Citation Nr: 1307405 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 10-01 296 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from August 1981 to September 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In January 2013, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge (VLJ) in Washington, DC. A transcript of that hearing is included in the claims file. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. The claim of entitlement to service connection for a back disability was previously denied by the RO in a rating decision dated in December 1985. The Veteran did not appeal that decision, and no new evidence pertinent to that claim was received by VA within one year from the date that the RO mailed notice of the determination to the Veteran. 2. No new evidence received since the time of the final December 1985 rating decision relates to an unestablished fact necessary to grant, and raises a reasonable possibility of substantiating, the Veteran's claim of entitlement to service connection for a back disability. CONCLUSIONS OF LAW 1. The December 1985 rating decision is final. 38 U.S.C.A. § 7015(c) (West 2002), 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.103 (2012). 2. New and material evidence submitted to reopen the claim of entitlement to service connection for a back disability has not been received. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist After review of the claims file, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions in this case with respect to the issue on appeal. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). The information contained in a March 2008 letter satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letter described the basis of the previous denial of the Veteran's claim for service connection for a back disability, as well as the evidence necessary to substantiate the elements of service connection found to be unsubstantiated in the previous denial. See Kent v. Nicholson, 20 Vet. App. 1, 10 (2006). Moreover, the Veteran was notified of regulations pertinent to the establishment of an effective date and disability rating in the March 2008 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records and identified private medical records have been obtained. While the Veteran has not been afforded a VA examination in connection with his current claim, as the Board finds that new and material evidence to reopen the claim of entitlement to service connection for a back disability has not been received, remand for a VA examination is not warranted. See 38 C.F.R. § 3.159(c)(4)(iii). There is no indication in the record that any additional evidence relevant to the issue on appeal is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. Also, in Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. They consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the January 2013 Board personal hearing, the VLJ fully explained the issue on appeal, and asked questions focused on the nature and etiology of the disability in question, specifically as to whether the Veteran had incurred a preservice injury and how he may have injured his back in service. The Veteran was assisted at the hearing by an accredited representative from the Veterans of Foreign Wars. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims file that might have been overlooked or was outstanding that might substantiate the claim, and specifically inquired as to the Veteran's initial treatment after service, any records since service in which he might have mentioned that his back problems began in service, and whether there was any VA treatment records or outstanding service treatment records. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or his representative. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. All of the evidence in the Veteran's claims file has been thoroughly reviewed. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence, and on what the evidence shows or fails to show with respect to the matter on appeal. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (2012). Service connection may 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 C.F.R. § 3.303(d) (2012). A veteran who served after December 31, 1946, is presumed to be in sound condition when he or she entered into military service, except for conditions noted on the entrance examination, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1132. Pertinent procedural regulations provide that "[n]othing in [38 U.S.C.A. § 5103A] shall be construed to require [VA] to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in [38 U.S.C.A. § 5108]." 38 U.S.C.A. § 5103A(f) (West 2002). Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C.A. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). 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, 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). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992); but see Hodge, 155 F.3d 1356 (overruling the definition of new and material evidence set forth in Colvin v. Derwinski, 1 Vet. App. 171 (1991) and applied in Justus (See Justus, 3 Vet. App. at 512-513)). In Elkins v. West, 12 Vet. App. 209 (1999), the Court of Appeals for Veterans Claims (Court) held the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court recently held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The RO denied service connection for a back disability in December 1985. That rating decision was not appealed, and no new evidence pertinent to that claim was received by VA within one year from the date that the RO mailed notice of the determination to the Veteran. Furthermore, VA has not received or associated with the claims file any relevant official service department records that existed and had not been associated with the claims file at the time of the December 1985 decision. Therefore, the December 1985 rating decision is final. 38 U.S.C.A. § 7105 (West 2002), 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). See also 38 C.F.R. § 3.156(b), (c). The Veteran, during his January 2013 Board hearing, asserted that he did not remember receiving notification of the December 1985 denial of service connection. It is presumed that government officials have properly discharged their official duties. Clear evidence to the contrary is required to rebut this "presumption of regularity". Ashley v. Derwinski, 2 Vet. App. 307 (1992). The presumption of regularity applies to procedures at the RO. Mindenhall v. Brown, 7 Vet. App. 271 (1994). Evidence of a claimant's nonreceipt of a VA decision alone does not establish the "clear evidence" needed to rebut the presumption of regularity of a mailing. See Ashley, 2 Vet. App. at 309. In this case, the December 1985 decision appears to have been sent to the Veteran's most recent address of record at the time, and there is no indication that such decision was not delivered or was returned as undeliverable. Furthermore, the Veteran also testified that he did not remember even filing a service connection claim in 1985, and the August 1985 claim for service connection for a back disability, signed by the Veteran, is of record. Given these facts, the Board finds that the presumption of regularity has not been rebutted, and that the December 1985 decision was properly sent to the Veteran. The basis of the prior final denial in December 1985 was the RO's finding that the Veteran was shown to have suffered a severe back injury prior to active service, and that the evidence did not show that the Veteran's back condition, which clearly preexisted service, was aggravated during his short term of active duty; in the rating decision, the RO noted that the Veteran was first seen in service two days after entrance into service in August 1981 with complaints of low back pain and gave a history of low back injury while lifting rails in early July 1981. Thus, in order for the Veteran's claim to be reopened, evidence must have been added to the record since the December 1985 rating decision that addresses this basis and raises a reasonable possibility of substantiating the claim. Evidence existing at the time of the December 1985 rating decision includes the Veteran's service treatment records, which reflect that, while the Veteran's May 1981 report of examination for entry into service noted no back problems, the Veteran reported to a Branch Clinic for medical treatment on August 11, 1981, and on August 17 he reported again, complaining of pain to the lower back and numbness radiating down his right leg for the last month. At the time, the Veteran reported that his leg was hurt while working on a railroad. On August 18, the Veteran was treated again for low back pain, which he reportedly hurt working on a railroad lifting a rail just prior to service. Following examination, the diagnosis was acute L4 radiculitis, existing prior to entry into service. An August 24 follow-up note indicates that the Veteran still had low back pain and that prior medical records were still being awaited. In September 1981, the Veteran continued to be treated for low back pain, and stated that no prior medical records existed; it was noted that the Veteran's back injury that existed prior to service was not getting better, and that he would be referred to the Medical Board. A September 1981 note further reflects that the Veteran stated that he had arrived at physical training with back pain likely resulting from an injury lifting rails while working with railroad tracks and ties in early July 1981, after being on the job for approximately one month; he stated that he had been trying to lift a 30-foot length of rail with his hands, along with four other laborers, when his back went out. An in-service Medical Board report, of record in December 1985, reflects that the Veteran was at recruit sick call on August 12, 1981, at Branch Clinic, with complaints of low back pain, and returned to sick call on August 17 with continuing complaints referable to the lower back. He was referred to the orthopedic clinic where he was diagnosed with acute radiculitis, his civilian records were requested but none were received, and he returned with persisting back symptoms on September 4. The report indicates that the Veteran stated that he arrived for basic training with low back pain resulting from an injury sustained while "lifting rails" while working for a contractor hired by the Seaboard Coastline Railroad in early July 1981. He stated that he and four other laborers were attempting to manually lift a 30-foot length of rail after the fork lift used to do the work had failed to function, and that his back went out. He stated that he had been transported to his home by his boss who told him that he could not work anymore, and that since he did not get any compensation, he could not apply for anything, and for this reason and because he owed doctor bills he had not sought medical attention. He stated that he self-treated with bed rest and the use of crutches for ambulation, but that the crutches had been hurting his back so that he began using a cane for support, with no improvement, and he described having experienced symptoms of severe pain for the lower back all the way down his right leg. He further stated that when he arrived at training the drill instructor told him to touch his toes but that he would not, so the drill instructor called the military police and the Veteran had to be taken to the brig and then to Branch Clinic, two days following arrival at basic training, before initiation of training. The diagnosis was radiculitis, lumbar vertebra four, right, symptomatic, existing prior to service. The Medical Board found that the Veteran had a nonacceptable defect and recommended separation from service, and it was noted that the Veteran had been informed of the finding and recommendation and did not desire to submit a statement in rebuttal. The evidence of record at the time of the December 1985 rating decision further consists of the Veteran's original August 1985 claim for service connection benefits for a back disability, signed by the Veteran, which states, under the heading "Nature of Sickness, Disease or Injuries for Which this Claim is Made and Date Each Began," "Sciatic nerve, 4th Lumbar vertebra (Rt leg) Just before entering military I had a catch in back [sic] thought I pulled muscle when lifting railroad ties-I had already enlisted in military so I went on in but could not finish Basic Training." Evidence submitted and obtained since the December 1985 rating decision includes private treatment records, dated in March and April 2009, reflecting treatment for chronic low back pain with radiculopathy, including degenerative disc disease of the lumbar spine associated with discogenic sclerosis, and that the Veteran indicated that he had had an injury 28 years before with intermittent pain since the injury. It also consists of the Veteran's testimony during his January 2012 Board hearing that he first injured his back in August 1981 in basic training, after an exercise where he was required to hold his foot locker but dropped it due to back pain and was taken to the infirmary. He testified that he refused to have back surgery, and that this was when the process of his separation from service began, but that the pain had never stopped since. He also testified that he did not remember filing a service connection claim in 1985 or receiving notification of a denial of service connection. When asked about his reports of injuring his back initially by lifting a railroad rail before service, the Veteran testified that he never said anything like that, that he had been a truck driver before service and never reported tying to lift a rail, and that he did not remember hurting his back at all before service and had no idea where that came from. The Board finds that the evidence submitted since the December 1985 rating decision is not new and material. Read in conjunction with the evidence of record, it does not raise a reasonable possibility of substantiating the Veteran's claim. See Shade, 24 Vet. App. at 121. The March and April 2009 private treatment records reflect a current back disability, reportedly due to an injury that occurred 28 years prior, but such evidence does not relate the injury to the Veteran's service, and the fact of a current back disability due to injury had already been established at the time of the December 1985 rating decision. Furthermore, the Veteran's testimony during the January 2013 Board hearing is not new and material. The Veteran's testimony during the hearing was that he in fact did not incur any back injury prior to service, had no back problems at the time of entry into service, never injured his back trying to lift rails or rail ties, and never stated that he had injured his back engaging in such work prior to service; rather, according to his testimony, he first injured his back in service. However, the Veteran's own reported history of injuring his back attempting to lift rails or rail ties prior to service is extensively documented in the contemporaneous service treatment records, with details of the injury, the circumstances of the injury involving attempting to lift a rail, and the resulting problems from it. Such injury was also reported in his own signed claim for service connection in August 1985. Thus, the Veteran's evidence to reopen is an assertion clearly contrary to an established fact plainly apparent in the claims file, which is that the Veteran never had, and never reported, a preservice back injury involving lifting rails. Such evidence does not raise any reasonable possibility of substantiating his previously denied claim, and is not a basis to reopen and readjudicate the claim de novo. Even presuming the credibility of the Veteran's January 2013 testimony, the Board finds that it does not constitute new and material evidence. The Veteran is competent to report matters within his own personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Veteran testified that he did not remember hurting his back prior to service and had no idea where the idea for that came from, and did not remember filing a service connection claim in 1985. Even presuming the Veteran's credibility, the facts in the file clearly establish otherwise. It may be that the Veteran's recollection of certain details has dimmed with the passage of 30 years since his discharge from service, but the evidence developed contemporaneous with his service - and the statements he made therein - are contrary to what he recalls now. The Board acknowledges that the phrase "raises a reasonable possibility of establishing the claim" must be viewed as enabling rather than precluding reopening, and as one that contemplates the likely entitlement to a nexus medical examination if the claim is reopened. Id. at 121. However, the facts of this case stand in contrast to other claims to reopen where the newly submitted evidence could be considered in conjunction with the evidence previously of record to help establish a previously unestablished element of the service connection claim, which might lead to further development, such as a VA examination, which might substantiate the claim. Id. at 119-122. In this case, the Veteran did not testify that he aggravated a preexisting back injury in service, or that a current disability is related to service apart from his preexisting back injury. His testimony was that he in fact did not make statements during or after service that he had incurred any back injury prior to service, and specifically that he never made any statements about hurting his back lifting rails or rail ties, which are statements he is clearly on record as having made. The newly submitted testimony evidence of the Veteran is, in short, a bare assertion clearly contrary to the established facts in the record and on its face not plausible which, given its clear falseness, would not raise a reasonable possibility of entitlement to any such development as a nexus medical examination if the claim were to be reopened. Under these circumstances, the evidence does not raise a reasonable possibility of substantiating his previously denied service connection claim, and reopening such claim for further adjudication on the merits is not warranted. Thus, while the submitted evidence is "new," as it has not previously been considered by VA, it is not "material," as it does not raise the reasonable possibility of substantiating the Veteran's claim. The Board therefore finds that new and material evidence has not been submitted to reopen the claim of entitlement to service connection for a back disability since the December 1985 rating decision. Accordingly, the issue of entitlement to service connection for a back disability remains denied. ORDER New and material evidence not having been submitted to reopen the Veteran's claim for entitlement to service connection for a back disability, the appeal is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs