Citation Nr: 1303531 Decision Date: 02/01/13 Archive Date: 02/08/13 DOCKET NO. 11-10 660 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether new and material evidence has been submitted sufficient to reopen the Veteran's claim for service connection for a low back disorder. 2. Entitlement to service connection for a low back disorder. REPRESENTATION Veteran represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The Veteran had active duty service from November 1979 to March 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Regional Office (RO) in Muskogee, Oklahoma. FINDINGS OF FACT 1. In November 1982, the RO denied a claim of entitlement to service connection for a back disorder. The Veteran was notified of this decision but did not file an appeal. 2. Evidence received since the November 1982 decision raises a reasonable possibility of sustaining the claim of service connection for a back disorder. 3. Arthritis of the spine is not shown by the evidence of record to have manifested within one year of service, and the probative evidence of record does not relate the Veteran's current back disorder to his active duty service. CONCLUSIONS OF LAW 1. The November 1982 RO decision denying the Veteran's claim of service connection for a back disorder is final. See 38 U.S.C.A. § 7105 (West 2002). 2. New and material evidence has been submitted since the November 1982 rating decision, and the Veteran's claim for service connection for a back disorder is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 3. A back condition was not incurred in or aggravated by active military service, and may not be presumed to have been so incurred. See 38 U.S.C.A. §§ 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties of Notice and Assistance VA has certain notice and assistance requirements. See 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326 (2012). Upon receipt of a substantially complete application for benefits, VA must notify the Veteran of what information or evidence is needed in order to substantiate the claim, and it must assist the Veteran by making reasonable efforts to obtain the evidence needed. 38 U.S.C.A. §§ 5103(a) , 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In claims to reopen, VA must both notify a Veteran of the evidence and information necessary to reopen the claim and notify the Veteran of the evidence and information that is necessary to establish 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 final decision and provide the Veteran 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. Id. As will be discussed below, the Board is reopening the claim of service connection for a back condition. Therefore, any failure to provide compliant notice with regard to the Veteran's application to reopen this claim is not prejudicial to the Veteran. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; Mayfield v. Nicholson, 19 Veteran. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Further, for the claim for service connection, proper notice from VA must inform the Veteran 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 Veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice requirements 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). 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 a June 2009 letter, the RO provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). With this letter, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. An April 2012 video conference hearing was scheduled to be heard before the Board. However, the record reveals that the Veteran failed to show for the hearing. As the Veteran has not requested a new hearing, the content requirements of the notice VA is to provide have been met. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The Board also concludes VA's duty to assist has been satisfied. VA has a duty, in order to assist claimants, to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A ; 38 C.F.R. § 3.159. The Veteran's service treatment records and identified VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In an April 2009 treatment record the Veteran indicated he sought treatment at St. John's Hospital. The Veteran was sent a letter in September 2010 in which it was requested that he provide such treatment records and directed him to submit an Authorization and Consent to Release Information Form for these records. The Veteran submitted no new records, nor did he submit an Authorization and Consent to Release Information Form for these records. As such, the Board finds that the Veteran was afforded ample opportunity to submit these records or submit the necessary form to have VA obtain these records. All records identified by the Veteran as relating to this claim have been obtained, to the extent possible. The Board finds that the record contains sufficient evidence to make a decision on the claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i), McLendon v. Nicholson, 20 Vet. App. 79 (2006). In January 2012, the Veteran was provided a VA examination with regard to the claim for service connection for a back condition. The examiner reviewed the claims file, conducted the appropriate diagnostic tests and studies, and noted the Veteran's assertions. As such, the Board finds this examination report and opinion to be thorough, complete, and sufficient upon which to base a decision with regard to the Veteran's claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 542-43 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). New and Material Evidence In May 1982, the Veteran filed his original claim seeking entitlement to service connection for a back injury. The RO denied the Veteran's claim in a November 1982 decision. The Veteran was advised of this denial, but did not appeal. As such, the November 1982 decision became final. 38 U.S.C.A. § 7105. Although a decision is final, a claim will be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. 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. "New" evidence means existing evidence not previously submitted to VA. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, related to an un-established fact necessary to substantiate the claim. See 38 C.F.R. § 3.156(a). The determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after VA has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110, 116-118 (2010). If a claim is reopened, it will be reviewed on a de novo basis. 38 U.S.C.A. §§ 5108, 7105; Evans v. Brown, 9 Vet. App. 273 (1996); Manio v. Derwinski, 1 Vet. App. 140 (1991). As the November 1982 rating decision is the last final disallowance, the Board must review all of the evidence submitted since then to determine whether the Veteran's claim for service connection should be reopened and readjudicated on a de novo basis. Evans, 9 Vet App. at 282-83. The November 1982 rating decision denied the Veteran's claim of entitlement to service connection for a back disorder, concluding that residuals of a lower back injury were not found on examination and spina bifida occulta was a constitutional or developmental abnormality and not a disability under the law. At the time of this denial, service treatment records were considered. The Veteran was notified of this decision, but did not file an appeal. The new evidence submitted since this denial consists primarily of VA Medical Center (VAMC) treatment records and the Veteran's statements. With regard to the newly submitted VA medical records, a VA examination from January 2012 provides that the Veteran's back condition was diagnosed as lumbar stenosis, L4-L5 due to intervertebral degenerative disc disease; lumbosacral spine injuries during a wrestling match and then lifting at work; low back paravertebral spasm secondary to football injury, resolved; and spina bifida occulta, noted as congenital and existed prior to service. As the newly submitted VA medical evidence reflects that the Veteran has a current diagnosed back disorder, it relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. Accordingly, new and material evidence has been submitted. As such, the claim is reopened. Entitlement to Service Connection for a Back Disorder Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) 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." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Moreover, certain chronic diseases, such as arthritis, may be presumed to have been incurred during active military service if manifested to a compensable degree of at least 10 percent disabling within one year of separation from active military service. See 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The Veteran asserts that he injured his back during his active duty service and as a result of this injury, he continued to experience back problems since service. He alleges that while serving in Germany, the jeep he was riding in rolled, throwing him to the ground. The Veteran stated that while he hurt his back, he did not seek treatment at that time. A review of the service treatment records reveals the October 1979 enlistment examination and the October 1979 Report of Medical History were normal. A November 1980 treatment record indicates that the Veteran hurt his back playing football while in service and was prescribed medication and bed rest for twenty-four hours. An x-ray of the Veteran's back showed minor spina bifida occulta of S-1, normal otherwise. A service separation examination is not of record. Subsequent to service discharge, the Veteran was treated at a VA emergency room in October 1988 for back pain with leg weakness. The Veteran reported a wrestling injury in February 1988 and recurrent lower back pain following lifting at work. A computed tomography (CT) scan taken of the Veteran's lower back at that time showed slight bulging of the annulus fibrosis at the L5-S1, with extremely subtle effacement of the S1 roots bilaterally, of questionable clinical significance; slight bulging of the annulus fibrosis of the L4-L5; and mild diffuse bulging of the annuls fibrosis, without forminal and/or canal compromise at the L3-L4. The Veteran was prescribed medication and strict bed rest. A May 2009 VA treatment record shows that the Veteran was treated for back pain. The Veteran stated that while at work, he pushed against something and heard a loud pop coming from his back. He immediately fell to the floor with the most severe back pain he ever had. A May 2009 magnetic resonance imaging (MRI) test showed degenerative disc disease at the lower two levels, with large disc herniation/extrusion to the right of the midline at L4-L5 affected the descending nerve roots. The diagnosis was degenerative disc disease, with large disc herniation with bladder incontinence. In 2009, the Veteran also received a series of epidural steroid injections to alleviate back pain, which extended into the Veteran's extremities. At a December 2010 VA neurological consult the Veteran reported experiencing leg pain and numbness for 10 to 15 years. The Veteran reported back pain, but his primary complaint was leg pain aggravated by walking, sleeping, sitting, working, and with the Valsalva maneuver and lifting. A MRI done at this time showed, bilateral, right greater than left, L4-L5 lateral recess stenosis, appropriate for interlaminar decompression at L4-L5. Decompression surgery was recommended. In June 2011, the Veteran underwent L4-L5 interlaminar decompression surgery at the VAMC in Houston. Following surgery, the Veteran continued to seek treatment at the VAMC in Muskogee for his back condition. An October 2011 treatment record indicated the Veteran had returned to work and had been up and down ladders for two weeks. The Veteran was afforded a VA examination in January 2012. At the examination, the Veteran alleged he hurt his back when the jeep he was riding in flipped over while he was serving in Germany. The Veteran indicated that this accident happened in 1980 or 1981. The Veteran explained that he continued to work with his back but was now at the point where he could not walk. The Veteran stated that he was still working, however, his work had been restructured to painting and sitting on a fork lift as opposed to building kiosks/buildings and being the "roof man." The VA examination also contained the operative report from the Houston VAMC for the June 2011 interlaminar decompression surgery. The VA examiner concluded that the Veteran's back condition was not related to service, explaining that the back injury the Veteran experienced in service had completely resolved and that the evidence of record clearly documented that the onset of low back pain followed a severe back injury during a wrestling match in February 1988. The VA examiner opined that "based on the preponderance of evidence, the significant injuries to the Veteran's lumbar spine occurred in 1988, years after the Veteran left service." The evidence of record demonstrates instances of in-service treatment for a back disorder. Further, the record includes evidence of a current back disorder. However, there is no competent medical evidence providing the required nexus between military service and a current back condition, and as such, service connection for a back condition is not warranted. Specifically, the VA examiner, after reviewing the Veteran's claims file, considering the Veteran's lay assertions, and performing a physical examination of the Veteran, concluded the Veteran's back condition was "less likely than not" incurred in or caused by the claimed in-service injury. The record does not include any medical evidence to the contrary. In reaching this conclusion, the Board has also considered the Veteran's statements asserting continuity of symptomatology; specifically that he has experienced back pain since his in-service injury. As such, 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 Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996); 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. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter 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"). Here, the Veteran's statements are competent evidence as to what he has experienced symptoms such as back pain since service, because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. However, his statements are not competent evidence to diagnose a disability such lumbar stenosis and intervertebral degenerative disc disease, as they are not disabilities that may be diagnosed by their unique and readily identifiable features, and thus require a determination that is "medical in nature." See Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007) (finding that "[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (noting that certain disabilities are not conditions capable of lay diagnosis). Nevertheless, the Veteran's lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this regard, the Board determines that the Veteran's reported history of continued symptomatology relating to his back disability since active service, while competent, is not credible evidence. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (finding that in weighing the credibility, VA may consider inconsistent statements, internal inconsistency, and consistency with other evidence of record). Significantly, the Veteran sought treatment in October 1988 for back pain following an injury during a wrestling match. He made no mention of a prior in-service injury. Moreover, at that time, the Veteran specifically stated he injured his back five to six months prior, and had been doing well until he sought treatment. Further, it was not until April 2009, 27 years following separation from service, that the Veteran reported back pain since rolling his jeep while on active duty service in Germany. The Board also finds it significant that although the Veteran stated he did not seek treatment in 1980 or 1981 for the injury sustained when the jeep rolled, the Veteran did seek treatment for back pain while in service in November 1980 following a football injury, and the Veteran was discharged in March 1982 without further complaint of back pain. Further, in determining the credibility of the Veteran's statements, the Board finds it significant that the VA examiner opined that the Veteran's statements regarding the in-service injury are contradictory to the evidence of record. The VA examiner specifically stated that the evidence clearly shows that while there was a onetime muscle spasm due to a football injury it was completely resolved. While the Board has considered the Veteran's contentions, the Board ultimately places more probative weight on the January 2012 opinion of the VA medical professional, who reviewed the claims file, examined the Veteran, and considered his assertions, as well as the contemporaneous reports of the Veteran when he sought treatment in 1988. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). Further, the Veteran has a current diagnosis of spina bifida occulta. The Veteran's spine was noted to be normal at entrance into service. In general, a Veteran is considered to have been in sound condition upon entry into service, except as to defects, infirmities, or disorders noted on the entrance examination, or where clear and unmistakable, obvious or manifest, evidence demonstrates that an injury or disease preexisted service and was not aggravated during service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012). However, the presumption of soundness does not apply to congenital defects because such defects are not considered diseases or injuries within the meaning of the statutes. See Quirin v. Shinseki, 22 Vet. App. 390, 396-97 (2009); see also Terry v. Principi, 340 F.3d 1378, 1386-86 (Fed. Cir. 2003); Winn v. Brown, 8 Vet. App. 510, 516 (1996). As noted above, the Veteran's current back diagnoses include spina bifida occulta. Spina bifida occulta is a defect to the vertebrae of the spine. Dorland Illustrated Medical Dictionary 1748 (32nd ed. 2012). In that regard, congenital defects or malformations are not considered diseases or injuries for VA compensation purposes. See 38 C.F.R. § 3.303(c), 4.9 (2012). As such, a congenital or developmental defect generally may not be service-connected as a matter of law, however, service connection may be granted if such a defect is subject to, or aggravated by, a superimposed disease or injury during service which results in additional disability. See Monroe v. Brown, 4 Vet. App. 513, 514-515 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995). In this case, there is competent and credible evidence that the Veteran had a preexisting congenital defect of the spine, namely spina bifida, and that this defect was not subject to or aggravated by a superimposed disease or injury during service resulting in additional disability. Namely, the January 2012 VA examiner specifically noted that the Veteran's spina bifida was congenital and existed prior to service. Although the VA examiner merged all the Veteran's diagnosed conditions into one, described as a low back condition, when providing an etiology, and did not individually address the diagnosis of spina bifida, the VA examiner specifically opined that the natural progression of the low back condition was not altered or worsened by any event and/or condition that occurred during service. There is no competent evidence to contradict this finding. As such, service connection for spina bifida is not warranted under the basis of aggravation by a superimposed disease or injury. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for back condition must be denied. See 38 U.S.C.A §5107; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). ORDER As new and material evidence has been submitted regarding the claim of service connection for a back disorder, the Veteran's claim is reopened. To this extent only, the appeal is granted. Entitlement to service connection for a back disorder is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs