Citation Nr: 1326563 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 09-27 709A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for a lumbar spine disorder. WITNESSES AT HEARING ON APPEAL The appellant and his father ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1981 to June 1984. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran and his father testified before a Decision Review Officer (DRO) at the RO in Indianapolis, Indiana, in March 2009. This transcript has been associated with the claims file. FINDINGS OF FACT 1. In a March 2003 rating decision, the RO denied the Veteran's claim for service connection for residuals of a low back injury. The Veteran was notified of the decision and of his appellate rights, but he did not appeal. There was also no evidence received within one year of the issuance of that decision. 2. The evidence received since the March 2003 rating decision, by itself, or in conjunction with previously considered evidence, does not relate to an unestablished fact necessary to substantiate the claim for service connection for a lumbar spine disorder and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The March 2003 rating decision that denied the claim for service connection for residuals of a low back injury is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2012). 2. The evidence received subsequent to the March 2003 rating decision is not new and material, and the claim for service connection for a lumbar spine disorder is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to review the entire record, the Board does not have to discuss each piece of evidence reviewed. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). Duty to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court of Appeals for Veterans Claims (Court) held that the law requires VA to look at the bases for the denial in the prior decision and to respond with notice 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. In this case, the RO did provide the appellant with notice in February 2008, prior to the initial decision on the claim in June 2008. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. The RO informed the Veteran in the notice letter about the information and evidence that is necessary to reopen his previously denied claim. Specifically, the February 2008 letter noted that the Veteran's claim for service connection for a back disorder had been previously denied and informed him that new and material evidence was needed to reopen his claim. The letter explained that new means that the evidence must be in existence and be submitted to VA for the first time. It was also noted that the additional existing evidence must pertain to the reason the claim was previously denied in order to qualify as material. The February 2008 letter stated that the Veteran's previous claim had been denied because there was no medical opinion of record establishing a relationship between a current disorder and his military service. It was noted that evidence must be submitted that relates to that fact. The letter further stated that the new and material evidence must raise a reasonable possibility of substantiating the claim and that the evidence cannot simply be repetitive or cumulative of the evidence considered in the previous denial. As such, the February 2008 letter essentially notified the Veteran to look to the bases for the previous denial to determine what evidence would be new and material to reopen the claim. See Kent v. Nicholson, 20 Vet. App. 1 (2006) (law requires VA to look at the bases for the denial in the prior decision and to respond with notice 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). Moreover, the February 2008 letter informed the Veteran of the evidence needed to substantiate a claim for service connection and of the division of responsibilities in obtaining such evidence. The letter also explained how disability ratings and effective dates are determined. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all available post-service medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the his claim. The Veteran and his representative have not identified any available, outstanding records that are relevant to the claim being decided herein. The Board does observe that the Veteran has not been afforded a VA examination in connection with the current application to reopen the claim for service connection for a lumbar spine disorder. However, the duty to provide a medical examination and/or obtain a medical opinion in a claim for disability compensation benefits does not apply in cases involving an attempt to reopen a finally adjudicated claim unless new and material evidence is presented or secured. See 38 C.F.R. § 3.159(c)(4)(iii) (2012). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Law and Analysis 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. 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). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain diseases, such as arthritis, may be also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Initially, the Board observes that the Veteran's claim for service connection for a lumbar spine disorder was previously considered and denied by the RO in a rating decision dated in March 2003. The Veteran was notified of that decision and of his appellate rights in a letter sent to him that same month, but he did not appeal. There was also no evidence received within one year of the issuance of that decision. Therefore, the March 2003 rating decision became final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. In October 2007, the Veteran submitted another application in which he essentially requested that the claim for service connection for a lumbar spine disorder be reopened. In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. For applications to reopen filed after August 29, 2001, as was the application to reopen the claims in this case, new and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. 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). The United States Court of Appeals for Veterans Claims (Court) has held that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, 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 ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist. Id. at 118. As noted above, the RO previously denied the Veteran's claim for service connection for a lumbar spine disorder in a March 2003 rating decision. The evidence before the RO at the time of that decision included the Veteran's service treatment records, VA medical records, and August 2002 VA examination report, as well as his own assertions. The RO denied the claim based on the lack of evidence establishing that the Veteran injured his lumbar spine in service and had residuals of any injury. The RO acknowledged that the Veteran was involved in a helicopter rappelling accident in 1982; however, it was also noted that the Veteran did not complain of a lumbar spine disorder at that time, nor was one diagnosed. The RO also observed that the Veteran was treated later in service with lumbar spine pain, but that this pain resolved. In rendering this determination, the RO also relied on an August 2002 VA examiner's opinion that the Veteran's lumbar spine disorder was not related to his military service. The evidence received since the March 2003 rating decision includes VA treatment records, records from the Social Security Administration (SSA), the Veteran's statements, and hearing testimony. However, the Board finds that such evidence is not new and material within the meaning of the laws and regulations set forth above, and as such, there is no basis to reopen the claim for service connection for a lumbar spine disorder. The VA treatment records and SSA records show that the Veteran has had epidural injections for his lumbar spine disorder and that he continues to have lumbar spine pain. The Veteran also testified at a DRO hearing in March 2009 that he believes he injured his back during a helicopter rappelling accident in service. He further stated at that hearing that he continues to experience lumbar spine pain that requires medication. See March 2009 hearing transcript. The Veteran has further indicated that he entered service with a back disorder from a pre-service injury in 1979. The pre-existing back injury was noted on his April 1981 entrance examination, which was considered in the original March 2003 decision. While the VA treatment records, SSA records, statements, and testimony were not available at the time of the March 2003 rating decision, the Board notes that this evidence is cumulative of the evidence previously considered in March 2003. The RO had already noted in March 2003 that the Veteran had an accident and back pain in service as well as a current diagnosis. His allegations also remain the same. Significantly, the evidence missing at the time of the March 2003 rating decision continues to be absent. Specifically, there remains no evidence, other than Veteran's own assertions, showing that he currently has a lumbar spine disorder that is related to his military service. Thus, the evidence does not does not relate to an unestablished fact necessary to substantiate the claim and does not raise a reasonable possibility of substantiating the claim. Accordingly, the Board finds that new and material evidence has not been presented to reopen the Veteran's previously denied claim for service connection for a lumbar spine disorder. ORDER New and material evidence not having been submitted, the application to reopen a claim of entitlement to service connection for a lumbar spine disorder is denied. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs