Citation Nr: 1318892 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 09-26 408 ) 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 entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Rutkin, Joshua M. INTRODUCTION The Veteran served on active duty from July 1976 to December 1976, and from October 1978 to July 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran requested to testify at a hearing before a Decision Review Officer (DRO) at the RO, and such a hearing was accordingly scheduled for October 3, 2012. The Veteran was notified of the date, time, and location of the hearing in an August 2012 letter, but did not appear for it. He has not provided a reason for failing to appear for the hearing, and has not requested that the hearing be rescheduled. It is possible that the Veteran had moved from the address to which the hearing notice letter was sent, and thus that he never received it. In this regard, an October 2012 Supplemental Statement of the Case (SSOC) was mailed to this same address and returned to the RO by the Post Office as undeliverable. The RO subsequently obtained a new address for the Veteran and sent the SSOC to this address in February 2013. The Post Office did not return this letter, and thus it can be presumed that the Veteran had moved to that address prior to mailing of the August 2012 hearing notice. Indeed, the record shows that the Veteran has moved several times during the pendency of this claim. If the Veteran did fail to appear for the RO hearing because he had not received the August 2012 notice letter due to changing addresses, such does not constitute good cause, as it was incumbent on him to notify VA of the change of address. Moreover, the Veteran was notified in the February 2013 SSOC that he had not appeared for the scheduled hearing, and neither he nor his representative has requested a new hearing. Accordingly, the Board will proceed with appellate review. FINDINGS OF FACT 1. Service connection for a back disorder was initially denied in an August 2006 rating decision. 2. The Veteran was informed of the August 2006 rating decision and his appellate rights in an August 2006 letter, and did not file an appeal. 3. Additional evidence received since the August 2006 rating decision is new to the record, but does not relate to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The August 2006 rating decision, which denied service connection for a back disorder, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 2. New and material evidence has not been submitted to reopen the service connection claim for a back disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104(d)(1) (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence. See id. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. 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 claimant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. When the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must weigh against a claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). I. The Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002), sets forth VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and 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). In order to satisfy its duty to notify the claimant under the VCAA, the United States Court of Appeals for Veterans Claims (Court) held that 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; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). All notice under the VCAA should generally be provided prior to an initial decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, a delay in timing of the notice is "cured," and therefore harmless, when a fully compliant VCAA notification letter is followed by readjudication of the claim (such as through issuing a statement of the case or supplemental statement of the case) after the claimant has had an opportunity to submit additional evidence. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006). A claim of entitlement to service connection consists of five elements: (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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006). Notification of what evidence is necessary to substantiate the claim under 38 U.S.C.A. § 5103(a) requires notice of these five elements. See id. at 486; Quartuccio, 16 Vet. App. at 187. In the context of a petition to reopen, the claimant must also be notified of what is required to reopen the claim, namely the elements of new and material evidence, and the reasons for the prior denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). Here, prior to the initial rating decision in this matter, an August 2007 letter satisfied all of the above notice requirements, including those set forth in Kent for petitions to reopen. Therefore, the duty to notify is satisfied. See id. VA's duty to assist under the VCAA includes helping the claimant to obtain service treatment records and other pertinent records, as well as providing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Here, the Veteran's service treatment records and records from the VA Medical Center (VAMC) in West Long Angeles are in the claims file. He has not identified any other records or evidence that remains outstanding. Thus, the duty to obtain relevant records on the Veteran's behalf is satisfied. See 38 C.F.R. § 3.159(c). The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a). However, when the claimant submits a petition to reopen a previously denied claim, the duty to assist does not include provision of a medical examination or opinion, unless new and material evidence has been secured with respect to that claim. See 38 C.F.R. § 3.159(c)(4)(iii). Here, because new and material evidence has not been submitted to reopen this claim, an examination is not required. A VA examination was nevertheless scheduled for June 2011, but the Veteran did not appear for it. Absent good cause, when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(a)(b) (2012). When the examination is scheduled in conjunction with a reopened claim for a benefit which was previously disallowed, the claim shall be denied. 38 C.F.R. § 3.665(b). Section 3.655(a) of the regulations provides that "[E]xamples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc." The examples provided in the regulation suggest that failure to appear for an examination must generally be due to circumstances beyond the claimant's control in order to constitute good cause. The Board finds that the Veteran has not demonstrated good cause for failing to appear for the VA examination. He submitted a letter received by VA in August 2011 in which he requested that the examination be rescheduled, and stated that he missed the examination appointment "because the document was sent to my address and I was not aware of it being mailed and left with a relative." The record shows that the Veteran has not had stable housing for periods of time during the pendency of this claim, and has frequently changed addresses. It was incumbent on him to notify VA of a change of address. If the Veteran meant that he had been away from his address in the phrase "left with a relative," or that a relative had received the letter but not forwarded it to him, it was still his duty to contact VA and find out the date and location of the examination or request a delay. While VA has a duty to assist the Veteran in developing evidence pertinent to his claim, the Veteran also has a duty to assist and cooperate with VA in developing this evidence. See 38 C.F.R. § 3.159(c); Wood v. Derwinski, 1 Vet. App. 190 (1991). The Veteran has not shown that his failure to appear was due to circumstances beyond his control, such as the death of a family member, illness or hospitalization, or situation of this kind. Thus, good cause for not appearing for the VA examination has not been shown. Moreover, irrespective of whether good cause has been shown for failing to appear for the examination, because this claim has not been reopened, a VA examination is not warranted, and therefore any error in not rescheduling the examination was harmless. See 38 C.F.R. § 3.159 (c)(4)(iii). In sum, VA's duty to notify and assist under the VCAA has been satisfied. The Veteran has had ample opportunity to participate in the development of his claim. See Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011) (citing Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that any error depriving a claimant of "a meaningful opportunity to participate effectively in the processing of his or her claim . . . . must be considered prejudicial")). Any defect in the notice or assistance provided did not affect the outcome of this claim or compromise the "essential fairness of the adjudication," as shown in the above discussion. See Mayfield v. Nicholson, 19 Vet. App. 103, 116 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, any error in the notice or assistance provided was harmless, and no prejudice exists. See Shinseki v. Sanders 556 U.S. 396, 407, 410 (2009) (holding that the "rule of prejudicial error" requires a case-by-case determination as to whether the error in question was harmless, and that it is the burden of the claimant to show that the error was harmful by at least providing an explanation as to how the error caused harm); see also 38 U.S.C.A. § 7261(b)(2) (West 2002). Accordingly, the Board may proceed with appellate review. II. Analysis The Veteran petitions to reopen the previously denied claim of entitlement to service connection for a back disorder. Although the RO had reopened this claim in the October 2007 rating decision, the Board nevertheless finds that reopening is not warranted, for the reasons discussed below. See Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001) (holding that the Board must determine independently whether new and material evidence has been presented to reopen the claim as a jurisdictional matter, irrespective of the decision of the RO). Service connection for a back disorder was initially denied in an August 2006 rating decision. The Veteran was notified of this decision and his appellate rights in an August 2006 letter in accordance with 38 C.F.R. § 19.25 (2012), but did not submit a notice of disagreement (NOD). See 38 C.F.R. § 20.200 (2012) (providing, in pertinent part, that an appeal consists of a timely filed NOD in writing); see also 38 C.F.R. §§ 20.201 (2012) (explaining the contents of a NOD); 20.302(a) (2012) (setting forth time limits for submitting a NOD). Moreover, as explained below, new and material evidence has not been submitted since the August 2006 rating decision was issued, including within one year of the date that notification of the decision was mailed to the Veteran. Consequently, the decision became final. See 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2012); see also 38 C.F.R. § 3.156(b) (providing that a determination is not final if new and material evidence is received within one year of the date of mailing of the RO decision). Under 38 U.S.C.A. § 5108 (West 2002), VA may reopen a previously and finally disallowed claim when "new and material" evidence is presented or secured with respect to that claim. The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). Under section 3.156(b), if new and material evidence is received within one year after the date of mailing of an RO decision, it may be "considered as having been filed in connection with the claim which was pending at the beginning of the appeal period," and thus prevents an initial determination from becoming final. 38 C.F.R. § 3.156(b) (2012); see Young v. Shinseki, 22 Vet. App. 461, 466 (2009); see also Muehl v. West, 13 Vet. App. 159, 161 (1999) (holding that records constituting new and material evidence received within one year after RO decision rendered RO decision nonfinal); 38 C.F.R. § 3.400(q) (2012) (providing that, as to new and material evidence received within appeal period, "effective date will be as though the former decision had not been rendered"). "New evidence" means evidence not previously submitted to agency decision makers, and "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. 38 C.F.R. § 3.156(a). In order to warrant reopening, the new 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. Id. In Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the Court held that the phrase "raise a reasonable possibility of substantiating the claim" does not create a third element for new and material evidence, but rather provides guidance as to whether submitted evidence meets the new and material requirements. The Court noted that this standard is a "low threshold" for reopening, and explained as an example that if the newly submitted evidence would likely trigger entitlement to a VA medical nexus examination were the claim to be reopened, then it raised a reasonable possibility of substantiating the claim. Id. The Court also explained that new and material evidence need only pertain to one unestablished element in order to reopen a claim, as long as such evidence, in light of evidence previously of record, raises a reasonable possibility of substantiating the claim. Id. at 121. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the new evidence is presumed, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection may be established for a 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(a). Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In interpreting sections 1110 and 1131 of the statute and section 3.303(a) of the regulations, the Federal Circuit held that a three-element test must be satisfied in order to establish entitlement to service connection. Walker v. Shinseki, 708 F.3d 1331, 1333 (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))). Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). Id. However, claims for certain chronic diseases-namely those listed in 38 C.F.R. § 3.309(a)-benefit from a somewhat more relaxed evidentiary standard under 38 C.F.R. § 3.303(b). See Walker, 708 F.3d at 1339 (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases"). Specifically, when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303(b). In order to establish the existence of a chronic disease in service, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Id. Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain in a claim for arthritis or abnormal heart action in a claim for heart disease) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned. Id. If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim. Id. The Federal Circuit noted that the requirement of showing a continuity of symptomatology after service under subsection 3.303(b) is a distinct and lesser evidentiary burden than the nexus element of the three-part test discussed above: "The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the 'nexus' requirement of the three-element test, whereas the former benefits from presumptive service connection . . . or service connection via continuity of symptomatology" (emphasis added). Walker, 708 F.3d at 1338-1339. Thus, showing a continuity of symptomatology after service is an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation" for chronic diseases. Id. at 1338; see also id. at 1336 (observing that section 3.303(b) provides a "second route by which a veteran can establish service connection for a chronic disease"). A continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period." Id. at 1338. Not all diseases that may be considered "chronic" from a medical standpoint qualify for the more relaxed evidentiary standard under section 3.303(b). Rather, the Federal Circuit held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Id. Thus, if the claimed disability is not one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and "the 'nexus' requirement of the three-element test" must be satisfied in order to establish entitlement to service connection benefits. Id. The Veteran's service connection claim for a back disorder was initially denied in the August 2006 rating decision because although the evidence showed that he was treated for a lumbar strain during active service and was currently being treated for back pain, the evidence did not support a relationship to service. In this regard, the RO found no evidence of a continuity of symptoms since active service, and also found the Veteran had injured his back in a post-service motor vehicle accident around 1997 or 1998, and thus that his current back disorder was unrelated to active service. Thus, in order to reopen this claim, there must be new evidence which at least supports an indication that the Veteran's current back disorder may be related to active service, and which is not redundant of evidence previously of record. See Shade, 24 Vet. App. at 117; 38 C.F.R. § 3.156; McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (holding, in relevant part, that a VA examination is required when there is an indication that the claimed disability may be related to an in-service disease, injury, or event). At the time of the August 2006 rating decision, the relevant evidence of record consisted of service treatment records, VA treatment records dating from January 1998 to May 2006, and the Veteran's statements. The service treatment records showed that the Veteran was seen on multiple occasions for low back pain diagnosed as a back strain, and that he had reported injuring his back three years earlier. His spine was found to be normal in the June 1980 separation examination report. Statements by the Veteran in his March 2005 claim and in an August 2005 NA Form 13055 related that he had been hospitalized for two days at the Fort Polk, Louisiana Army Hospital for back pain during his period of active service with the Army National Guard in 1976. The VA treatment records showed that the Veteran reported having severe pain in his back since a motor vehicle accident around 1997, and also showed that he continued to report back pain and was diagnosed with a lumbar back sprain, as reflected in a May 2006 VA treatment record. The relevant evidence submitted since the August 2006 rating decision consists of VA treatment records showing ongoing complaints of back pain. An October 2009 x-ray study showed no significant spondylosis and normal alignment of the spine. A December 2010 VA treatment record reflects that the Veteran reported having back pain for ten years, and that he had been in a car accident in 1995 and experienced low back pain ever since that time. The VA treatment records dated since the August 2006 rating decision are new to the file, but do not satisfy the criteria of new and material evidence as defined in section 3.156 and Shade. They simply confirm that the Veteran continues to experience chronic back pain which has been present since a car accident in the mid to late 1990's. The fact that the Veteran currently has a back disorder was an element already established in the August 2006 rating decision. Thus, the additional treatment records do not relate to an unestablished element, and therefore do not constitute new and material evidence. See Morton v. Principi, 3 Vet. App. 508 (1992) (holding that medical evidence describing the claimant's current condition was not material to the issue of whether it was related to service, and thus did not constitute new and material evidence). Moreover, the fact that the Veteran had injured his back in a car accident in the 1990's was already of record at the time of the August 2006 rating decision, and is only relevant insofar as it weighs against the Veteran's claim, as this evidence shows that the Veteran's current back disorder is due to an "intercurrent" cause unrelated to service. See 38 C.F.R. § 3.303(b). Thus, this evidence does not raise a reasonable possibility of substantiating the claim, but rather has the opposite effect. In sum, there is no new evidence of record since the August 2006 rating decision which would help support an indication that the Veteran's current back disorder may be related to service. Thus, as new and material evidence has not been submitted since the August 2006 rating decision, including within one year since notice of that decision was mailed to the Veteran, that decision remains final and the claim may not be reopened. See 38 C.F.R. § 3.156. Accordingly, new and material evidence has not been submitted to reopen the claim of entitlement to service connection for a back disorder, and the petition to reopen therefore is denied. See 38 C.F.R. § 3.156(a). ORDER The petition to reopen the claim of entitlement to service connection for a back disorder is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs