Citation Nr: 1311547 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 10-47 097A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Whether new and material evidence has been presented to reopen a previously denied claim of entitlement to service connection for lumbar spine degenerative disc disease and herniated nucleus pulpous at multiple levels (back condition). REPRESENTATION Veteran represented by: Nancy Lavranchuk, Agent ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from October 1977 to October 1981. This appeal comes to the Board of Veterans' Appeals (Board) from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure total review of the evidence. In reviewing the claims file the Board notes the Veteran filed a notice of disagreement in December 2010 relating to his claim for service connection for post-traumatic stress disorder (PTSD). However, the notice of disagreement was untimely as it was filed more than a year after the Veteran was notified of the September 2009 rating decision denying service connection. As such, the rating decision became final and the claim for service connection for PTSD is not before the Board. FINDINGS OF FACT 1. The RO denied the Veteran's claim of entitlement to service connection for a back condition in an October 2006 rating decision. Although the Veteran filed a notice of disagreement within one year, he did not perfect his appeal to the Board. 2. Evidence obtained since the time of the October 2006 rating decision raises a reasonable possibility of substantiating the claim of entitlement to service connection for a back condition. 3. The weight of evidence fails to establish that the Veteran's currently diagnosed back condition either began during, or was otherwise caused by, his military service. CONCLUSIONS OF LAW 1. The October 2006 rating decision, which denied entitlement to service connection for a back condition, is final; new and material evidence has been submitted, and the Veteran's claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.156, 20.302 (2012). 2. Criteria for service connection for a back condition have not been met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence The Veteran's claim of entitlement to service connection for a back condition was previously denied by an October 2006 rating decision. The Veteran filed a notice of disagreement, but did not perfect his appeal to the Board. As such, this rating decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.156(a), 20.302. However, a previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. New evidence is defined as evidence not previously submitted to agency decision makers. 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). In this case, in a February 2010 rating decision the RO found the Veteran submitted new and material evidence regarding this issue, and reopened the Veteran's claim for service connection for a back condition. However, the preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1, 4 (1995), aff'd, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). Therefore, even though the RO previously reopened the Veteran's claim, the Board must initially address the question of whether new and material evidence has been presented to reopen the claim on a de novo basis. See id. At the time of the October 2006 rating decision, the evidence of record included service treatment records, which established the Veteran was treated for back pain on several occasions while in service and was diagnosed with muscle strain. The record also included VA treatment records which revealed the Veteran had degenerative disc disease as early as 2001. Finally, the record included the report from a July 2006 VA examination in which the examiner opined the Veteran's current condition was not related to his military service. As such, none of the evidence of record at the time established that the Veteran's current back condition was related to his military service, and the Veteran's claim for service connection was denied. In August 2008 the Veteran sought to reopen his previously denied claim for service connection for a back condition. Considerable additional evidence has been presented in conjunction with the claim to reopen. Because the Board concludes that this new evidence is sufficient to reopen the Veteran's claim, only a limited amount of the new evidence will be discussed in this portion of the decision. In conjunction with his claim to reopen, the Veteran submitted written statements from two 'buddies' (his wife and a friend) who both asserted they had known the Veteran since he was still in service, and that the Veteran had complained of back pain since that time. In addition, the Veteran submitted an undated letter from Dr. K.D., a private physician, who opined the Veteran's current back condition was due to injuries which likely occurred years ago while the Veteran was on active duty. These three records all suggest the Veteran's current back condition may be related to his military service. This evidence is particularly relevant to the issue of reopening as evidence is presumed to be credible for the limited purpose of determining whether to reopen a claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). As such, the new evidence in this claim is new in that it has not been previously considered. Moreover, when presumed credible, the evidence suggests the Veteran's current back condition may be related to his active duty service. The new evidence is therefore material in that it addresses a requirement of service connection, as well as the reason the Veteran's claim was previously denied, namely that his current condition was not related to his military service. As such, the Veteran's claim is reopened. The Board acknowledges that when the Board reopens a claim, the new and material evidence must first be considered by the RO unless there is a waiver from the Veteran or no prejudice would result from adjudication of this claim. Hickson v. Shinseki, 23 Vet. App. 394 (2010). In this case, the Board finds the RO has already considered the case on its merits in the February 2010 rating decision and December 2010 statement of the case. Therefore, the Board is satisfied that no prejudice will result to the Veteran by the adjudication of this claim at this time. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. The Veteran is currently seeking service connection for a back condition. In order to establish service connection, the record must contain: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service treatment records were reviewed, and establish the Veteran sought treatment for back pain on several occasions while in service. In March 1978 the Veteran reported lower back pain after falling down the stairs. The physician assistant (PA) noted the Veteran had good lateral motion and opined the Veteran's back pain was due to right sided muscle spasm. In July 1978 the Veteran returned reporting no relief of his back pain for the previous month. The medical professional noted the Veteran had good range of motion, and opined he may have muscle strain. The Veteran was advised to treat with pain medication, a heating pad, and light duty for forty-eight hours. Throughout September 1978 the Veteran again sought treatment for back pain, which he reported only occurred while lifting. The medical professionals noted the Veteran had good range of motion and no muscle spasms. No pathology for the Veteran's pain was found. The medical professional opined the Veteran had muscle strain and the Veteran was given aspirin, heating pad, and instructions not to lift. Based on service treatment records, it appears the Veteran did not again seek treatment for back pain until September 1980. At that time the PA noted the Veteran had normal gait and range of motion. He gave the Veteran aspirin and a heating pad for pain treatment. In August 1981 the Veteran was provided with a separation physical and the examiner indicated his spine was 'normal.' No other back condition was noted. However, the following month, while still on active duty, the Veteran received treatment for twisted back he received while playing ping pong. The PA noted the Veteran had a history of back problems, and now experienced pain upon forward bending. The PA recommended treating with hot soaks for seven days. After separating from active duty the Veteran was given another military exam in May 1986. The examiner again noted his spine was normal, and the Veteran himself reported no recurrent back pain on the accompanying report of medical history. As such, service treatment records suggest the Veteran injured his back twice while on active duty. The Veteran first injured his back in March 1978 when he fell down stairs, and continued to experience back pain for several months. However, the report from the exam in August 1981, which indicated normal spine condition, suggested the Veteran's back pain had resolved. The Veteran then injured his back again in September 1981 when he twisted his back while playing ping pong. However, the report from the military exam and medical history report from May 1985 indicated this second source of back pain also had resolved. Based on review of the record it does not appear the Veteran sought any additional treatment for back pain for twenty years after separating from active duty. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that a lengthy period without medical complaints about a condition can be considered as a factor in resolving a claim). The earliest post-service treatment records in the record relating to the Veteran's back condition is an MRI report from December 2001. This report reflects the Veteran had disk herniations at multiple levels, but does not provide any opinion as to the onset or etiology of his condition. A later private treatment record from September 2011 opined that the Veteran's current back condition onset in September 2010, nearly thirty years after separation from service. As such, the medical evidence of record does not contain any suggestion that the Veteran made complaint of or received treatment for his back condition for twenty years after he separated from service. Similarly, the Veteran did not file a claim seeking service connection for his back condition until October 2006, twenty-five years after separation from service. Therefore the Board finds this failure to receive treatment or file a claim for service connection for two decades probative evidence that the Veteran was not experiencing a chronic back condition since separating from active duty. The claims file also contains lay evidence which relates the Veteran's current back condition to his military service. In several written statements the Veteran asserted that his current back condition began in service. For example is his March 2009 written statement the Veteran asserted that he hurt his back when lifting artillery rounds weighing 150 pounds while in service. Similarly, the record also contains two written statements, from the Veteran's wife and his friend, which both asserted that the Veteran complained of back pain while he was in active duty. The Board finds that as a lay person the Veteran is considered competent to report what comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). As such, the Veteran is competent to report when his back pain began. Similarly, his friends are able to report when they began to observe the Veteran's complaints of back pain. However, as discussed above, the lack of medical treatment or claim for back pain for nearly twenty years after separating from active duty provides probative evidence that the Veteran did not experience chronic pain since separating from service, providing contradictory evidence against the lay statements of the Veteran and his friends. However, even assuming that the Veteran did experience chronic pain since separating from service, the VA generally does not grant service connection for symptoms alone, such as pain, without an identified basis for those symptoms. The Veteran and his friends lack the medical training and expertise to provide a complex medical opinion as to the diagnosis of a chronic back condition, and the etiology of that disability. As such, the Board finds that the lay statements of the Veteran, his wife, and his friend, are not sufficient to establish the Veteran has experienced a chronic back condition since separating from service. The Board will now turn to a discussion of whether medical evidence of record establishes that the Veteran's current back condition was otherwise related to his military service. Post-service treatment records have been reviewed and establish that since the Veteran's above-mentioned MRI in December 2001 he has consistently received treatment for his back pain and degenerative disc disease. In March 2002 the Veteran reported his back pain occasionally radiated as a feeling of numbness in his right leg, and that his back pain continued to worsen. In May 2009 the Veteran strained his back while lifting chairs out of a truck at work. His doctor opined the Veteran had a muscle strain or spasm as a result of this work-related injury. As such, the Board finds that post-service treatment records establish the Veteran currently has a diagnosed disability of a back condition. However, a currently diagnosed disability is not sufficient for a grant of service connection; rather the current condition must be related to his active military service. The Veteran's treatment records from 2001 through the summer of 2006 do not provide an opinion as to the etiology of the Veteran's current back condition. However, in July 2006 the Veteran was provided with a VA examination. The examiner noted the Veteran's medical history consistent with the record, then personally interviewed and examined the Veteran. The examiner noted that the Veteran's herniated nucleaus pulposus at multiple lumbar levels was diagnosed on an MRI performed two years ago, twenty-three years after the Veteran separated from service. The examiner also noted the Veteran's current posture and gait were normal, and examination revealed no evidence of radiating pain on movement. The examiner opined that the Veteran's current back condition was less likely than not related to his military service. In support of his opinion he pointed to the 1986 military physical exam which failed to demonstrate a complaint of low back pain by the Veteran. The examiner was familiar with the Veteran's claims history and provided a rational for his opinion that the Veteran's current condition was not related to his military service. As such, the Board finds the opinion of the VA examiner is afforded great probative weight. The record also contains an undated letter from Dr. K.D., the Veteran's private chiropractic physician. Dr. K.D. noted he was currently treating the Veteran for herniated and degenerative lumbar discs. The doctor also indicated he had reviewed the Veteran's "old records" and found the Veteran was evaluated for low back pain and sciatica. Based on the degeneration of the Veteran's joints, Dr. K.D. opined his injuries likely occurred years ago, while the Veteran was on active duty. However, the Board finds the probative value of this opinion is limited. First, the Board is not able to determine if the physician was familiar with the Veteran's claims history. Dr. K.D. indicated he reviewed the Veteran's 'old records' but provided no explanation as to which records he reviewed, the Veteran's service treatment records or older post-service records. Additionally, the physician did not provide a rationale for finding that the injury to the Veteran's back which occurred 'years ago' occurred during service. Due to these limitations, the Board finds the undated letter from Dr. K.D. is afforded less probative weight. The 2006 VA examination and undated letter from Dr. K.D. are the only medical records of evidence which provide an opinion as to whether the Veteran's currently diagnosed back condition is related to his active military service. As discussed above, the Board finds that between these two contradictory medical opinions, the report of the July 2006 VA examiner is more probative. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). As such, the Board finds the weight of the medical evidence of record fails to establish that the Veteran's current back condition was related to his military service. The evidence is not in relative equipoise and the benefit of the doubt rule does not apply. Based on a complete review of the evidence of record, the Board finds that although the Veteran does have a currently diagnosed chronic back condition, the weight of the evidence fails to establish that his back condition either began during, or was otherwise caused by, his military service. The Veteran did not make any complaint of, or seek any treatment for, his back pain for approximately twenty years after separating from service. In addition, the weight of the medical opinion of record suggests that his current condition is less likely than not related to his active military service. Therefore, the criteria for service connection have not been met, and the Veteran's claim is denied. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that the VCAA notice requirements in regard to new and material evidence claims require VA to send a specific notice letter to the veteran that: (1) notifies him of the evidence and information necessary to reopen the claim (i.e., describes what is meant by new and material evidence); (2) identifies what specific evidence is required to substantiate the element or elements needed for service connection that were found insufficient in the prior denial on the merits; and (3) provides general VCAA notice for the underlying service connection claim. In the present case, required notice was provided by a letter dated in February 2009 which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The letter also informed the Veteran how disability ratings and effective dates were established, as well as the notice required under Kent. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, 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). VA and private treatment records have been obtained, as have service treatment records. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. The Veteran was also provided with a VA examination (the report of which has been associated with the claims file). The Board finds the VA examination was thorough and adequate and provides a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. Furthermore, neither the Veteran nor his representative has voiced any issue with the adequacy of the examination. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Entitlement to service connection for a back condition is denied. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs