Citation Nr: 1307905 Decision Date: 03/08/13 Archive Date: 03/11/13 DOCKET NO. 07-26 194 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Whether new and material evidence has been received to reopen a claim of service connection for a cervical spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1954 to February 1957. This matter initially came before the Board of Veterans' Appeals (Board) from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In that decision, the RO denied the Veteran's petition to reopen a claim of service connection for degenerative spondylosis and disc disease of the cervical spine as new and material evidence had not been received. In February 2012, the Board granted the Veteran's motion to advance this appeal on its docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). In February and July 2012, the Board remanded this matter for further development. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. The documents in this file have been reviewed and are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. On various occasions, including in a January 2013 statement (VA Form 21-4138), the Veteran has raised the issue of whether new and material evidence has been received to reopen a claim of service connection for a low back disability. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran's claim of service connection for a cervical spine disability was denied in a December 1986 Board decision, as the disability did not have its onset in service or in the year immediately following service, was not otherwise related to a disease or injury in service, and was not etiologically related to a service-connected bilateral eye disability. 2. The claim of service connection for a cervical spine disability was again denied in December 1995 and September 1996 rating decisions as new and material evidence had not been received; the Veteran did not appeal these decisions and new and material evidence was not received within a year of either decision. 3. Evidence received since the September 1996 RO decision includes information that was not previously considered, but which does not relate to an unestablished fact necessary to substantiate the claim of service connection for a cervical spine disability, the absence of which was the basis of the previous denial. CONCLUSIONS OF LAW 1. The Board's December 1986 decision and the RO's December 1995 and September 1996 decisions that denied the claim of service connection for a cervical spine disability are all final. 38 U.S.C.A. §§ 7104(b), 7105(d)(3) (West 2002); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1100(a), 20.1103 (2012). 2. The evidence received since the September 1996 decision is not new and material and, therefore, insufficient to reopen the claim of service connection for a cervical spine disability. 38 U.S.C.A. §§ 5107(b), 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 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, 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) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include (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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the context of a petition to reopen, the Court has held that VCAA notice (1) must notify a claimant of the evidence and information that is necessary to reopen the claim and (2) must notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying benefit sought by the claimant. The Court elaborated that the VCAA requires, in the context of a claim to reopen, that VA look at the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. Therefore, the question of what constitutes material evidence to reopen a claim of service connection depends on the basis on which the prior claim was denied. Kent v. Nicholson, 20 Vet. App. 1 (2006). In an August 2012 letter, the RO informed the Veteran of the dates and bases of the previous denials of his claim of service connection for a cervical spine disability. The RO also informed him of the appropriate definitions of new and material evidence and the evidence needed to substantiate the underlying claim on a direct and secondary basis. The August 2012 letter thereby met the requirements of Kent. A letter dated in October 2007 satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist the Veteran in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The claimant's Veteran status has been substantiated. He was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of his claim, in the October 2007 letter. There was a timing deficiency in that the October 2007 and August 2012 letters were sent after the initial adjudication of the petition to reopen the claim of service connection for a cervical spine disability. This timing deficiency was cured by readjudication of the claim in March 2009 and January 2013 supplemental statements of the case. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA obtained the Veteran's service treatment records, Social Security Administration (SSA) disability records, and all of the relevant identified post-service VA treatment records and private medical records. In April 2010, the AOJ contacted the National Personnel Records Center (NPRC) and requested all available service personnel records. The NPRC responded that no such records were available and that they were presumed to have been destroyed in a fire at that location in 1973. Destruction of service records does not create a heightened benefit of the doubt, but only a heightened duty on the part of VA to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision. Cromer v. Nicholson, 19 Vet App 215 (2005); Russo v. Brown, 9 Vet. App. 46, 51 (1996). Where service records are missing, VA also has a duty to search alternate sources of service records. Washington v. Nicholson, 19 Vet. App. 362 (2005). The service department has not suggested alternate sources of records, but VA did contact the Veteran by telephone in June 2010 and asked him for copies of any records in his possession. He specifically indicated that he did not have any service personnel records in his possession. Thus, VA determined that any further efforts to obtain service personnel records would be futile, and VA has no further duty to assist in obtaining any available service personnel records. 38 C.F.R. § 3.159(c)(2) (2012). As noted by the Veteran's representative in its February 2012 statement, the Veteran has not been afforded a VA examination for his claimed cervical spine disability and an opinion as to the etiology of the disability has not otherwise been obtained. However, when a claim is one to reopen a finally decided claim, VA is not obligated to provide a medical examination or obtain a medical opinion until new and material evidence has been received. See 38 C.F.R. § 3.159(c)(4)(iii). As new and material evidence has not been received to reopen the claim of service connection for a cervical spine disability, there is no duty to provide an examination or obtain an opinion. See Woehlaert v. Nicholson, 21 Vet. App. 456, 463 (2007). In its February and July 2012 remands, the Board instructed the AOJ to, among other things, send the Veteran VCAA notice letters and provide him with information in accordance with Kent. As explained above, the Veteran was sent a VCAA notice letter in August 2012 which provided information in accordance with Kent. Therefore, the AOJ substantially complied with all of the Board's pertinent February and July 2012 remand instructions. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Analysis Generally, an RO decision denying a claim which has become final and a claim denied in a Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(d)(3). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as 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). The newly presented evidence is presumed to be credible for purposes of determining whether it is new and material. Savage v. Gober, 10 Vet. App. 488 (1997). For the purpose of determining whether new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The Board denied the Veteran's claim of service connection for a cervical spine disability in a December 1986 decision, on the basis that the disability did not have its onset in service or in the year immediately following service, was not otherwise related to a disease or injury in service, and was not etiologically related to a service-connected bilateral eye disability. The Board's decision was final when issued. 38 U.S.C.A. § 7104(b); 38 C.F.R. § 20.1100(a). The Veteran attempted to reopen his claim of service connection for a cervical spine disability in November 1992 and the RO denied his petition in December 1995 and September 1996 rating decisions as new and material evidence had not been submitted. The Veteran was notified of the RO's decisions, he did not appeal, and new and material evidence was not received within one year of either decision. The December 1995 and September 1996 decisions, therefore, became final. See 38 U.S.C.A. § 7105(d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Therefore, the Board will review the evidence submitted since the September 1996 rating decision in order to determine whether it is new and material. Pertinent new evidence received since the September 1996 denial includes VA and private treatment records and various statements submitted by the Veteran and his representative. Although the newly submitted treatment records include reports of neck pain, arthritis, and a chronic cervical strain, none of the evidence received since the last denial of the Veteran's claim of service connection for a cervical spine disability indicates that the disability had its onset in service or in the year immediately following service, is otherwise related to a disease or injury in service, or is etiologically related to a service-connected disability (including service-connected post operative residuals of exotropia with diplopia). The Veteran has contended that his cervical spine disability is related to his service-connected eye disability because his eye disability had caused him to fall and hurt his back. This contention, however, had already been presented and considered as part of the September 1996 decision. The Veteran contended in a September 2005 statement (VA Form 21-4138) that his spinal problems were related to various activities in service, including long marches, carrying heavy equipment, and performing pushups. Additionally, in a January 2013 statement (VA Form 21-4138), he reported that had injured his back in service when he fell off a roof. Thus, although the Veteran has presented new evidence which includes reports of back problems in service, he has not reported that he experienced any specific cervical spine problems in service. Moreover, as a lay person, he can only comment as to symptoms and immediately-observable relationships. He lacks the expertise in this case, not involving such an immediately observable cause-and-effect relationship, to conclude that his current cervical spine disability is related to any specific activity in service, as opposed to some other cause. Rather, it would require medical expertise to evaluate the cervical spine disability, consider all the potential causes, and determine that one was a more likely cause than another. Hence, the Veteran's opinion on this question is not competent evidence and does not constitute material evidence for purposes of reopening the claim of service connection for a cervical spine disability. 38 C.F.R. § 3.159(a)(1), (2) (2012). The fact remains that there is no new competent medical or lay evidence reflecting that the Veteran's cervical spine disability had its onset in service or in the year immediately following service, is otherwise related to a disease or injury in service, or is etiologically related to a service-connected disability. Also, neither the Veteran nor his representative has alluded to the existence of any such evidence. Hence, there is no new and material evidence pertaining to the bases for the prior final denial. While VA has an obligation to assist the Veteran in the development of his claim, it is the Veteran's responsibility to present and support a claim of service connection. 38 U.S.C.A. § 5107(a); see also Skoczen v. Shinseki, 564 F.3d 1319, 1323 (Fed. Cir. 2009). As the Veteran has not identified or presented new evidence that his current cervical spine disability may have had its onset in service or in the year immediately following service, is otherwise related to service, or is related to a service-connected disability, and the absence of such evidence was the basis for the prior final denial, new and material evidence has not been received and the appeal must be denied. ORDER As new and material evidence has not been received, the claim of service connection for a cervical spine disability is not reopened, and the appeal is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs