Citation Nr: 1323394 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 10-32 444 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a low back disability (claimed as low back pain), and if so, whether the reopened claim should be granted. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Haddock, Associate Counsel INTRODUCTION The Veteran had active naval service from September 1964 to August 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In connection with this appeal, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in April 2011 and accepted such hearing in lieu of an in-person hearing before a Veterans Law Judge. A transcript of the hearing is associated with the claims file. The Board has reviewed the physical claims file and the Virtual VA electronic claims file. FINDINGS OF FACT 1. In an unappealed December 2007 rating decision, the Veteran was denied entitlement to service connection for lumbar spine strain (claimed as low back pain). 2. The evidence associated with the claims file subsequent to the December 2007 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a low back disability. 3. A low back disability is not etiologically related to the Veteran's active service and thoracolumbar spine arthritis was not present within one year of his separation from such service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen a claim of entitlement to service connection for a low back disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 2. A low back disability was not incurred in or aggravated by active service and the incurrence or aggravation of thoracolumbar spine arthritis during such service may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). Additionally, in March 2006, the Court held that because the terms "new" and "material" in a new and material evidence claim have specific, technical meanings that are not commonly known to VA claimants, when providing the notice required by the VCAA, it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of the evidence that must be presented. Kent v. Nicholson, 20 Vet. App. 1, 9-10 (2006). With regard to the Veteran's claim to reopen, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of his claim and notice pertaining to the basis of the prior denial. In addition, the Board has determined that the evidence currently of record is sufficient to substantiate the Veteran's claim to reopen his claim of entitlement to service connection for a low back disability. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A or 38 C.F.R. § 3.159 as to this aspect of the claim. With regard to the Veteran's claim of entitlement to service connection for a low back disability on the merits, the record reflects that the Veteran was mailed a letter in May 2009 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. In the May 2009 letter, the Veteran was provided appropriate notice with respect to the disability-rating and effective-date elements of his claim. The Board also finds the Veteran has been afforded adequate assistance in response to his claim. The Veteran's service treatment records (STRs) and service personnel records (SPRs) are on file, private treatment notes have been obtained, and the Veteran was afforded an appropriate VA examination. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claim. Legal Criteria Claim to Reopen 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). Entitlement to Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Court has held that in order to prevail on the issue of service connection on the merits, there must be medical evidence of a (1) current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Where a veteran served for at least 90 days during a period of war and manifests arthritis to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist 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." For certain chronic diseases set forth in 38 C.F.R. § 3.309(a), to include arthritis, continuity of symptomatology is required when the condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. See 38 C.F.R. § 3.303(b) (2012); Walker v. Shinseki, 708 F.3d 1331, (Fed. Cir. 2013) (noting that "continuity of symptomatology" as specified in 38 C.F.R. § 3.303(b) affords an alternative route to service connection only for specific chronic diseases). Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis Claim to Reopen The Veteran originally filed his claim of entitlement to service connection for lower back pain in September 2007. In a December 2007 rating decision, the Veteran was denied entitlement to service connection for lumbar spine strain (claimed as low back pain) based on a finding that the Veteran did not have a low back disability that was related to his active service. The Veteran did not complete an appeal as to that decision. The pertinent evidence of record at the time of the December 2007 rating decision included the following: the Veteran's active service STRs, which show a single episode of lumbar strain during active service which fully resolved prior to his separation; several Navy Reserve annual examination reports which are negative for complaints of back pain in the years immediately following the Veteran's separation from active service; and, private treatment records showing that the Veteran received episodic treatment for low back pain since March 1989. The pertinent evidence that has been received since the unappealed December 2007 rating decision includes the following: several statements from the Veteran in which he asserted he injured his back while performing physical exercise in active service and that he has continued to experience back pain since that time; a January 2008 VA Agent Orange examination report in which it is noted that the Veteran reported he had been experiencing back pain since approximately 1975; additional private treatment records showing that the Veteran has continued to seek treatment for back pain; a January 2009 letter from the Veteran's former private treating physician, Dr. L.S. Sr., in which it was noted that the Veteran had been treated for lower back pain since 1969; a March 2009 letter from one of the Veteran's current private treatment providers, Dr. L.S. Jr., in which it was noted that since 1969 the Veteran had been receiving treatment for acute low back pain which occurred while the Veteran was in active service; a September 2010 VA examination report, in which the Veteran was diagnosed with lumbar spondylosis and degenerative disc disease (DDD) that was less likely as not related to his active service; and, the Veteran's April 2011 Board hearing testimony, at which time the Veteran again reported that he had injured his back during active service and had continued to experience back pain since that time. Assuming credibility for the purposes of the analysis of whether the Veteran's claim can be reopened, the Board finds that the Veteran's statements that he has experienced back pain since an injury during active service and the statements provided by the Veteran's private physicians that he has received treatment for back pain since 1969 are new and material. Therefore, the evidence is not cumulative or redundant of the evidence previously of record. Moreover, it is sufficient to raise a reasonable possibility of substantiating the claim. Accordingly, reopening of the claim of entitlement to service connection for a low back disability is in order. Entitlement to Service Connection for a Low Back Disability The Veteran has asserted that he injured his lower back during active service. Specifically, the Veteran reported that while performing sit-ups from a hanging position, he hyper-extended his back and has continued to experience back pain since that time. A review of the STRs shows that in February 1968, the Veteran received medical treatment for strained muscles, to include in the left lumbar region. At that time, it was noted that the Veteran had incurred the muscle strain when carrying a box on a working party. There was no follow-up treatment following the initial visit. In July 1968, the Veteran was afforded a separation examination. A review of that examination report shows that the Veteran specifically denied experiencing recurrent back pain during active service and his spine was found to be clinically normal at the time of his separation examination. Additionally, the Veteran had service in the Navy Reserves. In February 1970, March 1971, and March 1972, the Veteran was afforded annual reserve examinations. A review of those examination reports shows that the Veteran again specifically denied experiencing recurrent back pain and his spine was found to be clinically normal upon examination at the time of those examinations. A review of the post-service medical evidence shows that the Veteran was seen by his private chiropractor in March 1989. At that time, the Veteran reported that he had been experiencing back pain since April 1988, but the pain had become more severe in December 1988, causing him to end up seeking medical treatment. There is no indication from the treatment note that the Veteran ever reported experiencing a back injury or back pain while he was in active service. At that time, the examiner did not provide a definitive diagnosis, but rather reported that he believed that the Veteran was suffering with low back strain/sprain with segmental dysfunction and radiculopathy. In May 1993, the Veteran's chiropractor performed a spine evaluation and noted that the Veteran's thoracolumbar spine range of motion was limited by 50 percent. There is no indication from the chiropractor treatment notes of record that the Veteran ever reported injuring his back during active service during the course of his chiropractic treatment. In March 2003, the Veteran was seen by a private physician for complaints of low back pain that had been gradual and occurring in a persistent pattern for approximately three weeks. X-ray of the Veteran's lower spine at that time was noted to be routine and the examiner diagnosed backache, unspecified. In December 2004, the Veteran was seen for complaints of lower cervical spine pain and upper thoracic spine pain following a motor vehicle accident (MVA). There was no indication at that time that the Veteran also complained of low back pain following the MVA. The Veteran was seen in January 2005 for complaints of acute back pain that had been occurring for approximately three days. There was no diagnosis of a low back disability made at that time. In March 2005, the Veteran was seen again by his private physician and reported that he had been experiencing back pain since his December 2004 MVA. X-rays of the Veteran lower spine revealed mild degenerative joint disease (DJD) at that time. In January 2008, the Veteran was afforded a VA Agent Orange examination, at which time he reported that he had been experiencing back pain since 1975. The examiner diagnosed low back pain at that time. In a March 2009 letter, the Veteran's private physician reported that the Veteran had been receiving treatment for low back pain since approximately 1969 and that the low back pain was a result of an injury the Veteran incurred while in active service. The Veteran's private physician did not provide a diagnosis other than pain in his letter and records of this reported treatment are unavailable for review. In September 2010, the Veteran was afforded a VA examination. At that time, the Veteran reported that he had initially injured his back due to hyperextension while doing sit-ups from a hanging position in 1967. He reported that he has continued to experience back pain since that time. X-rays of the Veteran's lumbar spine revealed mild scoliosis, severe DDD at L4-5 and L5-S1, and severe spondylosis. The examiner diagnosed lumbar spondylosis and DDD with evidence of radiculopathy. Based on the history provided by the Veteran, a review of the record, and an examination of the Veteran, the examiner opined that it was less likely as not that the Veteran's current low back disability was a result of his active service, to include his February 1968 treatment for lumbar strain. In this regard, the examiner noted that the Veteran's back disability could have been incurred at any point during his lifetime. Further, the examiner noted that specifically indicating that the Veteran's current low back disability was related to one specific incident would be impossible without further evidence documenting such an incident. The Board notes that the Veteran is generally competent to report when he first experienced symptoms of back pain and that they have continued since his active service. However, 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")). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 133 (Fed. Cir. 2006). The Board may not ignore a veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits; personal interest may, however, affect the credibility of the evidence. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board notes that while the Veteran has reported that he injured his back during active service and has continued to experience low back pain since that time, these statements are inconsistent with the other evidence of record. As discussed above, there is no indication from the STRs that the Veteran experienced anything other than an acute and transitory episode of back strain during active service. Further, based on his July 1968 separation examination, the Veteran's back strain appears to have fully resolved prior to his separation. Additionally, at Navy Reserve annual examinations in 1970, 1971, and 1972, the Veteran denied recurrent back pain and his spine was found to be clinically normal upon examination at the time of all those examinations. Also, the Board notes that while the Veteran's private physicians have reported that the Veteran has received treatment for back pain since 1969, there is no evidence of a diagnosed low back disability, other than pain, until the March 2005 X-ray findings of mild DJD. Additionally, the Veteran's own statements regarding the onset of his back pain are incredibly inconsistent. In March 1989, the Veteran reported he had been experiencing back pain for approximately one year. In March 2002, the Veteran reported he had been experiencing back pain for three weeks. In January 2005, the Veteran reported he had been experiencing back pain for three years. In January 2008, the Veteran reported he had been experiencing back pain since 1975. At no time prior to his claim for disability benefits, did the Veteran ever report he had experienced back pain since his active service. Because the statements provided by the Veteran that he injured his back during active service and has been experiencing back pain ever since are inconsistent with each other and the other evidence of record, the Board finds that these statements are simply not credible. Further, while the Veteran might sincerely believe that his low back disability is related to an injury he sustained in active service and lay persons are competent to provide opinions on some medical issues, the issue of whether the Veteran's current low back disability is related to a reported injury sustained more than 40 years ago falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additionally, there is no documented evidence of record indicating that the Veteran was diagnosed with thoracolumbar spine arthritis prior to the March 2005 X-ray report showing mild DJD in the lower spine. That diagnosis was made more than 30 years following the Veteran's separation from active service. Therefore, presumptive service connection is not applicable in this case. In sum, the Veteran experienced an incident of acute and transitory lumbar strain in February 1968 that fully resolved without lasting residual prior to his separation from active service. The Veteran was not diagnosed with a low back disability, other than pain, until 2005, more than 30 years following his separation from active service. The statements provided by the Veteran indicating that he has experienced low back pain ever since active service are not credible. The Veteran has not presented credible evidence of continuity of symptomatology of arthritis since his separation from active service. The September 2010 VA examiner competently opined that the Veteran's low back disability is not related to his active service. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a low back disability is not warranted. ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for a low back disability, and to that extent, the claim is granted. Entitlement to service connection for a low back disability is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs