Citation Nr: 1318044 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 09-03 113 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Whether new and material evidence was submitted to reopen a claim of entitlement to service connection for a back disability; and if so, whether the claim should be granted. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1989 to July 1996. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Columbia, South Carolina Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction was subsequently transferred to the RO in Atlanta, Georgia. The Veteran's case was most recently before the Board in January 2013 at which time it was decided in part and remanded in part for additional evidentiary development. In addition to the issue identified above, the January 2013 remand order also included the issue of entitlement to service connection for allergic rhinitis. The Appeals Management Center in Washington, DC, subsequently granted service connection for allergic rhinitis in a rating decision dated April 2013. Therefore, this issue is deemed moot. The Board notes that, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file was completed to ensure comprehensive analysis of the evidence. FINDINGS OF FACT 1. Service connection for residual low back strain was denied in a May 2000 rating decision that was not appealed. 2. Evidence received since the May 2000 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claim. 3. Low back disability is not etiologically related to the Veteran's active service. CONCLUSIONS OF LAW 1. As new and material evidence has been received since the May 2000 rating decision, the criteria for reopening the claims for service connection for back disability are met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 2. The criteria for service connection for a back disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claim to Reopen Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c). The exception to this rule 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 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). The Court recently interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c) (4), which, "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In an unappealed rating decision in May 2000, the Veteran was denied service connection for low back strain on the basis that the evidence did not show a permanent residual or chronic disability following service. The evidence received subsequent to the May 2000 rating decision includes, in pertinent part, a VA examination in February 2013 in which the Veteran was diagnosed with lumbosacral degenerative disc disease. This evidence is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim. Therefore, it is new and material. Accordingly, reopening of the claim is in order. Claim for Service Connection 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. 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). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss in detail the evidence submitted by the appellant or on his behalf. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, with respect to the Veteran's claim. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). Analysis The Veteran contends that service connection is warranted for a low back disability, as it is related to his active duty service. Historically, the Veteran filed this claim in December 2009. Service treatment records showed a lumbar back strain in March 1995; a record from December 1995 showed that the Veteran was involved in a motor vehicle accident with cervical strain diagnosed. The separation examination noted no findings or diagnoses related to a back condition, providing evidence against this claim. The Veteran was afforded a VA examination in February 2013 in which the claims files were reviewed. The Veteran reported an incident in 1995 while he was helping a friend in a fight and sustained lower back pain; he also reported a motor vehicle accident in 1996 where a guy ran into him, causing back problems. He also stated that while working as a courier in the postal service in 1997 or 1998 he re-injured his back and had to change jobs from a courier to a clerk and started seeing a chiropractor. The examiner diagnosed lumbosacral degenerative disc disease and opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The February 2013 VA examiner stated that review of the claims files noted complaint and treatment of back pain which was diagnosed as soft tissue trauma in March 1995; in December 1995 the Veteran was involved in a motor vehicle accident and the progress reported noted "hit from behind at 25 [miles per hour]", the assessment was cervical strain, follow-up later in December 1995 showed no pain but stiffness in the morning. The service separation report in June 1996 was silent of either neck or back complaint and the physical examination was normal. The VA examiner stated that there was no residual of March 1995 and December 1995 injuries; soft tissue injury usually resolves without sequelea and does not cause disc/bone disorder. The examiner noted that the Veteran worked as a courier for many years after service which required lifting, stooping, bending, and strenuous activities. The examiner opined that the Veteran's current lumbosacral degenerative disc disease was wear and tear of the spine; it was not a residual of soft tissue injury from active duty, support this medical opinion that provides more evidence against this claim. In addition to the medical evidence above the Board has carefully considered the lay evidence presented by the Veteran and his representative in the form of correspondence to VA, in which it has generally been argued that his back disability is related to his service. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). The Board has accepted the Veteran's account as competent. Moreover, the Board has no reason to doubt that the Veteran experienced some symptoms related to the injuries noted in the STRs. However, a layperson is not considered capable of opining, however sincerely, in regard to diagnosis of a disability. Routen v. Brown, 10 Vet. App. 183, 187 (1997), aff'd sub nom Routen v. West, 142 F3d 1434 (Fed. Cir. 1998), cert denied, 119 S. Ct. 404 (1998). Rather, it is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation. Jones v. Brown, 7 Vet. App. 134, 137 (1994). The STRs show that the Veteran's back was normal at the time of his discharge from service and the only probative medical opinion of record is against the claim, outweighing the Veteran's viewpoint. In sum, the Board has determined that the Veteran's current back disability developed after the Veteran's discharge from service and is not etiologically related to service. Accordingly, the criteria for service connection are not met and the claim must be denied. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine, but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. Gilbert, 1 Vet. App. 49, 54. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b) (1). VCAA notice requirements apply to all five elements of a service connection claim: 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, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) held that in a claim to reopen a previously finally denied claim, VCAA notice must notify the claimant of the meaning of new and material evidence and of what evidence and information (1) is necessary to reopen the claim; (2) is necessary to substantiate each element of the underlying service connection claim; and (3) is specifically required to substantiate the element or elements needed for service connection that were found insufficient in the prior final denial on the merits. The appellant was advised of VA's duties to notify and assist in the development of the claim prior to the initial adjudication of his claim. An April 2006 letter provided notice in accordance with Kent, and also explained the evidence VA was responsible for providing and the evidence he was responsible for providing. [Notably, this decision reopens the claim of service connection, rendering moot the propriety of the Kent notice that was provided with respect to this issue.] The April 2006 letter also informed the appellant of disability rating and effective date criteria. The appellant has had ample opportunity to respond/supplement the record and he has not alleged that notice in this case was less than adequate. The Veteran's pertinent service treatment records (STRs) have been secured and he has submitted copies of a VA treatment report and statements from his private physicians. The Veteran was also afforded a nexus examination with respect to his claimed low back condition. He has not identified any pertinent evidence that remains outstanding. ORDER The Board having determined that new and material evidence has been presented, reopening of the claim for service connection for a low back disability is granted. Entitlement to service connection for a back disability is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs