Citation Nr: 1306624 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 07-18 928 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for a low back disorder. 2. Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active service from March 1979 to June 1992. This matter comes before the Board of Veterans' Appeals (Board) from an August 2006 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal except as noted herein. In the Veteran's June 2007 VA Form 9, Appeal to the Board, he requested a local RO hearing. However, by letter in August 2007 he withdrew that request. The claim for service connection for a low back disorder, on a de novo basis, 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 December 1994, the RO denied service connection for a low back disorder. Although notified of the denial in January 1995, the Veteran did not appeal this action and it became final. 2. Additional evidence received since the unappealed rating action of December 1994, taken together with evidence previously on file relates to an unestablished fact necessary to substantiate the claim for service connection for a low back disorder. CONCLUSIONS OF LAW 1. The unappealed rating action of December 1994, which denied service connection for a low back disorder, and of which the Veteran was notified, is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104(a), 20.302(a) (2012). 2. The new and material evidence, when considered with the old evidence, is sufficient to reopen the claim for service connection for a low back disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Under 38 C.F.R. § 3.159, VA must request that the claimant provide any evidence in the claimant's possession that pertains to the claim. In a new and material evidence claim, the VCAA notice must include 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). 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, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided the VCAA notice by letter of December 2005, prior to the August 2006 adjudication which is appealed in this case, in which the Veteran's was reminded that his claim had been denied previously and he had been notified thereof by the RO. He was also informed of the reason for the prior denial and that new and material evidence was needed to reopen the claim. He was informed of the evidence needed to substantiate a claim for service connection based on inservice incurrence of disability and of how effective dates and disability ratings were assigned. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). He was informed that VA would obtain service records, VA records, and records of other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records, or with his authorization VA would obtain any such records on his behalf. By an undated RO letter the Veteran was informed of the evidence needed to substantiate his newly asserted theory of secondary service connection, i.e., that he had a current low back disability due to his service-connected peripatellar bursitis of the left knee, and secondary aggravation. This was prior to readjudication of the claim in the Statement of the Case (SOC) in April 2007 and Supplemental SOCs in August 2007 and October 2010. An error in failing to afford a preadjudication notice (timing-of-notice error) can be cured by notification followed by readjudication. Mayfield v. Nicholson, 20 Vet. App. 537, 541-42 (2006); affm'd Mayfield v. Nicholson, 499 F.3d 1317 (Fed.Cir. 2007) (an SSOC is a readjudication); see also Prickett, 20 Vet. App. at 377-78. As the application to reopen the claim of service connection for a low back disorder is resolved in the Veteran's favor, further discussion of VCAA compliance is not required. Moreover, any failure of the RO to comply with the holding in Kent v. Nicholson, 20 Vet. App. 1 (2006) is nonprejudicial. Further discussion of VCAA compliance, including the duty to assist, is deferred pending remand of the claim for service connection for a low back disorder. Claim to Reopen The record shows that the RO had originally denied the claim of service connection for a low back disorder on the merits in a rating decision in December 1994 and that the Veteran was notified of that decision by RO letter in January 1995. He did not appeal that decision. By operation of law, the rating decision, denying the original claim of service connection became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 3.104(a). The claim was previously denied because the RO found that the Veteran had only acute and transitory complaints of low back pain during service in 1989 which resolved without residual disability and, so, a current low back disability was not shown to exist. Under 38 U.S.C.A. §§ 5108, 7105(c) (West 2002) and 38 C.F.R. §§ 3.104, 20.302(a) a rating action which is not appealed is final and may not be reopened unless new and material evidence is presented. Regardless of how the RO ruled on the question of reopening, the Board must re-decide that matter on appeal, because reopening is jurisdictional. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial) and Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial). The application to reopen the claim was received in July 2005. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). A finally adjudicated claim may be reopened by submitting new and material evidence. 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). However, the question of whether there is a reasonable possibility of substantiating the claim (in the final sentence of § 3.156(a)) does not create a third element and separate determination in the reopening analysis but is a component of whether there is new and material evidence. Shade v. Shinseki, 24 Vet. App. 110 (2010) (noting that 38 U.S.C.A. § 5108 requires only new and material evidence to reopen and that "the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim"). Principles of Service Connection For service connection to be granted for any disability, it is required that the facts, as shown by the evidence, establish that a particular injury or disease resulting in chronic disability was incurred in service, or, if pre-existing service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131. A showing of inservice chronic disease requires evidence of (1) a sufficient combination of manifestations for disease identification, and (2) sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." If not established, a showing of continuity of symptoms after service discharge is required. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303. Service connection is also possible for any disease initially diagnosed after discharge from service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). However, not every manifestation of joint pain during service will permit service connection for arthritis first shown as a clear-cut clinical entity at some later date. 38 C.F.R. § 3.303(b). 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 is required where the noted inservice condition is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303. Also, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection will be granted on a secondary basis for disability that is proximately due to or the result of, or permanently aggravated by, an already service-connected condition. 38 C.F.R. § 3.310(a) and (b). This requires (1) evidence of a current disability; (2) a service-connected disability; and (3) evidence establishing a nexus between the service-connected disability and the claimed disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). In the determination of whether the claim for service connection should be reopened the benefit-of-the-doubt standard under 38 C.F.R. § 3.102 does not apply. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Evidence Previously Considered The evidence on file at the time of the December 1994 rating decision included the service treatment records (STRs) which, in sum, revealed that the Veteran had complaints of low back pain in 1989 and 1980. The March 1979 examination for service entrance was negative. A March 1, 1989, STR shows that the Veteran complained of low back pain. He stated he had jumped off of some rocks and pain started about 1 1/2 hours later. On examination he could not touch his great toe without great pain. There were no bruises on his back but it felt as if he had a small bump on the left side of his low back area. The assessment was low back pain, for which he was given medication and was to apply heat. In October 1980 the Veteran complained of a back ache of two weeks duration. He had not had any sudden trauma or engaged in heavy lifting. On examination he had no spasm and complete range of motion with subjective pain on forward flexion. The assessment was low back pain, probably paravertebral muscle strain. The March 1992 examination for service discharge was negative. VA outpatient treatment (VAOPT) records in 1994 make no mention of a low back disability. VA orthopedic examination in April 1994 did not note any complaints or make any findings of low back disability. Thus, at the time of the unappealed December 1994 rating decision there was no competent evidence of a current, chronic low back disability. Additional Evidence The new evidence since the December 1994 rating decision includes private clinical records, records of the Social Security Administration, VA treatment records, and reports of VA examinations. The additional evidence includes a December 2004 VA outpatient treatment (VAOPT) record that the Veteran had not had any locking of the left knee for the last six months and it was noted that an MRI had revealed a tear of the posterior horn of the left medial meniscus. A report of a March 2008 lumbar MRI documents the presence of clearly chronic pathology of the Veteran's lumbar spine. Specifically, the impression was that the Veteran had multi-level degenerative changes as well as grad 1 anterolisthesis of L5 over S1 with spondylolysis, with severe neuroforaminal narrowing on the right side and moderate on the left side; in addition to straightening of lumbar lordosis, which might be secondary to muscle spasm versus positioning. On VA examination in July 2006 it was stated that the Veteran had recently had left knee surgery in 2005 for patellar tendon repair. This was at least as likely as not related to the service-connected patellar or peri-patellar bursitis. The claim file revealed evidence of patellar tendinitis affecting the Veteran since 1980. There was also evidence in the claim file of a prominent tibial tubercle causing bursitis and most likely a tendon rupture in the knee joint. On the other hand, medial menisceal pathology, for which the Veteran was also required to have a surgical procedure, was less likely than not related to the service-connected peri-patellar bursitis since the peri-patellar condition was not etiologically related to the menisceal area in terms of anatomy, innervation or biomechanics. On VA spinal examination in February 2007 it was noted that a review of VA "CPRS" records confirmed that the Veteran had non-specific osteoarthritis and disc disease. He had internal derangement of a knee and knee arthralgia. The examiner noted that the Veteran first stated that he had had the onset of low back pain in 1980 but then changed this to the year 1991. He indicated that he had had several falls during active service but had not sought treatment. He had a history of several falls in his house, causing low back trauma. He had not sought medical treatment and there was no documentation of the falls or any treatment. He indicated that one year ago his primary physician had had the Veteran undergo a lumbar MRI and, reportedly, this had found a herniated nucleus pulposus. A current lumbar MRI revealed straightening of lumbar lordosis; mild degenerative changes in the lumbar spine; small central disc protrusion at L1-2; and bulging anulus at L5-S1 with narrowing of neural foramina. The examiner stated, after a review of the claim file, that he agreed with the medical opinion in July 2006 with respect to the medial meniscus condition. It was the current examiner's opinion that the currently diagnosed low back condition was less likely than not secondary to the service-connected peri-patellar bursitis of the left knee, and more likely than not etiologically related to the Veteran's meniscus problems which caused his left knee to buckle, and he put unequal stress forces on the low back causing the findings reported on the current lumbar MRI. Also, the bursitis and menisceal conditions were different anatomical areas of the knee and the meniscus, in terms of pathology, was far more serious than a bursitis. Analysis Initially, the Board notes that the Veteran is service-connected for multiple disabilities, including peri-patellar bursitis of the left knee, rated 20 percent disabling. He is also service-connected for cervical spine disc diseased with multiple herniated nucleus pulposi, rated 40 percent disabling. As noted above, the existence or presence of chronic low back pathology was not shown at the time of the prior RO denial in December 1994. The additional private and VA records, at least to the extent that they relate to a low back disability, merely address treatment and evaluation of a low back disorder. Mere updated private treatment and VAOPT records are not new and material. See Cornele v. Brown, 6 Vet. App. 59, 62 (1993); Mintz v. Brown, 6 Vet. App. 277, 280 (1994) (medical evidence that merely documents continued diagnosis and treatment of disease, without addressing the crucial matter of medical nexus, does not constitute new and material evidence). However, in this case the additional evidence clearly establishes that the Veteran now had chronic pathology of the low back. Thus, the additional evidence is new and material because it relates to the unestablished fact necessary to substantiate the claim, i.e., the presence of current chronic low back disability and, so, raises a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding that if a service connection claim was denied because more than one required element was missing, then evidence which is new and material as to only one such element is require for reopening; in other words, new and material is not required for all elements found to be missing when the claim was previously denied). Additionally, the Board notes that the RO scheduled the Veteran for a VA spinal examination to evaluation the etiology of his low back disorder. That opinion was unfavorable. Nonetheless, the Board notes that in Falzone v. Brown, 8 Vet. App. 398, 404 (1995) (where the issue was aggravation of pes planus) the Court stated that, where there was an application to reopen a claim, because an examination had been provided to determine the nature and severity of the claimed condition, the examination would not have been necessary unless the claim was to be adjudicated on the merits. The Court held that in rendering such assistance (i.e., obtaining an examination before reopening) VA performed a "de facto reopening" of the claim. Falzone, at 404. The Board further notes that a VA medical examination or medical opinion is not authorized unless new and material evidence is presented. Generally see 38 C.F.R. § 3.159(c)(4)(iii). While it is true that the opinions obtained addressed the newly asserted theory of secondary service connection (which was not addressed in the December 1994 RO denial), the providing of such assistance in this case, i.e., providing a VA examination as to the etiology of the current low back disability, was a de facto reopening of the claim, in accordance with the holding in Falzone, Id. As the evidence is new and material, the claim for service connection for a low back disorder is reopened. However, further adjudication of the claim on the merits must be deferred pending evidentiary development. ORDER As new and material evidence has been presented, the claim of service connection for a low back disorder is reopened, and to this extent only the appeal is granted. REMAND Whether a medical opinion is adequate is a finding of fact. See 38 U.S.C. § 7261(a)(4); D'Aries v. Peake, 22 Vet. App. 97, 103 (2008). Here, the VA opinion expressed in February 2007, focused solely on the question of secondary service connection (direct causation) of whether the service-connected left knee peri-patellar bursitis caused a low back disability. In El-Amin v Shinseki, No. 10-3031, slip op. at 1 (U.S. Vet. App. Jan. 15, 2013); 2013 WL 151154 (Vet. App.) the precise question before the Court was whether a VA examiner's opinion that a claimed disability was "related to" factors other than a service-connected disorder was sufficient to permit the conclusion that a service-connected disorder did not aggravate a claimed disability; and, in the facts before the Court it was concluded that it was not because the opinion focused solely on direct causation, i.e., secondary service connection consisting of being proximately due to or the result of a service connection disability. In El-Amin, Id. slip op. at 1, it was noted that the VA examiner's opinion was that "there is no confirmatory or supportive evidence that [a service-connected disorder] caused [a claimed disorder], and thus it is NOT at least as likely as not that [a service-connected disorder] caused [a claimed disorder]. Conversely, it is more likely than not that the [claimed disorder] was related to factors other than the [service-connected disorder]." However, from this statement it was "was not at all clear" that the opinion encompassed a discussion of secondary aggravation and "[a]t best it might be said" that the examiner's opinion was that the claimed disorder was "aggravated by (that is, 'was related to') factors other than [a service-connected disorder]" and that "[t]his does not rule out the possibility that it [the claimed disorder] was also aggravated to some degree by [the service-connected disorder]" because "the examiner only opined that [the claimed disorder] was not "caused" by [a service-connected disorder]." Cf. McQueen v. West, No. 96-403 (U.S. Vet. App. Dec. 16, 1999 (as amended by order of January 6, 2000) (a VA examiner, after reviewing the claim file, determined that a back disorder was due to arthritis, necessarily concluded that service-connected kidney stones had not increased back pain above its baseline level or caused any additional low back disability). Thus, the Veteran should be afforded an additional VA examination which addresses, incurrence, secondary service connection, and secondary aggravation. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran an orthopedic examination to address the question of whether any current low back disability (1) at least as likely as not (50/50 probability) had its onset during active service or is otherwise related to the Veteran's military service, to include whether it is at least as likely as not (50/50 probability) that any lumbosacral arthritis had its onset during service or within one year of termination of active service in June 1992; and (2) whether at least as likely as not (50/50 probability) that any current low back disability, including any lumbosacral arthritis, was caused by or is a result of the service-connected peri-patellar bursitis of the left knee; and (3) whether any current low back disability, including any lumbosacral arthritis, is at least as likely as not (50/50 probability) aggravated by the service-connected peri-patellar bursitis of the left knee; and, if so, to what degree. Send the claims folders to the examiner for a review of the Veteran's pertinent medical history, to facilitate making these determinations. The examiner is requested to acknowledge and discuss the Veteran's reports and any lay evidence of incurrence of the claimed disability during active service as well as continuity of symptomatology. In formulating the medical opinion, the examiner is asked to consider that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. If the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why. 2. If the benefit sought is not granted to the Veteran's satisfaction, send him and his representative an SSOC and give them time to respond to it before returning the case to the Board for further appellate consideration. 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). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs