Citation Nr: 1322337 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 10-24 440 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from July 1965 to July 1967, including service in the Republic of Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which found that new and material evidence had not been received to reopen the previously denied claim of service connection for a low back disorder. The Board observes that the RO appears to have subsequently made an implicit determination that new and material evidence had been received to reopen the low back disorder claim in that it addressed the merits of the underlying service connection claim in a May 2010 Statement of the Case (SOC), and did not discuss whether new and material evidence had been received. Despite the implicit determination reached by the RO, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in October 2010. A transcript of this hearing has been associated with the Veteran's VA claims folder. The Board observes that the Veteran indicated in a June 2010 statement that he also desired a hearing before a Decision Review Officer (DRO) at the RO in addition to his Board hearing. However, for the reasons stated below, the Board finds that new and material evidence has been received and that service connection is warranted for the Veteran's low back disorder. In short, he is entitled to the benefits sought on appeal. Consequently, the Board concludes that there is no prejudice to the Veteran by the Board proceeding with adjudication of his appeal without remanding the case for the DRO hearing. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). The Board also observes that it received additional medical records dated in 2012 in support of the Veteran's claim, which was clearly not considered when the RO last adjudicated this case via the May 2010 SOC. No explicit waiver of initial agency of original jurisdiction (AOJ) review of such evidence was sent by the Veteran. However, 38 C.F.R. § 20.1304(c) provides that the Board does not have to refer such evidence to the AOJ if it determines the benefit(s) to which the evidence relates may be fully allowed on appeal without such referral. As noted in the preceding paragraph, the Board has determined that service connection is warranted for a low back disorder. Therefore, referral of the additional evidence to the AOJ is not necessary in this case. FINDINGS OF FACT 1. Service connection was previously denied for a low back disorder by a June 2006 rating decision. The Veteran was informed of that decision, including his right to appeal, and did not appeal. New and material evidence was not received within the appeal period of this rating decision. 2. The evidence received since the last prior denial of service connection for a low back disorder was not previously submitted to agency decisionmakers, relates to an unestablished fact necessary to substantiate the claim, is not cumulative nor redundant of the evidence of record at the time of the last prior final denial, and raises a reasonable possibility of substantiating the claim. 3. The competent medical and other evidence of record reflects it is at least as likely as not that the Veteran's degenerative disc disease of the lumbar spine had its onset in service. CONCLUSIONS OF LAW 1. New and material evidence having been received to reopen the claim of entitlement to service connection for a low back disorder, the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156(a) (2012). 2. Degenerative disc disease of the lumbar spine was incurred in service. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters For the reasons detailed below, the Board finds that new and material evidence has been received to reopen the low back disorder claim, and that service connection for degenerative disc disease of the lumbar spine is warranted. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales 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). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. 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). 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Legal Criteria and Analysis 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). Service connection was previously denied for a low back disorder by a June 2006 rating decision. The Veteran was informed of that decision, including his right to appeal, and did not appeal. The Board is cognizant of the fact that 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). However, in this case no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision. In fact, the record indicates the Veteran did not submit any additional evidence following notification of the June 2006 rating decision until his December 2008 request to reopen, more than two (2) years after that decision. Therefore, the June 2006 rating decision's denial of service connection for a low back disorder is final. See 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 20.1100, 20.1103. Despite the finality of a prior decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The Court has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Further, the Court has also held that in order to reopen a previously and finally disallowed claim there must be new and material evidence presented since the time that the claim was finally disallowed on any basis, not only since the time that the claim was last disallowed on the merits. Evans v. Brown, 9 Vet. App. 273, 285 (1996) (overruled on other grounds). 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). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the 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. The evidence of record at the time of the June 2006 rating decision included statements from the Veteran, his service treatment records, and post-service medical records which cover a period through 2006. The Veteran essentially indicated that he had had recurrent back pain since 1966. As part of a May 2006 VA spine examination he reported he had some back pain while in the military, no history of injury, continued with low back pain even after coming home, and denied any further injuries. His post-service medical records show treatment for back problems since at least 1999, with findings of degenerative changes of the spine. For example, the May 2006 VA examination diagnosed bilateral facet arthritis with limited motion of the lower back. The Veteran's service treatment records reflect he did not indicate any back problems on a Report of Medical History completed in conjunction with his March 1965 pre-induction examination. His spine was clinically evaluated as normal on that examination as well. He was subsequently treated for back pain in February 1966, in July 1966 after lifting "P.S.P.", in August 1966, and in October 1966. Although his spine was clinically evaluated as normal on his June 1967 separation examination, the Veteran indicated on a concurrent Report of Medical History that he had experienced recurrent back pain. On the physician's comments section to this Report, it was indicated the Veteran had recurrent back pain from a 1965 injury. The May 2006 VA examination included an opinion that it was less likely as not the Veteran's current back complaints were related to recurrent back strain during service. The examiner stated that the rationale was that the Veteran had an established pathology in the facet joint of the lumbosacral spine and these changes were consistent with giving symptoms with minor limitation of motion; and this was not in any way connected with the recurrent back strain. The June 2006 rating decision denied service connection for a low back disorder finding that even though there was a record of treatment in service for back condition, no permanent residual or chronic disability subject to service connection was shown by the service treatment records or shown by evidence following service. The evidence added to the record since the June 2006 rating decision includes additional statements from the Veteran, his testimony at the October 2010 Board hearing, and additional post-service medical records which cover a period through 2012. In his October 2010 testimony, the Veteran presented credible testimony that he initially injured his back while lifting perforated steel platings ("P.S.P."), and has had recurrent back problems since that injury. Although he provided similar statements at the time of the last prior denial, his testimony does provide additional details that were not of record. Moreover, a June 2010 private medical opinion from Dr. G. Chaney, D.O., noted, in pertinent part, the Veteran had been under her care for chronic back pain; that the Veteran initially had this injury during military service to his back secondary to heavy lifting; and having reviewed the Veteran's military medical records and based on her opinion, Dr. Chaney firmly believed that it was more likely than not that the onset of the Veteran's back condition began in service and related to his military career. In short, Dr. Chaney provided competent medical evidence in support of the Veteran's claim which was not available at the time of the last prior denial. Further, in accord with Shade, supra, the Board observes that such evidence would warrant at least a medical examination. In addition, the evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been submitted, without regard to other evidence of record. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In view of the foregoing, the Board finds that the evidence received since the last prior denial of service connection for a low back disorder was not previously submitted to agency decisionmakers, relates to an unestablished fact necessary to substantiate the claim, is not cumulative nor redundant of the evidence of record at the time of the last prior final denial, and raises a reasonable possibility of substantiating the claim. Thus, new and material evidence has been received in accord with 38 C.F.R. § 3.156(a), and the claim is reopened. Adjudication of the Veteran's appeal does not end with the determination that new and material evidence has been received. The Board must now address the merits of the underlying service connection claim. In the adjudication that follows, the presumption that the evidence received to reopen is true without regard to the other evidence of record no longer applies. The Board also wishes to reiterate the fact that the RO addressed the merits of the underlying service connection claim in the May 2010 SOC. See Hickson v. Shinseki, 23 Vet. App. 394 (2010). Inasmuch as the RO has already addressed the merits of the service connection claim, the Veteran is not prejudiced by the Board also addressing the merits of this case. Id. The Board reiterates that the Veteran has provided credible testimony regarding his in-service back problems and recurrent symptomatology since service. Further, his service treatment records confirm in-service treatment for back problems, and under circumstances described by the Veteran at his October 2010 hearing (i.e., back pain after lifting "P.S.P."). He is also competent as a lay person to describe symptoms such as pain. However, the Board also notes that his current low back disorder is shown to involve degenerative changes to the lumbosacral spine, which is internal and not subject to lay observation. No findings degenerative spine changes were made during service, the Veteran's spine was clinically evaluated as normal on his separation examination. The Board thus finds that competent medical evidence is required to determine the nature and etiology of the Veteran's current low back disorder. Here, nothing on file shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion. Consequently, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). Nevertheless, his lay statements can support a later diagnosis and opinion by a medical professional, which appears to be the case with the June 2010 opinion from Dr. Chaney. See Jandreau. In addition to Dr. Chaney and the May 2006 VA examiner's opinions detailed above, an April 2010 VA examiner opined that the Veteran's current lumbar stenosis and degenerative changes cannot be explained by or is not caused by his time in active military duty. The examiner further stated that the Veteran's lumbar stenosis may be job-related from bus driving or just due to the degenerative changes seen in the lower lumbar spine and possibly due to the Veteran's age and disc degeneration. The examiner reiterated his opinion that the current lumbar spine condition is not related to the Veteran's time or injury that he sustained in active military duty. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In this case, the record indicates that Dr. Chaney, as well as the May 2006 and April 2010 VA examiner are qualified to render competent medical opinions. Further, all of these clinician indicated they were familiar with the Veteran's medical history, to include review of the service treatment records. The Board also notes that none of their opinions appear to be expressed in speculative or equivocal language, and all supported their opinions by stated rationale. As such, it initially appears that these competent medical opinions are of equal weight. However, the rationale of both the May 2006 and April 2010 VA examiners appear to focus on the fact that the diagnosis of the current low back disorder is different from the back strain the Veteran was diagnosed with while on active duty. Moreover, neither VA examiner appears to address the Veteran's credible testimony that he had no back problems prior to service, and has had recurrent back problems since his in-service lifting injury. As detailed above, Dr. Chaney's rationale is based upon this credible testimony of the Veteran. In addition, the rationale of the April 2010 VA examiner indicates that the Veteran's current low back disorder could have been caused by other factors, to include development over time. Therefore, it does not explicitly exclude the in-service injury as the original cause of the Veteran's back problems. The Board also notes that it would appear illogical that the current low back disorder could have developed over time, to include years driving a bus, but not develop from documented in-service back problems particularly as the Veteran has provided credible testimony of recurrent problems since that time. The Board further observes that the Court held in Alemany v. Brown, 9 Vet. App. 518 (1996), that in light of the benefit of the doubt provisions of 38 U.S.C.A. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology." Further, in Gilbert, the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." In Gilbert the Court specifically stated that entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine established by Congress, when the evidence is in relative equipoise, the law dictates that the appellant prevails. See also 38 C.F.R. § 3.102. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the competent medical and other evidence of record reflects it is at least as likely as not that the Veteran's degenerative disc disease of the lumbar spine had its onset in service. Therefore, service connection is warranted for this disability. ORDER New and material evidence having been received to reopen the claim of entitlement to service connection for a low back disorder, the claim is reopened. Service connection for degenerative disc disease of the lumbar spine is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs