Citation Nr: 1306199	
Decision Date: 02/22/13    Archive Date: 02/27/13

DOCKET NO.  11-18 030	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Whether new and material evidence has been submitted sufficient to reopen a claim of service connection for low back strain.

2.  Entitlement to service connection for a left shoulder disorder.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran




ATTORNEY FOR THE BOARD

Shana Z. Siesser, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1970 to April 1972, with additional service in the National Guard. 

This matter comes before the Board of Veterans' Appeals (Board) from an 
October 2009 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  

The Veteran appeared before the undersigned Veterans Law Judge at a Travel Board hearing in February 2012.  The record contains a transcript of that hearing.
 
A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.
 
The issue of entitlement to service connection for a left shoulder disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1. In an April 2003 rating decision, the RO denied service connection for low back strain.  Service connection for lumbar disc disease, spurring and levocurvature were implicitly denied.

2. Evidence received since the April 2003 rating decision is cumulative of the evidence that was of record at the time of that decision.

CONCLUSIONS OF LAW

1.  The April 2003 rating decision which denied entitlement to service connection for low back strain (disc disease, spurring and levocurvature) is final.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2012).

2.  Evidence received since the final April 2003 determination denying the Veteran's claim of entitlement to service connection for low back strain is not new and material, and the application to reopen his claim is denied.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156, 20.1103 (2012).
 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet.  App. 183 (2002).  Proper notice from 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) VA must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1).  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), as was done in this case.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

For claims pending before VA on or after May 30, 2008, 38 C.F.R. 3.159 was amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008).

In compliance with the duty to notify the Veteran of what information would substantiate his claim, the Veteran was advised that VA used a Schedule for Rating Disabilities (Schedule) that determined the rating assigned and that evidence considered in determining the disability rating included the nature and symptoms of the condition, the severity and duration of the symptoms, and the impact of the condition and symptoms on employment.  

With respect to a claim of whether new and material evidence has been presented to reopen the claim for service connection, in Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) established requirements with respect to the content of the duty to assist notice under the VCAA which must be provided to a Veteran who is petitioning to reopen a claim.

The Court held that VA must notify a Veteran of the evidence and information that is necessary to both reopen the claim and establish entitlement to the underlying claim for the benefit sought. The Court also held that VA's obligation to provide a Veteran with notice of what constitutes new and material evidence to reopen a service connection claim may be affected by the evidence that was of record at the time that the prior claim was finally denied. 
 
Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran dated in August 2009 that fully addressed all notice elements.

VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The RO has obtained the service treatment records, VA outpatient treatment records, Social Security Administration records, and private medical records.  

The Veteran was not afforded a VA examination because the RO found that reopening of the claim was not warranted. As the Board will find similarly below, there was no error in not providing a VA examination. See 38 C.F.R. § 3.159(c)(4)(iii) (the regulation requiring provision of a medical examination in certain circumstances applies to applications to reopen only if new and material evidence is received).

Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  

No further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim.  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, 16 Vet. App. 183 (2002).

During the hearing, the Veterans Law Judge clarified the issues, explained the concept of finality,and provided examples of how to establish new and material evidence or a new claim.  Such actions supplement VCAA and comply with any duty owed during a hearing. 

New and Material Evidence

An April 2003 rating decision denied the Veteran's claim of service connection for low back strain.  Notice of this decision was sent to the Veteran at his last address of record.  The Veteran did not appeal the April 2003 rating decision; nor did he submit new and material evidence within one year of the date of decision.  Therefore, the April 2003 rating decision became final.  38 U.S.C.A. § 7105; 38 C.F.R. § 3.156.  

However, if new and material evidence is presented or secured with respect to a claim that has been disallowed the Secretary shall reopen the claim and review the former disposition of the claim.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.

Under 38 C.F.R. § 3.156(a), evidence is considered "new" if it was not previously submitted to agency decision makers.  "Material" evidence is evidence which, 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.  Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000).

Under 38 C.F.R. § 3.156(c), when VA receives relevant service department records that existed and had not been associated with the claims file when VA first decided the claim, VA may reconsider the prior decision, and the effective date assigned will relate back to the date of the original claim, or the date entitlement arose, whichever is later. 

Service department records include (i) service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the Veteran by name; (ii) additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and (iii) declassified records that could not have been obtained because the records were classified when VA decided the claim. 38 C.F.R. § 3.156(c)(1). 

Service department records do not include records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim. 38 C.F.R. § 3.156(c)(2).

For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed, unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion.  Justus v. Principi, 3 Vet. App. 510, 513 (1992); Duran v. Brown, 7 Vet. App. 216, 220 (1995).

In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence has been submitted is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). 

Regardless of the RO's actions, the Board has a jurisdictional responsibility to determine whether a claim should or should not be reopened. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). 

The evidence of record at the time of the April 2003 rating decision consisted of the Veteran's claim, service treatment records from May 1970 through April 1972, post-service treatment records, and a lay statement from the Veteran's mother.    

In the Veteran's January 2003 claim, he alleged that during service, he was told that he might have pulled a muscle in his back but he didn't seek treatment at that time.  Since service, he has continuously experienced pain in his back and now has diagnoses of arthritis and a slipped disc.

The post-service treatment records showed that the Veteran stated that he had sustained a back injury in 1971 and that he had experienced low back pain since that time.  A January 2002 record showed a diagnosis of chronic low back pain.  Imaging from January 2002 showed L4-5 disc disease manifested by disc space narrowing and minimal anterior spurs and minimal lumbar levocurvature.

The lay statement from the Veteran's mother stated that she recalled the Veteran's back disorder beginning when he first returned from service and that he was unable to perform certain job duties in his post-service employment, due to his back disorder.  

In its April 2003 rating decision, the RO acknowledged the Veteran's treatment records showing diagnoses of disc disease and chronic low back pain, as well as the lay statements in support of a showing of continuity of symptomatology.  The RO found that the service treatment records contained no complaint, diagnosis, or treatment of low back strain.  The Veteran's claim of service connection for low back strain was denied because there was no evidence that his condition occurred in or was caused by service.  Since disc disease, spurring and levocurvature were noted at the time of the prior denial, such conditions were implicitly denied.

In essence, at the time of the prior denial there was post service evidence of pathology (strain, disc disease, spurs and levocurvature), but the RO rejected that there was evidence of in-service disease or injury and of a nexus to service.  To the extent that there was lay evidence of in-service disease or injury or of a nexus to service, such was not accepted. 

The evidence that has been submitted since the April 2003 rating decision consists of updated treatment records showing a diagnosis of severe intervertebral disc space narrowing at L4-5; Social Security Administration records showing a diagnosis of a back disorder that the Veteran contended was incurred during service; testimony from the Veteran at the February 2012 Board hearing that he injured his back in service and has experienced pain since that time; and the Veteran's copy of a December 1971 service treatment record.

As evidence of diagnoses of back pain and disc disease, statements by the Veteran of the incurrence of a back injury during service, and lay evidence of a continuity of symptomatology was of record at the time of the April 2003 rating decision, the Board finds this evidence to be cumulative and redundant of evidence previously of record.  Therefore, the Veteran's application to reopen cannot be granted on these records.  

With regard to the Veteran's copy of the December 1971 service treatment record,  the Board has considered how to characterize this issue with consideration of 38 C.F.R. § 3.156(c).  The April 2003 RO rating decision makes express reference to the RO's review of the Veteran's pertinent service treatment records from May 1970 through April 1972, and a February 2003 request for information confirms that  service treatment records were requested and obtained by that time. 

The Board notes that 38 C.F.R § 3.156(c) states that at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim notwithstanding the new and material evidence requirement of 38 C.F.R. § 3.156(a). 

The Board has carefully considered 38 C.F.R § 3.156(c) in this case, and finds that the Veteran has submitted copies of the December 1971 service treatment record with some content that varies from the corresponding service treatment record in the claims-file obtained from the service department.  Comparison of the copy submitted by the Veteran with the document received through official channels makes it clear that the discrepancy is the result of alteration of the documents. 

Specifically, the service treatment record obtained from the service department showed that on December 21, 1971, the medic recorded "pain in the L shoulder."  However, in the copy of the same record submitted by the Veteran, it appears that the medic recorded "pain in the L shoulder + back."  

As the Board finds that the copy of the December 1971 service treatment record submitted by the Veteran presented additional content only to the extent of the altered language, this copy does not constitute an addition of new service record content for the purposes of 38 C.F.R. § 3.156(c).  The Board finds that the pertinent notations added to the copies of service treatment records submitted by the Veteran have clearly not been written by the service medical professionals who authored the original version of these records during service. Accordingly, the Board will not consider the altered copies of the service treatment records as competent medical evidence nor as contemporaneous to service in this case. The Board will rely upon the versions of the service treatment records obtained through official channels.

In light of the unmistakably altered service treatment record, the Board has carefully considered the authenticity of all medical evidence received from the Veteran in this case. The Board does not find the altered documents to be authentic.  As the Veteran's copy of the December 1971 service treatment record is found to be inherently false or untrue, its credibility is not presumed and it is insufficient to constitute new and material evidence in support of reopening the Veteran's claim. Duran, 7 Vet. App. at 220.  The Board determines that the guidance established in Justus is that there is a general presumption of credibility.  However, that general presumption of credibility is rebutted when presented with altered or fraudulent evidence.  As the Court has noted, the Secretary is not required to consider the patently incredible to be credible.  See King v. Brown, 5 Vet. App 19, 21 (1993) the Board must not assume the credibility of evidence when the evidentiary assertion is inherently incredible.

Therefore, all of the evidence that the Board has received since the April 2003 rating decision is cumulative and redundant of the evidence that was before the RO at the time of the prior denial. As evidence that is cumulative and redundant is not new and material, the claim cannot be reopened.  See Anglin, supra.

Consequently, the application in support of reopening of the claim for entitlement to service connection for low back strain must be denied. As the benefit-of-the-doubt doctrine is not applicable to applications to reopen a claim unless the threshold burden of submitting new and material evidence has been met, it does not apply in this case. Annoni v. Brown, 5 Vet. App. 463, 467 (1993).


ORDER

The application to reopen a claim of service connection for low back strain is denied.


REMAND

The purpose of this remand is to schedule the Veteran for a VA examination to obtain an opinion as to whether a left shoulder disorder is related to his military service.

The Veteran's service treatment records show complaints of pain in his left shoulder in December 1971.  A diagnosis of deltoid myositis, bursitis was rendered.  

Post service treatment records show multiple diagnoses and treatment of left shoulder pain, culminating in a June 2012 treatment record showing that the Veteran underwent a left shoulder arthroscopy after having symptoms of left shoulder pain and weakness.  

At the February 2012 Board hearing, the Veteran testified that he injured his shoulder in service and had been having pain since that time.  

The United States Court of Appeals for Veterans Claims (Court) has 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. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 C.F.R. § 3.159(c)(4)(i). 
 
The Veteran is competent to testify that he experienced pain in his shoulder during service and that he currently experiences pain in his left shoulder.  See Jandreau, supra, Buchanan, supra.  Additionally, the medical records have shown that he complained of left shoulder pain during service and currently has a diagnosis of a left shoulder disorder.  

The threshold for finding that the disability may be associated with service is low. McLendon, 20 Vet. App. at 83; Locklear v. Nicholson, 20 Vet. App. 410, 419 (2006).  Therefore, additional development is necessary in order to properly decide the underlying merits of the claim.  Such development includes affording the Veteran a VA examination to assess the nature and etiology of his claimed left shoulder disorder. See 38 U.S.C.A. § 5103A(d). 

The Veteran also indicated that he had service in the National Guard after his discharge in 1972.  Those records have not been associated with the claims file.  As the Veteran has alleged a continuity of symptomatology of shoulder pain since service and the National Guard records are potentially relevant to that point, a remand is necessary to associate those records with the claims file. 

Accordingly, the case is REMANDED for the following action:

1. The RO should take all indicated steps in order to secure and associate with the claims file copies of any treatment records from the Veteran's service in the National Guard. 

2. The RO/AMC should ascertain if the Veteran has received any VA, non-VA, or other medical treatment for a left shoulder disorder that is not evidenced by the current record.  The Veteran should be provided with the necessary authorizations for the release of any treatment records not currently on file.  The RO/AMC should then obtain these records and associate them with the claims folder.

3. After obtaining any outstanding records, the Veteran should be afforded a VA examination to determine the nature and etiology of any left shoulder disorders that may be present.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.  The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions.

a. The examiner should identify any current left shoulder disorders.  For each current diagnosis identified, the examiner should state whether it is at least as likely as not that the disorder is causally or etiologically related to his service.  A clear rationale for all opinions should be provided.  

4. The RO/AMC should then readjudicate the claim of service connection for a left shoulder disorder.  If any of the benefits sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case.  

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. 2012).


______________________________________________
H.N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs