Citation Nr: 1319037 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 09-14 041 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a lumbar spine condition. 2. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for hypertension. 3. Entitlement to service connection for a lumbar spine condition. 4. Entitlement to service connection service connection for hypertension. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1977 to February 1981 and from December 1982 to January 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision decided by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. FINDINGS OF FACT 1. In a June 1999 rating action, the RO denied service connection for a lumbar spine condition. The Veteran was notified of the decision and of his appellate rights, but he did not initiate an appeal. 2. The evidence received since the June 1999 rating decision denying Veteran's claim for a lumbar spine condition is new and raises a reasonable possibility of substantiating the Veteran's claims for service connection. 3. In a September 2005 rating decision, the RO denied service connection for hypertension. The Veteran was notified of the decision and of his appellate rights, but he did not initiate an appeal. 4. The evidence received since the November 1999 rating decision denying Veteran's claim for a hypertension is new and raises a reasonable possibility of substantiating the Veteran's claims for service connection. 5. The Veteran's degenerative disc disease and degenerative joint disease of the lumbar spine condition had its onset in service. 6. The Veteran's hypertension had its onset in service. CONCLUSIONS OF LAW 1. The July 1999 rating decision for service connection for a lumbar spine condition is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 2. The September 2005 rating decision for service connection for hypertension is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 3. New and material evidence has been received to reopen the claim of entitlement to service connection for a lumbar spine condition. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 4. New and material evidence has been received to reopen the claim of entitlement to service connection for hypertension. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 5. Degenerative disc disease and degenerative joint disease of the lumbar spine condition was incurred in service. 38 U.S.C.A. §§ 1101, 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 6. Hypertension was incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1114 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board reopens the Veteran's claims for a lumbar spine condition and hypertension. The Board grants service connection the claims, which represents a complete grant of the benefits sought on appeal. Thus, no discussion of VA's duty to notify and assist is necessary. I. Claims to Reopen The Veteran seeks to reopen his previously denied claims of service connection for a lumbar spine condition and service connection for hypertension. A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of decision. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2002); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board without consideration in that decision in accordance with the provisions of § 20.1304(b)(1)), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim. See Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). New evidence means existing 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. VA is required to review for its newness and materiality only the evidence submitted by the claimant since the last final disallowance of a claim on any basis in order to determine whether a claim should be reopened and readjudicated on the merits. See Evans v. Brown, 9 Vet. App 273 (1996). The prior evidence of record is important in determining newness and materiality for the purposes of deciding whether to reopen a claim. Id. Initially, the Board notes that the Veteran submitted a claim for service connection for a lumbar spine condition in July 1981. The claim for a lumbar spine condition was denied by RO action in March 1982. The RO found that the VA examination revealed no current clinical findings related to the back. The Veteran was informed of that decision. The Veteran did not file a notice of disagreement with the March 1982 rating decision and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision. See 38 C.F.R. § 3.156(b) (2012); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the March 1982 rating decision became final based on the evidence then of record. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). The Veteran submitted an application to reopen a claim for service connection for a lumbar spine and a separate claim for entitlement for service connection for hypertension in March 1999. The claim for a lumbar spine condition was denied by a July 1999 rating decision. The RO denied entitlement to service connection on the basis that the claim was " not well grounded" because evidence of a chronic disability from service was not found. The Veteran was notified of the decision and of his appellate rights by way of notice dated in August 1999. The Veteran failed to submit an NOD to the July 1999 rating decision and the decision became final one year later. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1105 (2012). Although some claims finally denied as being "not well grounded" may be readjudicated de novo, such readjudication is not allowed unless the claimant makes such a request, or the Secretary makes such a motion, within two (2) years of the enactment of the VCAA; no action to initiate readjudication of such a claim should be taken subsequent to November 9, 2002. VAOPGCPREC 03-2001 (January 22, 2001); see 38 U.S.C.A. § 7104(c) (West 2002) and 38 C.F.R. § 20.101(a) (2012) (The Board is bound in its decisions by the regulations of the Department, instructions of the Secretary, and precedent opinions of the General Counsel of the VA). In this case, the Veteran did not request readjudication under the VCAA nor did the RO initiate a de novo readjudication of the claim by November 9, 2002. Pursuant to the precedent opinion, no action to initiate readjudication of this claim may now be taken. The July 1999 RO decision is final. In a November 1999 rating decision, the RO denied entitlement for service connection for hypertension because a current diagnosis was not found. The Veteran was informed of that decision and of his appellate rights in a letter from the RO. The Veteran did not file a notice of disagreement with the November 1999 rating decision and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision. See 38 C.F.R. § 3.156(b) (2012); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the November 1999 rating decision became final based on the evidence then of record. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). In March 2005, the Veteran submitted an application to reopen a claim for service connection for hypertension. In a September 2005 rating decision, the RO denied the claim stating that the current diagnosis of hypertension could not be linked to the elevated blood pressure readings during service. Additional evidence was received within one year of the determination that was duplicative of the evidence of record and the RO reconsidered his claim. However, because the Veteran did not file a notice of disagreement with the September 2005 rating decision and no new and material pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision. See 38 C.F.R. § 3.156(b) (2012); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). The appeal was denied in a June 2007 rating decision. The Veteran appealed this decision. In March 2006, the Veteran submitted an application to reopen a claim for service connection for a lumbar spine condition. In a June 2007 rating decision, the RO declined to reopen the previously denied claim on the basis of no current disability. The Veteran appealed this decision. At the time of the July 1999 and September 2005 RO decisions, the evidence of record consisted of the Veteran's service treatment records and VA treatment records and examination reports. Pertinent evidence received since the July 1999 and September 2005 RO decisions include VA treatment records and private treatment records. The evidence received is new because it was not previously considered by the RO. As to his hypertension claim, VA treatment records reveal recurrent high blood pressure evaluations and indicate that the Veteran has been issued medication for the condition. Specifically, a January 2006 VA treatment record reflects a diagnosis of hypertension. The report also includes the physicians' note regarding the Veteran's need to lower his blood pressure. In VA treatment records dated December 2007, the examiner noted that the Veteran had an increased blood pressure and noted that his was treating his condition with medication. Further, in an April 2009 statement, the Veteran indicated that he was taking medication for his high blood pressure. The RO had previously denied the Veteran's claim because the evidence did not show a current diagnosis of hypertension. The treatment records evidence received since the September 2005 rating decision are new because they were not previously considered the RO. They are material because they establish a current hypertension disorder. When considered with the previous evidence of record, the Veteran's VA treatment records raise a reasonable possibility of substantiating the Veteran's claims for service connection. With regards to the Veteran's lumbar spine condition, the VA treatment records dated August 2007 reflect a diagnosis of degenerative joint disease of the lumbar spine. In addition, the Veteran submitted a private physician's letter dated December 2008, which indicated that the Veteran suffered from degenerative arthritis. VA treatment records dated December 2008 note a mild degenerative change of the L4-5 and L5-S1. The RO had previously denied the Veteran's claim, finding that there was no current diagnosis of a lumbar spine condition. However, the Veteran's VA and private treatment records include evidence of a current condition. These records are material as the Veteran's condition was previously unestablished by the record. When evaluating the materiality of newly submitted evidence, the Board should not concentrate exclusively on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory. See Shade, 24 Vet. App. at 118. As new and material evidence has been received, the Veteran's claims are reopened. II. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). A. Lumbar Spine Condition As noted above, the Board reopened the Veteran's claim of service connection for a lumbar spine condition. Based on the evidence presented, the Board finds that a current disability has been established. Post-service treatment records reflect dated in August 2007 a diagnosis of degenerative joint disease. In addition, a private physicians report dated December 2008 indicates treatment due to severe lumbosacral difficulties and degenerative changes. An in-service incurrence has also been established. The service treatment records reveal several complaints and treatment for low back pain. In addition, service treatment records dated November 1987 reflects that the Veteran had chronic low back problems and he was diagnosed as having degenerative joint disease in the L5-S1. The Veteran only need establish a nexus between the current low back disorder and the in-service injury. In addition, in a September 2007 report, a VA physician opined that the Veteran's disc disease of the low back had its onset in service. A December 2008 private medical opinion also reflects a positive nexus between the Veteran's degenerative disc disease and degenerative joint disease of the lumbar spine and service. The Board finds that the required nexus has been established in this case. Since the evidence demonstrates that the Veteran developed a chronic arthritic disorder in service, a formal positive medical nexus opinion is not required. See Groves v. Peake, 524 F. 3d 1306, 1309 (Fed. Cir. 2008) (when a chronic disease is identified in service and at any time after service, service connection will be granted without the need for nexus evidence). A showing of a recurrent condition can serve to satisfy the requirement for a nexus between an in-service event and a current chronic disability. In VA treatment records dated March 2006, the Veteran stated that he suffered from pain in his low back all the time. In an April 2009 statement, the Veteran indicated that the start of his back problems was in service. He stated that his job requirements as a fuel systems repairman coupled with the numerous military exercises and carrying heavy gear for long periods of time, were the primary cause of his condition. He further stated that he is now taking medication which allows him to been in less pain than he has felt in the past 20 years. The Veteran has competently and credibly reported that he suffers from a lower back condition which has persisted since service. See Layno, 6 Vet. App. 465 (1994); Jandreau, 492 F.3d 1372 (Fed. Cir. 2007); see also 38 C.F.R. § 3.303(a) (2012). As to the Veteran's degenerative disc disease of the low back, in light of the in-service findings and the positive medical opinions, the Board finds that service connection is warranted for this condition as well. Therefore, the Veteran meets the criteria for service connection for a lumbar spine condition. He was first diagnosed with this condition during military service, he has had recurrent symptoms since separation from service, and he is currently diagnosed with degenerative joint disease. In addition, the medical evidence shows that his degenerative disc disease had its onset in service. Accordingly, service connection for degenerative joint disease and degenerative disc disease of the lumbar spine is warranted. B. Hypertension As to the Veteran's reopened hypertension claim, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and Department of Veterans Affairs regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). If a chronic disorder such as hypertension is manifest to a compensable degree within one year after separation from service, the disorder may be presumed to have been incurred in service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309; see also Groves. Hypertension is a chronic disease subject to presumptive service connection, provided that it is manifest to a compensable degree within one year after separation from service. See 38 C.F.R. § 3.309(a). The service treatment records reflect a diagnosis and treatment for hypertension in December 1998. The medical evidence dated during the appeal shows that the Veteran has been diagnosed as having hypertension. Thus, the Veteran's hypertension is presumed to have been incurred in service and service connection for hypertension in this case is granted on a presumptive basis. Groves. ORDER New and material evidence to reopen a claim of entitlement to service connection for a lumbar spine condition has been presented. New and material evidence to reopen a claim of entitlement to service connection for hypertension has been presented. Service connection for degenerative joint disease and degenerative disc disease of the lumbar spine is granted. Service connection for hypertension is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs