Citation Nr: 1309990	
Decision Date: 03/25/13    Archive Date: 04/02/13

DOCKET NO.  07-30 852A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUE

Whether new and material evidence has been received sufficient to reopen a claim for service connection for a low back disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

C. Bruce, Counsel



INTRODUCTION

The Veteran served on active duty from July 1966 to July 1968.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of December 2007 and August 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.

The Board notes that the above issue was remanded by the Board in April 2011 for further evidentiary development, including proper notice. Kent v. Nicholson, 20 Vet. App. 1 (2006). A remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders.  Stegall v. West, 11 Vet. App. 268 (1998). This development having been achieved, the issue is now ready for appellate review.

The April 2011 remand also addressed the issue of entitlement to service connection for a left ankle disability. That claim was granted in a May 2012 rating decision. The Veteran did not appeal the rating, as such the issue is no longer on appeal. 

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.


FINDINGS OF FACT

1.  An unappealed October 1988 Board decision denied the claim of service connection for a low back disability.  

2.  The evidence received since the Board's October 1988 Board decision does not relate to any unsubstantiated fact in the previously denied claim; and does not, by itself or in connection with the evidence previously assembled, raise a reasonable possibility of substantiating the claim for service connection for a low back disability.

CONCLUSIONS OF LAW

1.  The October 1988 Board decision, which denied service connection for a low back disability, is final. 38 U.S.C.A. §§ 7103, 7104 (West 2002); 38 C.F.R. § 20.1103 (2012).

2.  New and material evidence has not been received to reopen a claim for service connection for a low back disability. 38 U.S.C.A. §§ 5108, 7103, 7104 (West 2002); 38 C.F.R. §§ 3.156, 20.1100 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In this decision the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet.App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet.App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts.
The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, 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 or her 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 issues on appeal. 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).

The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet.App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);

(2) the layperson is reporting a contemporaneous medical diagnosis, or;

(3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. 

Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). 

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet.App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet.App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet.App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet.App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet.App. 456 (2007) (concerning rheumatic fever). 

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"); Caluza v. Brown, 7 Vet.App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). 

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet.App. 518 (1996).

Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran 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) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet.App. 183 (2002). Proper VCAA notice must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1).

VCAA notification letters issued by the RO in July 2006 and April 2011 explained the evidence necessary to substantiate the claims for service connection and how to reopen the previously denied claims. The letters informed the Veteran of his and VA's respective duties for obtaining evidence. The Veteran was also informed of the basis of the prior denial of service connection for a low back disability in compliance with the Court's decision in Kent v. Nicholson, 20 Vet. App. 1 (2006). In addition, the notice letters explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet.App. 473, 490-491 (2006). The July 2006 letter was provided prior to initial adjudication of his claim, in accordance with Pelegrini v. Principi, 18 Vet.App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet.App. 103 (2005) rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The April 2011 letter was provided after the initial adjudication, however, as the Veteran had a meaningful opportunity to participate effectively in the processing of his claim, and any error regarding VCAA notice including any timing error was not prejudicial.  See Overton v. Nicholson, 20 Vet. App. 427, 439 (2006). Additionally, after the notice was provided the case was readjudicated and an April 2012 supplemental statement of the case was provided to the Veteran.  See Pelegrini II, supra; Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (a (supplemental) statement of the case that complies with all applicable due process and notification requirements constitutes a readjudication decision).

The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to the VA notice letter. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide this appeal. Therefore, there is no duty to provide additional notice in this case.

With regard to the duty to assist, the claims file contains the Veteran's service treatment records, VA medical treatment records, and private treatment records.

While the Veteran has not been afforded a VA examination in connection with his claim, VA's duty to assist the Veteran in the development of his claim is not triggered unless and until a claim is reopened. See 38 U.S.C.A. § 5103A; Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed.Cir. 2003) (Holding that VA need not provide a medical examination or medical opinion until a claim is reopened); Anderson v. Brown, 9 Vet.App. 542 (1996) (Holding that unless new and material evidence has been submitted, the duty to assist does not attach); see also Woehlaert v. Nicholson, 21 Vet.App. 456 (2007) (Holding that adequacy of VA medical examination mooted upon Board's determination that claimant not entitled to reopening of claim, and conduct of VA medical examination, when claimant had not presented new and material evidence).

The Board finds that all necessary development has been accomplished, and appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet.App. 384 (1993). 

All relevant facts have been properly and sufficiently developed and no further development is required to comply with the duty to assist the claimant in developing the facts pertinent to his claim at this juncture.

There is therefore no further notice or assistance to the Veteran required to fulfill VA's duty to assist the Veteran in the development of the claim. See 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)

Merits of the Claim

The Board denied service connection for a low back disability in October 1988 decision. The Board noted that the Veteran's claim had been previously denied by the Board in December 1973 because spinal taps performed in service were negative, and no organic defect or disorder of the spine, except scoliosis of the sixth dorsal vertebra was noted on the April 1973 VA examination. 

The Board noted that a statement had been received by a neurologist which noted that a 1971 in-service x-ray examination suggested narrowing of the intervertebral disc space at L5-S1. The neurologist's statement was noted to be unsupported by the contemporaneous clinical findings including service medical records which made no reference to a chronic back disorder. A 1973 VA x-ray examination showed no disc space narrowing. Private 1983 and 1985 x-ray examinations showed no abnormalities of the lumbosacral spine. Disc herniation was first confirmed by CT scan in 1986, many years after service. Finally a private examiner suggested the lumbosacral disc herniation was related to in-service spinal taps, but the totality of the evidence indicated that a chronic low back disorder had its onset many years after service. The Veteran did not appeal the denial. In general, Board decisions that are not timely appealed are final. See 38 U.S.C.A. §§ 7103, 7104; 38 C.F.R. § 20.1103. 38 U.S.C. § 7103, 7104 (West 2002); 38 C.F.R. § 20.1100 (2012).

The Veteran submitted a petition to reopen his claim for entitlement to service connection for a low back disability in February 2006. In a December 2006 rating decision, the RO declined to reopen the claim, finding that new and material evidence had not been submitted. The Veteran appealed that decision.

The submission of "new and material" evidence is a jurisdictional prerequisite to the Board's review of an attempt to reopen a claim. Absent the submission of evidence that is sufficient to reopen the claim, the Board's analysis must cease. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet.App. 167, 171 (1996); McGinnis v. Brown, 4 Vet.App. 239, 244 (1993). The Board may not then proceed to review the issue of whether the duty to assist has been fulfilled, or undertake an examination of the merits of the claim. The Board will therefore undertake a de novo review of the new and material evidence issue.

As general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. When a claimant seeks to reopen a final decision, the first inquiry is whether the evidence obtained after the last disallowance is "new and material." Under 38 C.F.R. § 3.156(a), new evidence means evidence not previously submitted to agency decision makers. Material evidence means 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). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet.App. 510 (1992). In order for evidence to be sufficient to reopen a previously denied claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet.App. 312 (1999). Furthermore, "material evidence" could be "some new evidence [that] may well contribute to a more complete picture of the circumstances surrounding the origin of the Veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision." Hodge v. West, 155 F. 3d 1356, 1363 (Fed. Cir. 1998). If it is determined that new and material evidence has been submitted, the claim must be reopened. VA may then proceed to the merits of the claim on the basis of all of the evidence of record.

The evidence of record in October 1988 consisted of the Veteran's service treatment records, an April 1973 VA examination, a May 1974 from a private doctor, June 1985 VA outpatient treatment records, an October 1986 statement from a private neurologist, another October 1986 statement from a private doctor, a January 1987 RO hearing transcript, June 1987 reports of private treatment, a November 1983 statement from the Veteran, a September 1985 x-ray report, and a June 1987 statement from a private doctor.

The evidence associated with the claims file subsequent to the Board's October 1988 decision includes letters to various congressmen regarding his back claim, and various statements from the Veteran requesting an examination for his low back disability.

The claim was previously denied on the bases that the evidence did not show that the Veteran's current diagnosis of lumbosacral disc herniation was related to the spinal taps performed in service. Although the Veteran's statements are presumed to be credible for purposes of determining whether there is new and material evidence sufficient to reopen the claim, his statements provide no "new" assertions. There was no new medical evidence pertaining to the Veteran's claim for a low back disability added to the claims file since October 1988.  While the Veteran's various statements are "new" because they were not previously of record; the statements do not contain any evidence which relates to "unestablished facts necessary to substantiate the claim." 

Indeed the statements are primarily requests for an examination for his low back disability; however, as noted above, VA's duty to assist the Veteran in the development of his claim is not triggered unless and until a claim is reopened. See 38 U.S.C.A. § 5103A; Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed.Cir. 2003) (Holding that VA need not provide a medical examination or medical opinion until a claim is reopened). To the extent that any of the newly-obtained statements indicate treatment for a low back disability, they are not material, as they fail to address how any in-service back problem is related to his current back disability. Morton v. Principi, 3 Vet. App. 508, 509 (1992). Therefore, the additional evidence received since the Board's October 1988 decision does not relate to the unestablished facts necessary to substantiate the claim.

Accordingly, the Board finds that the claim for service connection for a low back disability is not reopened. 38 C.F.R. § 3.156(a).


ORDER

New and material evidence not having been received; the Veteran's claim for service connection for a low back disability is not reopened.



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs