Citation Nr: 1316245 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 09-40 985 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for lumbosacral spondylolisthesis. 2. Entitlement to service connection for proteinuria. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from December 1975 to December 1978. These matters come before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In that decision, the RO denied entitlement to service connection for proteinuria and denied an application to reopen a previously denied claim for entitlement to service connection for lumbosacral spondylolisthesis. The RO issued a statement of the case (SOC) in August 2009 and has not issued a supplemental statement of the case. Review of the Virtual VA file reflects that additional VA treatment records have been created since the August 2009 statement of the case, dated through March 2013. For the reasons indicated below, these records are cumulative of the evidence already of record and therefore not pertinent to the issues on appeal. Remand for initial RO consideration of this evidence or waiver of such review is thus not required. 38 C.F.R. § 20.1304(c) (2012). FINDINGS OF FACT 1. In an April 2006 rating decision, the RO denied the Veteran's application to reopen his claim for entitlement to service connection for lumbosacral spondylolisthesis. He was provided notice The Veteran neither appealed this decision nor submitted new and material evidence within the one year appeal period. 2. Evidence received since the April 2006 decision is cumulative of the evidence that was of record at the time of that decision and does not relate to the basis for the prior denial or raise a reasonable possibility of substantiating the claim. 3. Proteinuria is a laboratory finding rather than a disability and the Veteran's glomerulosclerosis with chronic tubule-interstitial nephritis, claimed as end stage renal disease (ESRD), has been addressed by the RO separately. CONCLUSIONS OF LAW 1. The April 2006 decision that denied the application to reopen the claim for entitlement to service connection for lumbosacral spondylolisthesis is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.156(b), 20.1103 (2012). 2. Evidence received since the April 2006 decision is not new and material and the claim for entitlement to service connection for lumbosacral spondylolisthesis is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. Proteinuria is not itself a disability for which compensation may be granted pursuant to VA law and regulations in the circumstances of this case. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012); Supplementary Information to Final Rule, Schedule for Rating Disabilities, Endocrine System Disabilities, 61 Fed. Reg. 20440, 20445 (May 7, 1996). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. 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 addition, in Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that, in the context of an application to reopen, 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. Id. at 11-12. Further, VA is required, in response to an application to reopen, to look at the bases for the denial in the prior decision and send a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. Id. In a January 2008 pre-rating letter, the RO notified the Veteran of the evidence needed to substantiate a claim for entitlement to service connection. This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist 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). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 was amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). In any event, the January 2008 letter complied with this requirement. The Veteran has substantiated his status as a veteran. The Veteran was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of his claims, in the January 2008 letter. The January 2008 letter also complied with Kent, as it correctly informed the Veteran that he had previously been denied entitlement to service connection for back disability in August 2001 and that reopening had been denied in April 2006, and that the basis for the prior denial was the lack of evidence of nexus between current back disability and service or service connected hammertoes. The January 2008 letter also provided the definition of new and material evidence. 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). In this case, VA obtained the Veteran's service treatment records (STRs) and all of the identified post-service private and VA treatment records. The Veteran was not afforded a VA examination as to either disability. With regard to the back claim, the Board will find below that new and material evidence has not been received, and the duty to assist a claimant by affording him a medical examination or medical opinion does not arise until the claimant has submitted new and material evidence sufficient to reopen the claim. Paralyzed Veterans of Am. v. Sec 'y of Veterans Affairs, 345 F.3d 1334, 1342-43 (Fed. Cir. 2003) ("[I]n the absence of new and material evidence, VA is not required to provide assistance to a claimant attempting to reopen a previously disallowed claim, including providing a medical examination or obtaining a medical opinion"). With regard to the proteinuria claim, no examination was required because the existence or etiology of the Veteran's proteinuria is not at issue in this case, as explained below. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The application to reopen the claim for entitlement to service connection for lumbar spondylolisthesis and the claim for entitlement to service connection for proteinuria and are thus ready to be considered on the merits. Analysis Reopening Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c). An 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, VA shall reopen the claim and review the former disposition of the claim. The implementing regulation also provides that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). If such new and material evidence had been submitted and had not been acted upon, a claim could still be pending until a decision had been made on that evidence. See 38 C.F.R. § 3.160(c) ("pending claim" is "[a]n application, formal or informal, which has not been finally adjudicated"); see also Ingram v. Nicholson, 21 Vet.App. 232, 240 (2007) ("[A] claim remains pending-even for years-if the Secretary fails to act on a claim before him"). To comply with the directive of 38 C.F.R. § 3.156(b) that new and material evidence be treated as having been filed in connection with the pending claim, VA must evaluate submissions received during the relevant period and determine whether they contain new evidence relevant to a pending claim, regardless of whether the relevant submission might otherwise support a new claim. Bond v. Shinseki, 659 F.3d 1362, 1369 (Fed. Cir. 2011). For applications to reopen received after August 21, 2001, new evidence is defined as existing evidence not previously submitted to agency decisionmakers. 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). 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). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In order to determine whether new and material evidence has been received, the Board must analyze the law applicable to the underlying service connection claim. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection may also be granted for a disease first diagnosed after discharge 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). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C.A. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In April 2006, the RO denied the Veteran's application to reopen the claim for entitlement to service connection for lumbosacral spondylolisthesis, along with other claims including entitlement to service connection for peripheral neuropathy and paranoid schizophrenia, as well as an application to reopen the previously denied claim for entitlement to service connection for glomerulosclerosis with chronic tubule-interstitial nephritis (claimed as bilateral kidney condition and renal insufficiency). The Veteran was notified of this denial in a letter later that month. In August 2006, the Veteran filed a notice of disagreement (NOD) referencing only the renal claim and in October 2006 he confirmed that his NOD was only as to the renal claim. The Veteran thus did not disagree with the denial of the claim for entitlement to service connection for lumbosacral spondylolisthesis. 38 C.F.R. § 20.201 (2012) (allowing for disagreement with one or more of multiple claims denied by RO). Moreover, the Veteran did not submit any evidence within a year of the April 2006 denial and therefore did not submit new and material evidence within the one year appeal period. The RO's August 2006 denial of the application to reopen the claim for entitlement to service connection for lumbosacral spondylolisthesis thus became final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. The RO's initial, August 2001 denial of entitlement to service connection for low back disability was based on a lack of evidence of nexus between his diagnosed back disability and service. The evidence before the RO included the STRs, which contained August 1977 treatment notes indicating low back aches and pain and diagnoses of chronic strain and rule out urinary tract infection, as well as the separation examination report with normal findings with regard to the spine. The evidence also included VA treatment records including an April 2001 MRI lumbar spine MRI with a diagnosis of L5 pars defect with grade 1 L5/S1 spondylolisthesis, mechanical back pain, and bilateral L5 radiculopathy. At that time and currently, the Veteran was in receipt of entitlement to service connection for left and right second toe hammer toe. The RO found that there was no evidence of a diagnosed back disability in service, no evidence of back problems until many years after service, no evidence relating the current low back disability to the in-service symptoms, and no evidence linking his current low back disability to his hammer toes. All of the evidence submitted since the August 2001 denial is cumulative and does not relate to the bases of the prior denial or raise a reasonable possibility of substantiating the claim. The VA treatment records, dated both before and after the RO's August 2009 SOC, contain the same diagnoses of chronic low back pain and lumbosacral spondylolisthesis. August and November 2004 lumbar spine MRIs indicated that the Veteran had spondylolisthesis that was stable and there was no change from April 2001. The Veteran's statements were also similar to those he had made at the time of the initial denial and subsequent denials of reopening. In his December 2000 claim, the Veteran indicated that he injured his back in service at the same time he injured his feet and the way that he walked was making it worse. The Veteran did not provide additional relevant detail in any of his subsequent statements. None of the new evidence therefore provides additional information regarding the in-service injury or its potential relationship to the current lumbosacral spine spondylolisthesis. As the medical and lay evidence received since the most recent, April 2006 final denial is cumulative of the evidence already of record, and does not relate to the bases for the prior denial or raise a reasonable possibility of substantiating the claim for entitlement to service connection for lumbosacral spondylolisthesis, it is not new and material. Reopening of the claim is therefore not warranted. As new and material evidence has not been received, the benefit-of-the-doubt doctrine is doctrine is not applicable. Annoni v. Brown, 5 Vet.App. 463, 467 (1993) (benefit-of-doubt does not apply to applications to reopen a claim unless the threshold burden of submitting new and material evidence has been met). Service Connection As explained by the Federal Circuit, in order for a veteran to qualify for entitlement to compensation under the pertinent statutes and regulations pertaining to direct service connection, a veteran must prove the existence of a disability, and one that has resulted from a disease or injury that occurred in service. See Sanchez-Benitez v. Principi, 259 F.3d 1356, 1361-1362 (Fed. Cir. 2001). A "disability" for the purposes of awarding VA disability benefits is not only a disease or an injury, but also any "other physical or mental defect." 38 U.S.C.A. § 1701(1); Allen v. Brown, 7 Vet.App. 439, 444-45 (1995) (applying definition of disability in section 1701(1) to statutes describing "eligibility for disability compensation for service connected disabilities"). Significantly, however, the supplementary information preceding revisions to criteria for evaluating endocrine system indicates that hyperlipidemia, elevated triglycerides, and elevated cholesterol "are actually laboratory test results, and are not, in and of themselves, disabilities." 61 Fed. Reg. 20440, 20445 (May 7, 1996). While this finding is not precedential and binding on the Board, in the circumstances of this case the Board finds that proteinuria is not a disability for which compensation may be granted under VA laws and regulations for the following reasons. As indicated above, the RO has separately adjudicated the issue of entitlement to service connection for glomerulosclerosis with chronic tubule-interstitial nephritis, claimed as ESRD. Proteinuria is defined as "excessive serum proteins in the urine, as in renal disease." Dorland's Illustrated Medical Dictionary (31 ed. 2007), at 1558. The medical evidence in this case reflects that proteinuria is a laboratory finding associated with one or more of these other disabilities for which the RO has denied entitlement to service connection. For example, VA treatment records contain diagnoses of ESRD, glomerulosclerosis, and nephritis, but proteinuria is noted in connection with laboratory findings or symptomatology rather than a diagnosis. Significantly, in the April 2013 brief, the Veteran's representative conceded that "[p]roteinuria is a laboratory finding only and is not considered to be a disability for VA rating purposes," but noted that claims for glomerulosclerosis and nephritis, associated with proteinuria, are disabilities and claims for entitlement to service connection for these disabilities should have been inferred. The Veteran's representative is correct that a claim is not limited to any particular terminology or disorder identified by a veteran and must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). Given, however, that the RO most recently denied an application to reopen a claim for entitlement to service connection for glomerulosclerosis with chronic tubule-interstitial nephritis, claimed as ESRD, in April 2009, referral of this same issue to the RO is not appropriate. In these circumstances, where proteinuria is a symptom of disabilities for which entitlement to service connection and applications to reopen previously denied claims for such have been denied by the RO as part of a separate claim stream, denial of the claim before the Board for lack of evidence of a disability for which compensation may be granted under VA law and regulations is appropriate. The claim for entitlement to service connection for proteinuria is therefore denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER The application to reopen a claim for service connection for lumbosacral spondylolisthesis is denied. Entitlement to service connection for proteinuria is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs