claimed radiculopathy into the legs. At this time, it was noted that an MRI from February 2009 showed no significant changes from the 2004 study. Subsequent treatment records indicated diagnoses of degenerative changes of the lumbar spine and congenitally-short pedicles of the spine. From December 2010 to May 2012, he was treated by a chiropractor for lumbar sprain/strain with lumbar spine segmental dysfunction. However, none of the clinicians who treated the Veteran opined that his lumbar spine disorders were the result of, or were in any way related to or aggravated by, his military service. The October 2008 VA spinal examination shows that, following a thorough physical evaluation and comprehensive review of the claims folder, the VA examiner opined that, because the Veteran's complaints related to his back in service were localized to the mid-dorsal spine and current problems involved the lumbar spine, it was more likely than not that his current back disability was related to his age and occupation and not the isolated episodes of back problems in service, which involved myofascial mid-back pain in the early 1980's. He further observed that a 1982 compensation and pension examination shortly after the Veteran's separation from service revealed a normal spinal examination and normal x-ray findings. Thereafter, there were no complaints for several years, which the examiner found indicated that the Veteran's in-service back problems had resolved. The statements from the Veteran since the last final denial (both in writing and in the form of his testimony during the Board video conference hearing) assert that he has continued to experience worsening low back pain. Statements from his friends and family, including his girlfriend and a co-worker/supervisor, note that they have personally observed his problems with his low back and note that he has often sought medical treatment. While the aforementioned treatment reports, including the VA examination report, are new, in that they were not of record at the time of the November 1982 rating decision, they are not material because they fail to demonstrate that the Veteran's current chronic back disability either developed during service or within one year of separation from service. Moreover, they fail to provide a medical nexus between his current disorder and service. With regard to the Veteran's personal statements/testimony, the Board concludes that these assertions do not constitute new and material evidence, as they are merely a restatement of his contentions of record at the time of the November 1982 rating decision. Regarding the statements from his friends and family, the Board is cognizant that individuals are considered competent to testify to matters that "lend[] [themselves] to observation by a lay witness." See Falzone v. Brown, 8 Vet. App. 398, 403 (1995). However, while these individuals may sincerely believe that the Veteran's current low back condition is the result of some incident of active service, they have not been shown to have any medical knowledge or training, and thus are not competent to provide an opinion relating to medical causation and etiology that requires medical expertise and/or a clinical examination by a medical professional. See Jandreau v. Nicholson, supra. Significantly, the Veteran's friends and family report observations made many years after service discharge, not contemporaneous to service. Thus, these statements do not provide continuity of symptomatology from service discharge to the present. As a result, neither the Veteran's assertions, nor those of his witnesses raise a reasonable possibility of substantiating the claim or relate to an unestablished fact necessary to substantiate the claim. Accordingly, the Board finds that, while the additional clinical evidence received since the November 1982 rating decision is new, because it does not raise a reasonable possibility of substantiating the Veteran's claim, it does not constitute material evidence sufficient to reopen his claim of entitlement to service connection for a chronic back disability. ORDER New and material evidence not having been received, the request to reopen the claim of entitlement to service connection for a chronic back disability is denied. REMAND The Veteran contends that he has had chronic athlete's foot since military service. Review of his service treatment records, however, shows no evidence of complaints of, treatment for, or a diagnosis of athlete's foot (tinea pedis) or any other fungus disease of the feet during service. Recent private treatment records, dated May 2012, show that the Veteran has a current diagnosis of tinea pedis. In this regard, the Board notes that the VCAA duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits in certain instances. In determining whether a VA examination is required, there are four factors for consideration: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumptive period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). In this respect, the Board observes that, although there is no medical evidence that would suggest that the Veteran's claimed foot disorder was incurred during or is otherwise related to service, the United States Court of Appeals for the Federal Circuit ("Federal Circuit") has held that, medical evidence is not categorically required when the determinative issue involves either a medical etiology or diagnosis, but rather may, depending on the facts of the case, be established by competent lay evidence. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Davidson reaffirmed the Federal Circuit's holding in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) and Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), that VA must consider the competency of lay evidence, and cannot reject outright such evidence on the basis that such evidence can never establish a medical diagnosis or nexus. Moreover, in Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that, while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382. In this case, because there is "an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the [V]eteran's service," but there is "insufficient competent medical evidence on file for the [VA] Secretary to make a decision on the claim," see McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Board finds that a VA examination with opinion is necessary to determine whether the Veteran's tinea pedis is the result of active duty service. Finally, it appears that the most recent VA treatment reports of record are dated December 2010. Where VA has constructive or actual knowledge of the availability of pertinent reports in its possession, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that documents which were not actually before the adjudicators but had been generated by VA employees or submitted to VA by the claimant were, "in contemplation of law, before the Secretary and the Board and should be included in the record."). As records in the possession of VA are deemed to be constructively of record, while the case is in REMAND status, an attempt should be made to obtain updated treatment reports. Additionally, while the case is in remand status, an attempt should also be made to obtain any private treatment reports not currently of record. Accordingly, the case is REMANDED for the following action: 1. Please do not remove any tabs from the claims folder. 2. Obtain any available VA treatment records pertaining to the Veteran's athlete's foot since December 2010 and associate with the claims folder. Any negative response must be noted in the claims folder. 3. After obtaining from the Veteran the name of any private clinicians who are or have previously treated him for athlete's foot, the RO/AMC should send the Veteran an authorization and release form to allow it to obtain any updated private treatment reports that are not currently of record. All records obtained should be associated with the claims folder. Any negative response must also be associated with the claims folder. 4. Thereafter, schedule the Veteran with an appropriate clinician for a VA examination to determine the etiology and approximate onset date of his athlete's foot. Any tests deemed necessary should be conducted, and the claims folder must be provided to the examiner for review in conjunction with the examination. The examination report should reflect that such a review was undertaken. The examiner should elicit a complete history of the Veteran's symptomatology associated with the claimed condition and note that, in addition to the medical evidence, the Veteran's personal statements have been considered. Following a review of the relevant evidence in the claims file, the clinical evaluation and any requested diagnostic test results, the examiner should be asked to indicate whether it is at least as likely as not (i.e., whether there is at least a 50 percent probability) that the Veteran's athlete's foot is the result of any incident of active duty service or is otherwise related thereto. All opinions must be accompanied by a complete rationale. It would be helpful if the examiner would use the following language, as appropriate: "more likely than not," (meaning likelihood greater than 50%); "at least as likely as not," (meaning likelihood of at least 50%); or "less likely than not" or "unlikely" (meaning there is less than 50% likelihood). The clinician is also advised that the term "at least as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as to find against causation. "More likely" and "as likely" support the contended causal relationship; "less likely" weighs against the claim. If, for any reason, the clinician is unable to offer an opinion without resorting to speculation, it should be so stated. In such case, the examiner must specifically support that conclusion with a detailed medical explanation that takes into consideration all of the pertinent evidence of record (including the Veteran's self-reported history, and addresses such matters as whether: a.) there is inadequate factual information upon which to base an opinion (e.g., the lack of service treatment records); b.) the question falls outside of the limits of current medical knowledge or scientific development; c.) the condition manifested in an unusual way, such that its cause or origin is unknowable; or d.) there are other risk factors for developing the condition. 5. Thereafter, review the claims folder to ensure that the foregoing requested development has been completed and readjudicate the Veteran's claim. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded the opportunity to respond thereto. The matter should then be returned to the Board, if in order, for further appellate process. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs