Citation Nr: 1320788 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 13-11 984 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a back strain. 2. Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran had active military service from April 1945 to December 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2012 rating decision issued by the RO. In that rating decision, the RO, in declined to reopen a claim for entitlement to service connection for back strain. The Board notes that the RO has denied the claim for service connection for the back strain on the merits, as reflected in the January 1990 rating decision. However, regardless of what the RO has done in cases such as this, "the Board does not have jurisdiction to consider a claim which it previously adjudicated unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find." Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); 38 U.S.C.A. §§ 5108, 7104(b). Finally, the Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. Please note 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. In a January 1990 rating decision, the Veteran was denied entitlement to service connection for a back strain. The Veteran did not appeal this decision, and new and material evidence was not received within one year of the issuance of this rating decision. 2. The evidence associated with the claims files subsequent to the January 1990 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim for service connection for a low back disorder. Such evidence is not cumulative or redundant of evidence already of record. 3. The Veteran's mechanical back strain/ degenerative disc disease has not been shown to be related to his service. 4. Degenerative joint disease of the lumbar spine was not manifest during service or within one year of separation. Lumbar spine arthritis is not attributable to service. CONCLUSIONS OF LAW 1. The January 1990 rating decision, which denied service connection for back strain, is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.156, 20.302 (2012). 2. The evidence received subsequent to the January 1990 rating decision is new and material, and the claim for service connection for a low back disorder is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. Mechanical back strain, degenerative disc disease and degenerative joint disease of the lumbar spine was not incurred in or aggravated by service and arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). With respect to the issue of whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for a low back disorder, the RO had a duty to notify the Veteran of what information or evidence was needed in order reopen his claim. However, in the decision below, the Board has reopened the Veteran's claim, and therefore, regardless of whether the requirements have been met in this case, no harm or prejudice to the appellant has resulted. Therefore, the Board concludes that the current laws and regulations have been complied with, and a defect, if any, in providing notice and assistance to the Veteran was at worst harmless error in that it did not affect the essential fairness of the adjudication. Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004); Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. Further, in a May 2012 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for service connection for the claimed low back disorder, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. Hence, the May 2012 letter, which meets the content of notice requirements, also meets the VCAA's timing of notice requirement. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's available service treatment records as well as all identified and available VA and private medical records are in the claims file and were reviewed by both the RO and the Board in connection with his claim. The Veteran has not identified any other outstanding records that are pertinent to the issue herein decided. In addition, the Veteran was afforded a VA examination in November 2012 in connection with his claim for service connection for the claimed low back disorder. As discussed below, the Board finds that the examination and medical opinions obtained regarding the Veteran's claim for service connection for the low back disorder are adequate, as they are predicated on a full reading of the service treatment records as well as the private and VA medical records contained in the Veteran's claims file. The examiner considered all of the pertinent evidence of record, including the contentions and statements of the appellant and provided a complete rationale for the opinion stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal herein decided has been met. 38 C.F.R. § 3.159(c)(4). In summary, the Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. He was an active participant in the claims process submitting evidence and argument and presenting for a VA examination. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Laws and Regulations- New and Material Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). The 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, the Secretary shall reopen the claim and review the former disposition of the claim. 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 (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). Analysis In this case, the RO previously considered and denied service connection for back strain in a January 1990 rating decision. In particular, the RO found that the evidence did not show that the Veteran's claimed back strain was related to his active military service. The Veteran was informed of the decision and his appellate rights, but he did not file a notice of disagreement. There was also no evidence received that pertained to the claim within one year of the issuance of the decision. Therefore, the January 1990 rating decision became final. 38 C.F.R. §§ 3.156, 20.302. In May 2012, the Veteran requested that his claim be reopened. The evidence received since the January 1990 rating decision various lay statements submitted by and on behalf of the Veteran, VA treatment records and the November 2012 report of VA examination. In the various lay statements, it is generally asserted that the Veteran has a current back disorder due to disease or injury incurred in service. The November 2012 report of VA examination offers an opinion as to etiology of the claimed low back disorder after thorough review of the evidence (medical and lay) of record. This evidence is not cumulative and redundant of the evidence previously considered, as there had been no such allegations or opinion as to etiology at that time. In fact, there was no evidence relating the low back disorder to the Veteran's service at the time of the January 1990 rating decision. The Board must also presume the credibility of this evidence for the purpose of determining whether it constitutes new and material evidence needed to reopen the claim and may not assess its probative weight in relation or comparison to other evidence for reopening purposes. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). Therefore, the Board finds that this new evidence (the lay statements and November 2012 VA report of examination with etiology opinion) relates to an unestablished fact necessary to substantiate the claim. Accordingly, the Board finds that new and material evidence has been presented to reopen the Veteran's previously denied claim for service connection for a low back disorder. We also note that at the time of the prior decision, there was no valid diagnosis regarding lumbar pathology. Since the prior determination, there is evidence of degenerative disc changes and osteophyte formation. Such evidence, standing alone would warrant consideration as a new claim based upon new diagnoses. Laws and Regulations- Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). As noted, arthritis is a chronic disease. 38 U.S.C.A. § 1101. Therefore, section 3.303(b) is potentially applicable. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Analysis The Veteran's service treatment records document that on September 12th, he complained of a back ache and general malaise. The November 1946 report of separation examination reflects that on physical examination there were no musculoskeletal defects. In this case, the Veteran asserts that his current low back disorder onset was due to disease or injury sustained in service. A July 2006 VA treatment record reflects the Veteran's complaint of low back pain. On objective examination, the pertinent assessment was back pain. Private treatment records dated from May 2009 to July 2010 document the treatment the Veteran received for his low back disorder. A September 2011 VA treatment record reflects the Veteran's complaint of low back pain that had been present for the past three to four years. The Veteran reported that previous injections in the back helped relieve the pain. On examination, the assessment was back pain and the Veteran was prescribed medication for management of the back pain. The corresponding September 2011 x-ray report showed multilevel degenerative disc disease with advanced degenerative changes at L1-L2 and L2-L3. Also shown, L4-L5 and L5-S1 degenerative joint disease. An August 2012 VA treatment record reflects that recent injection did not relieve back pain. He noted that past injections had relieved back pain and he requested a repeat injection. A September 2012 VA treatment record reflects the Veteran's complaint of low back pain with certain movements, bending over or "this or that." The report of November 2012 VA examination documents the Veteran's complaints of back pains since the 1940's (Okinawa). On examination, the diagnoses were mechanical back strain and degenerative disc disease. The examiner also indicated that arthritis was documented, noting the findings of the September 2011 x-ray report which showed multilevel degenerative disc disease with advanced degenerative changes at L1-L2 and L2-L3 and L4-L5 and L5-S1 degenerative joint disease. The examiner opined that the claimed low back disorder was less likely than not (less than 50 percent probability incurred in or caused by the claimed in-service injury, event or illness. The examiner indicated there was no medical documentation of the Veteran's in-service injury. However, the examiner found the Veteran's report of in-service injury and treatment thereof (homemade back brace) to be credible. The examiner noted that the Veteran clearly had arthritis and explained that arthritis was multifactorial in etiology. The examiner acknowledged that it would be impossible to know whether the Veteran's x-rays (documenting arthritis) would look better or worse had the reported in-service injury not occurred. He suspected that the x-rays would look similar, if not identical. He also commented that it would be impossible to know the effect that the intervening 60 plus years, between in-service injury and first documentation of disorder post service, had on the presentation of the current low back disorder. The examiner stated that the Veteran's post-service occupations, truck driver and farmer, would certainly contribute to the development of osteoarthritis of the lumbar spine, most likely in larger proportion than his initial in-service injury. The examiner explained that common sense dictated that an individual with no pre-existing back pain, who then injured his back to the point of needing a homemade back brace for pain thereof, would be correct in assuming that his injury was the root cause. However, the examiner reported that the mechanism of the Veteran's injury and the nature of the x-ray findings argue otherwise. The examiner concluded that the original injury resulted in acute mechanical back pain, which was very painful and often helped with conservative management. In this case, the Veteran made his own back brace and it proved effective. However, his current disorder was consistent with degenerative arthritis and not post-traumatic arthritis. The examiner thus concluded that the intervening 60 years played a much larger role in the development of his arthritic condition, certainly a larger role than the initial (in-service) injury. Accordingly, the examiner found it less likely than not that the Veteran's current back disorder was incurred as a result of the injury he sustained in service. Given its review of the record, the Board finds that service connection for the claimed low back disorder is not warranted. While the Veteran contends that his current low back disorder had onset due to disease or injury sustained in service, the Board points out that the more probative opinion concludes that it is less likely that there exists a relationship, or nexus, between the current low back disorder and the Veteran's active service. Although there was an in-service complaint, the separation examination disclosed that there were no musculoskeletal defects. This tends to establish that the in-service event resolved without residuals. Furthermore there are no complaints of a low back disorder until many years after service. The Board points out that the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). There is no evidence of arthritis of the back shown in service. To determine that a chronic disease was shown in service, the disease identity must be established. 38 C.F.R. § 3.303(b); Walker, 2013 WL 628429 at *8. The Board acknowledges the September 12th service treatment record reflects that the Veteran complained of a back ache. However, no examiner at the time, or since, has established that this isolated finding was sufficient to establish chronicity or an underlying chronic disease process. In sum, although there was an in-service event, characteristic manifestations sufficient to identify the disease (arthritis) entity were not noted. Additionally, there is no evidence of arthritis within one year of separation from service. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. § 3.303(b), 3.307, 3.309. The only other evidence of record supporting the Veteran's claim is his various general lay assertions. Here, the appellant is competent to report in-service injury and the available service treatment records confirm complaint of back ache during service. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Here his lay assertions are also credible to the extent that they establish that the Veteran sustained in-service injury. However, any assertion of on-going symptoms since service is inconsistent with the normal separation examination and is not credible. The Board finds that the more probative evidence regarding etiology tends to weigh against a finding that the current low back disorder is due to the injury or event sustained in service. Thus, the Board finds that the lay opinion is less informed, less probative and less credible than the reasoned medical opinion. The Board finds the opinion of the VA physician in the November 2012 report of VA examination to be most probative. The VA physician is a medical professional who has reviewed the claims file, considered the reported history and performed physical examination. The physician used his expertise in reviewing the facts of this case and determined that the current low back disorder was less likely than not due to the injury sustained during the Veteran's service. It is clear that the physician fully understood the basis for the Veteran's claim yet still determined, after reviewing the facts of the case, that the current low back disorder was related to causes other than disease or injury incurred during the Veteran's period of service. The Veteran has not suggested that the November 2012 examination was performed in an insufficient manner. For the foregoing reasons, the Board finds that the claim of entitlement to service connection for a low back must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER The application to for a claim for service connection for a back disorder is granted. Entitlement to service connection for a low back disorder is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs