Citation Nr: 1320280 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 11-05 567A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for arthritis of the cervical and thoracolumbar spine. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from June 1946 to October 1947. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision, by the St. Paul, Minnesota RO. On April 5, 2013, the Veteran appeared and offered testimony at a hearing before the undersigned Veterans Law Judge, sitting at the RO. A transcript of the hearing is of record. Regardless of what the RO has determined with regard to whether new and material evidence has been received sufficient to warrant reopening of a previously denied claim of entitlement to service connection, the Board must address the jurisdictional question of whether new and material evidence has been submitted. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a) (2) (West 2002).) FINDINGS OF FACT 1. By a July 1996 decision, the Board denied entitlement to service connection for a back disorder. That determination was based on a finding that the evidence of record did not establish a nexus between service and currently shown back disability. 2. The evidence received since July 1996 does not, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the claim for service connection for arthritis of the spine. CONCLUSIONS OF LAW 1. A July 1996 Board decision that denied the Veteran's claim of entitlement to service connection for a back disorder is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2012). 2. New and material evidence has not been received to reopen the claim of service connection for a back disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 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 held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a claim to reopen, the notice must include the evidence and information that is necessary to reopen the claim and the evidence and information that is necessary to substantiate the underlying claim of service connection. Kent v. Nicholson, 20 Vet. App. 1 (2006). In this case, VA satisfied its duty to notify by means of a letter dated in April 2010 from the RO to the Veteran, which was issued prior to the RO decision in June 2010. An additional letter was issued in September 2012. Those letters informed the Veteran of what evidence was required to substantiate the claim, and of his and VA's respective duties for obtaining evidence. The criteria for new and material evidence and the basis of the 1996 final denial, as required under Kent, were provided. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. The Board finds that the content of the above-noted letters provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. He was provided an opportunity to submit additional evidence. It also appears that all obtainable evidence identified by the Veteran relative to the claim decided by this decision has been obtained and associated with the claims file, and that neither the Veteran nor his representative has identified any other pertinent evidence, not already of record, that would need to be obtained for a proper disposition of the claim. It is therefore the Board's conclusion that the Veteran has been provided with opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. Accordingly, the Board finds that VA has satisfied its duty to notify and assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence under the VCAA. Therefore, no useful purpose would be served in remanding the matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Analysis A denial of a claim by the Board is final, unless a timely appeal is made to the United States Court of Appeals for Veterans Claims. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2012). However, pursuant to 38 U.S.C. § 5108, 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. New evidence means existing evidence not previously submitted to agency decisionmakers. 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). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran entered active duty in June 1946; the enlistment examination, conducted in June 1946, was negative for any complaints, findings or diagnosis of a back disorder; clinical evaluation of the spine was reported as normal. The service treatment records (STRs) indicate that the Veteran was admitted to a hospital in April 1947 for evaluation and treatment of scarlet fever; the records noted that, prior to his admission, the Veteran experienced a sore throat, chills, abdominal cramps, nausea, vomiting, headache, and a stiff back. However, there is no mention of a spine disorder. The discharge examination, conducted in October 1947, was negative for complaints or finding of a back disorder; clinical evaluation of the spine was reported as normal. On the occasion of an initial VA examination in November 1981, the Veteran complained of low back pain; he also reported experiencing stiffness in the back, with occasional sharp pain. The Veteran indicated that he was standing on a ladder working in a construction job when he was hit by 227 volts of electricity, and that he injured his back when he fell from the ladder after the electricity was turned off. An x-ray study of the spine revealed spurring at the D11-D12 and the L3-L4 level of the spine, as well as a slight narrowing of the C4 interspace. The pertinent diagnoses were localized osteoarthritis and degenerative disc disease of the cervical spine, probably post-traumatic; and osteoarthritis of the dorsal and lumbar spine with back pain syndrome with history of injury. The Veteran's initial claim for service connection for a back disorder (VA Form 21-526) was received in October 1992. By a decision in July 1996, the Board denied the Veteran's claim of entitlement to service connection. That decision was based on a finding that the evidence of record did not establish a nexus between service and the then-shown back disorder. Medical evidence of record, consisting primarily of private treatment reports, dated from October 2003 through October 2009, reflect treatment for skin and heart conditions. These records do not reflect any complaints or treatment for a back disorder. In December 2009, the Veteran indicated that he was seeking to reopen his claim for service connection for a back disorder. Submitted in support of his claim was a treatment report from Dr. Gregory Harrison, dated in January 2010, indicating that he reviewed an MRI of the cervical spine done on January 19, 2010. Dr. Harrison noted that those images demonstrated moderate degenerative changes throughout the cervical spine. There was also substantial and severe spinal canal stenosis at C4-5 greater than C5-6 due to typical degenerative changes. There was multilevel foraminal stenosis at C3-4, C4-5 and C5-6. Dr. Harrison stated that his impression for the Veteran was that of neck pain after a motor vehicle accident. Of record is a transmittal from the Social Security Administration (SSA), dated in November 2011, indicating that the Veteran's medical records had been destroyed. Received in December 2011 were treatment records from Park Nicollet Methodist Hospital, dated from July 2008 through February 2011, reflecting treatment primarily for a skin condition. Of record is a formal finding of unavailability, dated in February 2012, wherein the RO indicated that they had determined that the Social Security Administration records were unavailable for review. It was noted that all procedures to obtain the treatment records for the Veteran had been correctly followed. All efforts to obtain the needed SSA records had been exhausted; response was received from SSA indicating that the medical records had been destroyed; therefore, based on that fact, it was determined that the records were not available. The Veteran was afforded a VA examination in June 2012. At that time, he stated that he had no back problems prior to military service. However, during service, he had back pain while marching and carrying backpacks. It was noted that the Veteran was not seen for back pain overseas and he did not discuss back problems at the time discharge. It was also noted that the STRs reflect that the Veteran was hospitalized for scarlet fever in April 1947; at that time, he reported vomiting, nausea and a stiff back. The final diagnosis was scarlet fever and diphtheria carrier. The Veteran reported being seen in the 1950's for his back; he stated that he worked as an electrician and would get numbness and sharp pain, and he had difficulty carrying things. It was noted that he was not currently seen for back. Following the physical examination, the Veteran was diagnosed with degenerative disc disease of the lumbar spine. The examiner opined that the lumbar spine condition was less likely than not incurred in or caused by a claimed inservice injury, event or illness. The examiner explained that the Veteran had back stiffness at the time of an acute illness with scarlet fever, and 30 years later when he was having a pension examination he was found to have extensive degenerative change. The examiner stated that this was likely an age related change and related to the Veteran's occupation; he stated that it would have no relationship to stiffness at the time of an acute illness. The examiner further noted that there was no indication that the Veteran had ongoing back condition of any kind related to activities during military service and more specifically related to the acute illness during service. Therefore, the examiner stated that he was unable to link the Veteran's current back condition to any activity or illness during military service. Received in August 2012 was a copy of the statement from Dr. Gregory Harrison dated in January 2010. Also received were records from Park Nicollet Methodist Hospital dated from July 2008 through August 2012. These records do not reflect any complaints of or treatment for a back disorder. At his personal hearing in April 2013, the Veteran indicated that his military duties included loading and unloading heavy equipment and supplies. The Veteran related that he had to remove five-gallon cans of fuel off trucks. The Veteran testified that he suffered from back pain on a regular basis; however, he never really had the opportunity to report his medical problems to anyone. The Veteran indicated that he was sought treatment in the 1950's and was told that he had problems with the discs in his back. The Veteran noted that the records would be in the treatment reports from Park Nicollet Methodist Hospital. The Veteran related that the doctor explained that having surgery seldom helped the back; rather, it sometimes makes it worse. A review of the Veteran's virtual VA records reflect that additional records were added to the file, dated from March 2007 to July 2012; these records show that the Veteran received ongoing evaluation and treatment for chronic low back pain. X-ray study of the lumbar spine in May 2010 revealed degenerative changes at L1-L2, L2-L3 and L5-S1; there was also facet arthropathy from L4 through S1. X-ray study of the cervical spine revealed marked degenerative changes of the cervical spine. In this case, the Board denied the Veteran's claim of entitlement to service connection for a back disorder in July 1996; that decision was based on a finding that the evidence of record did not establish a nexus between service and the then-shown degenerative changes of the back. The evidence received subsequent to July 1996 consists of VA medical records, private treatment reports, and a VA examination report showing that the Veteran continued to receive treatment for arthritis of the lumbar, dorsal and cervical spine. The Board has reviewed the recent evidentiary submissions and concludes that new and material evidence has not been submitted. As noted above, the July 1996 denial was based on a finding that the evidence failed to show that the Veteran's back disorder was related to service. The evidence added to the record since the Board decision does not include any competent evidence that tends to establish a relationship between the Veteran's back disorder and military service. Rather, following a VA examination in June 2012, the examiner opined that the spine condition was less likely than not incurred in or caused by a claimed in-service injury, event or illness. The examiner explained that the Veteran had back stiffness at the time of an acute illness with scarlet fever, and 30 years later when he was having a pension examination he was found to have extensive degenerative change. The examiner stated that this was likely an age related change and related to the Veteran's occupation; he stated that it would have no relationship to stiffness at the time of the in-service acute illness. The examiner further noted that there was no indication that the Veteran had ongoing back condition of any kind related to activities during military service and more specifically related to the acute illness during service. Therefore, the examiner stated that he was unable to link the Veteran's current back condition to any activity or illness during military service. In sum, none of the evidence added to the record since the final Board decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for Veteran's back disorder. The recent evidentiary submissions, when viewed in the context of the prior denial, have not addressed the evidentiary defect, namely lack of competent nexus evidence. The new evidence is cumulative, showing merely a continuation of the same problems and the Veteran's repeated allegations of service incurrence. Therefore, the application to reopen is denied. Consequently, the evidence added to the record since the July 1996 denial of service connection for a back disorder is not material because it does not relate to an unestablished fact necessary to substantiate the claim, and does not present the reasonable possibility of substantiating the claim. Accordingly, the Board finds that new and material evidence has not been received, and the Veteran's claim of entitlement to service connection for a back disorder is not reopened. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a) (2012). ORDER The application to reopen a claim of service connection for cervical and thoracolumbar spine arthritis is denied. _______________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs