Citation Nr: 1327150 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 10-12 731 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bronchitis. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a left knee disability. 3. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a cervical spine disability. 4. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a low back disability. ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran served on active duty from October 2001 to January 2005. The instant matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. An appeal on the issue of whether new and material evidence had been submitted to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD) was also perfected by the Veteran. However, in a February 2012 decision, the RO "reopened" the Veteran's previously denied claim of service connection for PTSD and granted service connection, to include the assignment of a disability rating and an effective date, for that disorder. This represents a full grant of the benefit sought on appeal and, as such, it is no longer before the Board. See Shoen v. Brown, 6 Vet. App. 456, 457 (1994). (The decision below addresses the Veteran's claims to "reopen" his previously denied claims of service connection for bronchitis and left knee, neck, and low back disabilities. The underlying claim of service connection for a low back disability is addressed in the remand that follows the Board's decision.) FINDINGS OF FACT 1. By April 2005 and March 2006 rating decision, the RO denied claims of service connection for chronic bronchitis, a neck condition, back strain, and a left knee disability; the Veteran did not timely appeal. 2. Evidence received since the RO's March 2006 decision is cumulative and redundant of evidence of record at the time of that decision and does not, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the bronchitis, neck, and left knee claims; nor does it raise a reasonable possibility of substantiating those claims. 3. Evidence received since the RO's March 2006 decision relates to an unestablished fact necessary to substantiate the claim of service connection for a low back disability and it raises a reasonable possibility of substantiating the underlying claim. CONCLUSIONS OF LAW 1. The March 2006 rating decision that denied service connection for chronic bronchitis and left knee, neck, and back disabilities is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2005). 2. New and material evidence sufficient to reopen the previously denied claims of service connection for chronic bronchitis, a left knee disability, and a neck disability has not been received. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. New and material evidence has been submitted to reopen a claim of service connection for a low back disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Petition to Reopen Previously Denied Claims The Veteran originally filed for VA disability compensation for chronic bronchitis, a neck condition, back strain, and a left knee disability in January and October 2005. In rating decisions dated in April 2005 and March 2006, the RO denied those claims upon finding that although the Veteran had sought treatment in service for left knee pain, bronchitis and coughing, and back and neck pain, the evidence failed to show a resulting permanent residual or chronic disability and there was no medical evidence showing a current diagnosis of bronchitis or of a left knee, neck, or back disability. The Veteran did not timely file a notice of disagreement (NOD) as to that decision and the March 2006 RO decision therefore became final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2005). In this regard, the Board acknowledges that in a January 2008 statement, the Veteran asserted his disagreement with the March 2006 decision. However, to be timely, an NOD must be filed "within one year from the date that [the agency of original jurisdiction (AOJ)] mails notice of the determination" to the claimant. 38 C.F.R. § 20.302(a). If an NOD is not filed within the one-year time limit, the RO decision becomes final. 38 U.S.C.A § 7105(c). Thus, because the Veteran's January 2008 "NOD" was not received within one year from the March 2006 mailing of the RO's denial of his claims, the March 2006 decision is final. Id. As a result of the finality of the March 2006 RO decision, a claim of service connection for bronchitis or for a left knee, neck, or back disability may now be considered on the merits only if new and material evidence has been received since the time of the last final denial. 38 U.S.C.A. § 5108 (West 2002); Evans v. Brown, 9 Vet. App. 273 (1996); Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); 38 C.F.R. § 3.156 (2012). Section 3.156(a) of title 38, Code of Federal Regulations provides the following definitions of new and material evidence: 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); see Hodge v. West, 155 F.3d 1356, 1359 (Fed. Cir. 1998). In making the determination of materiality, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). To determine whether new and material evidence has in fact been submitted, the Board first must compare the evidence submitted since the previous final denial with evidence previously of record. If the newly submitted evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not merely cumulative of other evidence that was then of record, it will be considered "new evidence" under 38 C.F.R. § 3.156(a). If the evidence is in fact new, the Board will then consider whether it is also material. In this regard, the Board notes that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. See id. at 118, 124 (Lance, J. concurring). In this case, the relevant evidence of record at the time of March 2006 RO decision included: the Veteran's service treatment records (STRs); VA outpatient treatment records; and the report of a March 2005 VA contract examination. A review of the Veteran's STRs shows multiple treatment entries for complaints of back and neck pain. The Veteran indicated injuring his neck while doing sit-ups and a diagnosis of cervical strain was rendered in January 2002. The Veteran stated that he had injured his back when he jumped from a tactical vehicle. In September 2002, the Veteran presented with complaints of left lateral knee pain, which he stated had been present for 10 years. He was issued a knee brace. Subsequent treatment for left knee pain is noted, and possible causes were listed as iliotibial band syndrome and a light sprain/strain of the lateral collateral ligament. An October 2002 magnetic resonance imaging (MRI) scan of the left knee was normal. The Veteran was placed on profile for his left knee pain in August 2004. That same month, the Veteran presented with upper respiratory symptoms, noting a three month history of a mostly dry, but sometimes productive, cough. The assessment was possible bronchitis. The March 2005 VA QTC examination report shows that the Veteran complained of neck pain since 2001, of knee pain since 2002, and of chronic bronchitis since 2004. Examination of the left knee revealed a full range of motion and no objective evidence of instability. Examination of the cervical spine also revealed a full range of motion. There was no evidence of tenderness, radiating pain, muscle spasm, or intervertebral disc syndrome with chronic and permanent nerve root impairment. X-rays of the chest, left knee, and cervical spine revealed no abnormalities. X-rays of lumbar spine were also noted to be within normal limits. Pulmonary function test results showed no discrepancy with clinical evaluation. Upon review of the evidence and examination of the Veteran, the clinician indicated no diagnosis of bronchitis or a cervical spine or left knee disability, as there was no pathology upon which to base a diagnosis. In decisions dated in April 2005 and March 2006, the RO denied service connection for chronic bronchitis, a left knee disability, a cervical spine condition, and back strain upon finding that although the Veteran's STRs showed treatment in service relating to each claimed disability, the evidence failed to reveal that the Veteran had sustained a resulting permanent residual or chronic knee, back, neck, or respiratory disability, noting that there was no medical evidence showing a current diagnosis of bronchitis or a left knee, neck, or back disability. Since the March 2006 RO decision, the evidence relevant evidence that has been added to the record includes: VA treatment records; private medical records, records from the Social Security Administration (SSA); lay statements from the Veteran, and copies of articles pertaining to the war in Iraq. At the outset, the Board notes that a January 2008 MRI of the lumbar spine revealed disc protrusion with tear of the annulus fibrosis at L5-S1 with encroachment on the anterior subarachnoid space and moderate bilateral neural foraminal narrowing, as well as mild discs at L3-4 and L4-5. A computed tomography scan performed in July 2008 revealed multiple bulging intervertebral discs with probable focal protrusion centrally at L5-S1. In August 2008, the Veteran presented for a consultation for his chronic low back pain. The assessment made at that time was chronic low back pain secondary to lumbar spine degenerative disc disease and mild spinal stenosis. The Board finds that evidence showing a currently diagnosed back disability is new evidence, as it was not previously of record when the prior decision was made. That is, the previous evidence failed to indicate a diagnosed back disability. Further, it is material because, although not dispositive of the claim, it relates to an unestablished fact necessary to substantiate the claim of service connection and it raises a reasonable possibility of substantiating the claim. See Hickson v. West, 12 Vet. App. 247, 253 (1999) (establishing service connection requires, among other things, evidence of a current disability). Accordingly, the claim of service connection for a back disability is reopened with the submission of new and material evidence. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Concerning the Veteran's previously denied claims of service connection for bronchitis, a left knee disability, and a cervical spine disability, the Board has considered whether the evidence submitted since the March 2006 RO decision constitutes new and material evidence sufficient to reopen those claims, but finds that it does not. At the outset, the Board notes that included within the Veteran's SSA records are copies of the STRs related to his treatment for neck pain in service, which evidence cannot be considered new as it is duplicative of evidence previously of record. The Veteran also submitted articles pertaining to the war in Iraq; however, these articles were submitted in connection with the Veteran's PTSD claim and do not contain information relevant to his claims for bronchitis, a left knee disability, or a cervical spine disability. Further, none of the evidence associated with the claims folder since the March 2006 decision, to include the evidence contained in the Veteran's SSA records, demonstrates that the Veteran has, at any point since service, been diagnosed as having bronchitis or any other respiratory disorder, or a specific disability of the left knee or cervical spine. Rather, the majority of the newly associated evidence pertains to the Veteran's mental health related treatment. The Board notes that a June 2008 VA treatment records shows that the Veteran presented with complaints of a productive cough with thick sputum that had lasted for two weeks. He also reported chronic neck pain, exacerbated in the previous two weeks, and crepitus. Although evidence of a cough and neck pain may be indicative of a disability, evidence of similar symptomatology was of record at the time of the RO's March 2006 decision. Accordingly, because no respiratory disorder or cervical spine disability has been diagnosed and because the evidence fails to suggest that the Veteran's productive cough or neck pain is a residual of the bronchitis or cervical strain noted in service, the VA treatment record cannot be considered new and material evidence sufficient to reopen the claims because it does not relate to an unestablished fact necessary to substantiate either of those claims. The Board has also considered whether the evidence contained in the June 2008 entry triggers VA's duty to assist, but finds that it does not. As stated above, the Veteran's symptomatology may be indicative of a disability. The Board does not, however, find that singular instances of treatment for neck pain or a cough are sufficient to trigger VA's duty to provide a medical examination as this evidence does not suggest that the Veteran's symptomatology "may be associated" with service. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006) (holding that "credible evidence of continuity of symptomatology" . . . may indicate that a current disability "may be associated" with military service). Indeed, the Veteran reported the onset of his cough to have been two weeks prior, which does not suggest a continuity of symptoms since service. Further, although the Veteran described his neck pain as chronic, the evidence before the RO in March 2006 also indicated complaints of neck pain since service. Here, the Boards finds that the Veteran's complaints of chronic neck pain, which has never been linked to a diagnosed disability of the cervical spine or to service despite previously receiving a medical examination to examine that possibility, is not sufficient to trigger VA's duty to provide the Veteran with another VA examination as his symptoms are the same as they were at the time of the March 2005 QTC examination that determined no existing pathology for the Veteran's complaints of neck pain. In sum, the evidence associated with the claims folder since the March 2006 RO decision is either cumulative or redundant of the previously submitted evidence or does not relate to an unestablished fact necessary to substantiate the claims of service connection bronchitis, a left knee disability, or a low back disability. The evidence also does not trigger VA's duty to assist. Accordingly, the Board finds that new and material evidence has not been submitted. Thus, the petition to reopen the claims of service connection for bronchitis, a left knee disability, and a back disability must be denied. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). As new and material evidence to reopen the finally disallowed claim has not been received, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). II. Notice and Assistance 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. They also require VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). As part of the notice, VA is to specifically inform the claimant and the claimant's representative 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. The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to notify with respect to a petition to reopen a previously disallowed claim, VA must also advise the claimant of the evidence and information necessary to reopen the claim and of the evidence and information necessary to establish entitlement to the underlying claim for the benefit sought by the claimant. Kent v. Nicholson, 20 Vet. App. 1 (2006). This requires VA to 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. Id. at 9-10. The Veteran's petition to reopen was also received in January 2008. In a July 2008 letter, the RO notified the Veteran that his claims of service connection for bronchitis, a left knee disability, and a low back disability were previously denied because the evidence failed to show evidence of current disabilities. The Veteran was informed that he needed to submit new and material evidence and was advised of the definition of such. He was further advised of VA's duty to assist and of his responsibilities in the adjudication of his claim. The Veteran has not disputed the contents of the VCAA notice in this case. Further, the Board finds that the July 2008 notice letter complies with the requirements of 38 U.S.C.A. § 5103(a) and Kent, supra, and afforded the Veteran a meaningful opportunity to participate in the development of his claims. Thus, the Board is satisfied that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied. Regarding the duty to assist, the Board also finds that VA has adequately fulfilled its obligation to assist the Veteran in obtaining the evidence necessary to substantiate his claim. All available relevant evidence pertaining to the Veteran's claims has been obtained. The evidence includes his STRs, VA treatment records, private treatment records, SSA records, and statements from the Veteran. The Veteran has not alleged that there is any additional outstanding evidence pertinent to his claim. The Board is also unaware of any such evidence. The Veteran was not afforded a VA examination in connection with his petition to reopen. The duty to provide a VA medical examination does not apply to a claim to reopen a finally adjudicated claim without the submission or receipt of new and material evidence. 38 C.F.R. § 3.159(c)(4)(iii) (2012). In this regard, the Board has considered whether the evidence presented is sufficient to trigger VA's duty to provide the Veteran with a medical examination, but, as discussed above, finds that it is not. See Shade and McLendon, both supra. Accordingly, as new and material evidence has not been submitted and the Veteran's claim of service connection for diabetes mellitus has not been reopened; therefore, an examination is not required. ORDER New and material evidence having been received, the claim of entitlement to service connection for a back disability is reopened; to that limited extent, the appeal is granted. As new and material evidence to reopen a claim of service connection for bronchitis has not been received, the claim to reopen is denied. As new and material evidence to reopen a claim of service connection for a left knee disability has not been received, the claim to reopen is denied. As new and material evidence to reopen a claim of service connection for a cervical spine disability has not been received, the claim to reopen is denied. REMAND Regarding the Veteran's "reopened" claim of service connection for a back disability, the Board notes that the Veteran was afforded a VA examination in connection with that claim in December 2009. Upon examination of the Veteran and review of the evidence, the examiner opined that the Veteran's low back disability is less likely than not caused by or a result of service. Notably, however, the examiner indicated that the Veteran had alleged treatment related to his low back on three occasions between being discharged from service and first being seen at VA. The examiner indicated the absence of any such treatment records form the claims folder and stated that without being able to review those records, "there is no way to confirm the chronicity [versus] a separate injury/condition," and stated that if the records were received, the case should be reviewed. Given that the evidence indicates the potential existence of relevant records, the Board finds that the matter must be remanded for the AOJ to attempt to obtain records related to treatment of the Veteran's back between 2005 and 2008. See 38 U.S.C.A § 5103A(b)(1) (requiring VA to assist claimants in obtaining evidence necessary to substantiate their claims by making "reasonable efforts to obtain relevant records (including private records)," as long as the claimant "adequately identifies" those records and authorizes the Secretary to obtain them); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (defining relevant records as "those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the veteran's claim."); Loving v. Nicholson, 19 Vet. App. 96, 101-02 (2005). Accordingly, the case is REMANDED to the AOJ for the following action: 1. The AOJ should contact the Veteran and request that he provide the full name(s), address(es), and date(s) of treatment for the facility or facilities where he reportedly received treatment related to his back between 2005 and 2008. Following receipt of that information, the AOJ should contact the facility or facilities in question, with a request that copies of any and all records pertaining to the Veteran on file be provided to the AOJ. (The Veteran should be requested to sign any necessary authorization for release of any private medical records to VA.) 2. After action requested in paragraphs 1 above is completed (to include allowing for an appropriate amount of time for the Veteran's response) and any records obtained in response to the above request have been associated with the claims folder, the AOJ should contact the VA examiner who examined the Veteran in December 2009 and obtain from her an addendum to her examination report. The examiner should again review the claims folder, to specifically include all records obtained pursuant to the remand directives set forth above, and provide an extended rationale for her opinion regarding the etiology of the Veteran's back disability that discusses the Veteran's assertion that he has experienced low back pain since service. The examiner should state specifically why the Veteran's complaints of back pain since service and, regardless of whether records are obtained his assertion of treatment between for such between 2005 and 2008, are not sufficient to support a nexus between a currently diagnosed low back disability and service. The examiner should include reference to lay and medical evidence contained in the claims folder, if appropriate, or to known medical principles relied upon in forming his opinion. (If the December 2009 examiner is no longer available, the AOJ should arrange for the Veteran's claims folder to be reviewed by another VA clinician with the appropriate expertise to provide an opinion as to whether it is at least as likely as not that any diagnosed low back disability is related to his period of military service, which opinion must take into account the Veteran's lay statements concerning continuity of symptomatology since service.) 3. After undertaking any other development deemed appropriate, the AOJ should re-adjudicate the issue of entitlement to service connection for a low back disability. If a benefit sought is not granted, the Veteran should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until he is notified. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ THOMAS H. O'SHAY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs