Citation Nr: 1303787 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 11-01 395 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. R. dela Rosa, Associate Counsel INTRODUCTION The Veteran had active military service from April 1953 to April 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In a substantive appeal dated in January 2011 the Veteran requested a Travel Board hearing. In July 2012, the Veteran requested a videoconference hearing in lieu of a Travel Board hearing. A hearing was scheduled in October 2012 and the Veteran was notified of such in a letter dated in August 2012. The Veteran failed to appear for the hearing and has not requested a new hearing. Thus, no further action on this point is required. 38 C.F.R. § 20.704(d) (2012). 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. A December 2006 rating decision determined that new and material evidence had not been received to reopen a claim for service connection for lumbosacral strain; the decision was not appealed. 2. Additional evidence associated with the claims file since the December 2006 rating decision is cumulative or redundant of the evidence previously of record, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a low back disorder. CONCLUSIONS OF LAW 1. The December 2006 rating decision denying the request to reopening the claim for service connection for a low back disorder is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). 2. New and material evidence sufficient to reopen the Veteran's claim for service connection for a low back disorder has not been presented. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, pre-adjudication VCAA notice was provided in a November 2009 letter, which advised the Veteran of the need to submit new and material evidence to reopen the previously denied claim for service connection for a low back disorder. The letter advised the Veteran of the basis of the prior denials, as well as advising him to submit evidence showing that his back disability has existed since military service and evidence linking his disability to military service. See Kent v. Nicholson, 20 Vet. App. 1, 9-10 (2006). The letter also advised the Veteran of the distribution of duties in obtaining such evidence. Finally, the letter advised the Veteran of how disability ratings and effective dates are assigned, and the type of evidence which impacts those determinations. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include private treatment records and VA treatment records. Additionally, the RO requested the Veteran's service treatment records, but received a negative response from the Records Management Center (RMC), indicating that the Veteran's physical examinations could not be reconstructed. The Veteran was informed that his records may be fire related in a letter dated in February 2010 and was requested that he submit all records in his possession and any other information, to include lay statements. A March 2010 response from the National Personnel Records Center (NPRC) indicated that the Veteran's STRs are fire related. Thereafter, the RO completed a formal finding that the requested medical records were unavailable. Thus, all efforts have been exhausted, and further attempts would be futile. 38 C.F.R. § 3.159(c) (2012). The Board notes that, until a claim is reopened, VA does not have a duty to provide a medical examination or obtain a medical opinion. See 38 C.F.R. § 3.159(c)(1). As will be discussed in greater detail below, the Board finds that new and material evidence had not been received to reopen the claim of entitlement to a low back disability. Therefore, a medical opinion on this issue is not necessary. The Veteran was notified and aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not show to have affected the essential fairness of the adjudication or to cause injury to the claimant. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004); Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). New and Material Evidence The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In a rating decision dated in June 1990, the RO denied service connection for a back condition finding that the Veteran failed to submit evidence which serves to link his back condition to military service. The RO provided the Veteran with notice of the rating decision and of his appeal rights in June 1990. A notice of disagreement was not filed nor was new and material evidence received within one year linking, and the decision became final. See 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. The Veteran filed a request to reopen the claim for service connection for a back condition in May 2006. Although VCAA notice was provided, the Veteran submitted no additional evidence to support his claim. In a rating decision dated in December 2006, the RO determined that new and material evidence had not been received to reopen the claim for service connection. The RO provided the Veteran with notice of the rating decision and of his appeal rights later that month. A notice of disagreement was not filed nor was new and material evidence received within one year, and the decision became final. See 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2002); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 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(a) (2012). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. See Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curium) (holding that the "presumption of credibility" doctrine continues to be precedent). The Court recently interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110 (2010). The evidence of record at the time of the December 2006 rating decision included statements from the Veteran and private treatment records. In his original claim, the Veteran indicated that he incurred a back injury at Fort Devens, Massachusetts while on bivouac in the winter of 1954. In an April 1990 statement, the Veteran reported that he spent two weeks in the Army Hospital in traction and indicated that his back has hurt since that time. Also included were private medical records showing that the Veteran fell down stairs and hurt his back in April 1987; he was subsequently treated for back pain. Those records did not mention any military injury. All of these records were present at the time of the 1990 rating decision denying service connection for a back condition. No evidence was submitted with the May 2006 request to reopen the claim, and the RO determined new and material evidence had not been submitted to reopen the claim in the December 2006 rating decision. Evidence submitted since the December 2006 decision includes private medical records, VA treatment records, and statements from the Veteran. Private medical records show treatment in 1995 for low back pain following a bus accident in November 1994. It was noted the Veteran denied a prior history of back problems. Other private treatment records dated from 1995 to 2000 and from 2008 to 2010 show current treatment for low back disabilities; however, none of these records note the Veteran mentioning a back injury in service, nor do any of the records suggest his current disability is related to military service. Similarly, VA treatment records dating from 2009 to 2010 reveal no mention of an in-service back injury or any indication that a current back disorder is related to military service. In a December 2009 statement, the Veteran reported that he hurt his back at Fort Devens, Massachusetts and was treated in the hospital for two weeks. He indicated that he has suffered with his back condition since he was discharged. Upon review of the record, the Board finds that new and material evidence has not been received to reopen the claim for service connection for a back condition. In this regard, there has been no medical evidence submitted since the prior denials establishing that the Veteran has a current back disability that is related to service. The private and VA medical records submitted show complaints of pain and treatment for the low back. While new, the medical evidence merely demonstrates the existence of a current disability - a fact that was established in the medical evidence considered in the prior denials of the claim. As the newly submitted medical evidence does not offer a nexus between the Veteran's low back disorder and his military service, it is not material to the claim. Statements submitted by the Veteran likewise reiterate the contentions he made prior to the June 1990 and December 2006 rating decisions that he incurred a fall at Fort Devens, Massachusetts and has had back trouble ever since. As such, the Board finds the Veteran's statements are cumulative and redundant, and not new to this claim. As there continues to be no evidence showing that the Veteran's low back disorder is related to his military service, the Board concludes that new and material evidence has not been received to reopen the Veteran's claim. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER New and material evidence not having been received, the claim of entitlement to service connection for a low back disorder is not reopened, and the appeal is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs