Citation Nr: 1324670 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 09-22 663 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for failed low back syndrome, status-post low back disc excision with fusion and chronic muscular strain (low back disorder). 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for left hand laceration (claimed as residuals of a left hand injury), and if so, whether the reopened claim should be granted. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD Tanya A. Smith, Counsel INTRODUCTION The Veteran had active service from January 1969 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2008 and September 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon and Seattle, Washington, respectively. In August 2011, the Board remanded the claims to the RO to satisfy a hearing request. In December 2011, the Veteran was rescheduled to appear at a Travel Board hearing before a Veterans Law Judge; however, he failed to appear. As such, the hearing request is considered withdrawn. See 38 C.F.R. § 20.704(d) (2012). In March 2012, the Board remanded the claims for further evidentiary development. The case has been returned to the Board for further appellate review. FINDINGS OF FACT 1. The May 2008 rating decision that denied service connection for left hand laceration is final. 2. The evidence received since the May 2008 RO rating decision includes evidence that is neither cumulative nor redundant, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for left hand laceration. 3. The medical evidence of record shows that the Veteran has residual scarring from an in-service laceration of the fingers of the left hand. 4. The medical evidence of record shows that there is no disability of the left hand other than residual scarring that is etiologically related to the in-service laceration of the fingers of the left hand. 5. The medical evidence of record shows that the Veteran's current low back disability is not etiologically related to in-service back injuries. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for left hand laceration (claimed as residuals of a left hand injury). 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2012). 2. Residual scarring from laceration of the fingers of the left hand was incurred in active service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). 3. Disability of the left hand other than residual scarring from laceration of the fingers of the left hand was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). 4. Failed low back syndrome, status-post low back disc excision with fusion and chronic muscular strain (low back disorder) was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). Moreover, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (reaffirming that the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). In addition, the Board notes that in claims to reopen, the duty to notify requires that the Secretary look at the bases for the denial in the prior decision and respond with a notice letter that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. See Kent v. Nicholson, 20 Vet. App. 1 (2006). In light of the Board's decision to reopen the left hand claim, no discussion on whether the Veteran received notice in compliance with Kent is necessary. As for the underlying issue of entitlement to service connection for a left hand disability, the Board recognizes that the RO did not provide the Veteran with VCAA notice. This is harmless error. The Board finds that the Veteran is entitled to service connection for residual scarring of a left hand injury. To the extent the Veteran's complaints of stiffness and loss of range of motion in the left hand may be attributable to another disability of the left hand, the Board finds that the Veteran's statements provided throughout the adjudication of his claim demonstrate that he had actual notice of the type of evidence that may substantiate his claim. In the June 2008 claim and June 2009 notice of disagreement, the Veteran requested to be rescheduled for VA examinations he failed to report to previously. Therefore, the Veteran had actual acknowledge that he needed evidence showing his current left hand complaints were linked to his in-service left hand injury. In regard to notice of how disability evaluations and effective dates are assigned, and the type of evidence that impacts those determinations, the Veteran may be provided with such notice around the time the RO assigns the initial rating and effective date for service connection of residual scarring of the left hand. There is no prejudice in failure to provide such notice in regard to that portion of the left hand claim being denied as no initial rating or effective date is to be assigned. In regard to the issue of entitlement to service connection for a low back disability, the Board observes that in a September 2007 VCAA letter sent to the Veteran prior to the appealed May 2008 rating decision, the RO provided notice to the Veteran regarding what information and evidence was needed to substantiate the claim as well as what information and evidence must be submitted by the Veteran and the types of evidence that would be obtained by VA. The 2007 VCAA letter also advised the Veteran how disability evaluations and effective dates are assigned, and the type of evidence that impacts those determinations. The Board finds that there are no further notice obligations under VA's duty to notify. The record also reflects that VA has made reasonable efforts to assist the Veteran in the development of his claims. Specifically, the information and evidence that have been associated with the claims file includes service treatment records, private and VA treatment records, and records from the Social Security Administration. The Veteran was afforded VA examinations in March 2010 (left hand disability) and October 2012 (low back disability) which the Board find adequate as the examiners reviewed the claims file, considered the contentions of the Veteran, examined the Veteran, and provided a supporting rationale for the opinions rendered. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008). The Board has also reviewed the Veteran's paperless Virtual VA claims file, a highly secured electronic repository that is used to store and review documents involved in the claims process. It does not contain any evidence not already in the paper claims folder or considered by the RO. As discussed above, the Veteran was notified and/or aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process, identifying relevant treatment he received for his disabilities. Thus, he has been provided with a meaningful opportunity to participate in the claims process and has done so. The Board finds that VA's duty to assist has been met. Also, the Board finds that there has been substantial compliance with the directives of the August 2011 and March 2012 Remands. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). II. New and Material Evidence 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). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. See Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curiam) (holding that the "presumption of credibility" doctrine continues to be binding precedent); Justus v. Principi, 3 Vet. App. 510, 513 (1992). But see Duran v. Brown, 7 Vet. App. 216, 220 (1994) (providing that VA is not required to consider the patently incredible to be credible). 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) (2012). In determining whether new and material evidence has been received to reopen a claim, there is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA's duty to obtain a VA examination. Id. at 118. Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. Id. at 120 (noting the assistance of 38 C.F.R. § 3.159(c)(4) would be rendered meaningless if new and material evidence required a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). In a May 2008 rating decision, the RO denied service connection for a left hand laceration in the absence of medical evidence showing residuals from the in-service injury. The RO found that while the Veteran was treated in service for a laceration to the left second and third fingers in 1969, records showed no further problems and no residuals were identified at separation. Post-service treatment records did not address the condition, and the Veteran failed to report for a VA examination scheduled in connection with his claim. In the notice of decision letter dated in May 2008, the RO advised the Veteran of the denial and enclosed VA Form 4107, which explained the Veteran's procedural and appellate rights. In a June 2008 letter, the Veteran requested that he be scheduled for new examinations because he "did not willingly miss these appointments" and "[t]here was some confusion with the scheduling and [he] was never notified that [he] had appointments." The Veteran requested that the RO "re-proceed" with his claim. The RO reconsidered the Veteran's claim and continued the denial in a September 2008 rating decision on the basis of the Veteran's failure to report for yet another VA examination. A notice of disagreement with the denial was received in June 2009. The Board finds that the Veteran did not appeal the May 2008 rating decision within the one year following notice of the decision and it became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). The relevant evidence of record at the time of the May 2008 rating decision included the Veteran's service treatment records which showed in-service treatment for a laceration of the left dorsal second and third fingers. Also, a February 1991 VA examination report noted a history of stitching of the left hand due to the laceration, which healed well. The Veteran's claim to reopen was received in June 2008. Relevant evidence received subsequent to the May 2008 rating decision is a March 2010 VA examination report in which in regard to the in-service left hand injury, it was noted that the "scars [were] barely visible." The Board finds that the March 2010 examination report is new in that it was not previously of record, and material as it relates to the prior basis for denial of the claim. In this regard, the Board observes that the evidence shows the presence of residuals of the in-service left hand injury. Accordingly, new and material evidence has been received, and the claim is reopened. III. Service Connection As new and material evidence has been received to reopen the claim of service connection for residuals of a left hand injury, the Board will now conduct a de novo review of the claim. In this regard, the Board finds that the Veteran is not prejudiced by the Board's adjudication of the issue as this juncture as a review of the claims file demonstrates that the RO in the statement of the case and supplemental statement of the case has conducted a de novo review of this claim. 1. Pertinent Laws and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). In order to establish service connection for a claimed disorder, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2012). The United States Court of Appeals for the Federal Circuit has recently held that absent a diagnosis of a chronic disease as defined in 38 C.F.R. § 3.309(a), service connection may not be awarded based on continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a compensable degree within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2012). 2. Left hand laceration (claimed as residuals of a left hand injury) As noted above, service treatment records show that the Veteran sustained a laceration to the dorsal second and third fingers of his left hand in April 1969. The Veteran underwent a VA orthopedic examination in March 2010. Although "barely visible" and no clinical evidence of "keloid tissue," the fact remains that the VA examiner has found that the Veteran has residual scars from the in-service laceration to the left hand. Accordingly, service connection for residual scarring from the in-service laceration of the fingers of the left hand is warranted. The Board, however, is cognizant that the Veteran also contends that he has stiffness and loss of motion of his left hand as the result of his in-service left hand injury. The examiner found that the Veteran's stiffness and loss of range of motion of the left hand was not related to his in-service left hand injury. The examiner maintained that the Veteran had no trouble with his left hand at discharge and that he worked as a truck driver since discharge from the military up to 2007. The examiner indicated that she was convinced the Veteran had a great incapacitation clinically but to relate minor injuries sustained forty years ago to today's health status would be a stretch. The examiner noted that there was no evidence of fracture, dislocation, or severed tendon or tendon repairs documented to the left hand in service. The examiner maintained that the Veteran's neurological deficits might be related to disuse, left shoulder pain, and/or cervical anomaly. Indeed, the Veteran also underwent a March 2010 neurological examination during which time the Veteran complained of radicular pain to the left shoulder and to his left arm that sometimes traveled down to his second or third left digits that had been present since the 1980s. The electromyography (EMG) confirmed a diagnosis of left carpal tunnel syndrome and upper extremity radiculopathy with EMG evidence of a deficit in C8 on the left side. Thus, the medical evidence does not show a disability other than residual scarring that is attributable to the in-service laceration of the fingers of the left hand. Moreover, the Veteran has not contended that he has experienced symptoms of stiffness, loss of range of motion, and radicular pain ever since the in-service left hand injury. Rather, he has only provided a general conclusory nexus statement that all of his hand symptoms are due to the in-service injury. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific nexus issue in this case, whether symptoms of stiffness, loss of range of motion, and radicular pain manifesting many years later are etiologically related to an in-service laceration of the hand falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (providing that lay persons are not competent to diagnose cancer). The medical evidence of record has established no such causal relationship. Accordingly, the Board finds that service connection is not warranted for a disability of the left hand other than residual scarring from laceration of the fingers of the left hand. In reaching the above conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. The preponderance of the evidence, however, is against the Veteran's claim and so that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 3. Failed low back syndrome, status-post low back disc excision with fusion and chronic muscular strain (low back disorder) The Veteran is currently diagnosed with degenerative osteoarthritis and degenerative disc disease of the lumbar spine, status post L4-L5 laminectomy/fusion with residual bilateral lower extremity radiculopathy, chronic pain, and decreased motion. See October 2012 VA examination report. Thus, the evidence of record shows a current disability. The Veteran contends that his current low back disability is related to back injuries he sustained in service. Specifically, he contends that his back problems were caused from "riding (bouncing) around in tanks and moving boxes of artillery." See June 2007 statement. He injured his low back twice from hitting his low back while standing up in the tank hatch/turret, and he experienced pain in the back at that time but was told to "suck it up." See October 2012 VA examination report. He also twisted his back several times from lifting ammunition into the gun tube of the tank. Id. The Veteran indicated that he was never seen in the military clinic for any back pain or injury. Id. The December 1971 separation Report of Medical History, however, shows that in response to the question of whether the Veteran ever had or had now "back trouble of any kind," the Veteran reported a positive answer. The DD Form 214 also shows the Veteran's military occupational specialty was an armored crewman. The Veteran is competent to report on factual matters of which he has firsthand knowledge (see Washington v. Nicholson, 19 Vet. App. 362, 368 (2005)) and his reports are consistent with the circumstances of his military occupational specialty. 38 U.S.C.A. § 1154(a) (West 2012). Therefore, the Board finds that there is sufficient evidence of record that establishes that the Veteran sustained injuries to his low back in service. The mere fact of an in-service injury is not enough, however, there must be chronic disability resulting from such injury. The Board finds that the probative evidence of record fails to show that the Veteran's current low back disability is etiologically related to the in-service back injuries. The March 2010 VA examiner provided a negative opinion; however, the Board found that the opinion was inadequate as it did not appear that the examiner considered the fact that service treatment records showed the Veteran's lay reports of back pain at separation. Accordingly, the Veteran underwent another VA examination in October 2012. The October 2012 VA examiner found that there was no relationship between the current low back disability and any claimed in-service back injuries. The VA examiner provided the below rationale. The Veteran reported that after discharge he experienced intermittent pain in the back. He claimed that he went to "VA" around 1978 or 1979 and again around 1989 or 1990 because of back pain but he received no treatment. The examiner noted that when the Veteran was initially questioned he denied ever experiencing any injuries or accidents after military service. When again questioned concerning the report that he was struck by a car in 2007, the Veteran replied, "Oh that was nothing it didn't knock me out." When questioned about the 1991 orthopedic report that indicated that the Veteran received workmans' compensation benefits for a 1988 back problem, he replied, "Oh, I fell out of my brother's truck." The Veteran then reported that this fall led to his laminectomy/fusion. The examiner noted that the Veteran acknowledged that he did not receive treatment for his back in service, the service treatment records only contained a single notation of back complaints entered on the separation questionnaire, and the Veteran did not pursue this complaint during his separation physical. The Veteran did experience back injuries and trauma 16 and 25 years after his military discharge, and the record was silent for any treatment of back issues until the Veteran's laminectomy/fusion in 1988. Also, at the 1991 VA orthopedic visit the Veteran specifically reported that his "only memory of any ortho trouble, while in military was some stitching of the left hand for laceration." Therefore, the examiner found that the claimed back condition was less likely than not incurred in or caused by the claimed in-service injury. The Boards finds that the unfavorable October 2012 VA opinion is persuasive as it is based on a review of the claims file, examination of the Veteran, consideration of the Veteran's lay reports, and supported by a rationale. There is no medical nexus opinion of record to the contrary. Rather, the only favorable nexus evidence is the Veteran's lay contention that his current low back disorder is related to service. While the Veteran is competent to describe readily observable features or symptoms of illness, and competent to report that he has experienced intermittent pain in the back after discharge (see Barr v. Nicholson, 21 Vet. App. 303, 309 (2007), the Board does not find his report of continuity of symptomatology since service credible. The Veteran's 2012 contention that he went to "VA" in 1978 or 1979 for back pain but received no treatment is inconsistent with statements he made in 1990. The Veteran's initial contacts with VA in 1990 were to seek nonservice connected pension benefits for his back. See November 1990 VA Form 21-526. At that time, the Veteran did not mention that he sustained a back injury in service; rather, he only reported on a 1988 back injury. Id. The Veteran specifically denied a history of chronic back problems prior to 1988 and associated all of his back complaints with the 1988 back injury. See February 1991 VA examination report. It is not plausible to the Board that had the Veteran been experiencing back pain ever since injuries to his back in service that he would have been silent regarding such complaints. The Board also finds it significant that the Veteran did not initially disclose his history of post-service back injuries to the 2012 VA examiner. Also significant is the fact that the Veteran's 2012 report regarding the circumstances surrounding his 1988 back injury ('injured from falling out of his brother's truck') is inconsistent with reports he made contemporaneous to the 1988 back injury ('injured on the job moving heavy rolls of paper'). Records from Bay Area Hospital dated in March 1989 even further show that the Veteran reported he was a truck driver who had had problems with his back for the last two years. He reported that his problems began when he took a long run to Portland, got out of his truck, and his back locked. He denied any previous significant medical problems. The inconsistent statements show that the Veteran is an unreliable historian. For these reasons, the Board finds that there is no credible evidence of a continuity of symptomatology of back complaints since service. Also, the Veteran's general statement that there is a relationship between his current low back disorder and back injuries in service in and of itself does not constitute probative competent evidence establishing such nexus. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific nexus issue in this case, whether the Veteran's current low back disorder is etiologically related to in-service back injuries falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (providing that lay persons not competent to diagnose cancer). Given all of the above, the Board finds that service connection is not warranted for a low back disability. In reaching the above conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. The preponderance of the evidence, however, is against the Veteran's claim and so that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER New and material evidence having been received, the claim of entitlement to service connection for left hand laceration (claimed as residuals of a left hand injury) is reopened. Service connection for residual scarring from laceration of the fingers of the left hand is granted. Service connection for a disability of the left hand other than residual scarring from laceration of the fingers of the left hand is denied. Service connection for failed low back syndrome, status-post low back disc excision with fusion and chronic muscular strain (low back disorder) is denied. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs